ADOPTED RULES An agency may take final action on a section 30 days after a proposal has been published in the Texas Register. The section becomes effective 20 days after the agency files the correct document with the Texas Register, unless a later date is specified or unless a federal statute or regulation requires implementation of the action on shorter notice. If an agency adopts the section without any changes to the proposed text, only the preamble of the notice and statement of legal authority will be published. If an agency adopts the section with changes to the proposed text, the proposal will be republished with the changes. TITLE 16. ECONOMIC REGULATION Part I. Railroad Commission of Texas Chapter 5. Transportation Division Subchapter U. General and Special Rules of Practice and Procedure 16 TAC sec.5.460 The Railroad Commission of Texas adopts sec.5.460, concerning certification of minority-owned applicants for motor carrier and motor bus authority, with changes to the proposed text as published in the May 24, 1994, issue of the Texas Register (19 TexReg 4002). The rule establishes commission policies and procedures for minority business enterprise applicants for motor carrier and motor bus authority. The changes are to subsections (b) and (g). The purpose of the change to subsection (b) is to clarify that a bona fide MBE transportation contractor is an owner-operator and/or a multi-truck lessor who is a United States citizen and who is a woman or who is Black, Hispanic, Asian American, American Indian, or Alaska Native, and who is leased to a for-hire motor carrier or motor bus company. The purpose of the change to subsection (g) is to clarify that a successful MBE applicant must continue to meet the definition of a bona fide MBE certificate holder and that any failure to do so may result in revocation of the authority granted. Public comments regarding this rule supported and opposed, in equal measure, its adoption. Two comments opposed the rule on the grounds that no one should receive special consideration due to gender or national origin in an application for a certificate of public convenience and necessity. Two other comments were in favor of the rule, but suggested that certain changes be made prior to adoption. One commenter suggested that language be added to the rule to allow consideration of private business MBE goals in determining public necessity for a proposed certificated trucking service. The comment stated that private business MBE goals should be considered if a genuine policy of utilizing bona fide MBE certificate holders and a clear intent to implement such a policy can be established. The comment suggested that this could be established through evidence of solicitation or advertisements seeking MBE certificate holders, past use of MBE contractors, whether certificate holders or not, and internal instructions to staff to utilize MBE certificate holders or other MBE contractors. This commenter also suggested eliminating MBE transportation contractors because such contractors subvert the purpose of the rule by allowing non-MBE protestants to overcome an applicant's position with evidence of the protestants' use of minority owner-operators. Another commenter suggested clarifying the definition of bona fide MBE transportation contractor. The commenter stated that a bona fide MBE transportation contractor is any owner-operator and/or multi-truck lessor who is leased to a for-hire motor carrier who is a bona fide MBE, without regard to the owner-operator's or multi-truck lessor's status as a bona fide MBE. This commenter also suggested that all of the minority definitions be grouped together and that the first two sentences of subsection (g) be eliminated because they are repetitive of the third sentence in subsection (g). The commission agrees with the comments supporting adoption of the rule and agrees that the definition of a bona fide MBE transportation contractor should be clarified. However, the Commission does not agree that the proposed rule would provide special consideration due to gender or national origin for an applicant. The proposed rule recognizes that an MBE applicant must meet the burden of proof required of all other applicants. In addition, the proposed rule recognizes that certain contractors may have a need for the services of an MBE carrier based upon existing governmental requirements. The commission does not agree that a bona fide MBE transportation contractor is a non-MBE owner-operator and/or multi-truck lessor leased to an MBE for-hire motor carrier or motor bus carrier. The commission's intention is that a bona fide MBE transportation contractor is an owner-operator and/or a multi-truck lessor who is a United States citizen and who is a woman or who is Black, Hispanic, Asian American, American Indian, or Alaska Native, and who is leased to a for-hire motor carrier or motor bus company. No other definition supports the term as used in subsections (d) and (e) of the proposed rule. The commission disagrees that private business MBE goals should be considered in determining the issue of public necessity. The commission has limited the factor of unavailability of bona fide MBE certificate holders to those instances where a contractor needs the services of an MBE carrier due to existing governmental MBE programs. Those programs have a presumption of validity under the law which private programs cannot claim. In addition, private programs could require extensive time and expense to determine whether they were legally valid. The commission also disagrees that the minority definitions should all be grouped together because the Texas Register requires that definitions be alphabetized. The commission agrees that the first two sentences of subsection (g) could be considered repetitive and has included revised language to eliminate surplus language. References to partnerships in the definition of bona fide MBE certificate holder in subsection (b) have been added to clarify the requirements specified in subsection (g). No groups or associations commented in favor of or against the proposed rule. The section is adopted pursuant to Texas Civil Statutes Article 911a, sec.4(a)(1), which vest the commission with power and authority to prescribe all rules and regulations necessary for the regulation of motor bus companies, and pursuant to Texas Civil Statutes Article 911b, sec.4(a)(1), which vest the commission with power and authority to prescribe all rules and regulations necessary for the regulation of motor carriers. sec.5.460. Certification of Minority-Owned Applicants. (a) It shall be the policy of the Railroad Commission of Texas to encourage, within the limits of its discretion and statutory authority, more equitable participation in the for-hire motor carrier and motor bus industries by minority-owned businesses. (b) The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise. (1) American Indian and Alaskan Native-A person having origins in any of the original peoples of North America. (2) Asian American-A person having origins in any of the original peoples of the Far East, Southeast Asia, the Indian subcontinent, or the Pacific Islands. (3) Black-A person having origins in any of the black racial groups of Africa. (4) Bona fide MBE applicant-Any individual applicant for new or amended motor carrier or motor bus authority that is a woman, or is Black, Hispanic, Asian American, American Indian, or Alaska Native, and who is also a citizen of the United States. In the case of a corporate applicant for new or amended motor carrier or motor bus authority, it shall mean any corporation, the controlling interest of which is held by a woman or an individual that is Black, Hispanic, Asian American, American Indian, or Alaska Native, and who is also a citizen of the United States. In the case of an applicant company that is owned by a partnership, the controlling interest in the partnership must be specifically affirmed in writing as being held by a woman, Black, Hispanic, Asian American, American Indian, or Alaska Native, and who is also a citizen of the United States. (5) Bona fide MBE certificate holder-Any individual who holds motor carrier or motor bus authority issued by the commission, who is a woman, Black, Hispanic, Asian American, American Indian, or Alaska Native, and who is also a citizen of the United States. In the case of a certificate holder by a corporation or partnership, it shall mean any corporation or partnership, the controlling interest in which is held by a woman, or an individual that is Black, Hispanic, Asian American, American Indian, or Alaska Native, and who is also a citizen of the United States. (6) Bona fide MBE transportation contractor-Any owner-operator and/or a multi- truck lessor who is a United States citizen and who is a woman or who is Black, Hispanic, Asian American, American Indian, or Alaska Native, and who is leased to a for-hire motor carrier or motor bus company. (7) Hispanic-A person of Mexican, Puerto Rican, Cuban, Central American, South American, or other Spanish culture or origin, regardless of race. (c) The director of the transportation division shall designate a bona fide MBE applicant liaison officer within the transportation division who shall have the responsibility of advising bona fide MBE applicants as to the manner of initiating the certificate, permit, and rate processes and as to the manner of the compliance by successful bona fide MBE applicants with transportation division rules, regulations, and procedures. The field auditors of the transportation division, operating under the supervision of the assistant director-enforcement of the transportation division, shall have the responsibility of advising prospective bona fide MBE applicants of the assistance available for the transportation division bona fide MBE applicant liaison officer. (d) In order to obtain a for-hire motor carrier or motor bus certificate or permit, a bona fide MBE applicant shall be required to meet the burden of proof imposed by law on regular applicants. In multiple applicant proceedings where the demonstrated public need will support a grant of some, but not all, of the applicants, and the evidence establishes a need for the availability of bona fide MBE applicant transportation not being met by existing bona fide MBE certificate holders and/or by other existing carriers through the use of bona fide MBE transportation contractors, the commission may consider an applicant's status as a bona fide MBE applicant as a factor, along with all other relevant factors, in determining which of the applications should be approved. (e) The unavailability of existing bona fide MBE certificate holders may be considered as a factor in determining adequacy of existing carrier service: (1) where a bona fide MBE applicant demonstrates, through public witness evidence, a public necessity for use of the services of a bona fide MBE certificate holder as a primary means of meeting requirements of state or federal law, and local ordinances for use of contractors qualifying as a bona fide MBE certificate holder and/or bona fide MBE transportation contractor under the regulations; and (2) where existing carriers opposing the applicant fail to establish that they are capable of adequately meeting the demonstrated need for the availability of bona fide MBE certificate holders and/or bona fide MBE transportation contractors. (f) An applicant under this section shall have the burden of proving that it is a bona fide MBE applicant. In determining the entitlement of an applicant to the benefit of this section, the commission may consider the de facto management control of the applicant as well as incidents of ownership. Evidence that any applicant or any of its owners, officers, employees, agents, or representatives has employed any device whatsoever as a sham or subterfuge for the purpose of attempting to gain the benefit of this section shall be considered as evidence of the lack of an applicant's fitness to receive a grant of a certificate or permit. (g) MBE certificate holders must continue to meet the definition of a bona fide MBE certificate holder in subsection (b) of this section and the commission may revoke the certificate granted to a bona fide MBE certificate holder if such holder fails to meet that definition. (h) All certificates or permits granted under this section may not be sold, transferred, or leased unless the purchaser, transferee, or lessee is a bona fide MBE. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's authority. Issued in Austin, Texas, on July 18, 1994. TRD-9445233 Mary Ross McDonald Assistant Director Legal Division, Gas Utilities/LP Gas Railroad Commission of Texas Effective date: August 8, 1994 Proposal publication date: May 24, 1994 For further information, please call: (512) 463-7095 TITLE 22. EXAMINING BOARDS Part X. Texas Funeral Service Commission Chapter 201. Licensing and Enforcement-Practice and Procedure 22 TAC sec.201.16 The Texas Funeral Service Commission (the Commission) adopts new sec.201. 16, concerning a memorandum of understanding (MOU) between the Commission and the Texas Department of Health (the TDH), without changes to the proposed text as published in the May 13, 1994, issue of the Texas Register (19 TexReg 3624). The new section implements the provisions of Senate Bill 284, 72nd Legislature, Regular Session, 1991, which requires the Commission and the TDH to enter into a MOU to facilitate cooperation between the two agencies by describing the duties of each agency under authority of Health and Safety Code, Chapter 193 and Chapter 195, and Texas Civil Statutes, Article 4582b. The new section establishes the joint procedures to be used by the two agencies for the referral, investigation and resolution of complaints affecting the administration and enforcement of state laws relating to vital statistics and the licensing of funeral directors and funeral establishments. No comments were received regarding adoption of the new section. The new section is adopted under Senate Bill 284, 72nd Legislature, Regular Session, 1991, which provides the Commission with authority to adopt by rule a memorandum of understanding with the TDH to facilitate cooperation between the two agencies in implementing and enforcing the Health and Safety Code, Chapter 193 and Chapter 195, and Texas Civil Statutes, Article 4582b. Authority also exists pursuant to Texas Civil Statutes, Article 4582b sec.5, which vest the Commission with authority to adopt rules necessary to administer Article 4582b. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on July 12, 1994. TRD-9443859 Wayne L. Goodrum General Counsel Texas Funeral Service Commission Effective date: August 3, 1994 Proposal publication date: May 13, 1994 For further information, please call: (512) 834-9992 Part XVII. Texas State Board of Plumbing Examiners Chapter 361. Administration General Provisions 22 TAC sec.361.1 The Texas State Board of Plumbing Examiners adopts an amendment to sec.361. 1, without changes to the proposed text as published in the May 27, 1994, issue of the Texas Register (19 TexReg 4079). The rule is justified because each person who has access to a potable water system will not be endangered by lead in the water nor by a cross-connection of clean and unclean water. The amendment to sec.361.1 updates the rule to cite correctly the state agency responsible for issuing the Water Treatment Certificate. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 6243-101, which provide the Texas State Board of Plumbing Examiners with the authority to prescribe, amend, and enforce all rules necessary to carry out the Plumbing License Law. The rule also is adopted under Chapter 341, Health and Safety Code, Subchapter C. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on July 11, 1994. TRD-9445218 Gilbert Kissling Administrator Texas State Board of Plumbing Examiners Effective date: August 8, 1994 Proposal publication date: May 27, 1994 For further information, please call: (512) 458-2145 22 TAC sec.361.6 The Texas State Board of Plumbing Examiners adopts an amendment to sec.361. 6, without changes to the proposed text as published in the June 3, 1994, issue of the Texas Register (19 TexReg 4318). The rule is justified by ensuring each person has access to clean water and clean air because of plumbing inspected by competent plumbing inspectors, by ensuring compliance with health and safety and water protection law, and by ensuring instructors of continuing education programs have undergone quality instructor certification training. The rule clarifies some fees and sets forth other fees for certain licenses, examinations, renewals and late renewals, and instructor certification training; the rule also deletes certain charges for copies which are found in sec.361.9 (Charges for Copies of Public Records). No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 6243-101, which provide the Texas State Board of Plumbing Examiners with the authority to prescribe, amend, and enforce all rules necessary to carry out the Plumbing License Law. The rule also is adopted under Senate Bill Number 5 (General Appropriations Act), 73rd Legislature, Regular Session, sec.78 (Appropriation of Collections for Seminars and Conferences). This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on July 11, 1994. TRD-9445219 Gilbert Kissling Administrator Texas State Board of Plumbing Examiners Effective date: August 8, 1994 Proposal publication date: June 3, 1994 For further information, please call: (512) 458-2145 22 TAC sec.361.8 The Texas State Board of Plumbing Examiners adopts an amendment to sec.361. 8, without changes to the proposed text as published in the June 3, 1994, issue of the Texas Register (19 TexReg 4319). Justification for the rule is the public health, safety, and welfare will be enhanced by ensuring compliance by the Board and by its clientele with the Plumbing License Law through the use of appropriate forms and materials. The rule updates sec.361.8 to cite correctly the forms and materials used by the Board. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 6243-101, which provide the Texas State Board of Plumbing Examiners with the authority to prescribe, amend, and enforce all rules necessary to carry out the Plumbing License Law. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on July 11, 1994. TRD-9445217 Gilbert Kissling Administrator Texas State Board of Plumbing Examiners Effective date: August 8, 1994 Proposal publication date: June 3, 1994 For further information, please call: (512) 458-2145 22 TAC sec.361.26 The Texas State Board of Plumbing Examiners adopts an amendment to sec.361. 26, without changes to the proposed text as published in the April 19, 1994, issue of the Texas Register (19 TexReg 2824). The rule is justified because the public health, safety, and welfare will be enhanced by ensuring each individual who receives contracted services from a plumber licensed by the Texas State Board of Plumbing Examiners is informed of the Board's name, address, and telephone number should the recipient of the plumber's services desire to file a complaint against the contracting plumber with the Board. The rule sets forth consumer interest information that shall be contained in the written contracts for services between a licensed plumber and any other individual. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 6243-101, which provide the Texas State Board of Plumbing Examiners with the authority to prescribe, amend, and enforce all rules necessary to carry out the Plumbing License Law. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on July 11, 1994. TRD-9445216 Gilbert Kissling Administrator Texas State Board of Plumbing Examiners Effective date: August 8, 1994 Proposal publication date: April 19, 1994 For further information, please call: (512) 458-2145 Chapter 363. Examinations 22 TAC sec.363.1 The Texas State Board of Plumbing Examiners adopts an amendment to sec.363. 1(f), without changes to the proposed text as published in the May 27, 1994, issue of the Texas Register (19 TexReg 4079). The rule is justified because the public health, safety, and welfare will be enhanced by ensuring water supply protection specialists' compliance with health and safety and water protection law. The rule sets forth additional items to be included in the water supply protection specialist training program an individual must undertake in order to qualify for the water supply protection specialist examination. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 6243-101, which provide the Texas State Board of Plumbing Examiners with the authority to prescribe, amend, and enforce all rules necessary to carry out the Plumbing License Law. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on July 11, 1994. TRD-9445215 Gilbert Kissling Administrator Texas State Board of Plumbing Examiners Effective date: August 8, 1994 Proposal publication date: May 27, 1994 For further information, please call: (512) 458-2145 22 TAC sec.363.5 The Texas State Board of Plumbing Examiners adopts an amendment to sec.363. 5, without changes to the proposed text as published in the April 12, 1994, issue of the Texas Register (19 TexReg 2608). The rule is justified because the public health, safety, and welfare will be enhanced by ensuring each individual licensed by the Texas State Board of Plumbing Examiners has undergone a rigorous and thorough examination and has been afforded the opportunity to obtain quality study materials for the examination. The rule concerns the description of the examination for each license and endorsement category and what study materials are available to examination applicants. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 6243-101, which provide the Texas State Board of Plumbing Examiners with the authority to prescribe, amend, and enforce all rules necessary to carry out the Plumbing License Law. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on July 11, 1994. TRD-9445220 Gilbert Kissling Administrator Texas State Board of Plumbing Examiners Effective date: August 8, 1994 Proposal publication date: April 12, 1994 For further information, please call: (512) 458-2145 22 TAC sec.363.6 The Texas State Board of Plumbing Examiners adopts an amendment to sec.363. 6, without changes to the proposed text as published in the May 27, 1994, issue of the Texas Register (19 TexReg 4080). The rule is justified because the public health, safety, and welfare will be enhanced by assuring all individuals licensed by the Board-regardless of their special needs-have been afforded reasonable accommodations to undergo the Board's rigorous written and applied/mechanical examinations. The rule clarifies the responsibilities of the Board to provide reasonable accommodations for the special circumstances of an examinee. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 6243-101, which provide the Texas State Board of Plumbing Examiners with the authority to prescribe, amend, and enforce all rules necessary to carry out the Plumbing License Law. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on July 11, 1994. TRD-9445221 Gilbert Kissling Administrator Texas State Board of Plumbing Examiners Effective date: August 8, 1994 Proposal publication date: May 27, 1994 For further information, please call: (512) 458-2145 22 TAC sec.363.11 The Texas State Board of Plumbing Examiners adopts an amendment to sec.363. 11(a) and (b), without changes to the proposed text as published in the May 27, 1994, issue of the Texas Register (19 TexReg 4080). The rule is justified because the public health, safety, and welfare will be enhanced by ensuring medical gas systems have been installed in such a manner as to prevent infection and/or an unintended cross-connection of breathable and lethal gases because the installers of medical gas piping have undergone quality medical gas training programs and compliance with health and safety and water protection law because water supply protection specialists have undergone quality water supply protection specialist training programs. The amendment to sec.363.11(a) deletes anachronistic language. The amendment to sec.363.11(b) sets forth approval criteria for instructors, the required course outline and the minimum hours of training for prospective instructors, provider's notification to the Board of the time(s) and place(s) where water supply training will occur, and self-monitoring by the approved providers. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 6243-101, which provide the Texas State Board of Plumbing Examiners with the authority to prescribe, amend, and enforce all rules necessary to carry out the Plumbing License Law. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on July 11, 1994. TRD-9445222 Gilbert Kissling Administrator Texas State Board of Plumbing Examiners Effective date: August 8, 1994 Proposal publication date: May 27, 1994 For further information, please call: (512) 458-2145 Chapter 365. Licensing 22 TAC sec.365.1 The Texas State Board of Plumbing Examiners adopts an amendment to sec.365. 1, without changes to the proposed text as published in the May 27, 1994, issue of the Texas Register (19 TexReg 4081). The rule is justified because of the enhanced public assurance that permitted plumbing work is performed with the direct participation of a master plumber. The rule cites the tasks a master plumber is entitled to perform by virtue of being a master plumber. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 6243-101, which provide the Texas State Board of Plumbing Examiners with the authority to prescribe, amend, and enforce all rules necessary to carry out the Plumbing License Law. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on July 11, 1994. TRD-9445223 Gilbert Kissling Administrator Texas State Board of Plumbing Examiners Effective date: August 8, 1994 Proposal publication date: May 27, 1994 For further information, please call: (512) 458-2145 22 TAC sec.365.2 The Texas State Board of Plumbing Examiners adopts an amendment to sec.365. 2, without changes to the proposed text as published in the May 27, 1994, issue of the Texas Register (19 TexReg 4081). The rule is justified because the public health, safety, and welfare will be enhanced by ensuring each individual who applies to take the journeyman plumber's examination is a registered plumber's apprentice, has minimum educational qualifications, and has minimum trade experiences. To be eligible to take the journeyman plumber's examination, an applicant must be a registered apprentice; hold a high school diploma or GED; and meet certain minimum trade experience requirements described in the Texas State Board of Plumbing Examiners' rule sec.365.3(b)(3). The amendments to rule sec.365.2 set forth criteria to qualify as a registered plumber's apprentice. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 6243-101, which provide the Texas State Board of Plumbing Examiners with the authority to prescribe, amend, and enforce all rules necessary to carry out the Plumbing License Law. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on July 11, 1994. TRD-9445224 Gilbert Kissling Administrator Texas State Board of Plumbing Examiners Effective date: August 8, 1994 Proposal publication date: May 27, 1994 For further information, please call: (512) 458-2145 22 TAC sec.365.3 The Texas State Board of Plumbing Examiners adopts an amendment to sec.365. 3, without changes to the proposed text as published in the May 27, 1994, issue of the Texas Register (19 TexReg 4082). The rule is justified because the public health, safety, and welfare will be enhanced by ensuring each person has access to clean water and clean air because of plumbing inspected by competent plumbing inspectors. Previously, the rule provided that a political subdivision shall furnish proof of a plumbing inspector applicant's employment prior to taking the plumbing inspector's examination. The amendment provides that a political subdivision may furnish proof of intention to employ an individual as a plumbing inspector if the applicant meets the Board's requirements to qualify as a plumbing inspector. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 6243-101, which provide the Texas State Board of Plumbing Examiners with the authority to prescribe, amend, and enforce all rules necessary to carry out the Plumbing License Law. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on July 11, 1994. TRD-9445225 Gilbert Kissling Administrator Texas State Board of Plumbing Examiners Effective date: August 8, 1994 Proposal publication date: May 27, 1994 For further information, please call: (512) 458-2145 22 TAC sec.365.11 The Texas State Board of Plumbing Examiners adopts an amendment to sec.365. 