PROPOSED RULES Before an agency may permanently adopt a new or amended section or repeal an existing section, a proposal detailing the action must be published in the Texas Register at least 30 days before action is taken. The 30-day time period gives interested persons an opportunity to review and make oral or written comments on the section. Also, in the case of substantive action, a public hearing must be granted if requested by at least 25 persons, a governmental subdivision or agency, or an association having at least 25 members. Symbology in proposed amendments. New language added to an existing section is indicated by the use of bold text. [Brackets] indicate deletion of existing material within a section. TITLE 16. ECONOMIC REGULATION Part II. Public Utility Commission of Texas Chapter 23. Substantive Rules Records and Reports 16 TAC sec.23.13 The Public Utility Commission of Texas proposes an amendment to sec.23.13, concerning construction reports. The proposal would clarify for which types of facilities utilities must file construction reports with the commission. In addition, the proposal would require interim construction reports for all facilities subject to the rule and preliminary and final reports for specified facilities, if requested by the commission staff. The proposal would also require final construction reports for other specified facilities in all cases. Finally, the proposal would delete the reference to commission-approved forms, because they are now addressed in Procedural Rule sec.22.80. Keith Rogas, assistant general counsel, has determined that for each year of the first five years that the proposed section will be in effect, there are no foreseeable implications relating to costs or revenues of the state or local governments as a result of enforcing or administering the section. Mr. Rogas also has determined that for each of the first five years that the proposed section will be in effect, the public benefit expected as a result of adoption of the proposed section is the more efficient acquisition of information concerning construction of utility facilities. In addition, the probable economic costs to persons required to comply with the proposed section are costs incurred in submitting construction reports that the commission currently does not require. Mr. Rogas also has determined that for each year of the first five years that the proposed section will be in effect, there are no probable impacts on employment in the geographic areas affected by implementing the requirements of the proposed section. Comments on the proposal (13 copies) may be submitted to John M. Renfrow, Secretary of the Commission, 7800 Shoal Creek Boulevard, Austin, Texas 78757. Comments should be submitted within 30 days after publication of the proposed section and should refer to Project Number 12703. The amendment is proposed under Texas Civil Statutes, Article 1446c, sec.16(a), which provide the Public Utility Commission of Texas with the authority to make and enforce rules reasonably required in the exercise of its power and jurisdiction. The following statute is affected by this proposed section: Texas Civil Statutes, Article 1446c, sec.sec.16(a), 39(a), and 41(a). sec.23.13. Statistical Reports. (a) (No change.) (b) Construction Reports. Each utility constructing a facility listed in sec.23.31(c)(1)(B)-(E), or (2)(D) or (G)
    [requiring reporting to the commission under sec.23.31(c)] of this title (relating to Certification Criteria) shall report to the commission [on the commission-prescribed preliminary construction report form] prior to the commencement of construction and within 120 days after construction is completed. However, reports prior to the commencement of construction for facilities covered by sec.23.31(c)(1)(B) and (2)(D) and reports within 120 days after construction is completed for facilities covered by sec.23.31(c)(1)(E) and (2)(G) are required only if requested by the commission staff. Monthly, quarterly, or annual progress reports also shall be provided if requested by the commission staff.
      [In addition, monthly progress reports, quarterly status reports, and annual cost and schedule variance analyses shall be provided for all new generating plants, if requested by the commission staff, and major generation or transmission system modifications. The form and format of these reports shall be approved by the commission.] (c)-(e) (No change.) This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on May 27, 1994. TRD-9441530 John M. Renfrow Secretary of the Commission Public Utility Commission of Texas Earliest possible date of adoption: July 8, 1994 For further information, please call: (512) 458-0100 Part IV. Texas Department of Licensing and Regulation Chapter 75. Air Conditioning and Refrigeration Contractor License Law 16 TAC sec.sec.75.20, 75.23, 75.30, 75.40, 75.70 The Texas Department of Licensing and Regulation proposes amendments to sec.sec.75.20, 75.23, 75.30, 75.40, and 75.70, concerning licensing for air conditioning and refrigeration contractors. Section sec.75.20 reflects a change in the name of the trade school accrediting body; the change in sec.75.23 clarifies requirements for eligibility for a temporary license; a new paragraph is added to sec.75.30 to extend the maintenance man exemption to apply to an owner of property on his own property; the change in sec.75.40 allows insurance to be obtained from eligible surplus lines insurance carriers; and a new paragraph is added to sec.75.70 to limit subcontracting of service work to licensed persons, firms, or corporations. The justification for the amendments is that consumers will have more protection. This is particularly true for the new paragraph in sec.75.70, because when service work is subcontracted to an unlicensed individual, there is no personal supervision by the licensed contractor for any part of the job. This type of operation makes it difficult for the consumer to identify the person responsible for the fairness and integrity of a job, and may allow some unscrupulous people to operate scams or provide poor or incompetent service. The amendments will function by increasing program integrity. James D. Brush II, director, Policies and Standards Division, has determined that for the first five-year period the sections are in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the sections. Mr. Brush also has determined that for each year of the first five years the amendments are in effect the public benefit anticipated as a result of enforcing the sections will be much greater protection for the consumer because work will be performed by qualified license-holders. The cost for compliance for small businesses will be that licensed contractors who have been subcontracting service work to unlicensed individuals will have to either hire employees to do service work or use subcontractors who are licensed themselves. If the licensed contractor chooses to use a licensed subcontractor the cost would be minimal. If the licensed contractor chooses to hire an employee who owns his own truck and tools, the cost per employee would be minimal. If he chooses to provide the truck and tools for the employee, the cost per employee would be at least $20,000. The anticipated economic cost to persons who are required to comply with with the sections as proposed is the same as for small businesses if the individual is operating as a contractor. The amendments are proposed under Texas Civil Statutes, Article 8861, which authorize the department to license and regulate air conditioning and refrigeration contractors. The amendments affect Texas Civil Statutes, Article 8861. sec.75.20. Licensing Requirements -Applications. (a) Credit for air conditioning and refrigeration courses emphasizing hands-on training taken at schools accredited by the Texas Education Agency, the Coordinating Board of the Texas College and University System, and the Accrediting Commission of Career Schools/Colleges of Technology
        [National Association of Trade and Technical Schools] will be allowed at the rate of one month's credit for each two months of successfully completed training. Transcripts are required. (b)-(c) (No change.) sec.75.23. Licensing Requirements -Temporary Licenses. (a) A contracting firm operating under a state license, whose only license holder is suddenly no longer available due to death, disability, or dissolution of a partnership or corporation
          [company], may request a temporary license from the commissioner. A temporary license is not available to a new unlicensed owner of a company who was not an owner or officer
            [a part] of the company before it was dissolved [or sold], or to companies that rely on a sole licensed employee who leaves the company. An employee of a sole proprietorship is not eligible for a temporary license if the licensed owner closes or sells the business.
              The request must be made for an owner, partner, or employee who was affiliated with the firm at the time the license holder became unavailable. The person who will hold the temporary license must meet all eligibility requirements to take an examination for a license. (b) The request must be in writing and must state the reason for the request, including the circumstances and legal organization of the company involved
                . A completed application and the registration and exam fees must accompany the request. If the insurance in effect at the time of the sudden unavailability of the license holder does not extend to the current firm, a new certificate of insurance must accompany the request. (c) A temporary license may be granted for a period extending 30 days beyond the date of the next exam period, not to exceed six months, and is not renewable. A second temporary license may not be issued to a company unless that company had a regular license holder following the initial temporary license, and the regular license holder became suddenly unavailable in circumstances that make the company again eligible to receive a temporary license.
