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 22. EXAMINING BOARDS Part IX. Texas State Board of Medical Examiners Chapter 161. General Provisions 22 TAC sec.161.1 The Texas State Board of Medical Examiners adopts an amendment to sec.161.1, without changes to the proposed text as published in the May 3, 1994, issue of the Texas Register (19 TexReg 3326). The section will provide a means for determining board member absences and to ensure that sufficient board members are available for a quorum. The section will function by defining regulations related to board member attendance. No comments were received regarding adoption of the rule. The amendments are adopted under Texas Civil Statutes, Article 4495b, which provide the Texas State Board of Medical Examiners with the authority to make rules, regulations and bylaws not inconsistent with this act as may be necessary for the governing of its own proceedings, the performance of its duties, the regulation of the practice of medicine in this state, and the enforcement of this act. 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 22, 1994. TRD-9445568 Bruce A. Levy, M.D., J.D. Executive Director Texas State Board of Medical Examiners Effective date: August 15, 1994 Proposal publication date: May 3, 1994 For further information, please call: (512) 834-7728 Chapter 183. Acupuncture 22 TAC sec.183.18 The Texas State Board of Medical Examiners adopts new sec.183.18, without changes to the proposed text as published in the May 3, 1994, issue of the Texas Register (19 TexReg 3305). The section will establish an orderly system of licensing those persons currently practicing acupuncture in the state of Texas in a manner which protects the health, safety, and welfare of the public. The section will function by licensing, registering, and disciplining those persons practicing acupuncture. A number of comments were received from associations and attorneys, as well as individuals, addressing such issues as whether or not all applicants should be required to take and pass an examination, which documentation should be required for licensure, and whether or not all those currently practicing acupuncture in the state should automatically be grandfathered without being required to complete a licensure process. The Texas Association of Acupuncturists Traditional Chinese Medicine and Acupuncture Association of Texas Texas Acupuncture Association agreed with some portions of the rules and disagreed with other portions. These groups were not 100% for or against the rule as proposed. Reasons why agency disagrees with comments. The board felt that all persons who practice acupuncture should be required to take the clean needle technique course and pass the examination, but agreed that those persons who had met certain requirements in the number of years of experience in acupuncture should be exempted from taking and passing the National Commission for the Certification of Acupuncturists Examination. The new section is adopted under Texas Civil Statutes, Article 4495b, which provide the Texas State Board of Medical Examiners with the authority to make rules, regulations and bylaws not inconsistent with this act as may be necessary for the governing of its own proceedings, the performance of its duties, the regulation of the practice of medicine in this state, and the enforcement of this act. 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 22, 1994. TRD-9445571 Bruce A. Levy, M.D., J.D. Executive Director Texas State Board of Medical Examiners Effective date: August 15, 1994 Proposal publication date: May 3, 1994 For further information, please call: (512) 834-7728 Chapter 187. Procedure Subchapter D. Posthearing 22 TAC sec.187.40 The Texas State Board of Medical Examiners adopts new sec.187.40, without changes to the proposed text as published in the May 3, 1994, issue of the Texas Register (19 TexReg 3327). The section will clarify the procedures for the disciplinary panel of the board to temporarily suspend a license when the licensee's practice would constitute a continuing threat to the public welfare. The proposed new section establishes the guidelines for the disciplinary panel of the board to consider the temporary suspension of a license. No comments were received regarding adoption of the rule. The new section is adopted under Texas Civil Statutes, Article 4495b, which provide the Texas State Board of Medical Examiners with the authority to make rules, regulations and bylaws not inconsistent with this act as may be necessary for the governing of its own proceedings, the performance of its duties, the regulation of the practice of medicine in this state, and the enforcement of this act. 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 22, 1994. TRD-9445567 Bruce A. Levy, M.D., J.D. Executive Director Texas State Board of Medical Examiners Effective date: August 15, 1994 Proposal publication date: May 3, 1994 For further information, please call: (512) 834-7728 Chapter 188. Complaint Procedure Notification 22 TAC sec.188.1 The Texas State Board of Medical Examiners adopts an amendment to sec.188.1, without changes to the proposed text as published in the May 3, 1994, issue of the Texas Register (19 TexReg 3328). The section as adopted will provide a method of directing complaints to the Texas State Board of Medical Examiners. The section will function by clarifying what information is to be included in the notification to the public. One comment was received from Texas Hospital Association, which contended that the Medical Practice Act, Texas Civil Statutes, Article 4495b, sec.2.09(s) was only meant to apply to businesses run or owned by particular health professions. Since physicians bill separately from hospital services, the Texas Hospital Association contended that placing complaint notification within the hospital billings was not within statutory intent. The Texas Hospital Association further contended that placing notification within hospital bills would be cumbersome. The Board disagreed with the Texas Hospital Association's interpretation of statutory intent. The amendments are adopted under Texas Civil Statutes, Article 4495b, which provide the Texas State Board of Medical Examiners with the authority to make rules, regulations and bylaws not inconsistent with this act as may be necessary for the governing of its own proceedings, the performance of its duties, the regulation of the practice of medicine in this state, and the enforcement of this act. 