11, without changes to the proposed text as published in the May 27, 1994, issue of the Texas Register (19 TexReg 4081). The rule is justified because of the enhanced public assurance that permitted plumbing work is performed with the direct participation of a master plumber. The rule cites the tasks a master plumber is entitled to perform by virtue of being a master plumber. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 6243-101, which provide the Texas State Board of Plumbing Examiners with the authority to prescribe, amend, and enforce all rules necessary to carry out the Plumbing License Law. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on July 11, 1994. TRD-9445226 Gilbert Kissling Administrator Texas State Board of Plumbing Examiners Effective date: August 8, 1994 Proposal publication date: May 27, 1994 For further information, please call: (512) 458-2145 22 TAC sec.365.12 The Texas State Board of Plumbing Examiners adopts an amendment to sec.365. 12, without changes to the proposed text as published in the May 27, 1994, issue of the Texas Register (19 TexReg 4083). The rule is justified because the public health, safety, and welfare will be enhanced by ensuring individuals issued licenses by the Texas State Board of Plumbing Examiners are fit, competent, and qualified to engage in the trades regulated by the Board. The rule is concerned with the licensing of persons with criminal backgrounds. It clarifies the ineligibility of incarcerated felons to obtain or renew any license issued by the Texas State Board of Plumbing Examiners. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 6243-101, which provide the Texas State Board of Plumbing Examiners with the authority to prescribe, amend, and enforce all rules necessary to carry out the Plumbing License Law. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on July 11, 1994. TRD-9445227 Gilbert Kissling Administrator Texas State Board of Plumbing Examiners Effective date: August 8, 1994 Proposal publication date: May 27, 1994 For further information, please call: (512) 458-2145 Chapter 367. Enforcement 22 TAC sec.367.1 The Texas State Board of Plumbing Examiners adopts an amendment to sec.367. 1, without changes to the proposed text as published in the May 27, 1994, issue of the Texas Register (19 TexReg 4083). The rule is justified because of the enhanced public assurance the Plumbing License Law is enforced by field representatives of the Texas State Board of Plumbing Examiners and by plumbing inspectors. The rule concerns field representatives of the Board and plumbing inspectors. The amendments to sec.367.1 clarify employment criteria and job responsibilities of a field representative of the Board and clarify job responsibilities of a plumbing inspector. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 6243-101, which provide the Texas State Board of Plumbing Examiners with the authority to prescribe, amend, and enforce all rules necessary to carry out the Plumbing License Law. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on July 11, 1994. TRD-9445228 Gilbert Kissling Administrator Texas State Board of Plumbing Examiners Effective date: August 8, 1994 Proposal publication date: May 27, 1994 For further information, please call: (512) 458-2145 Part XXIV. Board of Veterinary Medical Examiners Chapter 573. Rules of Professional Conduct Supervision of Personnel 22 TAC sec.573.12 The Texas Board of Veterinary Medical Examiners adopts new sec.573.12, Alternate Therapies Chiropractic and Other Forms of Musculoskeletal Manipulation, with changes to the proposed text as published in the May 6, 1994, issue of the Texas Register (19 TexReg 3415). This new rule specifies when licensees must be involved in this treatment modality in accordance with the mandate contained in sec.7(b) of the Veterinary Licensing Act. A public hearing concerning this proposed rule was held on May 31, 1994. Comments in favor of adoption of the rule were received from American Association of Equine Practitioners. No groups or associations commented against adoption of the rule. A number of individual comments were received, both in support and against adoption of the rule. A trainer opposed the rule as proposed. He felt chiropractic care is very beneficial in his training operation and believed owners should have the prerogative as to what treatment(s) are provided to their own animals. He also believed that many veterinarians are not qualified to assess the value of this therapy for certain conditions. A trainer wanted this form of therapy available to horse trainers because he believed it is beneficial. A trainer uses chiropractic care as an integral part of her training program and utilizes it when other treatment regimes provided by the veterinarian have failed. She felt it should be an alternative therapy and not utilized in lieu of a veterinarian. She suggested that a certification or licensing board be established to certify the qualifications of individuals performing this service. An animal therapist supported a certification board for licensure of acuscope users. The Board did not consider this issue. A trainer requested the Board to help get statutory regulation of equine chiropractors. No consideration was given this issue because it was not directly related to the rule under consideration. A trainer supported the board resolving this issue, but believed placing liability on veterinarians will force trainers to call the treatment something other than chiropractic because veterinarians will not be willing to assume responsibility. A commenter expressed her dissatisfaction with the Board and other government entities interfering with her rights as an owner to select treatment for her animals. She suggested that complaints about problem lay manipulators be sent to the Board office so it could determined what harmful things are happening by providers of this alternate therapy. A veterinarian supported having veterinarians involved with nonveterinarians who provide this therapy in order to protect the public. He testified about unqualified individuals making diagnoses, performing treatments and/or prescribing legend drugs, and making prognoses. He also testified about nonveterinarians at race tracks who had asked him to inject legend drugs into animals under their care. He expressed concern with a veterinarian's ability to separate qualified from unqualified individuals who perform this therapy. A veterinarian supported veterinarians' role with alternate therapies in order to fulfill the Board's mandate to protect the public and ensure humane treatment. He questioned whether some animal owners have adequate knowledge of chiropractic and acupuncture to know whether treatments are needed or are effective. He suggested that a panel be created to certify individuals qualified to administer manipulation treatments. A veterinarian supported the rule and pointed out that this rule is attempting to regulate all who perform musculoskeletal manipulation on animals and not just one or two people who are well known and considered qualified providers of the service. A veterinarian supported the rule but recommended that direct supervision by a veterinarian be required when treatments are provided. He testified that he has been trained in acupuncture and chiropractic and has seen many more unqualified individuals than qualified individuals treating animals with these procedures. Therefore, he felt that direct supervision is essential to protect the public and the animal. A veterinarian supported the rule as proposed but felt that direct supervision by a veterinarian is needed since general supervision does not adequately protect the public. He testified that he is a small-animal practitioner utilizing chiropractic and other modalities in his practice and pointed out that animals can be injured by overmanipulation. Unless the veterinarian witnesses the treatment, he or she has no way of knowing if a lay person may make this error. The American Association of Equine Practitioners, supported the proposed rule. He felt there is a place for chiropractic medicine as an alternative therapy to treatments by a veterinarian. He also noted that forms of restraint or sedatives are not normally needed when performing these treatments, but are preferred by some lay people. Further, he felt the required disclosure statement should be dropped for veterinarians as chiropractic in veterinary medicine becomes recognized. A commenter suggested that the rule should specify what diagnosis is acceptable. She pointed out that in most instances the veterinarian can't make a diagnosis of the problem and that is the reason a chiropractor is called upon. She also encouraged the Board to make it clear in the rule that veterinarians' responsibility is to the Board and not a liability in a court of law if the owner is not satisfied. She encouraged DVMs to take courses in chiropractic medicine. The Texas Chiropractic Board informed the Board that it is working on a rule that may parallel this Board's proposed rule. At present it advises licensed chiropractors who want to treat animals to work under the supervision of a licensed veterinarian. The Texas Veterinary Medical Association testified in support of the rule as written. He pointed out that the issue is not whether or not this procedure works or whether or not it is available to the public, but rather how it is made available to them. He supported the proposed rule because the Board needs to ensure that proper controls exist to prevent untrained or incompetent persons from offering these services. An attorney provided oral and written testimony and opposed the rule as proposed. However, he offered a revised version that he regards as acceptable. He recommended that subsection (b)(1)(B), which requires a diagnosis, be deleted. He argued that this subsection is unnecessary because subsection (b) (1)(A) requires that a valid veterinarian/client/patient relationship be established. This provision is defined by the Veterinary Licensing Act and requires, among other things, that a veterinarian assume responsibility for medical judgments regarding the health of an animal and requires that there be sufficient knowledge of the animal to make at least a general or preliminary diagnosis of its medical condition. In addition, Mr. VonDohlen said that subsection (b)(1)(B) may be interpreted to require a diagnosis prior to every chiropractic treatment, which would not be necessary when caring for chronic conditions. He also stated that the veterinarian/client/patient relationship allows the veterinarian the option of requiring direct supervision if chiropractic/MSM treatment might endanger the animal's well being and should adequately protect the public. He also opposed subsection (c) as proposed. He believed that, as currently written, it could be construed to impose extended and strict liability on a veterinarian who directly or generally supervises an independent contractor. He submitted that such exposure for a veterinarian would be a barrier to the public's access to this service by adding an unnecessary increase in cost and reducing the availability of this service without providing a corresponding benefit. He recommended that the veterinarian should be responsible only for his or her own act or omissions. The Board considered all written and oral comments on this rule. Some were incorporated into the rule and some were not. A number of people requested that the Board require veterinarians to have little or no involvement in chiropractic/MSM services. The Board did not incorporate this approach because the statute does not give the Board this choice but rather charges it to determine a veterinarian's level of supervision when the therapy is provided. Others suggested that the Board initiate some form of certification, registration, or approval process of those nonveterinarians who provide chiropractic/MSM. The Board did not incorporate these suggestions because it has no statutory authority to regulate anyone other than veterinarians. A related suggestion was made that the Board should receive complaints from the public on non-veterinarians who perform chiropractic/MSM for the purpose of determining the extent of harm, if any, that they cause while performing this therapy. The theory was that little or no harm will occur and the Board will determine that no close supervision of the providers is needed. The Board did not incorporate this suggestion since it has no practical means to know who might be performing the service or how to inform the public where and how to file complaints. Several who testified recommended that subsection 573.12(b)(1) (B), be deleted. This subsection required that a diagnosis be made before chiropractic/MSM be prescribed. Since testimony indicated that many believe most veterinarians are unfamiliar with chiropractic/MSM, requiring a veterinarian to make a diagnosis would be a barrier to making this therapy available. The Board modified this subsection to address this concern by allowing the treatment after a veterinarian has performed an examination of the animal to determine that no medical problems exist and that such treatment would not likely be harmful to the patient. The veterinarian's knowledge of the animal established in the veterinarians/client/patient relationship shall be adequate to meet the examination requirement, but the examination must be sufficient for the veterinarian to make a judgement that the treatment will not likely be harmful to the animal. Many who commented perceived that veterinarians' responsibility under subsection (c) created an extended liability on veterinarians that would have negative effects on the availability of this service. The intent of the rule was not to imply that veterinarians' responsibility would extend to any responsibility beyond those under the Veterinary Licensing Act or Board rules. Therefore, subsection (c) was substantially rewritten to clarify that veterinarians' responsibility for professional judgements and actions created by law and Board rules would be to the Board. Such actions will be judged by a standard based on a level of judgement and performance that would be exercised by the average Texas veterinarian who uses or recommends chiropractic/MSM in his or her practice. Several people who testified recommended that the Board require veterinarians to allow employees and independent contractors perform chiropractic/MSM only under direct supervision. The Board did not specify the level of supervision but left this determination to veterinarians based on their judgement of the situation and knowledge of the competence of the persons performing the therapy. The rule is adopted under Texas Civil Statutes, Article 8890, sec.7(b), which provides that the Board shall adopt rules to protect the public and to ensure that the performance of alternate therapies, including chiropractic treatment, are performed only by a licensee or under the supervision of a licensee. sec.573.12. Alternate Therapies -Chiropractic and Other Forms of Musculoskeletal Manipulation. (a) Definition: For the purpose of this rule, animal chiropractic and other forms of musculoskeletal manipulation (MSM) are systems of therapeutic application of mechanical forces applied manually through the hands or any mechanical device to diagnose, treat, and/or alleviate impaired or altered function of related components of the musculoskeletal system of nonhuman animals. Chiropractic and other forms of MSM in nonhuman animals are considered to be alternate therapies in the practice of veterinary medicine. (b) Treatment using chiropractic and other forms of MSM Chiropractic and other forms of MSM may only be performed by the following: (1) A licensed veterinarian Chiropractic and MSM may be performed by a licensed veterinarian under the following conditions: (A) a valid veterinarian/client/patient relationship has been established as defined in the Act; B an examination has been made by the licensee to determine that chiropractic/MSM will not likely be harmful to the patient; and C the licensee obtains as a part of the patient's permanent record, a signed acknowledgement by the owner or other caretaker of the patient that chiropractic or MSM is considered by Texas law to be an alternate (nonstandard) therapy. 2 A licensee's employee or an independent contractor An employee or an independent contractor may perform these procedures on an animal under the direct or general supervision of the licensee if the conditions in subsection (b)(1)(A)-(C) of this section have been met. 3 An individual to whom the exceptions of the Act, sec.3, apply. (c) Responsibility. Whether the chiropractic/MSM is performed by a licensee or the licensee's employee or an independent contractor working under the supervision of a licensee, the Board will hold the licensee to a level of professional judgement as would be exercised by the average Texas licensee who performs or recommends chiropractic/MSM treatments in his/her practice. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on July 18, 1994. TRD-9445234 Judy C. Smith Administrative Assistant Board of Veterinary Medical Examiners Effective date: August 16, 1994 Proposal publication date: May 6, 1994 For further information, please call: (512) 447-1183 TITLE 25. HEALTH SERVICES Part II. Texas Department of Mental Health and Mental Retardation Chapter 401. System Administration Subchapter B. Interagency Agreements 25 TAC sec.401.57 (Editor's Note: The following new section was inadvertenly published in the May 20, 1994, issue of the Texas Register (19 TexReg 3932) with no effective date. This section is being re-published in this issue effective July 26, 1994.) The Texas Department of Mental Health and Mental Retardation (TXMHMR) adopts new sec.401.57, without changes to the proposed text as published in the January 9, 1994, issue of the Texas Register (19 TexReg 144). The memorandum of understanding (MOU) that is adopted by reference as Exhibit N is adopted with changes. The MOU outlines training requirements for identifying and reporting abuse, neglect, and unprofessional or unethical conduct in health care facilities. Senate Bill 210 (73rd Texas Legislature) requires TXMHMR, the Texas Commission on Alcohol and Drug Abuse (TCADA), and the Texas Department of Health (TDH) to adopt the memorandum by rule. Section I of the MOU is revised to use the term "health care facility" to refer to the entities to which the MOU applies. New Section II of the MOU incorporates definitions for the terms used throughout the document. Section III (formerly Section II) is revised to delete terms specific to types of training that may be utilized (e.g., instruction, information, etc.). The section is further revised to clarify that in addition to the minimum requirements for information included in the training program, additional training concerning patient care and the prevention of abuse or neglect or illegal, unprofessional, and unethical conduct may be used to fulfill the eight-hour requirement. The section is also revised to clarify that although full-time employees are subject to the eight-hour requirement, administrators may vary the amount and type of training required for part-time employees, provided that the minimum information requirements of the training program are met. The requirement that facilities maintain training records for ten years is reduced to five years in Section IV of the MOU (formerly Section III). The section is also revised to delete the provision that training curriculum be included with each individual training record. The provision is replaced by a requirement that a copy of the curriculum be maintained by the facility. Language is also added concerning training on the Code of Ethics for various disciplines. Written comment on the proposal was received from eight organizations, including: Texas Mental Health Association, Austin; Advocacy, Inc., Austin; Shoal Creek Hospital, Austin; Woods Psychiatric Institute, Abilene; Tri-County Mental Health and Mental Retardation Services, Conroe; CPC Oak Bend Hospital, Fort Worth; Timberlawn Mental Health System, Dallas; and Bexar County Hospital District, San Antonio. All commenters offered recommendations for changes. A commenter noted that when considered in terms of all psychiatric inpatient settings, the inservice requirement creates a tremendous health care cost. The commenter requested that the department utilize the minimum standards of training to get maximum results. The department responds that changes made in response to comment received concerning the proposed training requirements have enhanced efforts to attain the goal of maximum results. A commenter recommended that the training address what is required if incidents do occur, including reporting and investigating requirements. The department responds that the minimum requirements for the training program include training on requirements and procedures for reporting such incidents. A commenter recommended that the training emphasis needed to be on teaching staff how to provide a therapeutic environment, which is likely to prevent the occurrence of abuse or neglect. Another commenter noted that the eight topics specified are necessary, but seem to ignore issues leading to patient abuse or neglect. The department responds that language has been added to clarify that in addition to the eight required topics, the eight-hour requirement can be met through training in a variety of areas designed to improve patient care or prevent abuse or neglect or illegal, unprofessional, and unethical conduct. These include, but are not limited to, courses related to the prevention of aggressive behavior, crisis intervention, CEU, CNE, and CME courses, some aspects of employee orientation, and sensitivity training. A commenter asked whether the requirements of the memorandum applied to outpatient services. Another commenter recommended that the term "health care facility" be used throughout the document to reference the entities to which the MOU applies, with definitions provided for those entities. The department responds that the provisions of Senate Bill 210 apply only to the specified categories of inpatient facilities. As requested, the term "health care facilities" has been used throughout the document, with appropriate definitions added as requested. A number of commenters expressed concern about the requirement that each employee or health care professional associated with a health care facility receive eight hours of training in the required topics. Several commenters suggested that the amount was excessive. Others suggested that the amount of training required should be allowed to vary depending on the responsibilities of the employee. Most questioned the application of the training requirement to consultant or temporary health care professionals who serve at the health care facility on a limited basis (e.g., one or two days a week, courtesy consults). The department responds that as mandated by the 73rd Legislature, each full- time employee or health care professional associated with a health care facility is required to receive eight hours of training. Revisions to Section III of the MOU clarify that the requirement may be met utilizing a variety of types of training, and also clarify that the training may include a variety of topics in addition to the eight specified in the MOU. Realistically, the eight hour figure shouldn't be difficult to achieve since so many topics can be used to meet it. In response to concerns regarding the need for such extensive training for certain part-time employees, such as pool employees, consultants, and physicians providing courtesy consults, the agencies developing the MOU offer language allowing administrators to reduce the amount of time spent in training for part- time employees. The MOU includes criteria administrators should consider in determining whether or not eight hours of training is necessary. The MOU also specifies that regardless of the amount of training provided, the required topics must be addressed in any training program. The department notes, however, that all full-time employees are required to receive eight hours of training. Several commenters questioned the need for eight hours of training on an annual basis, noting that refresher training could be accomplished just as effectively in six, four, or two hours. The department responds that although refresher training in the eight required topics may be accomplished in fewer than eight hours, additional training in topics designed to improve patient care or prevent abuse or neglect or illegal, unprofessional, or unethical conduct should be used to complete the eight hours. The intention is that employees continue to learn about topics that will help prevent incidents from occurring. Concerning the subject of sexual exploitation, a commenter noted that standards are needed that require health care professionals to learn about boundaries. The department agrees, and recommends that health care facilities developing curricula for their training programs consider including this as part of the program. A commenter asked whether the portion of training on the prevention and management of aggressive behavior (PMAB) concerning patients rights/patient abuse could be utilized to meet some of the training requirements. The department responds that language has been revised in Section III of the MOU to clarify that this type of training may be utilized to meet the training requirement. A commenter noted that part of training should focus on how to prevent abuse and neglect, including training on how to interact in a therapeutic manner. The commenter also recommended that the training focus on identifying systemic problems and situations in which the staffing ratio, program or work environment is not therapeutic and therefore contributes to the occurrence of abuse, neglect, and unethical conduct. The department agrees and has included language in Section III of the MOU concerning training for employees in the prevention of abuse or neglect. The department encourages health care facilities to include training concerning a variety of topics, including, but not limited to, systemic issues and sensitivity training. Another commenter recommended including sensitivity training and awareness of the importance of reporting abuse and neglect in the training program. The commenter also suggested including training in the importance of preventive measures. Again, the department agrees, and has included language in Section III of the MOU concerning training for employees in the prevention of abuse or neglect. Concerning reporting requirements, a commenter noted that training should be provided through an interactive process. The commenter suggested that there should be measurable outcomes which are more substantive than a signature on an attendance sheet. The commenter noted that the accountability should not come through a signed document but through the demonstration of behaviors and concepts that indicate the message of the training has been integrated. The department agrees. Clearly, the intent of the training requirement is to ensure that employees and associated health care professionals of health care facilities are aware of issues related to abuse and neglect and illegal, unprofessional, and unethical conduct, and act and react in a way that avoids such incidents. The signed document is merely a concrete means of determining whether the training was provided. Several commenters noted that the requirement that training records be maintained for ten years seemed a bit excessive. The department agrees, and has reduced the length of time to five years. The new section is adopted under the Texas Health and Safety Code, sec.532. 015 (Texas Civil Statutes, Article 5547-202, sec.2.11), which provides the Texas Department of Mental Health and Mental Retardation with broad rulemaking powers. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 17, 1994. TRD-9443509 Ann K. Utley Chairman Texas Department of Mental Health and Mental Retardation Effective date: July 26, 1994 Proposal publication date: January 9, 1994 For further information, please call: (512) 206-4516 TITLE 28. INSURANCE Part I. Texas Department of Insurance Chapter 1. General Administration Subchapter B. Fees, Charge, and Costs 28 TAC sec.1.301 The Texas Department of Insurance adopts new sec.1.301, relating to charges for copies of public records, without changes to the proposed text published in the June 10, 1994, issue of the Texas Register (19 TexReg 4486). The adopted section is necessary because House Bill 1009, 73rd Legislature, required each state agency to review its procedures for providing access to and copies of public records and to analyze the charges the agency makes for providing copies. House Bill 1009 also mandated each state agency to promulgate rules specifying the charges the agency will establish for copies of public information. On March 29, 1994, GSC adopted rules to set out the methods and procedures that a state agency may use in determining the amounts the agency should charge. To comply with House Bill 1009 mandates, the department adopts by reference the rules that the GSC has adopted in 1 TAC sec.sec.111.61-111.70. Section 1.301 provides a framework within which the department may recover the cost to provide copies of open records to persons requesting the copies. The section also provides that the department may waive these charges under certain circumstances. No comments were received regarding adoption of the rule. The new section is adopted under House Bill 1009, 73rd Legislature and the Insurance Code, Article 1.03A. House Bill 1009 requires all state agencies to promulgate rules specifying the charges each agency will establish for copies of public information. Article 1.03A authorizes the Commissioner to adopt rules and regulations for the conduct and execution of the duties and functions by TDI. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on July 20, 1994. TRD-9445333 D. J. Powers General Counsel and Chief Clerk Texas Department of Insurance Effective date: August 10, 1994 Proposal publication date: June 10, 1994 For further information, please call: (512) 475-2025 Part II. Texas Workers' Compensation Commission Chapter 110. Required Notices of Coverage 28 TAC sec.110.110 The Texas Workers' Compensation Commission adopts new sec.110.110, concerning requirements for governmental entities awarding a contract for a building or construction project, and for persons providing services on a building or construction project for a governmental entity. The new rule is adopted with changes to the proposed text as published in the April 26, 1994, issue of the Texas Register (19 TexReg 3131). The changes to the proposed text are as follows. The contract language in subsection (c)(7)(J) has been designated as Figure 1. The text of the notice in subsection (d)(7) has been designated as Figure 2. Subsections (a)(7) and (c)(7) were changed by adding language to further clarify who is covered by the rule. Subsections (c) (7)(J) in Figure 1 and (e)(3) were added to clarify that a contractor or subcontractor is representing to the governmental entity that workers' compensation coverage is provided. Subsections (d)(8)(C) and (e)(8)(C) were added to require specific language regarding representations of coverage to be added to contracts to provide services on the project. Subsections (c)(7)(F), and (c)(7)(I)(V) in Figure 1; (d)(5), (d)(8)(F), (e)(6), and (e)(8)(F) were changed to reduce the retention period for contractors and other persons providing services on the project from three years to one year. Subsection (g) was changed to state that this rule applies to contract advertised for bid after September 1, 1994, rather than awarded after September 1, 1994. The Texas Labor Code, sec.406.096, requires workers' compensation insurance coverage for all persons providing services on a building or construction project for a governmental entity. The commission is aware that this statutory requirement is not being met, and this rule is designed to achieve compliance and to implement a recordkeeping process which will enable oversight of compliance. The rule does this by placing requirements on the governmental entity and on contractors and other persons providing services on a project. These requirements include coverage, certificates of coverage, posted notices of coverage, and notification of changes in coverage status. The rule does not create any duty or burden on anyone which the law does not establish. The rule defines terms which apply to governmental entity building or construction projects and sets up a clear procedure for governmental entities and contractors that bid for building and construction projects to follow in complying with the requirements of the Texas Labor Code, sec.406.096. It also defines "persons who provide services on a project" who are subject to the statutory requirement of coverage, and sets forth their requirements to comply with the statute and the rule. It specifically excludes persons such as food/beverage vendors whose deliveries and labor are not permanently incorporated into the project. The rule puts persons on notice that providing false or misleading certificates of coverage, or failing to provide or maintain required coverage, or failing to report any change that materially affects the provision of coverage may subject the contractor or other persons providing services on the project to administrative penalties, civil penalties, or other civil actions. The rule requires a governmental entity to timely obtain certificates of coverage, retain them for the duration of the project plus three years, and provide them to the commission upon request and to others entitled to them by law. It also requires the governmental entity, as a prerequisite to awarding a contract, and as part of the contract, to require that the contractor: provide coverage and certificates of coverage for the contractor's employees; timely obtain and provide the governmental entity all required certificates of coverage for all persons providing services on the project; retain certificates of coverage on file for the duration of the project and for one year thereafter; notify the governmental entity in writing by certified mail or personal delivery, within 10 days after the contractor knew or should have known, of any change that materially affects the provision of coverage of any person providing services on the project; post notices on each project site; and contractually require persons with whom it contracts to do the same, with the certificates of coverage to be provided to the person for whom they are providing services. The rule also sets out the language to be included in bid specifications and in contracts awarded by a governmental entity and the information required to be in the posted notice to employees. It further establishes a method for obtaining the certificates from persons providing services on the project and providing them to the governmental entity. It requires a contractor awarded a building or construction contract to: provide workers' compensation coverage to the contractor's employees for the duration of the project; file a certificate of coverage of the contractor's employees with the governmental entity prior to being awarded a contract; obtain and provide to the governmental entity, certificates of coverage from each other person with whom it has contracted to provide services on the project, prior to that person beginning work on the project; obtain and provide new certificates of coverage shown on the current certificate ends during the duration of the project; retain all certificates of coverage for the duration of the project and for one year thereafter; notify the governmental entity of material changes in coverage; contractually require each other person with whom it contracts to provide a certificate of coverage; and post notices on each project site. All other persons providing services on a project have the same requirements as a contractor, with the exception of posting notices and with the exception that the certificate of coverage is given to the person for whom they contracted to provide services on the project. The rule uses the term "persons providing services on the project" in lieu of the statutory term "subcontractor" because the term "subcontractor" as used in the statute (sec.406.096) and in this rule is broader than standard industry usage. The use of the different terminology will prevent confusion. The rule does not create any duty or burden on anyone which the law does not establish. Comments on the proposed new rule were received from the Texas Municipal League, Turner-Bass and Associates, Associated General Contractors of Texas (Highway, Heavy, Utilities and Industrial Branch), Brown and Root, Inc., and Texas Concrete Company. Comments supporting the proposed new rule were received from Turner-Bass and Associates and Texas Concrete Company. Comments opposing the proposed new rule were received from the Texas Municipal League, Brown and Root and the Associated General Contractors of Texas. Summaries of the comments and commission responses are as follows. The Texas Municipal League made the following comments: Comment: The rule imposes onerous posting and recordkeeping requirements on governmental entities when sanctioning governmental entities or contractors who do not comply with the simple language of the statute would better accomplish the stated purpose of the rule. The Commission disagrees with this comment for two reasons. First, the posting requirement is placed on the contractor and not on the governmental entity. Second, the Commission's goal is to achieve compliance with the law, rather than sanction failure to comply. Comment: The rule is inappropriate because it requires governmental entities to maintain employment records and lists of all persons working on a public building or construction project. The Commission disagrees. The rule requires only that governmental entities obtain certificates of coverage for each person providing services on the project. Multiple persons can be covered by a single certificate. In addition, the Commission believes it is not unduly burdensome for a governmental entity to maintain a list of all contractors and subcontractors working on its projects. The commenter was also concerned that the rule creates new liabilities for governmental entities which overlook the failure of a subcontractor to maintain workers' compensation insurance coverage. The Commission disagrees. The rule creates no liability on the part of governmental entities which does not already exist. Brown and Root made the following comments: Comment: The definition of "persons providing services on the project" is too broad and may include food/beverage vendors. The Commission agrees the original language creates confusion. Subsections (a)(7) and (c)(7) have been amended to reflect the intention that services does not include activities unrelated to the project such as food/beverage vendors, office supply deliveries, and delivery of portable toilets. Comment: The commission should require notice to the governmental entity only of "cancellations and/or renewals" rather than of "changes that materially affect" the provision of coverage. The Commission disagrees because this limitation would make it more difficult for governmental entities to ensure all contractors and subcontractors on a project maintain the required coverage. While the rule as written covers cancellations and renewals, the Commission believes the language as proposed also encompasses other possible scenarios such as dropping coverage for some employees after beginning work on a project. Comment: It is not always feasible to provide certificates of coverage to a governmental entity prior to a subcontractor beginning work on a project. The Commission disagrees and asserts that contractors can alleviate this problem through advance planning and the use of facsimile machines. Comment: The contractor might be subject to fines and penalties if a subcontractor fails to keep the contractor informed about the status of their coverage. The rule places an additional recordkeeping burden on contractors. The Commission agrees that the rule appropriately places a burden on the contractor to obtain new certificates of coverage from subcontractors when coverage expires during the contract period. When the contractor fails to provide new certificates as required by the rule, the contract becomes voidable by the governmental entity if the contractor does not timely remedy the problem. However, the rule does give contractors some leeway in timeframes in that it allows a contractor to file certificates of coverage extension for its subcontractors within seven days after the contractor receives the certificate from its subcontractor. (See (d)(4)(B)). The commission has also added text to clarify that each person providing services on a project is responsible for representations as to their coverage only. (See (c)(7)(J), (d) (8)(C), (e)(3), and (e)(8)(C)). Comment: Contractors would be required to maintain a tickler system on all certificates of coverage and pursue late or missing certificates. The Commission agrees that the rule imposes these requirements but believes the law already requires this. The Association of General Contractors of Texas made the following comments: Comment: The definition of "persons providing services on the project" should merely track the statutory language. The Commission disagrees. Contractors and subcontractors are misinterpreting the statutory language and many persons working on government projects are not covered by workers' compensation insurance even though coverage is required by law. The new definition makes clear that all persons working on a government contract must be covered. Comment: The expense and burden of using certified mail is excessive. The Commission disagrees. The cost of using certified mail is outweighed by the benefit of having a record that something was mailed. In addition, a contractor also has the option of making a personal delivery in lieu of using certified mail. Comment: The posting requirements are redundant because the Commission already requires posted notices of coverage. The Commission disagrees. The notice currently required provides only information about coverage, the identity of an employer's workers' compensation carrier, Commission assistance, and the safety hotline. The notice required by this rule informs employees that coverage of them is mandatory. Brown and Root and the Association of General Contractors both made the following comment: Comment: Retaining records for three years is too long. The Commission agrees in part. The statute of limitations on fraud is three years and records must be maintained to allow prosecution of this crime. Also, state law requires business records to be kept for three years. Because the access to these records is essential to prosecution of violation of the law and this rule, a three-year period will continue to exist for governmental entities but the period is reduced to one year past the duration of the project for contractors and persons providing services on the contract. This change has been made in subsections (c)(7)(F), (c)(7)(I)(V), (d)(5),(d)(8)(F), (e)(6), and (e)(8)(f). Texas Concrete Company made the following comment: Comment: The rule should cover plants producing prestressed-precast concrete products to be used in government projects. The Commission disagrees. The purpose of this rule is to ensure persons working on the jobsite are covered. The new rule is adopted under the Texas Labor Code, sec.402.061, which authorizes the commission to adopt rules necessary to administer the Act, and Texas Labor Code, sec.406.096, which establishes requirements for governmental entities, contractors, and subcontractors ("persons providing services on the project") regarding workers' compensation coverage for workers on public building or construction projects. sec.110.110. Reporting Requirements for Building or Construction Projects for Governmental Entities. (a) The following words and terms, when used in this rule, shall have the following meanings, unless the context clearly indicates otherwise. Terms not defined in this rule shall have the meaning defined in the Texas Labor Code, if so defined. (1) Certificate of coverage ("certificate")- A copy of a certificate of insurance, a certificate of authority to self-insure issued by the commission, or a coverage agreement (TWCC-81, TWCC-82, TWCC-83, or TWCC-84), showing statutory workers' compensation insurance coverage for the person's or entity's employees (including those subject to a coverage agreement) providing services on a project, for the duration of the project. (2) Building or construction-Has the meaning defined in the Texas Labor Code, sec.406. 096(e)(1). (3) Contractor-A person bidding for or awarded a building or construction project by a governmental entity. (4) Coverage-Workers' compensation insurance meeting the statutory requirements of the Texas Labor Code, sec.401.011(44). (5) Coverage agreement-A written agreement on form TWCC-81, form TWCC-82, form TWCC-83, or form TWCC-84, filed with the Texas Workers' Compensation Commission which establishes a relationship between the parties for purposes of the Workers' Compensation Act, pursuant to the Texas Labor Code, Chapter 406, Subchapters F and G, as one of employer/employee and establishes who will be responsible for providing workers' compensation coverage for persons providing services on the project. (6) Duration of the project-Includes the time from the beginning of work on the project until the work on the project has been completed and accepted by the governmental entity. (7) Persons providing services on the project ("subcontractor" in sec.406.096 of the Act) -Includes all persons or entities performing all or part of the services the contractor has undertaken to perform on the project, regardless of whether that person contracted directly with the contractor and regardless of whether that person has employees. This includes but is not limited to independent contractors, subcontractors, leasing companies, motor carriers, owner-operators, employees of any such entity, or employees of any entity furnishing persons to perform services on the project. "Services" includes but is not limited to providing, hauling, or delivering equipment or materials, or providing labor, transportation, or other service related to a project. "Services" does not include activities unrelated to the project, such as food/beverage vendors, office supply deliveries, and delivery of portable toilets. (8) Project-Includes the provision of all services related to a building or construction contract for a governmental entity. (b) Providing or causing to be provided a certificate of coverage pursuant to this rule is a representation by the insured that all employees of the insured who are providing services on the project are covered by workers' compensation coverage, that the coverage is based on proper reporting of classification codes and payroll amounts, and that all coverage agreements have been filed with the appropriate insurance carrier or, in the case of a self-insured, with the commission's Division of Self-Insurance Regulation. Providing false or misleading certificates of coverage, or failing to provide or maintain required coverage, or failing to report any change that materially affects the provision of coverage may subject the contractor or other person providing services on the project to administrative penalties, criminal penalties, civil penalties, or other civil actions. (c) A governmental entity that enters into a building or construction contract on a project shall: (1) include in the bid specifications, all the provisions of subsection (d) of this rule, using the language required by paragraph (7) of this subsection; (2) as part of the contract, using the language required by paragraph (7) of this subsection, require the contractor to perform as required in subsection (d) of this rule; (3) obtain from the contractor a certificate of coverage for each person providing services of the project, prior to that person beginning work on the project; (4) obtain from the contractor a new certificate of coverage showing extension of coverage: (A) before the end of the current coverage period, if the contractor's current certificate of coverage shows that the coverage period ends during the duration of the project; and (B) no later than seven days after the expiration of the coverage for each other person providing services on the project whose current certificate shows that the coverage period ends during the duration of the project; (5) retain certificates of coverage on file for the duration of the project and for three years thereafter; (6) provide a copy of the certificates of coverage to the commission upon request and to any person entitled to them by law; and (7) use the language for bid specifications and contracts, without any additional words or changes, except those required to accommodate the specific document in which they are contained or to impose stricter standards of documentation contained in Figure 1: 28 TAC sec.110.110(c)(7) of this section. (d) A contractor shall: (1) provide coverage for its employees providing services on a project, for the duration of the project based on proper reporting of classification codes and payroll amounts and filing of any coverage agreements; (2) provide a certificate of coverage showing workers' compensation coverage to the governmental entity prior to beginning work on the project; (3) provide the governmental entity, prior to the end of the coverage period, a new certificate of coverage showing extension of coverage, if the coverage period shown on the contractor's current certificate of coverage ends during the duration of the project; (4) obtain from each person providing services on a project, and provide to the governmental entity: (A) a certificate of coverage, prior to that person beginning work on the project, so the governmental entity will have on file certificates of coverage showing coverage for all persons providing services on the project; and (B) no later than seven days after receipt by the contractor, a new certificate of coverage showing extension of coverage, if the coverage period shown on the current certificate of coverage ends during the duration of the project; (5) retain all required certificates of coverage on file for the duration of the project and for one year thereafter; (6) notify the governmental entity in writing by certified mail or personal delivery, within 10 days after the contractor knew or should have known, of any change that materially affects the provision of coverage of any person providing services on the project; (7) post a notice on each project site informing all persons providing services on the project that they are required to be covered, and stating how a person may verify current coverage and report failure to provide coverage. This notice does not satisfy other posting requirements imposed by the Act or other commission rules. This notice must be printed with a title in at least 30-point bold type and text in at least 19-point normal type, and shall be in both English and Spanish and any other language common to the worker population. The text for the notices shall be the following text in Figure 2: 28 TAC sec.110.110(d)(7) of this section, provided by the commission on the sample notice, without any additional words or changes; and (8) contractually require each person with whom it contracts to provide services on a project, to: (A) provide coverage based on proper reporting of classification codes and payroll amounts and filing of any coverage agreements for all of its employees providing services on the project, for the duration of the project; (B) provide a certificate of coverage to the contractor prior to that person beginning work on the project; (C) include in all contracts to provide services on the project the language in subsection (e)(3) of this section; (D) provide the contractor, prior to the end of the coverage period, a new certificate of coverage showing extension of coverage, if the coverage period shown on the current certificate of coverage ends during the duration of the project; (E) obtain from each other person with whom it contracts, and provide to the contractor: (i) a certificate of coverage, prior to the other person beginning work on the project; and (ii) prior to the end of the coverage period, a new certificate of coverage showing extension of the coverage period, if the coverage period shown on the current certificate of coverage ends during the duration of the project; (F) retain all required certificates of coverage on file for the duration of the project and for one year thereafter; (G) notify the governmental entity in writing by certified mail or personal delivery, within 10 days after the person knew or should have known, of any change that materially affects the provision of coverage of any person providing services on the project; and (H) contractually require each other person with whom it contracts, to perform as required by subparagraphs (A)-(H) of this paragraph, with the certificate of coverage to be provided to the person for whom they are providing services. (e) A person providing services on a project, other than a contractor, shall: (1) provide coverage for its employees providing services on a project, for the duration of the project based on proper reporting of classification codes and payroll amounts and filing of any coverage agreements; (2) provide a certificate of coverage as required by its contract to provide services on the project, prior to beginning work on the project; (3) have the following language in its contract to provide services on the project: "By signing this contract or providing or causing to be provided a certificate of coverage, the person signing this contract is representing to the governmental entity that all employees of the person signing this contract who will provide services on the project will be covered by workers' compensation coverage for the duration of the project, that the coverage will be based on proper reporting of classification codes and payroll amounts, and that all coverage agreements will be filed with the appropriate insurance carrier or, in the case of a self-insured, with the commission's Division of Self-Insurance Regulation. Providing false or misleading information may subject the contractor to administrative penalties, criminal penalties, civil penalties, or other civil actions." (4) provide the person for whom it is providing services on the project, prior to the end of the coverage period shown on its current certificate of coverage, a new certificate showing extension of coverage, if the coverage period shown on the certificate of coverage ends during the duration of the project; (5) obtain from each person providing services on a project under contract to it, and provide as required by its contract: (A) a certificate of coverage, prior to the other person beginning work on the project; and (B) prior to the end of the coverage period, a new certificate of coverage showing extension of the coverage period, if the coverage period shown on the current certificate of coverage ends during the duration of the project; (6) retain all required certificates of coverage on file for the duration of the project and for one year thereafter; (7) notify the governmental entity in writing by certified mail or personal delivery, of any change that materially affects the provision of coverage of any person providing services on the project and send the notice within 10 days after the person knew or should have known of the change; and (8) contractually require each other person with whom it contracts to: (A) provide coverage based on proper reporting of classification codes and payroll amounts and filing of any coverage agreements for all of its employees providing services on the project, for the duration of the project; (B) provide a certificate of coverage to it prior to that other person beginning work on the project; (C) include in all contracts to provide services on the project the language in subsection (e)(3) of this section; (D) provide, prior to the end of the coverage period, a new certificate of coverage showing extension of the coverage period, if the coverage period shown on the current certificate of coverage ends during the duration of the project; (E) obtain from each other person under contract to it to provide services on the project, and provide as required by its contract: (i) a certificate of coverage, prior to the other person beginning work on the project; and (ii) prior to the end of the coverage period, a new certificate of coverage showing extension of the coverage period, if the coverage period shown on the current certificate of coverage ends during the duration of the contract; (F) retain all required certificates of coverage on file for the duration of the project and for one year thereafter; (G) notify the governmental entity in writing by certified mail or personal delivery, within 10 days after the person knew or should have known, of any change that materially affects the provision of coverage of any person providing services on the project; and (H) contractually require each person with whom it contracts, to perform as required by subparagraphs (A)-(H) of this paragraph, with the certificate of coverage to be provided to the person for whom they are providing services. (f) If any provision of this rule or its application to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of this rule that can be given effect without the invalid provision or application, and to this end the provisions of this rule are declared to be severable. (g) This rule is applicable for building or construction contracts advertised for bid by a governmental entity on or after September 1, 1994. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on July 15, 1994. TRD-9445153 Susan Cory General Counsel Texas Workers' Commission Effective date: September 1, 1994 Proposal publication date: April 26, 1994 For further information, please call: (512) 440-3700 TITLE 30. ENVIRONMENTAL QUALITY Part I. Texas Natural Resource Conservation Commission Chapter 115. Control of Air Pollution From Volatile Organic Compounds Subchapter J. Administrative Provisions Alternate Means of Control 30 TAC sec.sec.115.901, 115.910-115.916 The Texas Natural Resource Conservation Commission (TNRCC or Commission) adopts new sec.115.901, an amendment to sec.115.910, and new sec.sec.115.911- 115.916, concerning Alternate Means of Control (AMOC), with changes to the proposed text as published in the March 1, 1994, issue of the Texas Register (19 TexReg 1436). The new sec.sec.115.911-115.916 and revisions to sec.115.910 establish procedures for requesting the Executive Director's approval of an AMOC. In lieu of complying with control requirements in Chapter 115, relating to Control of Air Pollution from Volatile Organic Compounds, the AMOC rules provide for alternate emission reductions greater than or equal to reductions specified in Chapter 115. The new sec.115.901, concerning Insignificant Emissions, relocates the previous sec.115.910(b). The revisions to sec.115.910, concerning the Availability of AMOC, provide any person affected by a control requirement and/or emission specification of this chapter the opportunity to comply with an AMOC, provided the AMOC plan is approved. Such AMOC plan will be considered federally enforceable and shall include monitoring, testing, reporting, and recordkeeping requirements appropriate to the AMOC specifications. The new sec.115.911, concerning Criteria for Approval of AMOC Plans, sets forth basic criteria for an AMOC plan approval. The intent of the sec.115.911 requirement for surplus reductions is to avoid double counting of emission reduction credits with regard to the State Implementation Plan (SIP) and any netting or offsetting requirements of sec.116.150 of this title (relating to New Major Source or Major Modification in Ozone Nonattainment Area), sec.116. 151 of this title (relating to New Major Source or Modification in Nonattainment Area Other than Ozone), sec.116.160 of this title (relating to Prevention of Significant Deterioration Requirements), and sec.116.161 of this title (relating to Source Located in an Attainment Area with Greater than De Minimis Impact). The new sec.115.912, concerning Calculations for Determining AMOC Reductions, provides basic guidance for calculations of equivalency based on actual annual emissions and maximum potentials to emit. The new sec.115.913, concerning Procedures for AMOC Plan Submittal, provides for the submittal of a proposed AMOC plan and demonstration to the Executive Director and to the United States Environmental Protection Agency (EPA) Regional Office in Dallas, for concurrent review. Section 115.913 details the basic required components of an AMOC plan. The new sec.115.914, concerning Procedures for an AMOC Plan Approval, sets forth the procedures upon preliminary and final determination to approve or deny the AMOC plan. Section 115.914 provides EPA an additional 45-day review period, upon notice of the Executive Director's final determination, with the opportunity to disapprove the Executive Director's determination. The Executive Director shall then revise or revoke the AMOC plan. The new sec.115. 915, concerning Public Notice Format, provides for written comment on the Executive Director's preliminary determination to approve an AMOC plan. The new sec.115.916, concerning Review of Approved AMOC Plans, voids an AMOC plan upon the compliance date of a new or modified regulation of this chapter affecting a source subject to an AMOC plan; and requires the holder of an AMOC plan to comply with the requirements of this chapter. The intent of sec.115.916 is to ensure that actual emission reductions are being achieved. The goal of the TNRCC is to review the proposed AMOC plans and establish the Executive Director's preliminary determination within 45 days of an AMOC plan submittal. The TNRCC staff has established a goal which ranges from 120 days to the EPA- identified 180 days for processing an AMOC plan submittal. However, it is the intent of the TNRCC to meet the 150-day goal as identified during the rule negotiation period. The TNRCC recommends that the application be submitted six months prior to compliance dates to provide for a reasonable period of time for TNRCC consideration. It is the position of the TNRCC that a method of control implemented prior to January 1, 1991, shall not be recognized as meeting the criteria established for an AMOC. A public hearing was held on March 31, 1994 in Austin. The comment period closed on April 1, 1994. Alternate Means of Control. Twelve commenters submitted testimony on sec.sec.115.901, 115.910, and 115.911-115.916. Amoco Oil Company (Amoco) on behalf of Amoco Oil, Amoco Chemical, and Amoco Production; City of Dallas, Health and Human Services (Dallas); Dow Chemical Company, Texas Operations (Dow); Exxon Company, U.S.A., Baytown Refinery (Exxon); Houston Lighting and Power (HL&P); Mobil Oil Corporation (Mobil); The Society of the Plastics Industry, Incorporated (SPI); Texas Chemical Council (TCC); Texas Mid-Continent Oil and Gas Association (TMOGA); and Vought Aircraft Company (Vought) generally supported the proposed revisions, but suggested changes or clarifications. The EPA generally supported the concepts of flexibility and a compressed AMOC processing timeframe, but would require the incorporation of components of the Economic Incentive Plan (EIP) which are beyond the TNRCC air quality planning standards. The EPA maintains the position that EIP concepts should be included within the AMOC rule language in order to develop an approvable program. The TNRCC staff disagrees that this is an EIP, but believes that this program satisfies EPA's guidelines for an EIP program. An individual opposed the proposed changes. Exxon and Mobil support the AMOC proposal in concept and endorse those comments submitted jointly by TCC and TMOGA. Mobil further applauds the TNRCC efforts to provide industry with flexibility to comply with regulations to control volatile organic compounds (VOC) in the most cost-effective manner and be protective of the environment. Mobil also believes that this proposed rule is consistent with EPA Administrator Browner's long-standing commitment to regulatory flexibility. The TCC/TMOGA strongly support the AMOC proposal in concept and in most of the particulars, but only if the proposed changes to the existing AMOC rule are, indeed, absolutely necessary for EPA approval of the TNRCC's AMOC program. General Comments. The EPA noted that the section headings (e.g., sec.115.911) are followed by numbers for subsections, rather than letters. The EPA inquired whether the subsections should be labeled by letters rather than numbers to maintain consistency with other chapters. The TNRCC has intentionally used the form reflected in the AMOC rule in order to address the Texas Register's publication requirements. When there is no subsection (b), subsection (a) is not identified, but implied. Vought requested consideration for a time-limited exemption from new regulations for the Aerospace Industry. The AMOC rules do not place any new regulations on the Aerospace Industry and this concern cannot be addressed in this rulemaking package. The SPI supports the proposed rules, which allow owners/operators of sources the opportunity to comply with an AMOC for VOCs. As noted, the AMOC rules provide for alternate emission reductions greater than or equal to reductions specified in Chapter 115. This provision allows owners/operators of sources the flexibility to choose those control requirements which may best meet the needs of the facility. The SPI requested that the TNRCC provide guidance for smaller sources in developing AMOCs. The TNRCC desires to provide as much guidance as resources will allow. Specific guidance is available in the rules and additional guidance can be obtained from the Small Business Technical Assistance staff and the Engineering Services Section of the Enforcement Division, who will review the AMOC application. HL&P supports the TNRCC's guidelines which allow a regulated source to utilize an AMOC as a method to reduce VOC emissions to compliance levels. The TNRCC staff appreciates HL&P's support of the AMOC proposal. With regard to the language choice of "compliance levels," the AMOC rule requires going beyond standard compliance levels by virtue of the application of applicable factors identified in sec.115.911(3). An individual opposed any preliminary determination regarding an AMOC. The individual believes that such a determination is not in the public's interest since it is predicated on an agreement between the TNRCC and the applicant and has no public input. With regard to the individual's opposition to a preliminary determination for an AMOC, the AMOC process allows the TNRCC the authority to determine whether an AMOC request is valid and provisions should be established. If the AMOC request is not valid, then the AMOC is not published in the Texas Register and thus saves the State of Texas the expense of public notice on AMOC requests which fail to meet the TNRCC standards as provided for within the AMOC rules. The AMOC rules provide for public input in the form of written public comment on AMOC provisions published in a newspaper of general circulation. In addition, the AMOC rules require that written notice regarding the Executive Director's final determination be provided as noted in sec.115. 914(6) and further provides an opportunity to appeal the Executive Director's determination to the Commission. The individual further expressed a need for a public hearing. It is the TNRCC's position that the opportunity for public comment provides adequate public input. The TNRCC will make every effort to respond to public comments and concerns. The TCC/TMOGA stated that the preamble of the proposed AMOC rule appears to have overstated the costs and understated the benefits of the proposal. The TCC/TMOGA noted that, in particular, it does not seem likely that local governments would need any "increased compliance personnel," because the rules would lead to site-specific AMOCs with site-specific provisions, thus possibly reducing the level of effort required in an inspection. The TCC/ TMOGA further stated the preamble does not expressly reference the increased economic efficiency that the increased use of AMOCs will achieve. As mentioned by TCC/TMOGA, the AMOC rules provide for environmental benefits by establishing an offset ratio; utilizing actual emissions levels; and implementing source specific monitoring, testing, reporting, and recordkeeping requirements. In addition, the TNRCC agrees that economic benefits will be afforded to the regulated community. Costs to the agency regarding processing and enforcement of AMOCs are difficult to predict since the costs will be based upon the number and complexity of the applications. An individual requested the TNRCC in sec.115.901 to define "make a significant contribution to air contaminants in the atmosphere." Since this particular section of the rule affects attainment counties, the Prevention of Significant Deterioration (PSD) rules apply and the term "significant" refers to the PSD program requirements. The PSD program requires modeling to demonstrate that the emissions from the compound or specific gas stream are not "significant." For facilities affected by this section, the TNRCC recognizes the PSD rules as a resource for guidance. No comments were received regarding sec.115.910. The section was adopted with minor changes in response to comments received on other sections. The EPA requested that the term "actual annual emission" in sec.115.911(2) be clearly defined in the rule, including how it is to be calculated. In addition, EPA requested that the term "theoretical annual emissions reductions" be defined. The EPA noted that sec.115.912 addresses some of the definition requests; however, the terminology is not consistent, nor are there cross- references between sec.115.911 and sec.115.912. The TNRCC agrees and staff has addressed EPA's request to clearly define the terms in sec.115.911 and sec.115.912 by modifying the language used to explain "actual annual emissions" as well as describe calculations for equivalency. The TNRCC staff has eliminated the use of the term "theoretical annual emissions reductions." In addition, the TNRCC staff has cross-referenced sec.115.911 and sec.115.912 for clarification purposes. It is the intent of the TNRCC to review each AMOC and offset ratio to ensure compliance with the statutory requirements of Chapter 115, relating to the Control of Air Pollution From Volatile Organic Compounds. The intent of sec.115. 911(2) is to establish an enforceable annual emissions limit, sec.115.911(3) is to provide for an additional environmental benefit within the AMOC, and sec.115. 911(4) is to ensure that the daily emission potential will protect the integrity of the SIP. HL&P expressed concern regarding sec.115.911(2)(D) which requires that the emission reductions at an alternative source shall be the amount of total theoretical annual emission reductions required by otherwise applicable provisions of Chapter 115, multiplied by the applicable factor of 1.3 for sources located in the Houston/Galveston area. HL&P acknowledged the TNRCC's desire to avoid double counting of emission reduction credits with regard to netting or offsetting requirements, but stated that the concerns should be alleviated by sec.115.911(4), which requires reductions in actual emissions created by the AMOC to be surplus and remain surplus to reductions required by Chapter 115 and any netting or offsetting requirements of Chapter 116. HL&P recommended that an alternative source be required to reduce total actual annual emissions to the same compliance level as a regulated source as long as the alternative source and the regulated source are located in the same TNRCC account. As stated previously with regard to the language choice of "compliance levels," the AMOC rules require going beyond standard compliance levels by virtue of the application of applicable factors identified in sec.115.911(3). It is the position of the TNRCC that the additional reduction factor is required as a shared benefit with the environment. While the TNRCC does not intend to approve AMOC applications containing such uncertain calculations and computational assumptions, the reduction factors will further ensure the development or occurrence of necessary reductions as well as the integrity of the AMOC program by preventing the uncertainty inherent in calculations or computational assumptions from leading to actual increases in VOC emissions. In addition, the reduction factor helps ensure the support of the EPA with regard to the innovative AMOC program. An individual protested sec.115.911(3), which provides that the AMOC must be implemented and reductions created after January 1, 1991. The individual protested allowing AMOCs to exist before the rule is finalized. With regard to the individual's opposition to AMOCs, the TNRCC desires to clarify that AMOCs are nonexistent prior to January 1, 1991. However, it is the intent of the TNRCC to recognize emission reductions achieved by an AMOC plan provided the emission reductions occurred after January 1, 1991, and which utilize Emissions Inventory reporting for the base year 1990 or thereafter. The SPI requested clarification regarding sec.115.911(4) as it was proposed: "Reductions in actual emissions created by the AMOC must be surplus and remain surplus to reductions required by this chapter and any netting or offsetting requirements of sec.116.150 of this title (relating to New Major Source or Major Modifications in Ozone Nonattainment Area), sec.116.151 of this title (relating to New Major Source or Major Modification in Nonattainment Area Other than Ozone), sec.116.160 of this title (relating to Prevention of Significant Deterioration Requirements), and sec.116.161 of this title (relating to Source Located in an Attainment Area with Greater than De Minimis Impact)." The TNRCC staff believes that efforts to clearly define terms and cross- referencing sec.115.911 and sec.115.912 clarify the requirements set forth in the AMOC rules. Thus, the language modifications to the rules should address SPI's concerns as related to the issue of actual emissions that may be surplus. Surplus is defined as the reductions in a plan that go beyond the requirements of Chapter 115 that become part of the plan. These reductions may not be used for other AMOC plans, netting, or offsetting requirements. The SPI stated that the intent and applicability of sec.115.911(2) is unclear and considered it sufficient for facilities to adopt alternative plans that achieve the same reductions as controls that would otherwise be required, instead of requiring reductions that provide an additional offset. The TNRCC staff modified the language for clarification purposes. Despite the modification to language, the intent of the rule remains the same, which is to provide for additional reductions made at alternative sources which comply with the guidelines within the AMOC rules. This additional reduction maintains the reductions provided by the rules as well as provides a safety factor to ensure adequate reductions. The SPI stated that any additional reductions should be treated the same as reductions achieved if the required controls were implemented. The TNRCC staff interpreted SPI's comment to address the issue of additional reduction factors, and to say that additional reduction factors should not be necessary. It is the position of the TNRCC that the additional reduction factor is required as a benefit to the environment. In addition, the reduction factor helps ensure the support of the EPA with regard to the innovative AMOC program. While the TNRCC does not intend to approve AMOC applications containing such uncertain calculations and computational assumptions for which actual increases in VOC emissions might occur, the reduction factors further will ensure the development or occurrence of necessary reductions as well as the integrity of the AMOC program by preventing the uncertainty inherent in calculations or computational assumptions from leading to actual increases in VOC emissions. The TCC/TMOGA suggested the use of "indirect source" in sec.115.911(5) rather than the term "associated emissions." The term "indirect source" is a term used in the Federal Clean Air Act (FCAA), sec.110(a)(3)(C), to refer to places and activities (such as parking garages) which attract mobile sources. The TNRCC staff finds TCC/TMOGA's request to replace "associated emissions" with "indirect source" to be reasonable. However, upon referencing the FCAA, staff believes the proper reference to be FCAA, sec.110(a)(5)(C). The EPA stated that sec.115.911(6) does not identify the specific procedures (e.g., formulas, specific test methods, or monitoring techniques) that will be used. The procedures must be clearly stated in the rules that Executive Director approval of these methods will not prohibit EPA disapproval of the alternate compliance plan if EPA finds that the quantification procedures were not adequate. It is the intent of sec.115.914(8) to provide EPA authority to reject an AMOC plan for failure to meet any of the criteria of sec.115.910 et seq., relating to Alternate Means of Control, including authority to disapprove of procedures/criteria/ provisions the TNRCC Executive Director has approved. It is, however, incumbent upon EPA to clearly explain the reasons for disapproval and provide an explanation of what action must be taken to gain approval (e.g., formulas, specific test methods, or monitoring techniques). An individual referenced sec.115.911(6) and stated opposition to any allowance for estimations of emissions. With regard to the individual's opposition to allowances for the estimations of emissions, the TNRCC considers the estimation of emissions to be acceptable in cases where accuracy may be determined and when estimation is considered the best determination of emissions. In addition, estimated emissions may be restricted to trades when like estimated emissions are grouped. The TNRCC Executive Director may authorize the use of estimated emissions if it is deemed appropriate for determining actual emissions. The TCC/TMOGA and Amoco expressed concern regarding the lack of reference to AP-42 factors in sec.115.911(6)(B). Amoco requested consideration to add language to sec.115.911(6)(B) which recognizes the EPA AP-42 factors or other calculation equations which are a function of process or control system parameters, activity levels, and/or throughput or production rates. The TCC/TMOGA also urged the TNRCC to state in the preamble that AP-42 factors will be acceptable under sec.115.911(6)(B) where appropriate. The TNRCC considers AP-42 factors and other calculation methodologies to be acceptable when the Executive Director determines the relative accuracy is sufficient to ensure emission reductions on a case-by-case basis as provided for in sec.115.911(8)(D). The intent of sec.115.911(8)(D) is not to limit the list of appropriate calculation methodologies, but to provide the Executive Director with the flexibility to require calculations sufficient to ensure the integrity of the AMOC program. Necessarily, this flexibility would provide the Executive Director discretion to disapprove inappropriate methodologies. The EPA noted that sec.115.911(7) states that, "The AMOC plan must ensure that actual emission reductions are created and preserved with respect to actual emissions in 1990;...." It is EPA's understanding that sec.115.911(2) requires that actual emission reductions occur not relative to the units' 1990 levels, but rather relative to the "theoretical annual emissions reductions required by otherwise applicable provisions of Chapter 115." The EPA inquired as to whether the requirements in this provision would be in addition to the requirements in sec.115.911(2). The EPA identified the need for the state to clarify this point and further stated that if this is an additional requirement, then the state must clearly define what is meant by "actual emission reductions are created" and "actual emissions in 1990." The EPA also stated that the definitions should address how actual emissions would be determined. The TNRCC staff has addressed this comment by modifying language in sec.115. 911(2). The testing component is included in the rule language at the request of EPA. Inclusion within the rule language does not imply the Executive Director does not have authority to require testing under 30 TAC Chapter 101, relating to sec.sec.101.8, 101.9, and 101.14 (relating to Sampling, Sampling Ports, and Sampling Procedures and Terminology), "monitoring" rules, or other rules. The EPA stated that in sec.115.911(7)(A) it must be clear that the Executive Director approval of the monitoring, recordkeeping, and reporting requirements will not prohibit EPA from disapproving an alternate compliance plan if EPA finds that the provisions for establishing compliance are not adequate. It is the intent of sec.115.914(8) to provide EPA authority to reject an AMOC plan for failure to meet any of the criteria of sec.115.910 et seq., relating to Alternate Means of Control, including authority to disapprove of procedures/criteria/ provisions the TNRCC Executive Director has approved. It is, however, incumbent upon EPA to clearly explain the reasons for disapproval and provide an explanation of what action must be taken to gain approval (e.g., formulas, specific test methods, or monitoring techniques). The EPA noted in sec.115.911(7)(A) that following General Criteria for Monitoring the rule should state: "Each AMOC plan must provide for testing of the affected sources on a frequency consistent with the applicable emission limit and consistent with the requirements of Title V where applicable and the enhanced monitoring rule where applicable." The EPA further noted that in sec.115.911(7)(A) the AMOC rules should state the following general criteria for recordkeeping: "Each AMOC must require collection and maintenance of records consistent with the averaging time of the emission limit and recordation of all information necessary for calculating the compliance status of an affected source. In addition, the requirement must be as reliable, readily retrievable, and retained for a comparable period of time as the underlying Chapter 115 requirement." The EPA also stated in sec.115.911(7) that, while EPA believes that the existing Chapter 115 monitoring, recordkeeping, and reporting requirements are adequate to demonstrate compliance with the existing rules, EPA is not at all certain that the requirements will be sufficient to show compliance with an emission average or emission cap. While the TNRCC staff considers EPA's request logical, this requirement extends beyond the actual requirements in Chapter 115, relating to the Control of Air Pollution from Volatile Organic Compounds. It is not the intent of the proposed AMOC rules to establish compliance with Title V or the enhanced monitoring rule. Additional rules may be imposed upon the sources upon implementation of Title V with regard to operating permits. Thus, the TNRCC believes that the frequency of AMOC required monitoring, testing, reporting, and recordkeeping shall be sufficient to reasonably ensure compliance with applicable emission limits. Where Chapter 115 requires a percentage control requirement with no averaging time specified, the only conclusion is that the averaging time is appropriate to meet the intent of Chapter 115. The EPA stated that sec.115.911(7)(B) needs to clearly state the criteria which will be used to determine the acceptability of the emission limits and/or control requirements. The EPA suggested the following revision: "For all sources in the AMOC plan, the plan must establish enforceable emission limits and/or control requirements that will ensure that the actual emission reductions required by sec.115.911(2) will be achieved. The AMOC plan must include all necessary and appropriate provisions for monitoring, reporting and recordkeeping sufficient to determine compliance with the emission limits and/or control requirements specified in the plan." In addition, EPA noted that this provision must require that the emission limits and/or control requirements established in the AMOC plan must specify an appropriate averaging time that is consistent with the short-term ozone standard. As a general comment, EPA noted that this rule does not specify whether it allows for emission trading to occur through emission averaging or emission caps. The EPA stated that the TNRCC must clarify which emission trading program is provided for by the AMOC rules, since each program requires different monitoring, recordkeeping, and reporting requirements. It is the intent of the TNRCC to provide for the acceptability of an AMOC to be evaluated on the basis of actual annual emissions. No AMOC may be approved unless actual emissions are reduced by an appropriate factor below the level that would occur under the otherwise applicable rules in Chapter 115. The AMOC program has been modified to provide for an annual emissions limit and short- term emission potentials. The purpose of establishing short-term emissions potentials is to prevent large increases in maximum daily potentials to emit that cause the ozone standard to increase by a significant amount. A one part per billion (1 ppb) increase in the ozone level was used to establish a level of significance for the TNRCC evaluation of an AMOC. The Urban Airshed Model was used to determine that an increase of four tons per day (TPD) in the Houston/Galveston area would increase the ozone level by a 1 ppb change. Thus, the sum of all increases of maximum potentials to emit over the Houston/Galveston area will be limited to 4 TPD. This limitation upon the total of the maximum potentials to emit is based on the whole nonattainment area; however, ozone formation is sensitive to the location of VOC emissions. Therefore, to prevent one or a few sources from utilizing all of the established limit in a small geographic