                  The temporary license shall be of the same class and endorsement as the license needing to be replaced. (d) (No change.) sec.75.30. Exemptions. (a) Air conditioning and refrigeration contracting performed by a regular employee of a regulated electric or gas utility is exempt if it is performed in connection with the utility business in which the person is employed. (b) The Act does not apply to an individual who performs air conditioning and refrigeration maintenance work on equipment owned by him on property owned by him if he does not engage in the occupation of air conditioning and refrigeration contracting for the general public. sec.75.40. Insurance Requirement. (a)-(b) (No change.) (c) Insurance must be obtained from an admitted company or an eligible surplus lines carrier, as defined in Texas Insurance Code, Article 1. 14-2. (d) (No change.) (e) A license applicant or holder shall furnish to the department a certificate of insurance. The license holder's name, business name, and address must be shown as it appears on the license. The certificate form to be submitted shall be the form furnished by the department. Each certificate of insurance will reflect all assumed names used by the license holder and registered with this agency. Neither binders nor
                    [Binders and] interim certificates of less than 60 days will [not] be accepted. The certificates of insurance shall be issued to each municipality where air conditioning and refrigeration contracting is performed. (f)-(h) (No change.) sec.75.70. Responsibilities of the Licensee. (a)-(b) (No change.) (c) Service work may not be subcontracted to an unlicensed person, firm or corporation. (d)
                      [(c)] A licensed contractor who works as a subcontractor for another air conditioning and refrigeration company must work under the license of the other air conditioning and refrigeration business. The work must be scheduled and billed by the other air conditioning and refrigeration company, and the license holder working as a subcontractor must be paid by the other company. The licensed contractor who is acting as contractor, not subcontractor, is responsible for all subcontracting work. (e)
                        [(d)] Each air conditioning and refrigeration company shall have a license holder employed full time in each permanent office operated in Texas. All work requiring a license under the Act shall be under the direct personal supervision of the license holder for that office. The license holder's license number shall appear in all proposals and invoices for that office. (f)
                          [(e)] If an air conditioning and refrigeration company uses locations other than a permanent office, these locations shall only be used to receive instructions from the permanent office on scheduling of work, to store parts and supplies, and to park vehicles. The air conditioning and refrigeration company shall provide address(es) of these other locations to the department no later than 30 days after the locations are established. (g)
                            [f] A license holder may not permit any person or company to use the license holder's license for any purpose unless the person is a bona fide employee or subcontractor in accordance with subsections (b) and (c) of this section. (h)
                              [(g)] Each license shall be displayed at the contractor's place of business as listed with the department. (i)
                                [(h)] Each licensed contractor shall display the license number and company name in letters not less than two inches high on both sides of all trucks used in conjunction with air conditioning and refrigeration contracting. Job sites not identified by a marked truck shall be identified by a posted sign visible and readable from the nearest public street, containing the Texas air conditioning and refrigeration license number and company name. (j)
                                  [(i)] All advertising by contractors requiring a license under the Act designed to solicit business shall include the contractor's license number. Advertising which requires the license number shall include printed material, television ads, newspaper ads, yellow pages, business cards, billboards, solicitations, proposals, quotations, and invoices. Other items for the purpose of attracting business, other than promotional items of value such as ball caps, tee shirts, and other gifts, must include the license number. Yellow-page listings that do not contain any information except the name, address, and telephone number are not required to contain the contractor's license number. Letterheads and printed forms for office use are not required to have the license number included. Signs located at the contractor's permanent business location are not required to have the license number displayed. (k)
                                    [(j)] A license holder is required to notify the department in writing within 30 days of any change in permanent mailing address, business affiliation, change of business location, or business telephone number. A license revision is required for any change to information printed on the license. The permanent address shall be considered the license holder's permanent mailing address. All correspondence will be mailed to that address. (l)
                                      [(k)] A license holder wishing to revise a license shall make the request in writing. He shall return the current original license, pay the appropriate fee required in sec.75.80 of this title (relating to Fees), and provide a revised insurance certificate if the business affiliation name or address has changed. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas on May 31, 1994. TRD-9441571 Jack W. Garison Executive Director Texas Department of Licensing and Regulation Earliest possible date of adoption: July 8, 1994 For further information, please call: (512) 463-7357 TITLE 22. EXAMINING BOARDS Part I. Texas Board of Architectural Examiners Chapter 3. Landscape Architects Subchapter C. Written Examinations 22 TAC sec.3.45 The Texas Board of Architectural Examiners proposes an amendment to sec.3. 45 concerning the conditions for administration of the Landscape Architect Registration Examination. The amendment will clarify the process if the results of the examination cannot be provided the candidate. Cathy Hendricks, ASID/IBD, executive director, has determined that for the first five-year period the section is in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the section. Ms. Hendricks also has determined that for each year of the first five years the section as proposed is in effect the public benefits anticipated as a result of enforcing the section as proposed will be to provide candidates with the retake of examination process should the agency be unable to provide examination results. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the section as proposed. Comments on the proposal may be submitted to Cathy Hendricks, ASID/IBD, Executive Director, Texas Board of Architectural Examiners, 8213 Shoal Creek Boulevard, #107, Austin, Texas 78757, (512) 458-1363. The amendment is proposed under Texas Civil Statutes, Article 249c, which provide the Texas Board of Architectural Examiners with the authority to promulgate rules. sec.3.45. Conditions. (a)-(b) (No change.) (c) If, for any reason, TBAE is unable to provide the candidate with the results of the examination, TBAE shall have no liability beyond authorizing the applicant to retake the examination, with the examination fee waived, at the next regularly scheduled examination date. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on May 26, 1994. TRD-9441535 Cathy Hendricks, ASID/ISD Executive Director Texas Board of Architectural Examiners Earliest possible date of adoption: July 8, 1994 For further information, please call: (512) 458-1363 Subchapter E. Fees 22 TAC sec.3.84 The Texas Board of Architectural Examiners proposes an amendment to sec.3. 84 concerning annual registration and renewal fee. The amendment will provide a renewal fee of $10 for registrants 62 year of age or older. Cathy Hendricks, ASID/IBD, executive director, has determined that there will be fiscal implications as a result of enforcing or administering the section. The effect on state government for the first five-year period the section will be an estimated loss in revenue of $720 in 1995; $240 in 1996; $240 in 1997; $240 in 1988; and $240 in 1999. Ms. Hendricks also has determined that for each year of the first five years the section as proposed is in effect the public benefit anticipated as a result of enforcing the section as proposed will be renewal fee reductions for registrants 62 years of age or older. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the section as proposed. Comments on the proposal may be submitted to Cathy Hendricks, ASID/IBD, Executive Director, Texas Board of Architectural Examiners, 8213 Shoal Creek Boulevard, #107, Austin, Texas 78757, (512) 458-1363. The amendment is proposed under Texas Civil Statutes, Article 249c, which provide the Texas Board of Architectural Examiners with the authority to promulgate rules. sec.3.84. Annual Registration and Renewal Fee. (a)-(d) (No change.) (e) Any registrant 62 years of age or older is eligible to have his or her registration renewed for a fee of $10. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on May 26, 1994. TRD-9441533 Cathy Hendricks, ASID/IBD Executive Director Texas Board of Architectural Examiners Earliest possible date of adoption: July 8, 1994 For further information, please call: (512) 458-1363 22 TAC sec.3.88 (Editor's note: The text of the following section proposed for repeal will not be published. The section may be examined in the offices of the Texas Board of Architectural Examiners or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) The Texas Board of Architectural Examiners proposes the repeal of sec.3.88 concerning the emeritus fee. This section is being repealed so that a similar revised section dealing with the fee can be adopted. Cathy Hendricks, ASID/IBD, executive director, has determined that for the first five-year period the repeal is in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the repeal. Ms. Hendricks also has determined that for each year of the first five years the repeal as proposed is in effect the public benefit anticipated as a result of enforcing the repeal as proposed will be to provide opportunity to adopt revised language. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the repeal as proposed. Comments on the proposal may be submitted to Cathy Hendricks, ASID/IBD, Executive Director, Texas Board of Architectural Examiners, 8213 Shoal Creek Boulevard, #107, Austin, Texas 78757, (512) 458-1363. The repeal is proposed under Texas Civil Statutes, Article 249c, which provide the Texas Board of Architectural Examiners with the authority to promulgate rules. sec.3.88. Emeritus Fee. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on May 26, 1994. TRD-9441534 Cathy Hendricks, ASID/IBD Executive Director Texas Board of Architectural Examiners Earliest possible date of adoption: July 8, 1994 For further information, please call: (512) 458-1363 TITLE 30. ENVIRONMENTAL QUALITY Part I. Texas Natural Resource Conservation Commission Chapter 281. Application Processing Application Processing 30 TAC sec.sec.281.1, 281.2, 281.22, 281.30-281.32 The Texas Natural Resource Conservation Commission (TNRCC) proposes amendments to sec.sec.281.1, 281.2, 281.22, and new sec.sec.281.30-281.32. The amendments and new sections are proposed in order to incorporate new provisions of the Texas Solid Waste Disposal Act (TSWDA), Chapter 361.0232, Texas Health and Safety Code (Vernon 1992), promulgated by the legislature in Senate Bill 1099, 72nd Legislature (1991). These amendments and new sections will replace the proposed amendments to sec. s281.1, 281.2, 281.22, and new sec.sec.281.30, 281.31 and 281.32 as published in the December 21, 1993, issue of the Texas Register (18 TexReg 9824). The previously published new sections and amendments to Chapter 281 are withdrawn. Section 361.0871(c) of the TSWDA specifies that rules adopted under sec.361. 0232, pertaining to the need for commercial management of hazardous waste, shall provide for expediting the processing of applications for technologies that address the highest priority need as identified by the commission. The document "Needs Assessment for Hazardous Waste Commercial Management Capacity in Texas", prepared by the commission, has identified technologies needed for commercial management on a statewide basis. In addition, other factors to be considered in determining which applications to expedite include regional need and demonstrated innovative technology. These proposed rules provide the framework for determining whether a permit application is for a commercial hazardous waste management technology that is a needed or demonstrated innovative or regional technology. The new sections and proposed revisions will: delineate a procedure for determining if a permit application for new capacity at a commercial hazardous waste management facility shall be designated as expedited; describe the information which will be prepared by the executive director for consideration by the commissioners; and delineate commercial hazardous waste management facility unit construction and operating schedule notification requirements. The proposed rules, except sec.281.1 and sec.281.2, apply only to permit applications for new capacity to manage hazardous waste from off site at commercial facilities. Chapter 281 is proposed to be amended in the introductory text to reference the Texas Solid Waste Disposal Act. Section 281.1, relating to Purpose, is proposed to be amended to provide for exception due to implementation of the prioritization procedure for commercial hazardous waste management facility permit applications under sec.sec.281.30- 281.32. This proposed amendment is necessary because certain commercial hazardous waste management facility permit applications will not be able to be processed by the executive director according to the schedule established in Chapter 281. Processing times for the affected applications will be subject to future rulemaking by the commission. Section 281.2(4) is proposed to be amended by the addition of the terms "or