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 22, 1994. TRD-9445566 Bruce A. Levy, M.D., J.D. Executive Director Texas State Board of Medical Examiners Effective date: August 15, 1994 Proposal publication date: May 3, 1994 For further information, please call: (512) 834-7728 Chapter 196. Voluntary Surrender of a Medical License 22 TAC sec.sec.196.1-196.5 The Texas State Board of Medical Examiners adopts amendments to sec.sec.196.1- 196.5, without changes to the proposed text as published in the May 5, 1994, issue of the Texas Register (19 TexReg 3328). The section as adopted will clarify the procedures concerning the acceptance of a voluntary surrender of a license in lieu of further disciplinary action, the return of a surrendered license, and limitations on the cancellation of a license due to nonpayment of registration fees if a formal complaint has been filed against the physician. The section will function by clarifying the circumstances under which the voluntary surrender of a license may be accepted by the board. No comments were received regarding adoption of the rules. The amendments are adopted under Texas Civil Statutes, Article 4495b, which provide the Texas State Board of Medical Examiners with the authority to make rules, regulations and bylaws not inconsistent with this act as may be necessary for the governing of its own proceedings, the performance of its duties, the regulation of the practice of medicine in this state, and the enforcement of this act. 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 22, 1994. TRD-9445565 Bruce A. Levy, M.D., J.D. Executive Director Texas State Board of Medical Examiners Effective date: August 15, 1994 Proposal publication date: May 3, 1994 For further information, please call: (512) 834-7728 Part XXII. Texas State Board of Public Accountancy Chapter 501. Professional Conduct General Provisions 22 TAC sec.501.2 The Texas State Board of Public Accountancy adopts an amendment to sec.501. 2, without changes to the proposed text as published in the April 5, 1994, issue of the Texas Register (19 TexReg 3839). The amendment allows the deletion of the definition of solicitation. Final Adoption Rule 501.2 The amendment will function by removing any confusion about solicitation since the solicitation rule 501.44 has been repealed. No comments were received concerning adoption of the rule. The amendment is adopted under Texas Civil Statutes, Article 41a-1, sec.6, which provide the Texas State Board of Public Accountancy with the authority to make such rules as may be necessary or advisable to carry in effect the purposes of the 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 14, 1994. TRD-9445596 William Treacy Executive Director Texas State Board of Public Accountancy Effective date: August 15, 1994 Proposal publication date: April 5, 1994 For further information, please call: (512) 505-5545 Chapter 515. Licenses 22 TAC sec.515.1 The Texas State Board of Public Accountancy adopts an amendment to sec.515. 1, without changes to the proposed text as published in the April 5, 1994, issue of the Texas Register (19 TexReg 2353). The amendment allows a change to the licensing period from biennial to annual. The reporting and licensing period will be shorter. The amendment will function by issuing licenses for one year rather than for two years. No comments were received concerning adoption of the rule. The amendment is adopted under Texas Civil Statutes, Article 41a-1, sec.6, which provide the Texas State Board of Public Accountancy with the authority to make such rules as may be necessary or advisable to carry in effect the purposes of the law; and sec.9, which authorizes the Board to issue licenses. 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-9445597 William Treacy Executive Director Texas State Board of Public Accountancy Effective date: August 15, 1994 Proposal publication date: April 5, 1994 For further information, please call: (512) 505-5545 Chapter 521. Fee Schedule 22 TAC sec.521.1 The Texas State Board of Public Accountancy adopts an amendment to sec.521. 1 with changes to the proposed text as published in the April 5, 1994, issue of the Texas Register , (19 TexReg 2356). The change was moving the professional fee from subsection (a) to subsection (c) and explaining that the legislature has directed the board to collect a professional fee of $200 per year. The amendment allows the license fee to correspond to the changed licensing period and explains why the board is collecting a professional fee. The amendment will function by assessing the correct licensing fee. No comments were received concerning adoption of the rule. The amendment is adopted under Texas Civil Statutes, Article 41a-1, sec.6, which provide the Texas State Board of Public Accountancy with the authority to make such rules as may be necessary or advisable to carry in effect the purposes of the law; sec.9, which authorizes the Board to charge fees; sec.9A, which requires the Board to collect a professional fee; and sec.32, which requires the Board to collect fees for a scholarship fund. sec.521.1. License Fees. (a) The fee for a license issued to an individual not in retired or disabled status shall be $30 for the license fee and $10 for the Scholarship Fund; however, the initial license fee shall be prorated for those months during which the license is valid. (b) The annual fee for a license issued to a practice unit shall be $100 and may not be prorated. (c) The legislature has directed the board to collect from each licensee who is neither retired nor disabled a professional fee of $200 per year. 