area that could cause a significant increase in the measured or modeled ozone concentration, each AMOC involving multiple sources will be limited to a total increase in the maximum daily potentials to emit of 200 pounds. If shutdown credits generated by the applicant meet the criteria of the AMOC rule, those credits will be considered by the TNRCC. It is the position of the TNRCC that shutdown sources for which the applicant is seeking credit must have been in operation prior to January 1, 1990, must have been included in the 1990 base-year emissions inventory, and must remain shutdown. It is the intent of the TNRCC staff to recommend approval of those AMOCs that meet the requirements of the AMOC rules and for which AMOC provisions are agreeable to both the TNRCC and the AMOC applicant. As previously noted, the TNRCC intends to evaluate an AMOC based upon the requirements in Chapter 115, relating to the Control of Air Pollution From Volatile Organic Compounds, which establish the statutory upper limits for emissions either short-term or annual as defined within the AMOC rules. In addition, offset ratios are to be measured against annual emissions. Thus, the evaluation for AMOC sources must ensure that real reductions occur in compliance with sec.115.911(2) requirements, relating to Criteria for Approval of AMOC Plans. Vought stated that provisions should be allowed for the transfer of emission credits between facilities within the same nonattainment areas as a means to comply with Chapter 115. Vought further stated that transfer of emissions credits would benefit facilities that wish to sell emission credits. The TNRCC is interested in pursuing a program which provides for transfer of emission credits between facilities within the same nonattainment areas. The TNRCC may consider such programs in future rulemaking. However, the scope and requirements of the AMOC rules are not sufficient to allow for such programs. The intent of the AMOC rules is to provide for alternate means of control strictly within the same TNRCC account number. Dallas stated that the proposed rule should include explicit language to authorize the TNRCC Executive Director to conduct any audit testing of any monitoring/testing requirements contained in the AMOC. Dallas further stated that this authority should be at the discretion of the Executive Director, and should only be used to safeguard against deliberate or unintentional misrepresentation of system parameters as they relate to emission rates. The Executive Director has explicit authority under sec.101.8 to determine what constitutes sufficient or accurate monitoring and testing with regard to any source of air pollution in the state. During a TNRCC inspection, a review of the approved AMOC plan provisions will be conducted to determine the AMOC holder's compliance with the AMOC. The TNRCC staff has added language to clarify the Executive Director's authority to require testing to protect the air of the state. In sec.115.912, Calculation for Determining AMOC Reductions, the EPA reiterated the need to define the phrase "actual 1990 annual emissions" and inquired whether the phrase means the emissions for a given unit that were reported in the 1990 Base Year Emissions Inventory, the baseline emissions as defined in sec.115.912(4), or some other definition. The TNRCC staff has attempted to address EPA's comments by modifying language for consistency throughout the AMOC rule. It is the TNRCC's position that no emission inventory submission, for the purpose of the Urban Airshed Model, is frozen or locked into an emission level. Furthermore, the emission inventory base year is subject to revision to ensure real emission reductions will occur. This impacts an AMOC application in that it is based on actual annual emissions or the most accurate available emission data. The TCC/TMOGA expressed concern that sec.115.912 would place undue and unintended burdens on a source seeking an AMOC to simply substitute one control device for another. The TCC/TMOGA stated that it is not necessary or appropriate to require such AMOCs to achieve the supplemental reductions required of multisource AMOCs or to be made contingent on reducing allowable emissions to historical actual levels. The TCC/TMOGA stated that the sole inquiry in the single-source AMOC situation should be whether the proposed alternative control device is at least as effective as the otherwise required control device, and whether the alternative control plan includes sufficient monitoring, reporting, and recordkeeping (MRR) requirements. The TCC/TMOGA suggested a separate section or subsection addressing the additional criteria expected of multisource AMOCs. It is the intent of the TNRCC to establish procedures which streamline the application process for regulated entities which achieve emission reductions with an alternative means of control. The current SIP procedures are lengthy and at times burdensome in nature. Provisions within Chapter 115 require specific control devices or methods, and provide the opportunity to apply for the use of alternate control devices or methods in accordance with sec.115.910. The TNRCC has modified the AMOC rule language in order to expand the opportunity to use alternate control devices or methods which involve controlling unregulated facilities in lieu of regulated facilities and same-source applications. Expansion of the AMOC program to multiple source applications necessarily involves the addition of more stringent control and application requirements, many of which are irrelevant to single-source AMOC applications. The TNRCC staff has modified the language in sec.115.910 and sec.115.912 in order to avoid undue and unintended burdens on a source seeking an AMOC simply to substitute one control device for another. Site-specific SIP and permit amendment procedures may be considered in situations for which an AMOC may not be approved. Dallas stated that the definition of "1990 baseline emissions" needs to be more explicit. Dallas stated that it is not clear whether the term applies to all VOC sources in the account facility, including fugitives, or if it only applies to sources addressed elsewhere in Chapter 115. The TNRCC staff has attempted to clarify the definition of "baseline" in sec.115.912 by modifying the language. As noted by EPA, sec.115.912(2) states that "credits are generated by controlling a source beyond the degree required by this chapter." The EPA requested the state to more clearly define what types of emission reductions would be eligible for generating credits. The EPA noted that various ways to produce actual emission reductions might include: shutdowns, curtailment, installation of more stringent emission control technology, process changes, and material input changes. The EPA further noted that under an emission averaging program, emission reductions from shutdowns or curtailments could not provide credit; however, they could provide credit under an emissions cap program. The AMOC program has been modified to provide for an annual emissions limit and short-term emissions potential. If shutdown credits generated by the applicant meet the criteria of the AMOC rule, those credits will be considered by the TNRCC. It is the position of the TNRCC that shutdown sources for which the applicant is seeking credit must have been in operation prior to January 1, 1990, must have been included in the 1990 base year emissions inventory, and must remain shutdown. It is the intent of the TNRCC staff to recommend approval of those AMOCs that meet the requirements identified in the AMOC rules and for which AMOC provisions are agreeable to both the TNRCC and the AMOC applicant. An individual referenced sec.115.912(2) and stated opposition to any emission credit system. Section 115.912(2) reads as follows: "The AMOC applicant shall calculate emission reduction credits generated (credits are generated by controlling a source beyond the degree required by this chapter) by subtracting the source's proposed actual emissions under the AMOC plan (its alternative emission limit) from the source's baseline." As noted, the AMOC program has been modified to provide for an annual emissions limit and short-term emissions potentials. If shutdown credits generated by the applicant meet the criteria of the AMOC rule, those credits will be considered by the TNRCC. It is the position of the TNRCC that sources seeking credit for shutdowns must have been in operation prior to January 1, 1990, and must remain a shutdown credit. It is the intent of the TNRCC staff to recommend approval of those AMOCs that meet the requirements identified in the AMOC rules and for which AMOC provisions are agreeable to both the TNRCC and the AMOC applicant. The EPA identified the need in sec.115.912(3) to more clearly define the term "proposed actual emissions." The EPA noted that in sec.115.912(1) and (2), the term is followed by "its alternative emission limit." The EPA inquired whether this means the proposed actual emissions become the new enforceable annual emission limit for the unit; and if so, EPA stated that the subsection should explicitly state this. In addition, EPA inquired whether the proposed actual emissions are to be based on historic data or projected activity levels. The TNRCC agrees and staff has addressed EPA's request to clearly define the terms in sec.115.911 and sec.115.912 by modifying the language used to explain "actual annual emissions" as well as that used to describe calculations for equivalency. The TNRCC staff has eliminated the use of the term "proposed actual emissions." In addition, the TNRCC staff has cross-referenced sec.115.911 and sec.115.912 for clarification purposes. An individual requested that in sec.115.912(3) a definition be provided for "best available data" and "good engineering practice." In addition, the individual requested that in sec.115.912(4) a definition be provided for "assuming full compliance with the requirements of this chapter." The terms noted are terms that have meaning commonly ascribed to them in the field of air pollution control. The TNRCC staff does not believe that further definition is necessary. The terms identify standards or expectations of the TNRCC when considering the approval or disapproval of an AMOC plan. In sec.115.912(4), TCC/TMOGA suggested that the reference year for baseline calculations should not be fixed at 1990; otherwise, the TNRCC will be unable to consider sources constructed and regulations adopted after that date. The TCC/TMOGA recommended adding the words "or thereafter" in sec.115.912(4). The TNRCC staff has provided for a flexible baseline. The TNRCC intends to approve an AMOC which maintains consistency with air quality planning for the state and meets the criteria of this undesignated head. AMOCO stated that calculations for determining AMOC reductions should not limit the baseline definition of the actual emission rate to the year 1990 only. This could result in a severe penalty for a unit that experienced outages in 1990. It is further perceived that the goal of establishing a baseline could still be achieved, while at the same time allowing a more comprehensive review of facility operation. AMOCO suggests that the phrase "or any two-year period from 1990 to present" be added in sec.115.912(4). As noted in the previous response, the TNRCC staff has provided for a flexible baseline. The TNRCC intends to approve an AMOC which maintains consistency with air quality planning for the state and meets the criteria of this undesignated head. In sec.115.913, Procedures for AMOC Plan Submittal, the TCC/TMOGA recommended that the reference to "company name" in sec.115.913(b)(1) be changed to "AMOC applicant name" to reflect the fact that AMOCs may be requested by entities other than "companies." The TCC/TMOGA further recommended that all references to "applicant" in the rules be changed to "AMOC applicant." The TNRCC agrees and has modified the language to reflect the change to "AMOC applicant name" and references of "applicant" to "AMOC applicant" for clarification purposes. Amoco stated that sec.115.913(b)(3) should be revised to consistently reflect the modifications to sec.115.912(4) and suggested adding the phrase "or the quantification of the AMOC plan sources' actual emissions based on the selected two-year period from 1990 and beyond." The TNRCC staff has provided for a flexible baseline. The TNRCC intends to approve an AMOC which maintains consistency with air quality planning for the state and meets the criteria of this undesignated head. The TCC/TMOGA does not support the specification of averaging times in sec.115.913(b)(4). The TCC/TMOGA states that the purpose of an AMOC is to provide for a substitute means of achieving the goal of Chapter 115, which is attaining the ozone National Ambient Air Quality Standards (NAAQS) as determined through the air quality planning process with the process based on achieving reductions in annual emissions from 1990 baseline levels. The TCC/TMOGA believes that the main inquiry for any AMOC should be whether it will achieve at least the same reduction in annual emissions as would literal compliance with specific provisions of Chapter 115. The TCC/TMOGA recommended that sec.115.913(b)(4) be changed to remove "a typical peak ozone weekday for the base year 1990, averaged over a period no greater than 30 days. If this averaging period or limitation conflicts with an averaging period or limitation under sec.115.911(7)(B)" and replace it with " the criteria established in sec.115.911(7)." They also recommended that "then the more stringent of the two subsections applies" be removed. The TNRCC staff has modified the language to incorporate the concept of short- term emission potentials with an annual emissions limit. The TNRCC position is consistent with the air quality planning for the state. The EPA noted that in sec.115.913(b)(4), the AMOC proposed rule requires that in addition to the annual emission limit, the AMOC plan must establish a "short- term emission limit based upon a typical peak ozone weekday for the base year 1990, averaged over a rolling period no greater than 30 days." The EPA stated that the TNRCC must further clarify how the short-term limit is to be established. The EPA inquired how the TNRCC intends to require that the short- term limit be equivalent to the peak ozone weekday emissions reported for that unit in the 1990 base year inventory and whether the emission limit is to be specified as an emission rate limit or a mass-emission cap limit. The EPA stated that since the TNRCC is allowing for an averaging period greater than 24 hours, the TNRCC will need to provide, in support of the SIP submittal, a statistical showing that the specified averaging time is consistent with attaining the ozone NAAQS and satisfying reasonable further progress (RFP) requirements on the basis of typical summer day emissions. The TNRCC staff has modified the language to incorporate the concept of short- term emission potentials with an annual emissions limit. The TNRCC position is consistent with the air quality planning for the state. It is the intent of the TNRCC to establish the statutory upper limits for emissions as defined within the AMOC rules. In addition, the offset ratios are to be measured against annual emissions. Thus, the evaluation for AMOC sources must ensure that real reductions occur in compliance with sec.115.911 requirements, relating to Criteria for Approval of AMOC Plans. The TNRCC also understands that EPA desires a statistical showing that demonstrates that approval of AMOC plans incorporating averaging times longer than 24 hours is consistent with attaining the NAAQS and satisfies RFP requirements. The TNRCC does not anticipate that a sufficient number of AMOC applications will be received to provide an adequate statistical database for this type of analysis. Incorporation of a threshold maximum, however, limits the maximum daily potential emissions of an AMOC plan to the statistical noise level of the Urban Airshed Model. Incorporation of a limit upon the total increases in the maximum daily potentials to emit that will be approved in any nonattainment area, based upon a level of significance with no impact upon the modeled ozone levels for that area, ensures that no violation of the NAAQS will be caused by the cumulative impact of all AMOC plans. The EPA requested in sec.115.913(b)(5) that the TNRCC be consistent in the terminology used or clarify how "projected emissions from the affected source(s) without the AMOC plan" are to be calculated. The EPA understands this phrase to be identical to the term "baseline," as defined in sec.115.912(4) . The TNRCC staff has addressed EPA's request to clearly define the terms in sec.sec.115.911, 115.912, and 115.913 by modifying the language. Vought stated that sec.115.913(c) makes it unlawful to make any changes which will cause a change in the character of the emissions, or will result in an increase in the discharge of the various emissions. Vought further stated that there should be more latitude for use of similar kinds of VOC producing materials. In addition, Vought stated that sec.115.913(c) does not allow for reformulations by manufacturers, or even for the substitution of formulations of products that may be lower in overall VOC, but higher in one particular component. Vought stated that an exemption should be written based on criteria such as the health effects level of components, distance to off-site receptors, and total emissions. The exemptions proposed by Vought are beyond the scope of the current proposal. The AMOC program is designed to provide an opportunity to utilize alternatives to the reasonably available control technology requirements of Chapter 115. Vought proposed the establishment of exemptions analogous to those incorporated in the best available control technology review provided for new sources under Chapter 116, relating to Control of Air Pollution By Permits For New Construction of Modification. Exemptions requiring such detailed review are appropriate on a case-by-case basis for new sources in the permitting process. However, the provision of such exemptions to the AMOC program would place an inordinate burden upon the resources of the TNRCC and the AMOC applicants, without providing an appropriate benefit to the environment. An individual stated that under sec.115.913(c) it should be unlawful, period, if a person varies from any provision of the AMOC. It is the intent of the TNRCC to allow those AMOCs that meet the requirements of the AMOC rules. It shall also be unlawful for any AMOC holder to vary from the emission limits, control requirements, and monitoring, testing, reporting, and recordkeeping requirements of an approved AMOC plan. For clarification purposes, TCC/TMOGA recommended adding "as a new AMOC plan" to proposed sec.115.913(d). The TCC/TMOGA further requested clarification that any requested change would not necessarily be subjected to full-blown AMOC application and documentation requirements, but only require a demonstration that the change does not affect the source's continued eligibility under the rules. The TNRCC staff believes TCC/TMOGA's request is reasonable and has modified the language in this section. The modification clarifies the requirements of an amended or revised AMOC plan. The clarification should sufficiently address TCC/TMOGA's concerns. An individual stated that under sec.115.913(d), any revisions or moves to amend an AMOC must undergo a 30-day public comment period so that the public has a chance to respond. The TNRCC staff believes that the AMOC rules provide for sufficient public comment and involvement in the AMOC process. In sec.115.914, Procedures for an AMOC Plan Approval, for clarification purposes, TCC/TMOGA requested the following changes to sec.115.914(2). They requested that the word "appealable" be revised to read "appealable to the Commission as provided in paragraph (7) of this section." The TNRCC staff believes that the TCC/TMOGA request is reasonable and has modified the language as requested. In sec.115.914(4), an individual requests clarification of "significant and timely written comments" and asks who makes this decision. The position of the TNRCC staff is to evaluate written comments submitted prior to or by the close of the public comment period. Staff attempts to identify relevant issues impacting the proposed AMOC rules which are subject to adoption and responded to in a manner that provides for a more effective AMOC plan. The proposed AMOC rules provide for the delegation of discretion to approve or deny AMOC plans to the TNRCC Executive Director. The TNRCC staff, acting on behalf of the Executive Director has the authority to make such decisions. The TCC/TMOGA suggests a change in the placement of "in response to the analysis of written comments" in sec.115.914(5) to eliminate a misplaced modifier. The TNRCC staff finds the TCC/TMOGA suggestion to be reasonable and has modified the language as requested in order to improve the sentence structure. In sec.115.914(6), TCC/TMOGA suggested the word "proposed" be removed and "the notice required by this subsection shall be sent by a means evidencing receipt" be added. The TNRCC staff finds the TCC/TMOGA suggestion to be reasonable and has modified the language as requested in order to clarify the intent of this section of the AMOC rule. In sec.115.914(7), TCC/TMOGA recommended the words "or submitted by EPA" be deleted and "paragraph (6)" be added for clarification. The TNRCC agrees that the requested clarification is needed in this section and has modified the language. The TCC/TMOGA suggested adding the reference to paragraph (6) to sec.115. 914(8) as well. The TNRCC staff finds the TCC/TMOGA suggestion to be reasonable and has modified the language as requested in order to clarify the procedures required to obtain an AMOC. Amoco stated that sec.115.914(9) should be deleted to stay enforcement for facilities which have submitted an application for an AMOC but are waiting for approval. AMOCO further stated that it is possible that the compliance date could arrive prior to the facility obtaining approval of its AMOC plan. The TNRCC disagrees and identifies in the preamble of the rules the need to submit an AMOC application six months prior to the compliance date in order to allow for timely TNRCC consideration. As stated previously, the TNRCC intends to process AMOC applications in a timely manner with the goal identified as within 150 days of the date of receipt. However, application deficiencies or unforeseen events may delay approval of an AMOC until after the compliance date or may require disapproval of an AMOC application. By not authorizing a stay of enforcement for facilities which submit an AMOC application, the TNRCC discourages last minute, frivolous applications for which the sole intent may be to delay compliance with Chapter 115. On or after the compliance date specified in Chapter 115, AMOC applicants are required to either comply with the applicable rules or obtain an approved AMOC. It is the TNRCC enforcement position that if an AMOC applicant acted in good faith with regard to the AMOC request, the TNRCC may administratively resolve, upon final approval of an AMOC, any violation resulting from a failure to obtain an approved AMOC prior to the compliance date of the regulation. In response to sec.115.914(9), TCC/TMOGA urged the TNRCC to adopt a provision that does create a stay of enforcement for persons submitting AMOC plans, provided that the rule makes it clear that the AMOC applicant would be liable for noncompliance retroactive to the effective date of the underlying rules should the proposed AMOC plan be denied. The TCC/TMOGA noted that sec.115. 914(9) seems misplaced in the overall order of the rest of sec.115.914. The TNRCC has restructured sec.115.914 such that sec.115.914(9) is addressed in sec.115.910, relating to Applicability of AMOC. With regard to the request for a stay of enforcement, please refer to the previous comment. Amoco noted that in sec.115.914(10) the proposed rule states that "if no appeal of the Executive Director's decision to approve the AMOC plan is filed, the AMOC plan becomes effective upon the acceptance of the plan by EPA." Amoco understands the need for the TNRCC to obtain EPA approval for the overall AMOC concept. However, Amoco does not believe it should be necessary for EPA to review every individual plan for acceptance. Amoco stated that individual plan reviews by both the TNRCC and EPA are duplicative efforts and ultimately expend more capital resources and slow down the process for the applicant. Amoco believes that it is essential for the EPA to give the TNRCC the flexibility needed to govern and administer the TNRCC programs. Amoco noted that this thinking is in keeping with the President's Executive Order issued in the October 4, 1993, Federal Register as follows: "The American people deserve a regulatory system that works for them, not against them: a regulatory system that protects and improves their health, safety, environment, and well-being and improves the performance of the economy without imposing unacceptable or unreasonable costs on society;...regulatory approaches that respect the role of State, local, and tribal governments;...." The TNRCC agrees with Amoco's comment; however, EPA approval is required for EPA to approve the proposed rules and subsequent SIP submittal. For clarification purposes, TCC/TMOGA suggested references to both paragraphs (7) and (12) in sec.115.914(10). The TNRCC staff finds the TCC/TMOGA suggestion to be reasonable and has modified the language as requested with the reference to paragraph (7) changed to paragraph (8) which reflects the restructuring of the section. In addition, TCC/TMOGA suggested that in sec.115.914(12) the phrase "is defined as" be added, rather than the previous "shall be considered to be." The TNRCC staff finds the TCC/TMOGA suggestion to be reasonable and has modified the language as requested. An individual feels that under sec.115.914(12), the TNRCC should require EPA to respond to AMOC plans. The TNRCC has requested EPA to inform the state as to the intent of EPA to approve or disapprove an AMOC. However, the TNRCC would not want to delay an AMOC plan found acceptable to the Executive Director in the event of untimely EPA response. In sec.115.915, Public Notice Format, the TCC/TMOGA noted that sec.115.915(b) (1) references an "AMOC plan application number" and inquires as to whether the number is to be assigned by the TNRCC upon filing of the request. For clarification purposes, the TNRCC staff added the language "assigned by the TNRCC" to the proposed language. The TCC/TMOGA noted that in sec.115.915(b)(2) the reference to "company" should be changed to "AMOC applicant." The TNRCC staff agrees and has modified the language as requested. In sec.115.916, Review of Approved AMOC Plans, the TCC/TMOGA suggested revising sec.115.916(b) to add "unless revised to reflect new regulatory requirement." The TCC/TMOGA is concerned that sec.115.916(b) as currently proposed would cause an AMOC plan to be voided even if the AMOC holder had gotten the AMOC plan revised in anticipation of forthcoming regulatory requirements affecting sources governed by the AMOC. The TNRCC staff finds TCC/TMOGA's request to be reasonable and has modified the language as suggested. HL&P noted that sec.115.916(b) voids an AMOC plan on the compliance date specified in a new or modified section of Chapter 115 which affects a source subject to an AMOC plan. HL&P recommended that provisions be created to allow a facility to simply verify continued compliance of a regulated source subject to an AMOC plan should the rules affecting such a source be modified. HL&P noted that such a verification would reassure the TNRCC that the necessary VOC emission reductions are still being realized as well as preventing a facility from going through the burdensome process of creating a completely new AMOC plan for TNRCC approval. As noted in the previous response to comment, the TNRCC staff has modified the language for flexibility. Vought stated that the compliance demonstration every three years should apply only to AMOC plans which were adopted after this revision of Subchapter J. The TNRCC staff, in response to public comments, believes that modification to this section was necessary to be consistent with current air quality planning and inspection procedures. Amoco stated that the requirement in sec.115.916(d) for a mandatory three-year review of the AMOC plan should be deleted. As an alternative, Amoco suggested the following language: "Any facility covered by an approved AMOC plan must submit within 425 days after start-up of alternative controls, a report documenting that the annual emission reductions achieved by the