modified" and "and/or municipal hazardous" as a technical amendment to bring the terminology up to date. Section 281.22, regarding referral to commission, is proposed to be amended to address the type of information that would be prepared by the executive director at the time of referral. The purpose of adding subsection (c) is to implement TSWDA sec.361.0871(c), which instructs the commission, in evaluating an application for a new commercial hazardous waste management facility, to determine the need for the specific technology proposed in the application. This presentation, to be prepared for applications pertaining to processing and disposal capacity, shall summarize the following: the permitted and interim status capacity at commercial hazardous waste management facilities in the state for the specific technology or other technologies which manage the targeted waste streams; the projected statewide demand for the technology, based on the most recent published projections in the commission's Needs Assessment; any factors pertaining to regional need or innovative technology, as documented by the applicant, if these factors have been successfully documented; and any other waste management information deemed relevant by the executive director. This presentation would be made for all new proposed commercial hazardous waste processing or disposal capacity, as directed by TSWDA sec.361.0871(c). Thus, this presentation would not automatically be made for interim status units, unless applicants propose to manage "new or increased volumes of waste" above that covered by the facility's interim status authorization. It is not proposed that information be presented for storage-only facilities, because storage-only facilities typically serve a statewide, rather than national, area. Information on the need for storage facilities will be presented on a case-by-case basis, if the situation would warrant the presentation of such information and the applicant has successfully demonstrated state or regional need. The interim status and permitted capacity to be presented under proposed sec.281.22(c) would represent the most current information available to the commission. Thus, if the available capacity estimate in the Needs Assessment has not been updated to reflect recent changes to capacity (increases or decreases), the most recent estimates of capacity would be included in the presentation. The statewide projections of demand to be presented would include the low, medium, and high demand forecasts from the most recent Needs Assessment. The purpose of providing the three projections is to illustrate the degree of approximation in the estimates prepared by the commission and how this lack of certainty affects the need for the specific technology in the near future. Section 281.30, regarding applicability of prioritization procedures for commercial hazardous waste management facility permit applications, is proposed to describe when hazardous waste and underground injection permit applications would be prioritized after receipt of the application by the commission. For permit applications which have not been submitted by the effective date of these rules, the applications are proposed to be prioritized at the time of receipt of the application. It is further proposed that all permit applications for new commercial hazardous waste management capacity which have been submitted to the commission by the effective date would be prioritized, unless the commission permit application review process has been completed. The application review process is completed when a final draft permit has been submitted to the Chief Clerk for publication of notice. If a technology is needed on a statewide basis, then the application shall be designated as expedited. In some instances, applications include capacity which is not needed on a statewide basis. In these cases, the applicants may elect to submit additional information to demonstrate regional need or innovative technology. If greater than 70% of the processing or disposal capacity covered by the permit application is needed on a statewide basis, or is a demonstrated innovative technology or needed regionally, then the application is designated as expedited. Proposed sec.281.32(e) or (f), describing how an applicant may make a successful demonstration as either an innovative technology or a regionally needed technology, are discussed in more detail later in this preamble. The intent of sec.281.30(c) is to clarify that sec. s281.30-281.32 do not apply to waste management units at a commercial management facility when those units only manage on-site generated wastes unrelated to commercial waste management activities. In a few instances, sites may be engaged in both commercial waste management and manufacturing a product. Units managing wastes resulting from the industrial production process normally do not provide commercial capacity, and permit applications for these units will not be prioritized under these rules. As noted in sec.281.30(d), these proposed rules do not limit the ability of the commission to prioritize the review of any permit application from a commercial, captive, captured or on-site facility, based on other factors not addressed by sec.sec.281.30-281.32. Examples of other factors for which permit applications might be designated as expedited include, but are not limited to, environmental significance, pollution prevention, or RCRA workplan commitments for funding of agency activities. Section 281.31, regarding definitions, is proposed to clarify specific terms used in sec.281.32. New capacity is defined so as to include any unpermitted hazardous waste commercial capacity for which a permit is sought, as well as modifications to existing permit operating conditions, such that additional quantities of waste or types of waste may be managed by a permitted unit. This definition encompasses many different types of sites: so-called "greenfield" sites; proposed units at existing facilities; interim status units which may or may not be operating but, by definition, are not yet permitted; and permit modifications affecting capacity. This broad approach to defining new capacity is taken for the following reason. The stated purpose for identifying needed technologies, (see TSWDA sec.361.0871(c)) is so that the commission can devote priority consideration to the processing of those applications that address the highest priority need. Because the statute clearly directs the commission to apply its resources to reviewing applications which would meet the highest priority need, it is consistent with this intention to prioritize all applications for new commercial capacity. Proposed sec.281.32 also defines "current management practices" as technologies currently used for the management of specific waste streams generated in Texas. As proposed, current management practices could be determined by analyzing the data submitted by the generators and handlers of hazardous waste. Under this proposal, a current management practice does not have to be at a Texas facility or located at a commercial facility. The purpose of defining "current management practice" is for the applicant to identify a technology (or small group of technologies) which can be compared to the proposed technology, for the purpose of demonstrating that the proposed technology covered by the application is innovative. Section 281.32, regarding the prioritization process, proposes criteria for identifying or demonstrating that a permit application warrants an expedited review. For permit applications received after the effective date of the proposed rules, prioritization would occur as soon as practicable after receipt of a Part B hazardous waste permit application. It would be incumbent upon the applicant to include in the Part B application the information identified in the proposed rules, enabling a prioritization to be made at that time. No additional information will be requested from the applicant, except to clarify an assertion by the applicant that the technology is innovative or needed on a regional basis. Applications not providing sufficient information will be deemed "Not expedited" and would be processed according to time frames currently specified in Chapter 281. Section 281.32(d), (e), and (f) propose three conditions that may apply to a processing or disposal technology and under which said technologies covered by a permit application may be designated as expedited. The first condition would be that the technology is needed on a statewide basis, and thus is a technology that has been identified in the Needs Assessment conducted by the commission. Failing this, a technology may still be designated as expedited if it could be successfully demonstrated by the applicant that the technology was needed on a regional basis or that the technology was innovative. In the latter two cases, it is proposed that sufficient information to demonstrate regional need or innovative technology be submitted by the applicant and approved in writing by the executive director. Section 281.32(d)(2), regarding the evaluation of applications covering multiple units, proposes a methodology for determining if an application will be designated as expedited when the application covers several different types of processing or disposal units which are not all on Table 2 of the Executive Summary of the Needs Assessment. In this case it is proposed that the applicant identify which units function together as a process train, the technology provided by the process train, and the annual capacity of the process train. If the technology of the process train were needed or is a demonstrated innovative or regional technology, then all processing or disposal units which are part of the process train would be designated as expedited also. It is proposed that at least 70% of the processing or disposal annual capacity covered by the application be needed or a demonstrated innovative or regional technology in order for the application to be designated as expedited. Seventy percent was selected as the threshold because sec.361.0871(c) of the TSWDA directs the commission to provide for priority consideration in permit processing for those applications that address the highest priority need. Use of a lower threshold for determining whether an application will be designated as expedited might result in the allocation of commission resources to expedited review of applications which propose a significant percentage of annual capacity in technologies which do not meet a "highest priority need." This issue must be weighed against the flexibility needed by commercial waste managers in their facility design, as well as the inefficiencies which might result from applicants arbitrarily splitting up an application in order to obtain an expedited review for part of the proposed capacity. Comments are requested on the use of 70% as the cut-off for this determination. Section 281.32 proposes that the priority of only the processing or disposal technologies will be considered for the demonstrations made under sec.281.32(d), (e), or (f). Based on this approach, storage units are considered ancillary to the processing or disposal of the waste, and thus would not be included in the capacity totals or as part of a process train. Proposed sec.281.32(e), regarding prioritization of applications for innovative technologies, details two possible ways that an applicant may demonstrate that a technology is innovative. The first approach, described under subsection (e)(1) of this section, would apply to a technology which is a substitute for a technology identified on Table 2 of the Executive Summary of the Needs Assessment. Because an innovative technology would not have been identified by the commission in the Needs Assessment as needed, this paragraph would allow the applicant to demonstrate that the innovative technology would manage waste streams for which a statewide management need had been identified by the commission. In this case, the applicant would have to show that the proposed innovative technology would not move a targeted waste stream down the state's waste management hierarchy, from the substituted needed technology to a less preferred management method, in accordance with the state's public policy concerning hazardous waste management under sec.361.023 of the TSWDA. The purpose of this demonstration is to prevent technologies which simply were not identified on Table 2 of the Executive Summary of the Needs Assessment from making the claim that they are "innovative." Proposed 281.32(e)(2) describes the second approach to demonstrating that a technology is innovative. Under this approach, an innovative technology is not a substitute for a technology identified as needed on a statewide basis by the commission. Instead, the innovative technology is designated as expedited on the basis of the applicant successfully demonstrating that the proposed technology is higher on the waste management hierarchy than the technology currently used for management of the targeted waste streams. For example, if an innovative technology were proposed to recover lead from lead contaminated soils and even if the current management practice (stabilization and land disposal) for managing lead contaminated soils had not been identified as needed by the commission, then the application for the innovative recovery technology would be designated as expedited, because it represents a recovery versus a treatment technology. Proposed sec.281.32(e)(2) also requires that, in order to demonstrate the benefits of the innovative technology and assure that the technology will move the waste stream up the waste management hierarchy, the application must demonstrate that the technology provides greater environmental benefits than the current practice(s) used for management of the targeted waste stream(s), by making a favorable comparison of the type and quantity of residuals and products generated by the innovative technology and the current management practice(s). The information required under sec.281.32(e)(2)(C) would ensure that significant aspects of the proposed innovative technology are being compared. For example, a proposed technology which generated a significantly greater quantity of an equivalent waste than the current management practice would not be considered innovative. Although no specific criteria have been proposed to determine when the environmental costs of a proposed innovative technology outweigh the environmental benefits, this issue would be reviewed on a case-by-case basis as applications are submitted. The residuals which would be considered under this section include all discharges to air and water and solid waste generated. All information on the current practice versus the proposed innovative technology should be presented in a comparable format, for example, as pounds discharged or generated of waste water treatment sludge per ton of waste processed (or some other throughput measure based on waste processing). A comparable format would be a single table displaying all discharges/wastes from the current management practice and the proposed innovative technology. The applicant would also be required to describe how the residuals from the proposed technology would be managed. The purpose of identifying products resulting from the process is to ensure that the process will actually recycle, recover, or treat the waste streams, as proposed. Proposed sec.281.32(f), regarding regional need for processing or disposal technologies, would allow applicants to demonstrate that their new capacity is needed within a region of the state. It is expected that the applicant would be able to demonstrate this regional need using either the waste management data submitted by waste generators and handlers to the commission or by supplementing the commission data with other data. The applicant must document the waste stream type, form and EPA hazardous waste numbers, the approximate quantity to be managed by the proposed capacity, and generators in the region. It is proposed that the commission would take the following factors into account when reviewing information provided by the applicant: the location, capacity, and capacity utilization of all permitted or interim status capacity for the same technology in the region or state; the quantity of the targeted waste stream(s) which is generated in the region, can reasonably be expected to be managed commercially and which could not be managed by other commercial management capacity in the region; and the annual throughput or annual quantity of the targeted waste stream(s) which could be managed by the proposed technology at the capacity level proposed in the permit application. Targeted waste streams from the region to be managed by the proposed capacity would have to equal or exceed 60% of the processing or disposal capacity proposed in the application in order for the applicant to demonstrate that the technology will serve a regional need. If permitted or interim status commercial capacity for the same technology is available in or near the region and these commercial facilities have adequate capacity to manage the region's targeted waste streams, then this would indicate that there is no regional need for the technology or that the region was too narrowly drawn to account for the available waste management capacity which is proximate to the region's generators. Proposed sec.281.32(g), regarding prioritization of commercial hazardous waste management facilities which will only store wastes, sets out two means by which an application for a storage-only facility may be designated as expedited. The first case pertains to storage facilities which are owned by the same parent company as another facility which provides processing or disposal. The priority of the storage-only facility would be the same as that of the technology provided at the processing or disposal facility. The second case, described in proposed sec.281.32(g)(2), pertains to storage-only facilities which may be needed on a statewide or regional basis. As described in the proposed rule, it would be incumbent upon the applicant to demonstrate statewide or regional need in order for the application to be designated as expedited. The need for storage has not been separately evaluated in the Needs Assessment. Stephen Minick, Division of Budget and Planning, has determined that for the first five years these sections are in effect there will be fiscal implications as a result of enforcement and administration of the sections. The effect on state government will be a minor increase in cost associated with the prioritization of affected permit applications and the preparation and publication of certain summaries of information by the executive director regarding permit applications. These increased costs are not anticipated to be significant and will be met within the existing resources of the agency. There are no fiscal implications anticipated for local governments. These rules will potentially increase the costs for development of permit applications for commercial hazardous waste treatment and disposal facilities. In order to qualify for expedited processing, certain demonstrations must be included in permit applications which are not currently required. While such demonstrations are not required in order to make application, it is anticipated that all commercial applicants will incur whatever costs are involved. It is not anticipated that these additional costs will be significant in terms of the total cost of preparing an application. These costs cannot be determined at this time and will vary with each specific permit application. In addition, it is anticipated that by providing information relevant to permit priority, a faster processing time may result which will result in cost savings which should more than offset any incremental costs of permit development. There are no fiscal effects anticipated for small businesses. Mr. Minick also has determined that for the first five years these sections as proposed are in effect the public benefit anticipated as a result of enforcement of and compliance with the sections will be an expedited processing of applications for permits for the types of waste management facilities most needed to handle the quantities of waste generated within the state and provide the most innovative methods of waste management; improvements in the information available to support policy decisions related to waste management capacity; and improvements in public awareness of the need for high-priority or innovative waste management capacity. There are no known costs anticipated to any individual required to comply with these sections as proposed. A public meeting on this issue will be held in Austin, Texas on June 30, 1994, 12118 North Interstate Highway 35, Building B, Park 35 Circle, at 1:30 p. m., in Room 201A, in order for interested parties to address comments to the commission. Written comments on the proposal may be submitted to Vic McWherter, Staff Attorney, Legal Division, Texas Natural Resource Conservation Commission, P.O. Box 13087, Austin, Texas 78711-3087. Comments will be accepted until 5:00 p.m., 30 days after the date of this publication. The new and amended sections are proposed under the Texas Water Code, sec.5. 102 and sec.5.105, which provides the Texas Natural Resource Conservation Commission with the authority to adopt any rules necessary to carry out its powers and duties under the code and other laws of the State of Texas, and to establish and approve all general policy of the commission. The amendments are also promulgated under the Texas Solid Waste Disposal Act, sec.361.017 and sec.361.024, Texas Health and Safety Code, Chapter 361 (Vernon 1992), which gives the Texas Natural Resource Conservation Commission the authority to regulate solid and hazardous wastes and to adopt rules and promulgate rules consistent with the general intent and purposes of the Act. sec.281.1. Purpose. It is the intent of the Texas Natural Resource Conservation Commission to establish a general policy for the processing of applications for permits, licenses and other types of approvals in order to achieve the greatest efficiency and effectiveness possible. To this end, it is the policy of the commission that applications for permits, licenses, and other types of approvals listed in sec.281.2 of this title (relating to Applicability) be processed by the executive director according to the schedule established in this chapter, except as provided by implementation of the prioritization procedure for commercial hazardous waste management facility permit applications under sec.sec.281.30-281.32 of this title (relating to Applicability of Prioritization Procedure for Commercial Hazardous Waste; Definitions; Prioritization Process). sec.281.2. Applicability. These sections are applicable to the processing of: (1)-(3) (No change.) (4) applications for new, amended, or modified
                                        or renewed industrial solid and/or municipal hazardous
                                          waste permits filed pursuant to sec.335.2 of this title (relating to Permit Required) and sec.335.43 of this title (relating to Permit Required) or for new or amended compliance plans filed pursuant to sec.305.401 of this title (relating to Compliance Plan); (5)-(9) (No change.) sec.281.22. Referral to Commission. (a)-(b) (No change.) (c) After an application under this section for a permit authorizing proposed commercial hazardous waste management units providing new or previously unpermitted capacity is determined by the executive director to be technically complete, the executive director shall prepare a summary of the most recent information on the need for the proposed processing or disposal technology, including the following information: (1) estimated current statewide capacity for the technology; (2) projected estimated statewide demand from the most recent Needs Assessment, as defined under sec.281.31 of this title (relating to Definitions); (3) regional factors documented by the applicant if a regional need has been demonstrated; and (4) any other waste management information deemed relevant by the executive director. sec.281.30. Applicability of Prioritization Procedure for Commercial Hazardous Waste Management Facility Permit Applications. (a) The following applications for permitting of new capacity at commercial hazardous waste management facilities shall be prioritized as specified in sec.281.32: (1) permit applications submitted after the effective date of this section; and (2) permit applications submitted prior to the effective date of this section, except as provided under subsection (b) of this section. (b) Prioritization in accordance with sec.281.32 of this title (relating to Prioritization Process) shall not be made for applications for permitting of new capacity at commercial hazardous waste management facilities for which notice under sec.305.100 of this title (relating to Notice of Application) has been issued prior to the effective date of this section. (c) Sections 281.30-281.32 of this title (relating to Application Processing) do not apply to an application for permitting of unit(s) at a commercial hazardous waste management facility if the unit(s) is to be used solely for the management of wastes generated at the facility which are not the result of commercial hazardous waste management activities. (d) Nothing in this rule shall limit the ability of the commission to prioritize any permit application. sec.281.31. Definitions. The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise. Commercial hazardous waste management facility-Any hazardous waste management facility that accepts hazardous waste or PCBs for a charge, except a captured facility or a facility that accepts waste only from other facilities owned or effectively controlled by the same person, where "captured facility" means a manufacturing or production facility that generates an industrial solid waste or hazardous waste that is routinely stored, processed, or disposed of on a shared basis in an integrated waste management unit owned, operated by, and located within a contiguous manufacturing complex. Current management practice(s)-The most commonly used technologies for processing or land disposing of targeted waste stream(s) generated in the State of Texas, as evidenced by the most recent computerized annual or monthly waste management reports submitted by waste handlers to the commission. Needed technology -A technology included in Table 2 of the Executive Summary of the most recent publication of the Needs Assessment. Technologies on Table 2 of the Executive Summary of the Needs Assessment are demonstrated processing or disposal technologies which are needed on a statewide basis. Needs assessment -Texas Natural Resource Conservation Commission document, a copy of which is available for inspection at the library of the Texas Natural Resource Conservation Commission, located in Room B-20 of the Stephen F. Austin State Office Building, 1700 North Congress Avenue, Austin, entitled "Needs Assessment for Hazardous Waste Commercial Management Capacity in Texas" dated February 28, 1992, and its amendments or updates. New capacity-Unpermitted volume, quantity, or rate of throughput for the management of hazardous waste at a hazardous waste management facility provided by any of the following: proposed units or systems; interim status units or systems; or modifications to permit operating conditions, such that additional quantities or types of waste would be managed. Table 2-Table 2 of the Executive Summary of the most recent publication of the commission document entitled "Needs Assessment for Hazardous Waste Commercial Management Capacity in Texas" dated February 28, 1992, and its amendments or updates. Targeted waste stream(s)-A hazardous waste stream(s) generated in the State of Texas which will be managed by a specific technology at a specific facility. The applicant shall define targeted waste streams, by EPA hazardous waste numbers and the form of the waste, or by other identifiers approved in writing by the executive director. sec.281.32. Prioritization Process. (a) This section specifies how an application for a commercial hazardous waste management facility shall be designated as expedited. (b) For permit applications received after the effective date of this section, prioritization will occur at the time of receipt of a Part B hazardous waste permit application. (c) Permit applications for storage capacity at the same facility or a different facility owned by the same parent company which also offers recycling, processing, or disposal services shall have the same priority as the recycling, treatment, or disposal technology with which it is associated. (d) Prioritization