AMOC plan are equivalent to or greater than the reductions required in Chapter 115. The report shall include the emission point number, the facility identification number, the baseline annual emission level and the actual annual emission level after alternative controls are installed." Refer to the previous response to comment. The TCC/TMOGA urged the deletion of sec.115.916(d). The TCC/TMOGA stated that given that the rules require automatic review of any AMOC to accommodate new regulatory requirements, there is no purpose served by also requiring review every three years. The annual inspection process already ensures that the use of AMOCs will be audited on a regular basis. The TNRCC staff finds TCC/TMOGA's request to be reasonable and has deleted the language as suggested. Upon review of the impact of the AMOC rules on the TNRCC Regional Offices with regard to site inspections, the TNRCC staff believes that the current inspection procedures are sufficient to evaluate whether the AMOC holder is complying with required standards. Vought noted that in the preamble of the proposed rule, it is stated that "a method of control implemented prior to January 1, 1991, shall not be recognized as meeting the criteria established for an AMOC." Vought stated that companies have expended considerable amounts of money and efforts to purchase abatement equipment, develop compliance plans, and obtain air permits to comply with Chapter 115. Vought further stated that some of the permits were issued for periods of 15 years and now in less than four years will no longer be "recognized," by definition. Vought stated that some blanket variance should be granted to companies which have developed and permitted equipment and operational procedures to comply with the regulations. The TNRCC, upon considering comments, modified the language within the AMOC rules to provide for a flexible base year. The position of the TNRCC staff is to maintain consistency with state air quality planning and to ensure that the criteria established for an AMOC is met. Modifications to reduce VOC emissions prior to the proposed AMOC rules are not recognized. However, the TNRCC is attempting to provide flexibility for companies with creative solutions to reduce VOC emissions in lieu of complying with Chapter 115 provided that the reduction is surplus to the TNRCC regulations. Summary Comments. Amoco is supportive of the AMOC concept and encourages the TNRCC to extend the philosophy to future programs that may require reductions. Amoco requested the TNRCC to add verbiage clarifying that excess emissions (those greater than the reductions required in Chapter 115) can be used for trading, netting, or other purposes for the applicant. Amoco urges the early adoption of inter-pollutant trading concepts to provide incentives for continued economic growth opportunities in the Texas Gulf Coast area where growth opportunities are negatively impacted by ozone nonattainment designations. The TNRCC staff reiterates the position that the scope and requirements of the AMOC rules are currently not sufficient to allow for the type of trading and netting purposes requested by Amoco. The intent of the AMOC rules is to provide for alternate means of control strictly within the same TNRCC account number. The EPA noted that the AMOC-proposed rules specify a 30-day comment period and a 45-day EPA review period. The EPA stated that current draft EPA policy on SIP flexibility calls for EPA to have a minimum of 180 days. The TNRCC staff participated in rule negotiations with EPA Region 6 which addressed the timeline issue. It is the position of the TNRCC staff that the negotiated time frame of 150 days is a realistic goal for processing AMOC applications. The TNRCC staff has identified a range of 120 days to the EPA- identified 180-day processing time for an AMOC plan submittal. It is the intent of the TNRCC to meet the 150-day goal as identified during the rule negotiation period for processing an AMOC plan. The EPA stated that because the AMOC program involves an emission trading program, EPA will have to evaluate the AMOC program for consistency with the EIP rules before the program can be approved into the SIP. The EPA noted that the EIP rules establish the criteria upon which EPA will determine the acceptability of a state's EIP SIP submission. The EPA noted that sec.51.493 of the EIP lays out nine main elements that the state needs to address in any EIP SIP submittal. The EPA further stated that while many of the criteria should be met if the state addresses EPA's comments (included within this document) and revises the proposed regulation appropriately, some criteria will need to be addressed in a narrative to the regulation, that should be submitted to EPA as part of the SIP submission. The EPA identified the need for the TNRCC to include within the SIP narrative an explanation of how the state program meets each requirement specified in sec.51.493 of the EIP. The example identified by EPA is to clearly explain how the EIP will provide benefits to both the environment and to the regulated entities as required by sec.51.493(a)(1). The TNRCC believes that EPA's request is reasonable in the sense that the EIP provides general consistency. However, the EIP was recognized as strictly guidelines for developing the AMOC proposed rules, therefore the TNRCC does not consider the AMOC rules to be an EIP program. During rule negotiations with EPA, the TNRCC communicated the desire to propose AMOC replicable procedures that were beyond the Economic Trading Policy Statement, yet not incorporating all of the EIP, since the AMOC program provides for site-specific trades and allows for a 45-day EPA veto authority. If all the EIP components are to be required for approval, it would be in the best interest of an expedited process to eliminate the 45-day EPA veto authority as the rule would encompass all the EIP components. Furthermore, the TNRCC staff would recommend that the AMOC program be developed as a full VOC trading policy. It is, however, the intent of the TNRCC staff to address specific compliance with the EIP in a SIP narrative statement. It is also the intent of the TNRCC staff to develop future AMOC rules to replace this interim rule, which would ultimately eliminate the need for an EPA review. The EPA noted that 40 Code of Federal Regulations (CFR) sec.51.493(d) and (e) require that the EIP contains credible, workable, and replicable methods for quantifying emissions, and specific monitoring, recordkeeping, and reporting requirements sufficient to determine compliance with the applicable requirements. The EPA stated that the TNRCC AMOC proposal does not contain replicable emission quantification protocols nor specific monitoring, recordkeeping, and reporting requirements. The EPA will consider approval of EIPs that do not contain replicable emission quantification protocols nor specific monitoring, recordkeeping, and reporting requirements under the following conditions: the state regulation which allows for source-specific trades contains the general framework that address all elements of the EIP program; the state regulation requires EPA review and approval of each source specific trade; and the SIP submission to EPA includes at least one source-specific trade which contains the specifics of the trade including the emission quantification calculations, enforceable emission limits, and monitoring, recordkeeping, and reporting requirements. As a result, EPA stated that the TNRCC will have to also submit at least one source-specific trade that will go through the full EPA review process. The EPA stated that because the AMOC proposed rule provides for an alternative way to comply with Chapter 115, the TNRCC needs to include in the SIP narrative a discussion of the appropriate application of the two uncertainty factors required by 40 CFR sec.51.493(f)(2). The EPA further stated that based on the application of the factors, the TNRCC will need to either adjust the SIP credit calculated for Chapter 115 or demonstrate that the uncertainty factors for sources using the AMOC provision should be the same as the rule effectiveness factors used in calculating SIP credit from Chapter 115. Refer to the previous response to comment. The EPA stated that in the SIP narrative, as required by 40 CFR sec.51.493(f) (3), the TNRCC must commit to conducting periodic audits of the program to ensure that projected emission reductions are realized. The EPA further requires that in the auditing procedures, the TNRCC must clearly specify what data will be collected to evaluate the program, and when the audits will occur (not to exceed three-year intervals). In addition, EPA requires the TNRCC to commit to: evaluating, to the extent practicable, the cost savings relative to traditional regulatory program requirements realized during program implementation; ensuring the timely implementation of programmatic revisions or other measures which the TNRCC in response to the audit, deems necessary for the successful operation of the program in the context of overall RFP and attainment requirements; and providing timely post-audit reports to EPA. The EPA stated that as required by 40 CFR sec.51.493(h), the SIP narrative will also need to contain a description of the TNRCC commitments which are integral to the implementation of the program, and the administrative system to be used to implement the program, addressing the adequacy of the personnel, funding, and legislative authority. The position of the TNRCC staff is to consider EPA's comment regarding audit provisions and incorporate the necessary provisions into the SIP narrative statement as it pertains to the TNRCC SIP planning process and air quality planning for the State of Texas. The EPA stated that as required by 40 CFR sec.51.493(i), the SIP must contain the TNRCC's enforcement program which defines violations and specifies auditing and inspection plans and provisions for enforcement actions. The EPA stated that the program must contain effective penalties for noncompliance which preserves the level of deterrence in traditional programs. The TNRCC staff considers noncompliance with the AMOC provisions to result in noncompliance with Chapter 115. Thus, a violation of the AMOC provisions would result in a violation of Chapter 115 for which the enforceable provisions shall be implemented. The amendment and new sections are adopted under the Texas Health and Safety Code (Vernon 1992), the Texas Clean Air Act (TCAA), sec.382.017, which provides the TNRCC the authority to adopt rules consistent with the policy and purposes of the TCAA. sec.115.901. Insignificant Emissions. For persons in Aransas, Bexar, Calhoun, Matagorda, San Patricio, and Travis counties, the Executive Director, after consultation with appropriate local governmental agencies, may exempt a specific compound or a specific vent gas stream from the application of this chapter if the Executive Director determines that the emissions from the compound or specific vent gas stream will not make a significant contribution to air contaminants in the atmosphere. sec.115.910. Availability of Alternate Means of Control. (a) Any person affected by a control requirement and/or emission specification of this chapter may request approval of an Alternate Means of Control (AMOC) plan using the procedures established in sec.115.913 of this title (relating to Procedures for Alternate Means of Control Plan Submittal). Such AMOC plan shall be approved if it is demonstrated that the plan meets all applicable criteria and procedures of sec.sec.115.911-115.913, 115.915, and 115.916 of this title (relating to Criteria for Approval of AMOC Plans; Calculations for Determining AMOC Reductions; Procedures for AMOC Plan Submittal; Public Notice Format; and Review of Approved AMOC Plans and Termination of AMOC Plans). The AMOC plans not satisfying the requirements of this undesignated head may apply for a site-specific State Implementation Plan revision approved by the Executive Director and the United States Environmental Protection Agency. (b) An AMOC applicant may apply to the Executive Director for a waiver of portions of sec.115.913 of this title (relating to Procedures for Alternate Means of Control Plan Submittal) which may not apply to a single-source AMOC application and for sec.115.914 and sec.115.915 of this title (relating to Procedures for an Alternate Means of Control Plan Approval and Public Notice Format). A single-source AMOC application is one that proposes only the substitution of one control device for another. (c) Application for an AMOC plan does not stay enforcement of regulations of this chapter. (d) Any violation of an AMOC plan shall be subject to enforcement action as a violation of this chapter. sec.115.911. Criteria for Approval of Alternate Means of Control Plans. An alternate means of control (AMOC) plan shall be approved if it meets each of the following criteria, as applicable. (1) All facilities covered by the AMOC plan are and remain in the same Texas Natural Resource Conservation Commission account number. (2) The AMOC plan must propose annual emission limits in tons per year for each source in the AMOC plan that, when collectively compared against actual annual emissions generated in 1990 (or subsequent years if a source in an AMOC was not operational prior to 1990), result in net emissions reductions equal to or greater than reductions that would be achieved if each source complied with all applicable requirements of this chapter. (3) If the AMOC plan involves any source with a proposed annual emission limit which exceeds the baseline as defined in sec.115.912(a) of this title (relating to Calculations for Determining Alternate Means of Control Reductions), the AMOC plan must provide additional reductions made at alternative sources which comply with the guidelines in sec.115.912 of this title and are at least equal to the amount the source exceeds its baseline, multiplied by the applicable factor provided in the following subparagraphs. (A) For sources located in the Beaumont/Port Arthur area, the applicable factor is 1.2. (B) For sources located in the Dallas/Fort Worth area, the applicable factor is 1.15. (C) For sources located in the El Paso area, the applicable factor is 1.2. (D) For sources located in the Houston/Galveston area, the applicable factor is 1.3. (E) For sources located in other areas in Texas, the applicable factor is 1.1. (4) The AMOC application must demonstrate that the sum of the maximum daily potentials to emit from the sources subject to the proposed AMOC plan shall not be more than 200 pounds per day greater than the sum of the maximum daily potentials to emit from those sources if the emissions were controlled in accordance with this chapter, concerning Control of Air Pollution From Volatile Organic Compounds. For each nonattainment area, the Executive Director shall establish a limit upon the sum of the increases of the maximum daily potentials to emit from all AMOC plans in the nonattainment area. The limit shall be set so that the sum of the maximum daily potentials to emit shall not increase the measurable or modeled ozone level by one part per billion. (5) The AMOC must be implemented and reductions created after January 1, 1991. (6) Reductions in actual emissions accounted for in the AMOC plan must be surplus and remain surplus to reductions required by this chapter and any netting or offsetting requirements of sec.116.150 of this title (relating to New Major Source or Major Modification in Ozone Nonattainment Area), sec.116.151 of this title (relating to New Major Source or Major Modification in Nonattainment Area Other than Ozone), sec.116.160 of this title (relating to Prevention of Significant Deterioration Requirements), and sec.116.161 of this title (relating to Source Located in an Attainment Area with a Greater than De Minimis Impact). Reductions for which the state has claimed credit in a State Implementation Plan may not be utilized as reductions in an AMOC plan. (7) Mobile sources and indirect sources (Federal Clean Air Act, sec.110(a)(5)(C)) shall not be included in the AMOC plan. (8) For purposes of demonstrating reductions and establishing emission limits in any AMOC plan, quantification of emissions must be accomplished using any of the following methods as specified by the Executive Director: (A) test methods approved by the Executive Director for the direct measurement of emissions, either continuously or periodically; (B) calculation equations which are a function of process or control system parameters, activity levels, and/or throughput or production rates; (C) mass-balance calculations which are a function of inventory, usage, and/or disposal records; (D) other appropriate methods acceptable to the Executive Director; or (E) any combination of these approaches. (9) The AMOC plan must establish emission limits and/or control requirements for all sources in the plan which render the proposed annual emission limits enforceable. (10) The AMOC plan must include all necessary and appropriate provisions for monitoring, testing, reporting, and recordkeeping as specified by the Executive Director. The frequency of AMOC required monitoring, testing, reporting, and recordkeeping shall be sufficient to reasonably ensure compliance with applicable emission limits and/or control requirements. The monitoring, testing, reporting, and recordkeeping shall be at least as reliable, readily retrievable, and retained for a comparable period of time as the underlying requirements of this chapter, concerning the Control of Air Pollution From Volatile Organic Compounds. (A) If this chapter includes monitoring, testing, reporting, and/or recordkeeping requirements for sources of the type(s) to be covered by an alternate emission limitation and/or control requirement, then such requirement may be used to render the AMOC plan enforceable. If this chapter does not include readily transferable monitoring, testing, reporting, and/or recordkeeping requirements for sources of the type(s) to be covered by an alternate emission limitation and/or control requirement, then priority may be given to any such set of requirements adopted under other TNRCC rules for the control of volatile organic compounds (VOC) emissions from sources of the type(s) to be covered by an alternate emission limitation and/or control requirement. (B) If this chapter includes emission limits and/or control requirements for sources of the type(s) to be covered by an alternate emission limitation and/or control requirement, then such alternative emission limitation and/or control requirement may be based on the same averaging time as is applied to those same type sources under this chapter. If this chapter does not include emission limitations and/or control requirements for sources of the type(s) to be covered by an alternate emission limit and/or control requirement, then priority may be given to averaging times for emission limits and/or control requirements on similar units governed by other TNRCC rules limiting VOC emissions from sources of the type(s) to be covered by an alternate emission limit and/or control requirement. (C) If no such TNRCC monitoring, testing, reporting, and/or recordkeeping rules have been adopted that satisfy the criteria of paragraph (10)(A) and (B) of this section, then such requirements or averaging times shall be established on a case-by-case basis. (D) Additional or more frequent monitoring, testing, reporting, and/or recordkeeping may be required by the Executive Director to ensure the integrity of any AMOC plan. sec.115.912. Calculations for Determining AMOC Reductions. (a) For purposes of this section, a source's baseline is defined as the annual emissions that are calculated assuming full compliance with the adopted requirements of this chapter and using data representative of actual operations in 1990 or thereafter for all variables necessary to calculate annual emissions for the identified source. (1) For an AMOC application exclusively utilizing a source that existed prior to January 1, 1990, the AMOC application shall use data representative of actual operations in 1990. (2) For an AMOC application utilizing a source that was created on or after January 1, 1990, the AMOC application shall use data representative of actual operations for the two years prior to the application for the AMOC, or other representative years, as determined by the Executive Director. (3) For an AMOC application utilizing a source exempted from this chapter or with no applicable adopted requirements, or for a source whose actual annual emissions were less than the annual emissions calculated assuming full compliance with the adopted requirements, calculations will be based on actual annual emissions. (b) The Alternate Means of Control (AMOC) applicant shall determine annual emissions limits for each source included in the AMOC plan by utilizing the best available data and good engineering practice, which may include the use of statistical techniques to address variations in the data. (c) For any source not controlled as otherwise specifically required by this chapter where an applicable adopted requirement exists, the AMOC applicant shall calculate credits needed by subtracting the source's baseline from the source's annual emissions limit under the AMOC plan. This difference shall then be multiplied by the appropriate factor in sec.115.911(3) of this title (relating to Criteria for Approval of AMOC Plans), to determine the credits that must be generated by other sources. (d) For a source controlled beyond the requirements of this chapter, or for a source exempted from or with no applicable adopted control requirement in this chapter, the AMOC applicant shall calculate the amount of emission reduction credits generated by subtracting the source's annual emissions limit under the AMOC plan from the source's baseline, less any reductions that are generated for purposes discussed in sec.115.911(6) of this title. (e) For all sources included in the AMOC plan, the AMOC applicant will sum the total of credits needed and the total of credits generated to establish that the credits generated exceed the credits needed. (f) The maximum potential to emit shall be the maximum daily emissions that the source could emit subject to any physical, operational and regulatory limitations. sec.115.913. Procedures for Alternate Means of Control Plan Submittal. (a) All persons requesting an alternate means of control (AMOC) plan as provided by sec.115.910 of this title (relating to Availability of Alternate Means of Control) shall submit a proposed AMOC plan and demonstration to the Executive Director; copies of such plan and demonstration to the Texas Natural Resource Conservation Commission (TNRCC) Regional Office; copies to any local air pollution control program with jurisdiction over the TNRCC account affected by the AMOC plan; and copies to the United States Environmental Protection Agency Regional Office in Dallas. (b) The proposed AMOC plan shall include the following information: (1) the AMOC applicant name with mailing address, site name with physical address, TNRCC account number, and contact person including address and telephone number; (2) an identification and a description of the sources involved in the AMOC plan including any applicable air permit numbers, plot plans, detailed flow diagrams, emission point numbers (EPNs), and facility identification numbers (FINs); an identification of the provisions of this chapter that are applicable to such sources; and an identification of promulgated provisions of this chapter that will be applicable to such sources; and a description of normal operating conditions for each source causing emissions; (3) a quantification of the AMOC plan sources' actual emissions for the selected year; (4) a quantification of annual emission limits and daily maximum potential emissions from all sources affected by the AMOC showing the difference between projected emissions from the affected source(s) without the AMOC plan and projected emissions resulting under the proposed AMOC plan. These calculations shall be done in accordance with the requirements of sec.115. 912 of this title (relating to Calculations for Determining Alternate Means of Control Reductions). Assumptions and emission factors utilized in the calculations shall be included; (5) a specification of emission limitation(s) and control requirement(s) to be applicable to each source affected by the proposed AMOC plan. Emission limitations shall include actual annual emission limits in tons per year for each source. Control requirements must be established for each source to make annual emission limits enforceable; (6) a description of the compliance methodologies, including monitoring, testing, reporting, and recordkeeping measures, that will be used to enforce the emission limitation(s) and/or control requirement(s) applicable to each source affected by the AMOC plan; (7) a sample of reporting and recordkeeping forms to be utilized; (8) a demonstration that the AMOC plan satisfies each applicable requirement of sec.115.911 of this title; (9) a list containing the name, address, and telephone number of any air pollution control program with jurisdiction over the TNRCC account affected by the AMOC plan; and (10) any other relevant information necessary to evaluate the merits and/or enforceability of the AMOC plan, as may be requested by the Executive Director. (c) All representations with regard to the AMOC plan, as well as any provisions attached to the AMOC plan, become conditions upon which the subsequent AMOC plan is issued. It shall be unlawful for any person to vary from such representation or provision if the change will cause a change in the method of control of emissions, the character of the emissions, or will result in an increase in the discharge of the various emissions. It shall also be unlawful for any AMOC holder to vary from the emission limits, control requirements, monitoring, testing, reporting, or recordkeeping requirements of an approved AMOC plan. (d) Applications to amend or revise an AMOC plan shall be submitted subject to the requirements of this chapter. sec.115.914. Procedures for an Alternate Means of Control Plan Approval. Upon a preliminary determination to approve or deny the proposed Alternative Means of Control (AMOC) plan, the Executive Director shall, in writing, so notify the submitter of the plan, any local air pollution control program with jurisdiction over the Texas Natural Resource Conservation Commission (TNRCC or Commission) account affected by the AMOC plan, and the United States Environmental Protection Agency (EPA) Regional Office in Dallas. (1) If the Executive Director makes a preliminary determination to approve the AMOC plan, then this notice shall include a copy of the AMOC plan as preliminarily approved. (2) If the Executive Director makes a determination to deny the AMOC plan, then the notice shall include a description of the reasons for such determination of denial. This determination shall constitute a final action of the Executive Director appealable to the Commission as provided in paragraph (7) of this section. (3) Upon receipt of notice from the Executive Director that the AMOC plan has received preliminary approval, the AMOC applicant, at the applicant's own expense, shall cause to be published notice of the applicant's intent to obtain an AMOC plan and of the opportunity to submit written comments. Notice shall be consistent with sec.115.915 of this title (relating to Public Notice Format). (4) The Executive Director shall consider and prepare a written response to all significant and timely written comments filed in connection with an AMOC plan. (5) In response to the written comments, the Executive Director may modify the provisions of the AMOC plan, deny the AMOC plan, or approve the AMOC plan without changes. (6) The Executive Director shall send written notice of his/her final determination concerning each AMOC plan to the submitter of the plan, the EPA Regional Office, any local pollution control program with jurisdiction over the TNRCC account affected by the AMOC plan, and to each person who submitted timely written comments. Such notice shall include final AMOC plan provisions, a copy of the response to comments, and an announcement of the opportunity to appeal the Executive Director's determination to the Commission. The notice required by this subsection shall be sent by a means evidencing receipt. (7) Any person entitled to notice under paragraph (6) of this section may, within 15 days of the receipt of such notice, file with the Executive Director an appeal of the final determination on the AMOC plan. Such appeal shall be considered at the next regularly scheduled meeting of the Commission for which adequate