of permit applications for needed, innovative, or regional technologies shall be as follows. (1) If the technology covered by the application is not identified on Table 2, the applicant may submit the information described under subsections (e) or (f) of this section. If all processing and/or land disposal capacity included in the permit is associated with a needed or demonstrated innovative or regional technology, then the application is designated as expedited. (2) If more than 70% of the total maximum annual throughput capacity of recycling, processing, and disposal units or process trains covered by the application is associated with a needed or demonstrated innovative or regional technology, then the application is designated as expedited subject to the following applicable requirements. (A) The applicant must specify whether or not each hazardous waste recycling, processing, or disposal unit is a needed or demonstrated innovative or regional technology. (B) The applicant must specify whether or not each hazardous waste recycling, processing, or disposal unit, associated with or part of a process train, is a needed or demonstrated innovative or regional technology, based on the following: (i) for permit applications containing multiple units functioning in series in order to recycle, process, and/or dispose of hazardous waste, the individual units shall be considered part of a process train; and (ii) whether or not each unit is a needed, innovative or regional technology shall be evaluated based on the technology represented by the process train. A unit is considered to be a needed, innovative or regional technology if it is associated with or part of a process train which is a needed, innovative or regional technology. (C) The applicant shall calculate the percentage figure to be used under subsection (d)(2) of this section to determine the priority for the entire application as follows: (i) total the maximum annual throughput capacity for hazardous waste recycling, processing, and/or disposal in units or process trains covered by the application that are associated with or identified as a needed or demonstrated innovative or regional technology; (ii) divide the total from clause (i) of this subparagraph by the total maximum annual throughput capacity of all recycling, processing, and disposal units and process trains covered by the application; and (iii) multiply the quotient from clause (ii) of this subparagraph by 100. (e) An application including an innovative technology to process hazardous waste shall be designated as expedited if the applicant demonstrates that the proposed innovative technology meets the requirements of subsection (d) and (e)(1) or (2) of this section, and obtains the written approval of the executive director. (1) The proposed innovative technology must be demonstrated to be a substitute for a technology which is on Table 2. To make this demonstration, the applicant must: (A) identify the targeted waste streams and show that the proposed innovative technology would be able to process the same types of waste streams, based on information available in the most recent Needs Assessment, as would be managed by the needed technology for which the innovative technology is proposed to be substituted; (B) show that use of the proposed innovative technology would not move a targeted waste stream down the state's waste management hierarchy, from the substituted needed technology to a less preferred management method, in accordance with the public policy concerning hazardous waste management under the Texas Solid Waste Disposal Act, Texas Health and Safety Code Annotated (Vernon 1992), sec.261.023. (2) The proposed innovative technology must be demonstrated to implement the state's public policy on hazardous waste management as specified under the Texas Solid Waste Disposal Act, Texas Health and Safety Code Annotated (Vernon 1992), sec.361.023. To make this demonstration, the applicant shall demonstrate to the satisfaction of the executive director that the proposed innovative technology is a more preferred management method, higher in the state's waste management hierarchy, when compared to current management practices used for handling the targeted waste streams, and shall submit at least the following information, to the satisfaction of the executive director, for the targeted waste stream(s) , whether managed in or out of the State of Texas, or managed on-site or off-site: (A) types and quantities of targeted waste streams generated in the State of Texas; (B) current management practice for processing or land disposing of the targeted waste stream; and (C) a favorable comparison of the type and quantity of residuals and products generated by the innovative technology and current management practices. (f) If no statewide need has been identified in Table 2 and if an applicant considers that there is a regional need for the proposed technology, then the applicant may submit additional information specified under paragraphs (1)-(3) of this subsection to demonstrate that the permit application should be designated as expedited, in accordance with this subsection and subsection (d) of this section. In order for the proposed regional technology to be designated as expedited, the approximate annual quantity of the targeted hazardous waste stream(s) which are generated within the region, which will be processed and/or disposed commercially, and which could not be processed or disposed by other commercial hazardous waste management facilities in the region, shall equal at least 60% of the total hazardous waste capacity of the proposed unit(s). All data used to support this analysis shall be from the Texas Natural Resource Conservation Commission hazardous and industrial waste annual or monthly waste management reports submitted by owners and operators of hazardous waste management facilities, except as noted in this subsection. The applicant will define the region, subject to the written approval of the executive director, which must consist of at least one county and shall not extend outside the State of Texas. The regional waste management analysis under this subsection must include only hazardous wastes generated in the State of Texas. Subject to the written approval of the executive director, a permit application may be designated as expedited based on regional need, in accordance with this subsection and subsection (d) of this section, and provided that the applicant submits the following information: (1) a description of the targeted waste stream(s) by form and EPA hazardous waste numbers, including the approximate annual quantity generated in the region that is processed or disposed at any commercial hazardous waste management facility using the same technology. If significant changes in on-site management options have occurred in the region since the preparation of the most recent Needs Assessment, the applicant may document the approximate annual quantity generated, the generator, and type of hazardous waste which will require commercial hazardous waste management, and include this quantity in the applicant's regional analysis. The applicant may also submit data, other than Texas Natural Resource Conservation Commission data, substantiating that there is a regional need, specifying waste stream type, including form and EPA hazardous waste numbers; approximate annual quantity generated; and identity of the generators and their location in the region; (2) a map delineating the boundaries of the region, and showing the locations of the following: (A) the facility where the new capacity is proposed; and (B) all other existing, permitted, or interim status commercial hazardous waste management facilities that offer the same hazardous waste processing and/or disposal technologies in the State of Texas; and (3) a comparison of the annual capacity of the proposed technology to the quantity of the targeted waste streams which: (A) are generated within the region; and (B) cannot be processed or disposed by other commercial hazardous waste management facilities within the region. (g) Permit applications for hazardous waste facilities consisting of only hazardous waste storage unit(s), with no hazardous waste processing or disposal unit(s), shall not be expedited, with the following exceptions: (1) permit applications for storage-only facilities associated with a different facility owned by the same parent company which offers recycling, processing, or disposal services using a needed technology, shall be prioritized as provided in subsection (c) of this section; and (2) permit applications for hazardous waste storage needed on a regional or statewide basis, provided that the applicant submits documentation consisting of at least one of the following, subject to the written approval of the executive director: (A) an analysis of targeted waste stream(s) and commercially available waste management technologies, showing that there is no processing or disposal technology commercially available for management of the targeted waste stream(s) in the State of Texas; or (B) a regional analysis documenting the demand for storage by the region's generators, including the distances hazardous wastes are transported for storage, the quantities transported, and a map showing the locations of commercial storage facilities in the region. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on June 1, 1994. TRD-9441620 Mary Ruth Holder Director, Legal Services Texas Natural Resource Conservation Commission Earliest possible date of adoption: July 8, 1994 For further information, please call: (512) 239-6087 Chapter 305. Consolidated Permits Subchapter D. Amendments, Renewals, Transfers, Corrections, Revocation, and Suspension of Permits 30 TAC sec.305.69 The Texas Natural Resource Conservation Commission (TNRCC) proposes an amendment to sec.305.69 and corresponding new s305.149. The new sec.305.149 will replace the proposed s305.149 as published in the December 21, 1993, issue of the Texas Register (18 TexReg 9830). The previously proposed sec.305.149 is withdrawn. Section 305.149 is being proposed in order to incorporate new provisions of the Texas Solid Waste Disposal Act (TSWDA), sec.361.0232, Texas Health and Safety Code, promulgated by the legislature in Senate Bill 1099, 72nd Legislature (1991). Section 361.0232 directed the TNRCC to conduct a needs assessment for commercial hazardous waste management. The information in the needs assessment was to be used to develop rules which allow for the prioritization of permit applications for commercial facilities. These rules are proposed to enable the TNRCC to make a reasonable estimate of when capacity will be available to the state's generators. By encouraging applicants to seek permits only for units they intend to construct within defined time limits, proposed sec.305.149 is designed to facilitate an assessment of accurate hazardous waste capacity under TSWDA sec.361.0232(b). Historically, there has been difficulty with the permitting of facilities which do not move forward with the construction of units once they receive authorization. This permitted yet unrealized capacity impedes commission staff from making an accurate assessment of hazardous waste capacity in the state. The TSWDA, sec.361.0871(c) instructs the commission to develop a prioritization process that shall provide for priority consideration in permit processing for those applications that address the highest priority need. One of the reasons for developing a prioritization process is to ensure that the commission's limited staff resources are allocated to processing permit applications which address the highest priority need. Because commission staff is constrained by resource limitations and can process only a finite number of permits, it is important not only to encourage applicants to permit the types of units for which there is the highest need, but also to encourage applicants to permit only the capacity they intend to construct in the near future. As part of this process of efficient resource allocation, the commission is proposing sec.sec.305.149 which sets construction period time limits for permitted units at commercial facilities. The proposed rule is intended to encourage applicants to permit only the capacity they intend to build in the near term. Furthermore, proposed sec.sec.305.149 is authorized under TSWDA, sec.sec.361.002 which expresses the state's policy to safeguard the health, welfare and physical property of the people and to protect the environment by controlling the management of solid waste. When a permittee delays constructing a permitted unit and improved standards have been developed since the time of permit issuance, the planned unit should be constructed according to the standards most protective of human health and the environment. By providing that authorization for unconstructed units lapses after specified time frames, proposed sec.sec.305.149 will deter permittees from constructing units according to outdated construction standards contained in previously issued permits. Proposed sec.sec.305.149(b) sets out time limits for the construction of units subject to RCRA permitting which manage hazardous waste from off site at a commercial hazardous waste management facility. Under the proposed rules, unit construction schedules will be set in one of two ways: by rule or by permit. Proposed ssec.305.149(b)(1)-(3) lay out an initial two-year time frame for unit construction, with procedures for requesting six- month or greater than six-month extensions to the two-year period. Under proposed sec.sec.305.149(a)(1), which applies to units permitted prior to the date of the proposed rule's adoption, the two-year deadline runs from the effective date of the rule. Under proposed sec.sec.305.149(a)(2), which applies to permits issued on or after the effective date of the proposed rule, this two- year deadline runs from the date of final administrative and judicial disposition of the permit, modification, or amendment authorizing the unit. A certification that construction had been completed would have to be submitted within 90 days of the end of the two-year period. Proposed sec.sec.305.149(b)(2) allows for a one time extension of six months or less to the initial two-year construction period time limit. This extension would be requested as a Class 2 permit modification and must comply with applicable provisions of ssec.305.69. The request must be submitted within the initial two-year construction period time limit and, if granted, would begin to run at the end of the two-year period. Once a Class 2 modification request has been submitted within the initial two-year construction period, authorization for unit construction continues until the commission takes final action on the modification request. A certification that construction had been completed would be required within 90 days of the end of the extension. Proposed sec.sec.305.149(b)(3) allows for two types of permit modification for extensions of unit construction schedules. The first type of modification is for any extension which is greater than six months. The second type of modification is for an extension of any length which is requested after an applicant has been granted an extension of six months or less under proposed sec.sec.305.149(b)(2). Extensions requested under proposed sec.sec.305.149(b)(3) are Class 3 permit modifications and must comply with all applicable provisions of sec.sec.305.69. In order to be considered, any requests made to extend the time period under proposed sec.sec.305.149(b)(3) must be submitted before any previously authorized time periods have expired. Once a Class 3 modification request has been submitted within the authorized time period, authorization for unit construction continues under proposed sec.sec.305.149(b)(3)(A) until the commission takes final action on the modification request. Proposed sec.sec.305.149(b)(4) allows for a longer construction period time limit to be proposed by the applicant in its permit application, and if approved, would be included as a condition in a RCRA Subtitle C or Underground Injection Control permit. Justification for the proposed extended schedule shall be submitted with the permit application. Extensions to a permitted construction period time limit can be requested, if made during the time period stated in the permit. Extensions to the construction time limits stated in the permit can be requested only as permit modifications as provided in sec.sec.305.149(b)(4). The extensions would be requested as Class 2 or Class 3 modifications, depending on the length of time requested for extension. Units which are not constructed within the construction period time limit specified under the proposed sec.sec.305.149(b)(1), (2), or (3) or as a permit condition pursuant to proposed ssec.305.149(b)(4), would lose authorization to construct the unit or manage hazardous waste in the unit. However, only the affected unit would cease to be authorized. This action would not constitute revocation of the permit. Section 305.69 is proposed for amendment in order to cross-reference the type of permit modifications identified in proposed sec. s305.149. Three types of modifications are proposed for addition to the list of permit modifications: a Class 2 permit modification for a first time extension of six months or less pursuant to proposed sec.sec.305.149(b)(2); a Class 3 permit modification for a greater than six-month extension pursuant to proposed ssec.305.149(b)(3); and a Class 3 permit modification for an extension of any length requested after an extension of six-months or less has been granted under proposed sec.sec.305. 149(b)(2). Stephen Minick, division of budget and planning, has determined that for the first five years these sections as proposed are in effect there will be fiscal implications as a result of enforcement and administration of the sections. The effect on state government will be a minor increase in cost associated with the processing of Class 2 and Class 3 modification applications. These increased costs are not anticipated to be significant and will be met within the existing resources of the agency. There are no fiscal implications anticipated for local governments. These rules will potentially increase the costs for development of permit applications and permit modifications for commercial hazardous waste treatment and disposal facilities. In order to extend a construction schedule beyond the initial two-year period, a facility would have to prepare a Class 2 or Class 3 permit modification. It is not anticipated that these additional costs will be significant in terms of the total cost of authorizing and operating a commercial hazardous waste management facility. These costs are prospective in that the number of applicants potentially affected cannot be determined at this time and the costs will vary with each specific facility. In addition, it is anticipated that since timeframes will be specified in the rule and since facilities will have the opportunity to specify a longer schedule in their permits, facilities which exercise planning will have the ability to avoid these additional costs. There are no fiscal effects anticipated for small businesses. Mr. Minick also has determined that for the first five years these sections as proposed are in effect the public benefit anticipated as a result of enforcement of and compliance with the sections will be improvements in the information available to support policy decisions related to waste management capacity and a greater degree of certainty that permitted facilities will be built as proposed during a reasonable period of time. There are no known costs anticipated to any person required to comply with these sections as proposed. A public meeting on the proposed rules will be held in Austin, Texas on June 30, 1994, 12118 North Interstate Highway 35, Building B, Park 35 Circle, at 1:30 p.m. in Room 201A, in order for interested parties to address comments to the commission. Comments on the proposal may be submitted to Vic McWherter, Attorney, Legal Division, Texas Natural Resource Conservation Commission, P.O. Box 13087, Austin, Texas, 78711-3087. Comments will be accepted until 5:00 p.m., 30 days after the date of this publication. The amendment is proposed under the Texas Water Code, sec. s5.103, sec.sec.5.105 and sec.sec.26.011, which provides the Texas Natural Resource Conservation with the authority to adopt any rules necessary to carry out its powers and duties under the Texas Water Code, the Texas Solid Waste Disposal Act, and other laws of the State of Texas, and to establish and approve all general policy of the commission. The Texas Solid Waste Disposal Act, sec.sec.361.0232, the Texas Solid Waste Disposal Act, sec.sec.361.0871(c), and the Texas Solid Waste Disposal Act, sec.sec.361. 002. sec.305.69. Solid Waste Permit Modification at the Request of the Permittee. (a)-(h) (No change.) (i) Appendix I. The following appendix will be used for the purposes of Subchapter D which relate to solid waste permit modification at the request of the permittee. [graphic] This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on June 1, 1994. TRD-9441619 Mary Ruth Holder Director, Legal Division Texas Natural Resource Conservation Commission Earliest possible date of adoption: July 8, 1994 For further information, please call: (512) 239-6087 Subchapter G. Additional Conditions for Solid Waste Storage, Processing or Disposal Permits 30 TAC sec.305.149 The new section is proposed under the Texas Water Code, ssec.55.103, 5.105, and 26.11, which provides the Texas Natural Resource Conservation with the authority to adopt any rules necessary to carry out its powers and duties under the Texas Water Code and the Texas Solid Waste Disposal Act, and other laws of the State of Texas, and to establish and approve all general policy of the commission. sec.305.149. Time Limitation for Construction of Commercial Hazardous Waste Management Units. (a) Applicability. This section applies to hazardous waste unit(s) which provide commercial capacity for the storage, processing or disposal of hazardous waste. (1) For hazardous waste management permits issued, amended or modified before the effective date of this section, the two-year unit construction schedule set forth in subsection (b) of this section begins on the effective date of this section. (2) For hazardous waste management permits issued, amended or modified on or after the effective date of this section, the two-year unit construction schedule as delineated in subsection (b) of this section applies. (b) Schedule for construction of commercial hazardous waste management units. (1) The facility owner or operator shall construct a unit within two years of final administrative and judicial disposition of the permit, modification or amendment authorizing the unit. Within 90 days after the end of the two-year construction period time limit, the facility owner or operator shall certify to the executive director that the unit has been constructed in accordance with applicable permit provisions. (2) A one-time six-month extension to the two-year construction period time limit may be requested as a Class 2 permit modification. All modification requests and subsequent procedures must comply with applicable provisions of sec.305.69 of this title (relating to Solid Waste Permit Modification at the Request of the Permittee) and must comply with any applicable statutory or regulatory requirements which take effect prior to final administrative disposition of the modification request. The request must be made within the initial two-year period and, if granted, the six- month extension shall begin at the end of the initial two-year construction period time limit specified under paragraph (1) of this subsection. Construction of the unit is authorized under this subsection until the commission takes final action on the modification request; however, in no event shall authorization continue under this subsection beyond six months following the end of the initial two-year construction period specified under subsection (b)(1) of this section. Within 90 days of the end of the authorized extension period, the facility owner or operator shall certify to the executive director that the unit has been constructed in accordance with applicable permit provisions. (3) Extensions for greater than six months, or any extension to the construction period time schedule authorized under an approved Class 2 permit modification pursuant to paragraph (2) of this subsection, shall be requested as a Class 3 permit modification. All requests and subsequent procedures must comply with applicable provisions of sec.305.69 of this title (relating to Solid Waste Permit Modification at the Request of the Permittee) and must comply with any applicable statutory or regulatory requirements which take effect prior to final administrative disposition of the modification request. (A) Extension requests made under this paragraph shall be submitted during the periods authorized under paragraph (1) or (2) of this subsection. Construction of the unit is authorized under this subsection until the commission takes final action on the modification request. (B) The commission shall not consider requests made under this paragraph which are submitted after the expiration of the time periods authorized under paragraph (1) or (2) of this subsection. (4) Under circumstances which require a delayed or staged unit construction schedule longer than that specified under paragraph (1) of this subsection, justification for the proposed extended schedule shall be submitted with the permit application. The submitted schedule shall become part of the permit only upon the approval of the commission. Requests for changes to the approved schedule submitted during the period covered by the approved schedule shall comply with Class 2 or Class 3 permit modification rules, pursuant to sec.305.69. The class of the modification shall be determined by the length of the extension requested. An extension request of six months or less shall be a Class 2 modification and an extension request of greater than six months shall be a Class 3 modification request. All requests and subsequent procedures must comply with applicable provisions of sec.305.69 of this title (relating to Solid Waste Permit Modification at the Request of the Permittee) and must comply with any applicable statutory or regulatory requirements which take effect prior to final administrative disposition of the modification request. (c) Authorization status. Unit construction or management of hazardous waste in a unit is not authorized under any of the following conditions: (1) the permittee has not constructed the unit within the time period specified under subsection (b)(1) of this section and: (A) the permittee does not submit a modification request as specified in subsection (b)(2) or (3) of this section; or (B) the commission has denied a request for an extension under subsection (b)(2) or (3) of this section and the construction period time limit specified in subsection (b)(1) or (2) of this section has expired; (2) the unit has not been constructed within the time period specified in the permit as per subsection (b)(4) of this section and: (A) the permittee does not submit a modification request as specified in subsection (b)(4) of this section; or (B) the commission has denied a request for an extension under subsection (b)(4) of this section and the construction period time limit specified in the permit has expired. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on June 1, 1994. TRD-9441618 Mary Ruth Holder Director, Legal Division Texas Natural Resource Conservation Commission Earliest possible date of adoption: July 8, 1994 For further information, please call: (512) 239-6087 TITLE 34. PUBLIC FINANCE Part I. Comptroller of Public Accounts Chapter 9. Property Tax Administration Subchapter A. Practice and Procedure 34 TAC sec.9.17 The Comptroller of Public Accounts proposes an amendment to sec.9.17, concerning notice of public hearing on tax increase. The Tax Code, sec.26.06, requires the comptroller to prescribe by rule the form and content of the notice of a public hearing on a tax increase. The rule adopts by reference amended model Form 26.06. The form is amended to delete unnecessary information. The amendment is necessary because Senate Bill 7, 73rd Legislature, 1993, abolished county education districts. The abolishment of county education districts returned to school districts the portion of the school district's tax rate formerly levied by the county education district. The current notice reflects the abolition of county education districts. Because county education districts levied taxes for the last time in 1992, reference to county education districts is no longer needed on the notice. The amendment deletes the optional information for school districts concerning county education districts on model Form 26.06. Amendment of the rule also changes the address of the Comptroller of Public Accounts, Property Tax Division, and deletes the date of the amendment of the form. Mike Reissig, chief revenue estimator, has determined that for the first five- year period the rule will be in effect there will be no significant revenue impact on the state or local government. Mr. Reissig also has determined that for each year of the first five years the rule is in effect the public benefit anticipated as a result of enforcing the rule will be in providing new information regarding property tax responsibilities. There are no significant fiscal implications for small businesses. There is no significant anticipated economic cost to persons who are required to comply with the proposed rule. Comments on the proposal may be submitted to Barbara Truesdale, Manager, Property Tax Division, P.O. Box 13528, Austin, Texas 78711-3528. The amendment is proposed under the Tax Code, sec.26.06, which requires the comptroller by rule to prescribe the form and wording for notice of a public hearing on a tax increase. The amendment implements the Tax Code, sec.26.06. sec.9.17. Notice of Public Hearing on Tax Increase. (a) (No change.) (b) Model Form 26.06, as amended [August 23, 1993], is adopted by reference. Copies may be obtained from the Comptroller of Public Accounts, Property Tax Division, P.O. Box 13528