notice may be made. Based on arguments submitted to the Commission during such appeal, the Commission may remand the AMOC determination to the Executive Director, deny the AMOC plan, or issue the AMOC plan unchanged. (8) Within 45 days of final approval of the AMOC plan by the Executive Director, EPA may notify the TNRCC of EPA's disapproval of the Executive Director's final decision. Such notification shall be in writing and shall include a statement of the reason(s) for the disapproval and a specific listing of changes to the AMOC plan that must be made in order to overcome the disapproval. Anytime prior to the expiration of the 45-day period, EPA may notify the Executive Director that no disapproval is forthcoming. Upon receipt of a timely EPA disapproval, the Executive Director shall void or revise the AMOC plan, and reissue the notice as required by paragraph (6) of this section. (9) If no appeal of the Executive Director's decision to approve the AMOC plan is filed pursuant to paragraph (7) of this section, the AMOC plan becomes effective upon the acceptance of the plan by EPA as described in paragraph (11) of this section. (10) If an appeal of the Executive Director's decision is filed, the AMOC plan becomes effective upon the latter of the acceptance of the AMOC plan by the Commission or the acceptance of the AMOC plan by EPA. (11) EPA acceptance is defined as explicit approval of the AMOC plan by EPA, notification by EPA to the Executive Director that no EPA disapproval is forthcoming, or failure of EPA to file notice of disapproval within 45 days after the Executive Director's final decision to approve the AMOC plan. sec.115.915. Public Notice Format. (a) Public notice shall be published in the public notice section of two successive issues of a newspaper of general circulation in or closest to the municipality in which the facility with the Texas Natural Resource Conservation Commission (TNRCC) account affected by the alternative means of control (AMOC) plan is located. (b) Public notice shall contain the following information: (1) AMOC plan application number assigned by the TNRCC; (2) AMOC applicant name; (3) type of facility; (4) a description of the location of the facility; (5) a brief description of the AMOC plan; (6) the Executive Director's preliminary determination to approve such plan; (7) the locations and availability of copies of the proposed AMOC plan, related documentation, and the Executive Director's preliminary analysis of the plan (including the TNRCC Austin and Regional Offices, any local pollution control program with jurisdiction over the TNRCC account affected by the AMOC plan, and the United States Environmental Protection Agency's (EPA) Regional Office); (8) an announcement of the opportunity to submit written comments on the AMOC plan; (9) the length of the public comment period (30 days from the final publication of this notice); (10) the procedure for submission of written public comments concerning the proposed AMOC plan; and (11) the name, address, and phone number of the regional TNRCC office to be contacted for further information. (c) The AMOC plan submitter shall provide proof of adequate notice to the TNRCC, EPA, and any local pollution control program with jurisdiction over the TNRCC account affected by the AMOC plan before the Executive Director may take final action on the AMOC plan. sec.115.916. Review of Approved Alternate Means of Control Plans and Termination of Alternate Means of Control Plans. (a) For the purposes of this undesignated head, "compliance date" shall mean the date by which a source must comply with new or modified sections of this chapter. (b) Unless revised to reflect new regulatory requirements, an Alternative Means of Control (AMOC) plan becomes void on the compliance date specified for a new or modified section of this chapter affecting a source subject to an AMOC plan. (c) The holder of an AMOC plan shall comply with the requirements of this chapter if the AMOC plan becomes void. (d) Upon final approval of an AMOC plan, the owner or operator of the facilities affected by such plan shall keep a copy of the plan on the site affected by the plan which shall be made available to the Texas Natural Resource Conservation Commission representatives upon request. (e) Upon request, each holder of an AMOC plan shall submit to the Executive Director a demonstration that the plan continues to meet all applicable criteria of this undesignated head. (f) An AMOC holder is responsible for obtaining a new AMOC plan prior to the compliance date of any new or modified regulation of this chapter that affects a source subject to an AMOC plan. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on July 13, 1994. TRD-9445305 Mary Ruth Holder Director, Legal Services Division Texas Natural Resource Conservation Commission Effective date: August 9, 1994 Proposal publication date: March 1, 1994 For further information, please call: (512) 239-0615 Early Reductions 30 TAC sec.115.920, sec.115.923 The Texas Natural Resource Conservation Commission (TNRCC) adopts new sec.115.920 and sec.115.923, concerning Early Reductions, with changes to the proposed text as published in the March 1, 1994, issue of the Texas Register (19 TexReg 1436). The revisions to new sec.115.920 and sec.115.923 establish early reduction procedures which may be used if it can be demonstrated that such procedures will result in emission reductions which are greater than or equal to the reductions which would be achieved by implementing the applicable methods of control specified in Chapter 115 (relating to Control of Air Pollution From Volatile Organic Compounds). New sec.115.920, concerning Applicability, provides that the TNRCC may allow an early reduction with certain restrictions to replace the control requirements imposed by any section in Chapter 115. New sec.115.923, concerning Documentation, establishes the documentation criteria required for use of an early reduction in lieu of volatile organic compound (VOC) control requirements. For each source granted an alternative emission limitation under this section, there shall be established an early reduction plan. A public hearing was held on March 31, 1994 in Austin. The comment period closed on April 1, 1994. The TNRCC received testimony on sec.115.920 and sec.115.923, concerning Early Reductions, from two commenters. The United States Environmental Protection Agency (EPA) noted that the proposed Early Reduction rules are stricter than the Federal Early Reduction Program and requested that a Federal Clean Air Act sec.112(l) submittal be prepared if the TNRCC pursued the current rule direction. An individual generally opposed the Early Reduction rule. sec.115.920 Applicability. An individual stated opposition to sec.115.920(a) which allows for emissions reductions made between January 1, 1991, and the effective date of the Early Reductions rule. With regard to the individual's opposition to Early Reduction credit for reductions occurring between January 1, 1991, and the effective date of the Early Reductions rule, the TNRCC provides the following background information regarding the Early Reductions program. The current Federal Reduction rule recognizes emission reductions from the base year 1987 to the present with additional provisions for having 1985 or 1986 as the base year. The EPA considers the proposed TNRCC Early Reductions rule to be more restrictive than the Federal Reduction rule because of a later base year. The Early Reduction program has been limited to reductions after January 1, 1991, so credits obtained by the 1996 Rate-of-Progress (ROP) State Implementation Plan (SIP) are preserved. The 1996 ROP SIP has 1990 as its base year. It is the intent of the TNRCC to recognize emission reductions that are achieved in a manner that is consistent with state air quality planning and that satisfy the requirements of sec.115.920 and sec.115.923, concerning Early Reductions. The EPA noted that sec.115.920(a) restricts allowable reductions to those made after January 1, 1991. The EPA further noted that the Federal Early Reductions rule allows reductions to have been made after the base year (demonstration of emissions year). By EPA standards, the base year can be from 1987 to the present with additional provisions for having 1985 or 1986 as the base year. The EPA noted that the proposed TNRCC Early Reduction rule is more restrictive than the Federal Early Reduction rule. The TNRCC proposed allowing Early Reduction applications for emission reductions made after January 1, 1991, and which are greater than or equal to the reductions which would be achieved by implementing the applicable method of control specified in Chapter 115. Modifications to reduce VOC emissions prior to the proposed rule are not recognized. The TNRCC recognizes the January 1, 1991, date since it is consistent with current state air quality planning and allows the use of the base year 1990 for Emissions Inventory reporting or the most accurate available emission data. The identification of a January 1, 1991, date further allows the TNRCC to ensure the integrity of the Early Reductions program by preventing the use of emission reduction credits which would jeopardize the SIP process. The EPA noted that sec.115.920(a) contains a statement concerning the extent or amount of emissions reductions. The EPA noted that the proposed TNRCC Early Reduction rule requires that the early reductions achieved in the federal rule be "greater than or equal to the reductions which would be achieved by implementing the applicable control specified in Chapter 115." The EPA stated that under the Federal Early Reductions rule, facilities participated with the understanding that a 90% (or 95%) reduction from the base year had to be demonstrated. As a result, EPA stated that the TNRCC requirements appear to be more restrictive than the federal rule. Although the Early Reduction rule may be more restrictive than the federal rule, the intent of the TNRCC is to be consistent in the manner that air quality planning is addressed in the rulemaking process. The EPA noted that sec.115.920(a) contains a statement disallowing the use of wastewater and fugitive emissions in the early reductions application. The EPA stated that the Federal Early Reductions rule allows the use of wastewater and fugitive emissions. The EPA urged the TNRCC to consider allowing wastewater and fugitive emissions to be utilized under the TNRCC Early Reductions rule. The TNRCC has attempted to address EPA's comment and modified the rule language to allow for the consideration of early reduction applications requesting an extension for emission reductions that address like emissions. An individual requested that the term "substantially greater" in sec.115. 920(b) be defined. An individual stated opposition to relying on engineering calculation methods to show reductions and wants continuous monitoring to show that emission reductions have actually occurred. The term identifies a standard or expectation of the TNRCC when considering the approval or disapproval of an early reductions application. Engineering calculations are generally accepted as a method for demonstrating emissions and the TNRCC believes this method to be adequate for the Early Reduction program. Each application will be reviewed on a case-by-case basis for acceptability. The TNRCC staff believes that further definition is not feasible due to the wide variety of facility types that may apply. The EPA stated that it is the prerogative of the TNRCC to have a rule apparently more stringent than a federal rule. However, EPA noted that for sec.112 rules, a sec.112(l) submission is required to be submitted to and approved by the EPA. The sec.112(l) submission demonstrates that the state rule is more stringent than the corresponding federal rule. It is the position of the TNRCC that the early reduction provisions are consistent with state air quality planning and should not require a sec.112(l) submission. The new sections are adopted under the Texas Health and Safety Code, the Texas Clean Air Act (TCAA), sec.382.017, which provides the TNRCC with the authority to adopt rules consistent with the policy and purpose of the TCAA. sec.115.920. Applicability. Any person affected by any control requirement of this chapter may apply to the Texas Natural Resource Conservation Commission (TNRCC) for a six-year extension of the compliance date for the control requirements imposed by any section of this chapter adopted after July 9, 1993, provided that the owner or operator of the affected sources has an approved early reduction application for those sources for which the owner or operator is seeking an extension as specified in 40 CFR sec.63.79, and for which: (1) volatile organic compound (VOC) emissions reductions were made after January 1, 1991, and are greater than or equal to the reductions which would be achieved by implementing the applicable method of control specified in this chapter; (2) the alternate VOC emissions reductions are verifiable through testing or calculation methods which conform to good engineering practice and which are approvable by the Executive Director, and represent reductions in the actual emissions from the base year 1990, provided there is no evidence that emissions in the base year 1990 are artificially inflated or substantially greater than emissions in other years prior to implementation of emissions reduction measures; (3) the alternate VOC reductions created by the Early Reductions program must be surplus to reductions required by this chapter and any netting or offsetting requirements of sec.116.150 of this title (relating to New Major Source or Major Modification in Ozone Nonattainment Area Other than Ozone), sec.116.161 of this title (relating to Source Located in an Attainment Area with a Greater than De Minimis Impact); and (4) the sources in the early reduction application may be restricted to the grouping of the same type of emissions sources based upon determination by the Executive Director. sec.115.923. Documentation. (a) For each source requesting a six-year extension of the compliance date for control requirements in accordance with sec.115.920 of this title (relating to Applicability), there shall be established an Early Reductions Plan reflecting the emission reduction for VOC which qualifies the source for the six-year extension. In lieu of preparing a site-specific State Implementation Plan (SIP) for such Early Reductions Plan, a facility owner or operator shall comply with the requirements of this undesignated head. (b) Documentation required for approval of the extension shall demonstrate to the satisfaction of the TNRCC Executive Director that emissions data for the identified source reflects verifiable data based on information for such source. Documentation shall include but is not limited to: (1) a listing and description of controlled equipment; (2) a listing of postponed required controls; (3) a listing of uncontrolled emissions identified in the 1990 Emission Inventory; (4) specific facility identification number(s) (FIN); (5) specific emission point number(s) (EPN); (6) account number(s); (7) identification of applicable permit number(s); (8) calculation(s), test data, and test methods for all VOC emissions associated with each identified source pertaining to paragraphs (1) and (2) of this subsection including an explanation; (9) calculation(s), test data, and test methods for VOC reductions as compared to the 1990 Emission Inventory; (10) an emission limitation; and (11) any other relevant information necessary to evaluate the merits and/or enforceability of the Early Reduction plan, as may be requested by the Executive Director. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on July 13, 1994. TRD-9445306 Mary Ruth Holder Director, Legal Services Division Texas Natural Resource Conservation Commission Effective date: August 9, 1994 Proposal publication date: March 1, 1994 For further information, please call: (512) 239-0615 TITLE 40. SOCIAL SERVICES AND ASSISTANCE Part I. Texas Department of Human Services Chapter 90. Nursing Facilities and Related Institutions The Texas Department of Human Services (DHS) adopts amendments to sec.sec.90. 11, 90.18, 90.42, 90.191, 90.212, 90.215, 90.232, and 90.233, concerning criteria for licensing, license fees, standards for facilities serving persons with mental retardation or related conditions, procedural requirements, incidents of abuse and neglect reportable to DHS by facilities, investigations of incidents and complaints, suspension, and revocation, in its Nursing Facilities and Related Institutions rule chapter. The amendments are adopted with changes to the proposed text as published in the May 20, 1994, issue of the Texas Register (19 TexReg 3906). The justification for the amendments is to comply with the Health and Safety Code and to ensure consistency of DHS policies for formal hearings. The amendments will function by incorporating into rules recent changes to Chapter 242 of the Health and Safety Code. The changes include extending the duration of a license to two years, increasing the licensing fees, requiring additional notification to new employees regarding reporting abuse and neglect, and giving DHS discretion in the investigation of abuse and neglect. In addition, the amendments change the timeframe for requesting appeals from 20 to 15 days. This ensures that formal hearing requirements for long term care facilities are the same as those applicable to other DHS formal appeals. DHS received comments on the proposal from New Avenues of Hope, Inc.; the Office of Medicaid Administration of the Texas Department of Mental Health and Mental Retardation; and the Texas Health Care Association. A summary of the comments, and DHS's responses follow: Comment: One commenter expressed support for DHS's rule stated in sec.90. 212(b) concerning the requirement that employees report suspected abuse to DHS. The commenter, however, suggests that employees be advised that there are penalties for making false reports of abuse as a retaliation against a facility. Response: The amendment to sec.90.212(b) is required by law. While the law states that it is a misdemeanor to report abuse and neglect in bad faith, maliciously, or recklessly, there is no requirement, by law, to inform employees of this. Therefore, DHS is adopting the language as proposed. Comment: One commenter requested DHS to specify in sec.90.232 and sec.90.233 whether the facility has 15 calendar days or 15 working days to request a hearing. Response: DHS is adopting the sections with changes to specify calendar days. Comment: One commenter stated that the telephone number given in sec.90. 212(c) to report abuse conflicts with the number given in sec.90.42. Response: DHS is adopting sec.90.212(c) with changes to clarify the numbers to call to report abuse or neglect in nursing facilities and in facilities serving persons with mental retardation or a related condition. Comment: One commenter asked "What additional notification is referenced in the preamble?" Response: The additional notification is found at sec.90.212(b). Comment: One commenter asked "Why is a new licensure application necessary with change of administrator?" Response: A new licensure application is not required. Chapter 242 of the Health and Safety Code requires that DHS be notified and a fee be paid. The application referred to in the rules at sec.90.18(a)(3) is a one-page form, and a change in rule language in response to comment is "A new facility administrator must submit DHS's Application for Change form and ....." Comment: One commenter stated that "DHS should consider redesigning its investigations similar to the system used for personal care facilities." Response: DHS has proposed an amendment to sec.90.215(d) to reflect this change (Texas Register, issue of July 8, 1994). Comment: One commenter stated that "sec.90.212 should contain language addressing false or malicious reporting." Response: The Health and Safety Code addresses false and malicious reporting. It is not necessary for DHS to restate the law. In addition to changes resulting from public comments, DHS is adopting the following sections with minor changes that clarify, but do not change the intent or function of the sections: Section 90.11 is adopted with an editorial change which consists of deleting the last sentence of subsection (e) on the grounds that the sentence is redundant. Section 90.18(b)(2) with an editorial change to substitute "will" for "must" concerning rounding. Section sec.90.42 is adopted with a change to restore subsection (e)(1)(C) which was inadvertently omitted when the proposal was published. Subsection (e) (1)(B) is adopted with editorial changes to clarify reporting requirements after 5:00 p.m. and on weekends and holidays. Subsection (e)(6)(B) is adopted with editorial changes substituting "must" for "may" regarding residents' access to medications and individual storage space. Section 90.191(f) is adopted with a minor editorial change. Section 90.212(c) is adopted with changes to add after-hours telephone numbers for reporting abuse or neglect. Please note that the title of sec.90. 212 is adopted with a minor editorial change. Section 90.215 is adopted with minor editorial changes. Subchapter B. Application Procedures 40 TAC sec.90.11, sec.90.18 The amendments are adopted under the Health and Safety Code, Chapter 242, which provides the department with the authority to regulate long-term care nursing facilities and under Texas Civil Statutes, Article 4413 (502), which transferred all functions, programs, and activities related to long-term care licensing, certification, and surveys from the Texas Department of Health to the Texas Department of Human Services. The amendments implement the Health and Safety Code, sec. sec.242.001-242.186. sec.90.11. Criteria for Licensing. (a)-(d) (No change.) (e) A license is issued to a facility which meets all requirements of this chapter and is valid for two years. Each license specifies the maximum allowable number of residents to be cared for at any one time. sec.90.18. License Fees. (a) Basic fees. (1) Initial and renewal license. The license fee is $150 plus $5 for each unit of capacity or bed space for which a license is sought. The fee must be paid with each initial application and with each application for renewal of the license. (2) Increase in bed space. An approved increase in bed space is subject to an additional fee of $5 for each unit of capacity or bed space. (3) Change of administrator or director. A new facility administrator must submit the Texas Department of Human Services' Application for Change form and a $20 fee to DHS. (b) Trust fund fee. (1) In addition to the basic license fee described in subsection (a) of this section, DHS has established a trust fund for the use of a court-appointed trustee as described in the Health and Safety Code, Chapter 242, Subchapter D. (2) DHS charges and collects an annual fee from each facility licensed under the Texas Health and Safety Code, Chapters 242 and 247, each calendar year if the amount of the nursing and convalescent trust fund is less than $100,000. The fee is based on a monetary amount specified for each licensed unit of capacity or bed space and is in an amount sufficient to provide $100,000 in the trust fund. In calculating the fee, the amount will be rounded to the next whole cent. (c) Alzheimer's certification. In addition to the basic license fee described in subsection (a) of this section, a facility that applies for certification to provide specialized services to persons with Alzheimer's disease or related conditions under Subchapter K of this chapter (relating to Certification of Facilities for Care of Persons with Alzheimer's Disease and Related Disorders) must pay an annual fee of $100. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on July 19, 1994. TRD-9445267 Nancy Murphy Section Manager, Media and Policy Support Texas Department of Human Services Effective date: September 1, 1994 Proposal publication date: May 20, 1994 For further information, please call: (512) 450-3765 Subchapter C. Standards for Licensure 40 TAC sec.90.42 The amendment is adopted under the Health and Safety Code, Chapter 242, which provides the department with the authority to regulate long-term care nursing facilities and under Texas Civil Statutes, Article 4413 (502), which transferred all functions, programs, and activities related to long-term care licensing, certification, and surveys from the Texas Department of Health to the Texas Department of Human Services. The amendment implements the Health and Safety Code, sec. sec.242.001-242.186. sec.90.42. Standards for Facilities Serving Persons with Mental Retardation or Related Conditions. (a)-(d) (No change.) (e) Additional requirements. (1) The facility must develop and implement policies and procedures regarding injuries, accidents, and unusual incidents which involve or affect residents. These policies and procedures must include the following provisions. (A) An investigation and report must be completed which describes the circumstances of the injury, accident, or incident and its cause, the results of the investigation, and recommended actions. Serious injuries, accidents, or unusual incidents must be reported to the resident's responsible parties and to the department. (B) Allegations of abuse, neglect, or other mistreatment of residents must be reported to the Texas Department of Human Services, PASARR/ICF-MR/RC Department, Long-Term Care-Regulatory, at (512) 834-6671, during normal workday hours. Incidents occurring after 5:00 p.m. on weekends and holidays are reported by calling 1-800-292-2065. (C) In the area of criminal-history checks, the provider or facility must comply with the Health and Safety Code, Title 4, Chapter 250, which requires DHS to perform criminal history checks on persons employed by certain types of facilities. (2) In the area of behavior management, seclusion of residents may not be used. Seclusion is defined as placement of a resident in a room without staff present from which egress is prevented by a locked door. (3) (No change.) (4) In the area of pharmacy services, the following applies. (A) All pharmacy services must comply with the Texas State Board of Pharmacy requirements, the Texas Pharmacy Act, and rules adopted thereunder, the Texas Controlled Substances Act, and Health and Safety Code, Chapter 483 (relating to Dangerous Drugs). (B)-(C) (No change.) (5) (No change.) (6) In the area of administration of medication, the following applies. (A) (No change.) (B) Residents who have demonstrated the competency for self-administration of medications must have access to and maintain their own medications. They must have an individual storage space that permits them to store their medications under lock and key. (C) Residents may participate in a self-administration of medication habilitation training program if the interdisciplinary team determines that self-administration of medications is an appropriate objective. Residents participating in a self-administration of medication habilitation training program must have training in coordination with and as part of the resident's total active treatment program. The resident's training plan must be evaluated as necessary by a licensed nurse. The supervision and implementation of a self- administration of medication habilitation program may be conducted by nonlicensed personnel and is not limited to personnel who have completed an approved training program in medication administration. (7) In the area of communicable diseases, the facility must have written policies and procedures for the control of communicable diseases in employees and residents. When any reportable communicable disease becomes evident, the facility must report in accordance with Communicable Disease and Prevention Act, Health and Safety Code, Chapter 81, or as specified in sec.sec.97.1-97.13 of this title (relating to Control of Communicable Diseases) and sec.sec.97.131- 97.136 of this title (relating to Sexually Transmitted Diseases) and in the publication titled, "Reportable Diseases in Texas," Publication 6-101a (Revised 1987). The local health authority should be contacted to assist the facility in determining the transmissibility of the disease and, in the case of employees, the ability of the employee to continue performing his duties. The facility must have written policies and procedures for infection control, which include implementation of universal precautions as recommended by the Centers for Disease Control (CDC). (8) (No change.) This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on July 19, 1994. TRD-9445266 Nancy Murphy Section Manager, Media and Policy Support Texas Department of Human Services Effective date: September 