                                            [4301 Westbank Drive, Building B, Suite 100], Austin, Texas 78711-3528
                                              [78746-6565]. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on June 1, 1994. TRD-9441605 Martin E. Cherry Chief, General Law Section Comptroller of Public Accounts Earliest possible date of adoption: July 8, 1994 For further information, please call: (512) 463-4028 34 TAC sec.9.19 (Editor's note: The text of the following section proposed for repeal will not be published. The section may be examined in the offices of the Comptroller of Public Accounts or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) The Comptroller of Public Accounts proposes the repeal of sec.9.19, concerning notice of effective and rollback tax rates, because Tax Code, sec.26. 04 only requires that the comptroller prescribe the form. Adoption of the form by rule is not necessary. Mike Reissig, chief revenue estimator, has determined that repeal of the rule will not result in any fiscal implications to the state or to units of local government. Mr. Reissig also has determined that there will be no cost or benefit to the public from the repeal of this rule. There are no significant fiscal implications for small businesses. There is no anticipated significant economic cost to the public. Comments on the proposed repeal may be submitted to Barbara Truesdale, Manager, Property Tax Division, P.O. Box 13528, Austin, Texas 78711-3528. The repeal is proposed under the Tax Code, sec.26.04, which requires the comptroller to prescribe the form for publishing notice of effective and rollback tax rates. The repeal implements the Tax Code, sec.26.04. sec.9.19. Notice of Effective and Rollback Tax Rates. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on June 1, 1994. TRD-9441604 Martin E. Cherry Chief, General Law Section Comptroller of Public Accounts Earliest possible date of adoption: July 8, 1994 For further information, please call: (512) 463-4028 TITLE 37. PUBLIC SAFETY AND CORRECTIONS Part III. Texas Youth Commission Chapter 81. Administrative Provisions General 37 TAC sec.81.11 The Texas Youth Commission (TYC) proposes an amendment to sec.81.11, concerning state inscription. The amendment will add state vehicles used by personnel whose duties require regular and extended travel away from their home base to the list of vehicles currently exempted from the inscription requirement. The inscription currently impedes the possibility of apprehension of runaway youth. John Franks, director of fiscal affairs, has determined that for the first five-year period the section is in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the section. Mr. Franks also has determined that for each year of the first five years the section is in effect the public benefit anticipated as a result of enforcing the section will be to minimize the possibility of personal injury to TYC staff and assist in apprehension of runaways. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the section as proposed. Comments on the proposal may be submitted to Gail Graham, Policy and Manuals Coordinator, Texas Youth Commission, 4900 North Lamar Boulevard, P.O. Box 4260, Austin, Texas 78765. The amendments are proposed under and implements the Human Resources Code, sec.61.034, which provides the Texas Youth Commission with the authority to make rules appropriate to the proper accomplishment of its functions. sec.81.11. State Inscription (a) Policy. All state vehicles shall bear the inscription as provided in Texas Civil Statutes, Article 6701m-1, except passenger cars, station wagons, and buses normally used by personnel who transport youth in the vehicle, who are on 24-hour emergency call, or whose duties require regular and extended travel away from their home base
                                                . [for the transportation of children, or driven by administrative personnel who are on 24 hour emergency call in order to facilitate apprehension of runaways,] The purposes to be served by not printing the inscription on these vehicles are to avoid public identification of youth as wards of the state, to facilitate the apprehension of runaways and
                                                  to minimize the possibility of personal injury and vandalism of State property. [and to avoid embarrassment to youth who might be identified publicly as wards of the State by being passengers in the vehicle.] This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on May 24, 1994. TRD-9441483 Steve Robinson Executive Director Texas Youth Commission Earliest possible date of adoption: July 8, 1994 For further information, please call: (512) 483-5244 Chapter 93. General Provisions Records, Reports and Forms 37 TAC sec.93.57 The Texas Youth Commission (TYC) proposes an amendment to sec.93.57, concerning access to youth records. The amendment will require that staff receiving a subpoena for a TYC youth's file will consult with the TYC legal department before responding to the subpoena. John Franks, director of fiscal affairs, has determined that for the first five-year period the section is in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the section. Mr. Franks also has determined that for each year of the first five years the section is in effect the public benefit anticipated as a result of enforcing the section will be to ensure compliance by TYC staff of state and federal laws and regulations limiting access to youth records. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the section as proposed. Comments on the proposal may be submitted to Gail Graham, Policy and Manuals Coordinator, Texas Youth Commission, 4900 North Lamar, P.O. Box 4260, Austin, Texas 78765. The amendment is proposed under the Human Resources Code, sec.61.073, which provides the Texas Youth Commission with the authority to keep written records on each child subject to its control. These records are not public and are available only according to the provisions of Family Code, sec.51.14(B). The proposed rule implements the Human Resource Code, sec.61.034. sec.93.57. Access to Youth Records. (a) (No change.) (b) Rules. (1) (No change.) (2) Subpoena Received. (A) On receipt of subpoena for a youth's file, fax or mail the subpoena immediately to the legal department for review and determination of attendant legal issues and contact
                                                    the records custodian [should be contacted]. (B)
                                                      [(E)] The staff served the subpoena shall consult the legal department director and respond based on advice received
                                                        [shall prepare the copies requested, then certify that the records are true and correct copies, in the form of a notarized certificate or affidavit]. (C)
                                                          [(B)] If the file has not been purged at the time of receipt of the subpoena, it shall not be purged until the case has been settled. (D)
                                                            [(C)] If a consent form signed by the youth to release information regarding alcohol and drug use is not received, the file must be edited so that such confidential information is not released. Some information may be flagged with a stamped statement identifying it as confidential. (E)
                                                              [(D)] Original information is never sent to the courts for copying. (3) Prosecuting Attorney. A prosecuting attorney may obtain a copy of a youth's adjudication for a felony-grade offense pursuant to the Human Resources Code sec.61.095. Requests under this paragraph are directed to the custodian of records. (4)-(6) (No change.) This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on May 31, 1994. TRD-9441580 Steve Robinson Executive Director Texas Youth Commission Earliest possible date of adoption: July 8, 1994 For further information, please call: (512) 483-5244 TITLE 40. SOCIAL SERVICE AND ASSISTANCE Part I. Texas Department of Human Services Chapter 47. Primary Home Care The Texas Department of Human Services (DHS) proposes amendments to sec.sec.47.2902, 47.2904, 47.2909, 47.2912, 47.2913, 47.3901, and 47.3906, concerning requesting prior approval, critical omissions/errors, physician supervision, service plan changes, prior approval renewal, claims requirements, and claims payment reviews and audits, in its Primary Home Care chapter. The purpose of the amendments is to streamline the prior approval process to require only initial prior approval of medical need, with the following exceptions: Annual renewal of prior approval of medical need by the DHS regional nurse is required for applicants who are eligible under the provisions of the Social Security Act, sec.1929(b); and DHS's regional nurse gives a time-limited prior approval for applicants with a medical need and related functional impairment based on an acute medical condition that is expected to improve. The requirement for an annual physician's order for primary home care is also being changed. A physician's order is only required for initial prior approval and for renewal of prior approval for time-limited services. Burton F. Raiford, commissioner, has determined that for the first five-year period the proposed sections will be in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the sections. Mr. Raiford also has determined that for each year of the first five years the sections are in effect the public benefit anticipated as a result of enforcing the sections will be a streamlined process in which provider agencies will not be required to submit a prior approval packet to the DHS regional nurse to obtain reauthorization of primary home care. Also, service plan changes may be authorized faster since the approval will be handled directly by the caseworker. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the proposed sections. Questions about the content of the proposal may be directed to Linda Carsner at (512) 450-3215 in DHS's Community Care Section. Written comments on the proposal may be submitted to Nancy Murphy, Agency Liaison, Policy and Document Support- 087, Texas Department of Human Services W-402, P.O. Box 149030, Austin, Texas 78714-9030, within 30 days of publication in the Texas Register. Service Requirements 40 TAC sec.sec.47.2902, 47.2904, 47.2909, 47.2912, 47.2913 The amendments are proposed under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs and under Texas Civil Statutes, Article 4413 (502), sec.16, which provides the Health and Human Services Commission with the authority to administer federal medical assistance funds. The amendments implement sec.sec.22.001-22.024 and 32.001-32.041 of the Human Resources Code. sec.47.2902. Requesting Prior Approval. (a) Provider agencies must obtain, from the regional nurse, prior approval of medical need
                                                                for applicants and renewal of prior approval for certain
                                                                  clients. (1) Except as indicated in paragraph (2) of this subsection, only initial prior approval of medical need by the department regional nurse is required for applicants who have a chronic medical condition causing functional impairment in personal care that is expected to be long-standing. However, annual reauthorization of service by the caseworker is required. (2) Annual renewal of prior approval by the department regional nurse is required for clients who are eligible under the provisions of the Social Security Act, sec.1929(b). (3) The department regional nurse gives a time-limited prior approval for applicants with a medical need and related functional impairment based on an acute medical condition that is expected to improve in less than 12 months. (b)-(g) (No change.) sec.47.2904. Critical Omissions/Errors. (a) If the client health assessment/proposed service plan form or the physician's order for primary home care is missing, or if any of the following critical omissions or errors has occurred in the required documentation, the provider agency cannot obtain prior approval. (1)-(4) (No change.) (5) For clients who require
                                                                    renewal of prior approval as specified in s47.2902(a) of this title (relating to Requesting Prior Approval)
                                                                      , the client health assessment/proposed service plan form has a date that is earlier than 60 days before the end of the prior approval period. (6)-(12) (No change.) (13) For clients with time-limited (less than 12 months) prior approval who request renewal of prior approval, the physician's order has a date that is earlier than 30 days before the end of the time-limited prior approval.
                                                                        [For renewal of prior approval, the physician's order has a date that is earlier than 30 days before the end of the prior approval period.] (b) (No change.) sec.47.2909. Physician Supervision.
                                                                          An individual seeking initial prior approval for primary home care, or a client with time-limited (less than 12 months) prior approval who wants to renew prior approval, must have a physician's order for the service.
                                                                            [The client's physician must renew his order for primary home care at least every 12 months.] sec.47.2912. Service Plan Changes. (a) (No change.) (b) When a caseworker initiates a service plan change, he authorizes the service plan change on the prior approval/confirmation of services form.
                                                                              [the RN supervisor must document agreement or disagreement on the primary home care attendant orientation/RN supervisory form. The RN supervisor must forward this form to the regional nurse with the approval for CCAD services- referral response form and the summary of client need for service form, if provided, within seven days of receipt of the approval for CCAD services- referral response form.] (c) (No change.) (d) If the caseworker notifies the RN supervisor that an immediate [service plan] change is needed, the RN supervisor and the caseworker
                                                                                [contacts the regional nurse to] discuss: (1)-(3) (No change.) (e) The RN supervisor must send the primary home care attendant/RN supervisory form to the caseworker
                                                                                  [regional nurse] within 30 days of receiving verbal approval for a client needing an immediate service plan change. The form must include the following documentation: (1)-(2) (No change.) (3) the name of the caseworker
                                                                                    [regional nurse] giving verbal approval. sec.47.2913. Prior Approval Renewal. (a) For clients who have time-limited prior approval and who request renewal of prior-approval of medical need by the regional nurse,
                                                                                      [To request renewal of prior approval,] the RN supervisor must send the following forms to the regional nurse: (1)-(4) (No change.) (b) For clients who are eligible for primary home care under the provisions of the Social Security Act, sec.1929(b), the RN supervisor must send the following forms to the regional nurse to obtain renewal of prior approval: (1) summary of client need for service, if provided; (2) approval for CCAD services - referral response, if received from the caseworker; and (3) client health assessment/proposed service plan. (c)
                                                                                        [(b)] The RN supervisor must submit the prior approval material to the regional nurse in time for it to be postmarked or date-stamped by the department no later than one day after the termination date of the current prior approval period. If the required forms are not submitted within this time frame, a gap in client coverage occurs. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas on June 1, 1994. TRD-9441506 Nancy Murphy Section Manager, Policy and Document Support Texas Department of Human Services Proposed date of adoption: September 1, 1994 For further information, please call: (512) 450-3765 Claims Payment 40 TAC sec.47.3901, sec.47.3906 The amendments are proposed under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs and under Texas Civil Statutes, Article 4413 (502), sec.16, which provides the Health and Human Services Commission with the authority to administer federal medical assistance funds. The amendments implement sec.sec.22.001-22.024 and ssec.32.001-32.041 of the Human Resources Code. sec.47.3901. Claims Requirements. (a) (No change.) (b) The provider agency is not entitled to payment if: (1)-(8) (No change.) (9) services are ordered by a physician who has been excluded from the Medicare or Medicaid program or both; [or] (10) services are billed at a unit rate that does not match the client's priority level; or
                                                                                          [.] (11) the physician's order for primary home care services form does not meet department requirements. (c)-(d) (No change.) sec.47.3906. Claims Payment Reviews and Audits. (a)-(g) (No change.) (h) List of administrative errors. Administrative errors include, but are not limited to, the following. (1)-(14) (No change.) [(15) The provider agency makes a claim for services, but a valid physician's order is missing for the period claimed by the agency. The department applies the error to the total number of units claimed and not covered by a valid order.] (i) List of financial errors. In the absence of acceptable secondary documentation, financial errors include, but are not limited to, the following. (1)-(6) (No change.) (7) The provider agency makes a claim for services, but a valid physician's order is missing. The department applies the error to the total number of units claimed and not covered by a valid order. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on June 1, 1994. TRD-9441608 Nancy Murphy Section Manager, Policy and Document Support Texas Department of Human Services Proposed date of adoption: September 1, 1994 For further information, please call: (512) 450-3765 Chapter 48. Community Care for Aged and Disabled Eligibility 40 TAC sec.48.2918 The Texas Department of Human Services (DHS) proposes an amendment to sec.48.2918, concerning eligibility for primary home care, in its Community Care for Aged and Disabled chapter. The purpose of the amendment is to streamline the prior approval process to require only initial prior approval of medical need, with the following exceptions: Annual renewal of prior approval by the DHS regional nurse is required for applicants who are eligible under the provisions of the Social Security Act, sec.1929(b); and DHS's regional nurse gives a time- limited prior approval for applicants with a medical need and related functional impairment based on an acute medical condition that is expected to improve. The requirement for an annual physician's order for primary home care is also being changed. A physician's order is only required for initial prior approval and for renewal of prior approval for time-limited services. Burton F. Raiford, commissioner, has determined that for the first five-year period the proposed section will be in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the section. Mr. Raiford also has determined that for each year of the first five years the section is in effect the public benefit anticipated as a result of enforcing the section will be a streamlined process in which provider agencies will not be required to submit a prior approval packet to the DHS regional nurse to obtain reauthorization of primary home care. Also, service plan changes may be authorized faster since the approval will be handled directly by the caseworker. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the proposed section. Questions about the content of the proposal may be directed to Linda Carsner at (512) 450-3215 in DHS's Community Care Section. Written comments on the proposal may be submitted to Nancy Murphy, Agency Liaison, Policy and Document Support- 087, Texas Department of Human Services W-402, P.O. Box 149030, Austin, Texas 78714-9030, within 30 days of publication in the Texas Register. The amendment is proposed under the Human Resources Code, Title 2, Chapters 22 and 32, which provide the department with the authority to administer public and medical assistance programs and under Texas Civil Statutes, Article 4413 (502), sec.16, which provides the Health and Human Services Commission with the authority to administer federal medical assistance funds. The amendment implements sec.sec.22.001-22.024 and 32.001-32.041 of the Human Resources Code. sec.48.2918. Eligibility for Primary Home Care. (a)-(c) (No change.) (d) Applicants
                                                                                            [An applicant or client] must have prior approval of medical need
                                                                                              for primary home care from the department regional nurse. Only initial prior approval of medical need is required for applicants who have a chronic medical condition causing functional impairment in personal care that is expected to be long-standing. Annual prior approval by the department regional nurse is required for clients who are eligible under the provisions of the Social Security Act, sec.1929(b). Time-limited prior approval is given to applicants with a medical need and related functional impairment based on an acute medical condition that is expected to improve in less than 12 months. For clients who have time-limited prior approval and who request renewal of prior approval, a new physician's order is required.
                                                                                                [Prior approval for primary home care is valid for up to 12 months from the date the physician signs the orders.] (e) Services for eligible clients are authorized for 12 months, with the exception of time-limited services specified in subsection (d) of this section. (f)
                                                                                                  [(e)] Establishment of a priority level is made by the community care case manager based on an assessment of the client's circumstances and on discussions with the client and others actively involved with the client. A Priority 1 primary home care client is an individual who is dependent upon the services of the primary home care attendant for the performance of certain personal care tasks and whose health, safety, or well-being may be jeopardized if services on a normally scheduled service shift were not provided. An individual is considered a Priority 1 primary home care client if the following criteria are met. (1) The individual is completely unable to perform one or more of the following activities without hands-on assistance from another person: (A) transferring himself into or out of bed or a chair or on off a toilet; (B) feeding himself; (C) getting to or using the toilet; (D) preparing meal; or (E) taking self-administered prescribed medications. (2) During a normal scheduled service shift, no one is readily available who is capable of providing, and who is willing to provide, the needed assistance other than the primary home care attendant. (3) The Texas Department of Human Services community care case manager determines that there is a high likelihood the individual's health, safety, or well-being would be jeopardized if primary home care services were not provided on a single given shift. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on June 1, 1994. TRD-9441607 Nancy Murphy Section Manager, Policy and Document Support Texas Department of Human Services Proposed date of adoption: September 1, 1994 For further information, please call: (512) 450-3765 Part XV. Texas Veterans Commission Chapter 452. Administration General Provisions 40 TAC sec.452.1 The Texas Veterans Commission proposes new sec.452.1 concerning charges for copies of public records. The new section provides that the Commission may charge the amounts set forth in the General Services Commission's rules for copies of public records and that the Executive Director may waive or reduce these charges if he determines that the waiver or reduction of the fee is in the public interest because furnishing the information can be considered as primarily benefiting the general public. Charles A. Buerschinger, deputy director, has determined that for the first five-year period the section is in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the section. Mr. Buerschinger also has determined that for each year of the first five years the section is in effect the public benefit anticipated as a result of enforcing the section will be clear rules for charges by the agency for copies of public records. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the section as proposed. Comments on the proposal may be submitted to Billy G. Green, Texas Veterans Commission, P.O. Box 12277, Austin, Texas 78711. The new section is proposed in compliance with actions taken by the 73rd Texas Legislature in House Bill 1009 in relation to Texas Civil Statutes, Article 6252-17a which require agencies to adopt rules specifying charges for copies of open records. sec.452.1. Charges for Copies of Public Records.
                                                                                                    The charge to any person requesting copies of any public records of the Texas Veterans Commission will be the charge established by the General Services Commission; however, the Texas Veterans Commission will charge the following amounts necessary to recoup the costs for items as follows: (1) computer resources charges (mainframe and programming time): as determined by the Department of Licensing and Regulation; (2) copies of public records shall be furnished without charge or at a reduced charge if the Executive Director determines that waiver or reduction of the fee is in the public interest because furnishing the information can be considered as primarily benefiting the general public. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on May 27, 1994. TRD-9441559 Douglas K. Brown Executive Director Texas Veterans Commission Earliest possible date of adoption: July 8, 1994 For further information, please call: (512) 463-5538