1, 1994 Proposal publication date: May 20, 1994 For further information, please call: (512) 450-3765 Subchapter F. Inspections, Surveys, and Visits 40 TAC sec.90.191 The amendment is adopted under the Health and Safety Code, Chapter 242, which provides the department with the authority to regulate long-term care nursing facilities and under Texas Civil Statutes, Article 4413 (502), which transferred all functions, programs, and activities related to long-term care licensing, certification, and surveys from the Texas Department of Health to the Texas Department of Human Services. The amendment implements the Health and Safety Code, sec. sec.242.001-242.186. sec.90.191. Procedural Requirements. (a) Texas Department of Human Services (DHS) inspection and survey personnel must perform inspections and surveys, follow-up visits, complaint investigations, investigations of abuse or neglect, and other contact visits from time to time as they deem appropriate or as required for carrying out the responsibilities of licensing. (b)-(c) (No change.) (d) With respect to being unannounced or announced, inspections, surveys, and other visits must meet the following. (1) All inspections, surveys, and other visits that are routine in nature and that are made for the purpose of determining the appropriateness of resident care and day-to-day operations of a facility must be unannounced; any exceptions must be justified. (2) Call-back visits must be unannounced, although it is recognized that the schedule of a call-back visit often relates to a date of correction made known to or by a facility in advance; any exceptions must be justified. (3) Any nonroutine or special inspection, survey, and other visit involving the appropriateness of some aspect of resident care must be unannounced unless particular circumstances justify otherwise. (4) Complaint investigations must be unannounced. (5)-(7) (No change.) (e) Persons authorized to receive advance information on unannounced inspections include: (1) citizen advocates invited to attend inspections, as described in subsection (f) of this section; (2) representatives of the Texas Department on Aging serving as ombudsmen or authorized to attend or participate in inspections; (3) (No change.) (4) representatives of DHS whose programs relate to the Medicare/Medicaid long-term care program. (f) DHS must conduct at least two unannounced inspections each licensing period for each institution licensed under Health and Safety Code, Chapter 242, except as provided for in this subsection. (1) A sufficient number of inspections must be conducted between the hours of 5:00 p.m. and 8:00 a.m. In randomly selected institutions, a cursory after-hours inspection must be conducted to verify staffing, assurance of emergency egress, resident care, medication security, food service or nourishments, sanitation, and other items as deemed appropriate. To the greatest extent feasible, any disruption of the residents must be minimal. (2) For at least two unannounced inspections each licensing period, DHS must invite to the inspections at least one person as a citizen advocate from the American Association of Retired Persons, the Texas Senior Citizen Association, the Texas Retired Federal Employees, the Texas Department on Aging Certified Long-Term Care Ombudsman, or any other statewide organization for the elderly. DHS must provide to these organizations basic licensing information and requirements for the organizations' dissemination to their members whom they engage to attend the inspections. Advocates participating in the inspections must follow all DHS protocols. Advocates must provide their own transportation. The schedule of inspections in this category must be arranged confidentially in advance with the organizations. Acceptance of the invitation or participation by the advocates is not a condition precedent to conducting the inspection. (g) The facility must make all of its books, records, and other documents maintained by or on behalf of a facility accessible to DHS upon request. (1) DHS is authorized to photocopy documents, photograph residents, and use any other available recording devices to preserve all relevant evidence of conditions found during an inspection, survey, or investigation that DHS reasonably believes threaten the health and safety of a resident. (2) (No change.) (3) When the facility is requested to furnish the copies, the facility may charge DHS at a rate not to exceed the rate charged by DHS for copies. The procedure of copying is the responsibility of the administrator or his designee. If copying requires the records be removed from the facility, a representative of the facility is expected to accompany the records and assure their order and preservation. (4) DHS protects the copies for privacy and confidentiality in accordance with recognized standards of medical records practice, applicable state laws, and DHS policy. (h) DHS must provide for a special team to conduct validation surveys or verify findings of previous licensure surveys. (1) At DHS's discretion, based on record review, random sample, or any other determination, DHS may assign a team to conduct a validation survey. DHS may use the information to verify previous determinations or identify training needs to assure consistency in deficiencies cited and in punitive actions recommended throughout the state. (2) Facilities are required to correct any additional deficiencies cited by the validation team but are not subject to any new or additional punitive action. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on July 19, 1994. TRD-9445265 Nancy Murphy Section Manager, Media and Policy Support Texas Department of Human Services Effective date: September 1, 1994 Proposal publication date: May 20, 1994 For further information, please call: (512) 450-3765 Subchapter G. Abuse, Neglect, and Exploitation; Complaint and Incident Reports and Investigations 40 TAC sec.90.212, sec.90.215 The amendments are adopted under the Health and Safety Code, Chapter 242, which provides the department with the authority to regulate long-term care nursing facilities and under Texas Civil Statutes, Article 4413 (502), which transferred all functions, programs, and activities related to long-term care licensing, certification, and surveys from the Texas Department of Health to the Texas Department of Human Services. The amendments implement the Health and Safety Code, sec. sec.242.001-242.186. sec.90.212. Incidents of Abuse and Neglect Reportable by Facilities to the Texas Department of Human Services (DHS). (a) (No change.) (b) Each employee of a facility must sign a statement that the employee realizes that the employee may be criminally liable for failure to report abuses and that the employee understands his rights under the Texas Health and Safety Code, sec.242.133, such as that the employee has a cause of action against a facility, its owner(s), or employees if he is suspended, terminated, disciplined, or discriminated against as a result of reporting abuse or neglect of a resident. These statements must be available for inspection by the Texas Department of Human Services (DHS). (c) Reports of abuse or neglect in nursing facilities are to be made to DHS's state office, Austin, Texas, at (512) 834-6778 during normal workday hours, and to 1-800-458-9858 on weekends and holidays. Reports of abuse or neglect in facilities serving persons with mental retardation or a related condition are to be made to DHS's state office at (512) 834-6671 during normal workday hours, and to 1-800-292-2065 on weekends and holidays. The person reporting must make an oral report immediately on learning of the alleged abuse or neglect. A written investigation report must be sent no later than the fifth calendar day after the oral report. sec.90.215. Investigations of Incidents and Complaints. (a) In accordance with the memorandum of understanding which is adopted by reference in 25, TAC sec.111.1 (relating to Memorandum of Understanding Concerning Protective Services for the Elderly), the Texas Department of Human Services (DHS) receives and investigates reports of abuse, neglect, and exploitation of persons who are elderly and persons with disabilities or other residents living in facilities licensed under this chapter. (b)-(g) (No change.) This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on July 19, 1994. TRD-9445264 Nancy Murphy Section Manager, Media and Policy Support Texas Department of Human Services Effective date: September 1, 1994 Proposal publication date: May 20, 1994 For further information, please call: (512) 450-3765 Subchapter H. Enforcement 40 TAC sec.90.232, sec.90.233 The amendments are adopted under the Health and Safety Code, Chapter 242, which provides the department with the authority to regulate long-term care nursing facilities and under Texas Civil Statutes, Article 4413 (502), which transferred all functions, programs, and activities related to long-term care licensing, certification, and surveys from the Texas Department of Health to the Texas Department of Human Services. The amendments implement the Health and Safety Code, sec. sec.242.001-242.186. sec.90.232. Suspension. (a)-(b) (No change.) (c) Unless accompanied by an Emergency Closure Order, the facility will be notified by certified mail of the department's intent to suspend the license. The facility shall have 15 calendar days from receiving the certified mail notice within which to request a hearing, in accordance with sec.90.238 of this title (relating to Administrative Hearings). (d) (No change.) sec.90.233. Revocation. (a)-(c) (No change.) (d) Unless accompanied by an Emergency Closure Order, the facility will be notified by certified mail of the department's intent to revoke a license. The facility shall have 15 calendar days from receiving the certified mail notice within which to request a hearing, in accordance with sec.90.238 of this title (relating to Administrative Hearings). This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on July 19, 1994. TRD-9445263 Nancy Murphy Section Manager, Media and Policy Support Texas Department of Human Services Effective date: September 1, 1994 Proposal publication date: May 20, 1994 For further information, please call: (512) 450-3765 Chapter 92. Personal Care Facilities The Texas Department of Human Services (DHS) adopts amendments to sec.sec.92. 102, 92.105, 92.152, and 92.153, concerning incidents of abuse and neglect reportable to DHS by facilities, investigation of incidents and complaints, and suspension and revocation of licenses, in its Personal Care Facilities rule chapter. The amendments to sec.sec.92.102, 92.152, and 92.153 are adopted with changes to the proposed text published in the May 20, 1994, issue of the Texas Register (19 TexReg 3910). The amendment to sec.92.105 is adopted without changes to the proposed text, and will not be republished. The justification for the amendments is to clarify the process for reporting abuse and neglect and that DHS is responsible for investigating those reports. In addition, DHS is changing timeframes for requesting appeals from 20 to 15 days. This ensures that formal hearing requirements for long term care facilities are the same as those applicable to other DHS formal appeals. The amendments will function by improving reporting and investigating of abuse and neglect and making DHS's policies for formal hearings consistent. During the public comment period, DHS received comments from the Texas Health Care Association. The following is a summary of the comment and DHS's response. Comment: The commenter expressed opposition to sec.92.152, which decreases the number of days a facility has to request a hearing. Response: DHS made this change so that all rules regarding DHS hearings will have the same timeframes. DHS is adopting sec.92.102(c) with a change to add the after-hours telephone number for reporting abuse or neglect, and is adopting sec.92.152(c) and sec.92. 153(d) with changes to clarify that the facility has 15 calendar days to request a hearing. Subchapter F. Abuse, Neglect, and Exploitations; Complaint and Incident Reports and Investigations 40 TAC sec.92.102, sec.92.105 The amendments are adopted under the Health and Safety Code, Chapter 247, which provides the department with the authority to regulate personal care facilities, Chapter 22 of the Human Resources Code, and under Texas Civil Statutes, Article 4413 (502), which transferred all functions, programs, and activities related to long-term care licensing, certification, and surveys from the Texas Department of Health to the Texas Department of Human Services. The amendments implement the Health and Safety Code, sec. sec.247.001-247.066. sec.92.102. Incidents of Abuse and Neglect Reportable to the Texas Department of Human Services by Facilities. (a) Any facility staff who has cause to believe that the physical or mental health or welfare of a resident has been or may be adversely affected by abuse or neglect caused by another person must report the abuse or neglect. (b) Each employee of a facility must sign a statement that the employee realizes that the employee may be criminally liable for failure to report abuses. These statements must be available for inspection by the Texas Department of Human Services (DHS). (c) Reports of abuse or neglect are to be made to DHS's state office at (512) 834-6778 during normal workday hours, and to 1-800-458-9858 on weekends and holidays. The person reporting must make an oral report immediately on learning of the alleged abuse or neglect. A written investigation must be sent no later than the fifth calendar day after the oral report. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on July 19, 1994. TRD-9445262 Nancy Murphy Section Manager, Media and Policy Support Texas Department of Human Services Effective date: September 1, 1994 Proposal publication date: May 20, 1994 For further information, please call: (512) 450-3765 Subchapter H. Enforcement 40 TAC sec.92.152, sec.92.153 The amendments are adopted under the Health and Safety Code, Chapter 242, which provides the department with the authority to regulate long-term care nursing facilities and under Texas Civil Statutes, Article 4413 (502), which transferred all functions, programs, and activities related to long-term care licensing, certification, and surveys from the Texas Department of Health to the Texas Department of Human Services. The amendments implement the Health and Safety Code, sec.242.061. sec.92.152. Suspension. (a) When a serious violation occurs or when a series of violations occur such that the event or series of events may (or could) jeopardize the health and safety of residents, the Texas Department of Human Services (DHS) may suspend the license. (b) Suspension of a license may occur simultaneously with any other enforcement provision available to DHS. (c) Unless accompanied by an Emergency Closure Order, the facility will be notified by certified mail of DHS's intent to suspend the license. The facility has 15 calendar days from receiving the certified mail notice within which to request a hearing, in accordance with sec.92.156 of this title (relating to Administrative Hearings). (d) If DHS suspends a license, the suspension remains in effect until DHS determines that the reason for suspension no longer exists. DHS conducts an on- site investigation prior to making a determination. During the time of suspension, the suspended licensee must return the license to DHS. sec.92.153. Revocation. (a) When a serious violation occurs, such that the health and safety of residents is jeopardized, the Texas Department of Human Services (DHS) may revoke the license. (b) DHS may revoke a license if the licensee: (1)-(3) (No change.) (c) Revocation of a license may occur simultaneously with any other enforcement provision available to DHS. (d) Unless accompanied by an Emergency Closure Order, the facility will be notified by certified mail of DHS's intent to revoke a license. The facility has 15 calendar days from receiving the certified mail notice within which to request a hearing, in accordance with sec.92.156 of this title (relating to Administrative Hearings). This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas on July 19, 1994. TRD-9445261 Nancy Murphy Section Manager, Media and Policy Support Department of Human Services Effective date: September 1, 1994 Proposal publication date: May 20, 1994 For further information, please call: (512) 450-3765 Chapter 96. Certification of Long-Term Care Facilities 40 TAC sec.96.7 The Texas Department of Human Services (DHS) adopts an amendment to sec.96. 7, concerning appeals, in its Certification of Long-Term Care Facilities rule chapter. The amendment is adopted with changes to the proposed text as published in the May 20, 1994, issue of the Texas Register (19 TexReg 3911). The justification for the amendment is to state that facilities desiring a formal appeal must make the appeal to DHS in writing within 15 calendar days after the effective date of the action. The amendment also states that the failure to request a formal hearing within the 15 days constitutes a waiver of the right to a hearing. The amendment ensures that formal hearing requirements for long term care facilities are the same as those applicable to other DHS formal appeals. The amendment will function by making DHS policies for formal hearings consistent. During the public comment period, DHS received comments from New Avenues of Hope, Inc., and the Texas Health Care Association. The following is a summary of the comment and DHS's response. Comment: One commenter expressed opposition to sec.96.7, which decreases the number of days a facility has to request a hearing. Response: DHS made this change so that all rules regarding DHS hearings will have the same timeframes. Comment: One commenter suggested that DHS specify whether the 15 days stated in subsection (b)(2) of the rule are working or calendar days. Also, the commenter requested DHS to specify what constitutes "official notice." Response: DHS is adopting the rule with a change to clarify that the number of days are calendar days. In regard to the reference to "official notice," DHS is adopting the section as proposed. DHS believes that DHS's official notice of action will be identifiable by facilities without additional clarification. The amendment is adopted 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 provide the Health and Human Services Commission with the authority to administer federal medical assistance funds. The amendment implements the Human Resources Code, sec. sec.32.001-32.042. sec.96.7. Appeals. (a) (No change.) (b) Formal hearing for all facilities. (1) (No change.) (2) A facility desiring a formal hearing must make a request to the department, in writing, within 15 calendar days after the facility receives the department's official notice of the action. Upon receipt of the request, the department will notify the department's Office of General Counsel to institute formal hearing procedures. Failure of the facility to request a formal hearing within the 15 calendar days constitutes a waiver of the right to a hearing. (3) (No change.) This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on July 19, 1994. TRD-9445260 Nancy Murphy Section Manager, Media and Policy Support Texas Department of Human Services Effective date: September 1, 1994 Proposal publication date: May 20, 1994 For further information, please call: (512) 450-3765 Chapter 98. Adult Day Care and Adult Day Health Care Facilities Subchapter F. Enforcement 40 TAC sec.98.102, sec.98.103 The Texas Department of Human Services (DHS) adopts amendments to sec.98. 102 and sec.98.103, concerning suspension and revocation, in its Adult Day Care and Adult Day Health Care Facilities rule chapter. The amendments are adopted with changes to the proposed text as published in the May 20, 1994, issue of the Texas Register (19 TexReg 3912). The justification for the amendments is to state that facilities must request a formal hearing within 15 calendar days from receiving notice of DHS's intent to suspend a license. The amendments ensure that formal hearing requirements for long-term care facilities are the same as those applicable to other DHS formal appeals. The amendments will function by making DHS's policies for formal hearings consistent. No comments were received regarding adoption of the amendments; however, DHS is adopting sec.90.102(b) and sec.90.103(d) with changes to clarify that the 15 days are calendar days. The amendments are adopted under the Human Resources Code, Chapter 103, which provides the department with the authority to regulate adult day-care facilities and under Texas Civil Statutes, Article 4413 (502), which transferred all functions, programs, and activities related to long-term care licensing, certification, and surveys from the Texas Department of Health to the Texas Department of Human Services. The amendments implement the Human Resources Code, sec. sec.103.001-103.011. sec.98.102. Suspension. (a) When a serious violation occurs or when a series of violations occur such that the event or series of events may (or could) jeopardize the health and safety of recipients, the Texas Department of Human Services (DHS) may suspend the license. (b) The facility will be notified by certified mail of DHS's intent to suspend the license. The facility has 15 calendar days from receiving the certified mail notice within which to request a hearing, in accordance with sec.98.104 of this title (relating to Administrative Hearings). (c) If DHS suspends a license, the suspension remains in effect until DHS determines that the reason for suspension no longer exists. DHS conducts an on- site investigation prior to making a determination. During the time of suspension, the suspended licensee must return the license to DHS. sec.98.103. Revocation. (a) When a serious violation occurs, such that the health and safety of clients is jeopardized, the Texas Department of Human Services (DHS) may revoke the license. (b) DHS may revoke a license if the licensee: (1)-(3) (No change.) (c) Revocation of a license may occur simultaneously with any other enforcement provision available to DHS. (d) The facility will be notified by certified mail of DHS's intent to revoke a license. The facility has 15 calendar days from receiving the certified mail notice within which to request a hearing, in accordance with sec.98.104 of this title (relating to Administrative Hearings). This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on July 19, 1994. TRD-9445259 Nancy Murphy Section Manager, Media and Policy Support Texas Department of Human Services Effective date: September 1, 1994 Proposal publication date: May 20, 1994 For further information, please call: (512) 450-3765 TITLE 43. TRANSPORTATION Part I. Texas Department of Transportation Chapter 1. Management Advisory Committee 43 TAC sec.1.85 The Texas Department of Transportation adopts an amendment to sec.1.85, without changes to the proposed text as published in the April 22, 1994, issue of the Texas Register (19 TexReg 3050). Section 1.85, concerning Department Advisory Committees, is amended to rename the Statewide Transportation Plan External Advisory Panel and alter its functions. State and federal law require the department to develop a statewide multimodal transportation plan and to provide for public input during the development of the plan. Federal law requires the plan to be completed by 1995. To provide for sufficient public input and to expedite development of the plan, it is necessary to amend sec.1.85(a)(5) to rename the Statewide Transportation Plan External Advisory Panel the Statewide Transportation Policy Committee; provide that the committee shall report to the commission; authorize the committee to appoint one or more issue committees; and authorize the department to reimburse committee members for travel expenses. It is also necessary to amend sec.1.85(a) by adding paragraphs (17) and (18). Paragraph (17) establishes a Motor Transportation Advisory Committee which will provide advice to the department with respect to the issuance of permits for the movement of oversize and overweight vehicles and loads; the registration of trucks and motor buses, future truck and motor bus equipment and highway needs, coordination of regulatory and enforcement activities of state agencies affecting the trucking and motor bus industries, truck and motor bus safety, opportunities for one-stop shopping for state services and requirements of trucks and motor bus companies, and other issues concerning the department and the trucking and motor bus industries. The amendment will allow for immediate resolution of issues concerning the safety and economic welfare of the trucking and motor bus industries and the general public. Paragraph (18) establishes a Hurricane Evacuation Route Task Force to advise and recommend design criteria and selection/ prioritization of hurricane evacuation routes. Advice and recommendations of the task force will provide the department and the commission with an enhanced understanding of local concerns in the development of hurricane evacuation routes, thus facilitating the department's and the commission's goal to promote transportation decisions with public input, at the local, regional, and state levels, and to invest in cost- effective transportation projects and programs employing innovations that increase safety, access, and mobility for the transportation of people and goods in emergency situations. On March 28, 1994, the department conducted a public hearing on the proposed amendments to sec.1.85(a)(5) and (17). Amoco Oil Company submitted a comment on the proposed amendments, stating that it was in favor of the establishment of a Motor Transportation Advisory Committee. On April 4, 1994, the department conducted a public hearing on the proposed amendment sec.1.85(a)(18). No written or oral comments were received concerning the proposed amendment. The amendment is adopted under Texas Civil Statutes, Article 6666, which provide the Texas Transportation Commission with the authority to establish rules for the conduct of the work of the Texas Department of Transportation, and more specifically by Texas Civil Statutes, Articles 6252-33, which provide that a state agency that is advised by an advisory committee shall adopt rules that state the purpose of the committee and describe the task of the committee and the manner in which the committee will report to the agency. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on July 19, 1994. TRD-9445302 Diane L. Northam Legal Executive Assistant Texas Department of Transportation Effective date: August 9, 1994 Proposal publication date: April 22, 1994 For further information, please call: (512) 463-8630 Conditional Grant Program 43 TAC sec.1.404, sec.1.410 The Texas Department of Transportation adopts new sec.1.410, concerning child support statements, and an amendment to sec.1.404, concerning application for conditional grants, without changes to the proposed text as published in the April 22, 1994, issue of the Texas Register (19 TexReg 3050). New sec.1.410 requires that each student provide a statement affirming that the student is not delinquent in child support payments. Texas Family Code, sec.14.52, states that all persons who receive monies from a state agency must sign a notarized statement which affirms that the student is not 30 days or more delinquent in providing child support payments under a court order or a written repayment agreement. It is also necessary to amend sec.1.404 by incorporating the sworn child support affidavit into the grant application process and changing the application deadline from October 1st for the spring semester to March 1st for both spring and fall semesters in order to better coordinate with the school's financial aid office which determines a student's financial needs on a yearly basis. On May 4, 1994, the department conducted a public hearing on the proposed new sec.1.410 and the proposed amendment to sec.1.404. No written or oral comments were received concerning the proposed new section or amendments. The amendment and new section are adopted under Texas Civil Statutes, Article 6666, which provide the Texas Transportation Commission with the authority to establish rules for the conduct of the work of the Texas Department of Transportation, and Chapter 56, Subchapter H of the Texas Education Code, which specifically requires the department to adopt rules implementing a conditional grant program. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on July 14, 1994. TRD-9445068 Diane L. Northam Legal Executive Assistant Texas Department of Transportation Effective date: August 4, 1994 Proposal publication date: April 22, 1994 For further information, please call: (512) 463-8630