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-9445598 William Treacy Executive Director Texas State Board of Public Accountancy Effective date: August 15, 1994 Proposal publication date: April 5, 1994 For further information, please call: (512) 505-5545 TITLE 30. ENVIRONMENTAL QUALITY Part I. Texas Natural Resource Conservation Commission Chapter 101. General Rules 30 TAC sec.101.1 The Texas Natural Resource Conservation Commission (TNRCC) adopts an amendment to sec.101.1, concerning Definitions, with changes to the proposed text as published in the March 1, 1994, issue of the Texas Register (19 TexReg 1435). New definitions for the terms "account" and "sulfuric acid mist" are added. The adopted "account" definition is the result of a working group appointed by the Executive Director of the Texas Air Control Board in the fall of 1992. The group was assigned the task of developing the definition to comply with the 1990 Federal Clean Air Act Amendments and state legislative requirements. The definition of account provides consistency with the definition of federal source as used in the Title V operating permit program. It also provides consistency with TNRCC procedures for computer tracking and fee assessment. The adopted definition of sulfuric acid mist was created to eliminate confusion over the composition of this air contaminant. The definition correlates to Test Method 8, which is a test method established by the United States Environmental Protection Agency in Title 40, Code of Federal Regulations, Part 60. Test Method 8 is used to measure stack emissions of sulfuric acid mist which may include sulfuric acid liquid droplets, sulfur trioxide, and gaseous sulfuric acid which condenses in the sampling train. The new definition includes all of these compounds. A public hearing on this proposal was held on March 29, 1994, at 10:00 a.m. in the Auditorium (Room 201S) of the TNRCC Central Office, Air Quality Planning Annex, located at 12118 North IH-35, Park 35 Technology Center, Building E, Austin. Written testimony was received from six commenters: Exxon Company U.S.A. (Exxon); Amoco Oil Company (Amoco); Exxon Chemical Americas (Exxon Chem); Asarco; City of Dallas (Dallas); and Texas Midcontinent Oil and Gas Association (TMOGA). Chapter 101 Definitions. Exxon and Exxon Chem interpreted the definition of account in Chapter 101 to allow existing account designations to remain unchanged. If the definition is intended to require combining of existing accounts, then they are opposed. They suggested changing the word "or" to "and" in subparagraph (A). There is disagreement with the definition language that ties in all contiguous commonly owned properties. They are concerned about combining facilities when ownership is shared by several different operating entities under the same corporate umbrella or under joint ownership. The proposed definition was not intended to combine existing multiple accounts into a single account. Actually, the opposite was intended. There have been cases in the past where companies have attempted to combine several accounts into a single account in order to reduce annual inspection fees and emissions fees. In some cases, these facilities were not interrelated or interconnected physically, but were located on a common property or lease. The proposed definition was intended to prevent this situation from occurring in the future. The suggested revision to subparagraph (A) has been implemented to eliminate the apparent confusion over this definition that has been expressed by some of the commenters. Dallas commented that products of different nature on contiguous properties with no cross-flow of materials between the adjacent facilities should be considered in the definition of account. The staff does not agree that a cross-flow of material between two facilities should be a condition of combining accounts. There may be cases where two separate facilities under separate accounts have some exchange of either raw or process materials. These could still be determined to be separate accounts. As previously stated, the purpose of the proposed definition is to discourage rather than encourage the combining of existing accounts. The TMOGA is concerned over the implications of the account definition in Chapter 101. It requested confirmation that there will be no change from past agency policy of maintaining separate accounts for independently managed or controlled operations that may be under common ownership. Oil and gas operations typically have several plant sites on a single lease, i.e., there may be several tank batteries, compressor stations, or gas processing plants on a lease property of several hundred acres, with each site consisting of only five to ten acres. The TMOGA is concerned that these independent sites may be required to combine into a single account. The staff did not intend to combine existing accounts as a result of this definition. See the previous comments by Exxon and Dallas. The current agency policy of maintaining separate accounts as stated by TMOGA should remain in place. By implementing the minor change in the definition suggested by Exxon, and supported by the staff, it should be clear that independently managed facilities, although under common ownership, would be maintained as separate accounts. Amoco supported the proposed definition of sulfuric acid mist, which is consistent with federal New Source Performance Standards Subpart H. The staff appreciates the support by Amoco. Asarco commented that the definition of sulfuric acid mist in Chapter 101 should be withdrawn because it has no benefit. The term is used only in 30 TAC Chapter 112 and is defined therein. The proposed definition is almost the same as the one in Chapter 112. By establishing a test method in the definition, the term in effect, dictates the stringency of an emission limitation. The purpose of the proposed definition of sulfuric acid mist was to establish that sulfuric acid mist and sulfuric acid are the same. That clarification is not part of the Chapter 112 definition. There has been some confusion in the past when sulfuric acid is listed as a contaminant in a permit maximum allowable emission rate table. Some permit holders have asserted that their allowable emission rate as determined by Test Method 8 should exclude the sulfuric acid mist which is caught in the first impinger. This may include sulfur trioxide, which forms sulfuric acid and sulfuric acid vapor which bypasses the particulate filter. It is the agency's position that all of this constitutes sulfuric acid in the atmosphere. In order to further clarify the definition, the staff has added language to state that sulfuric acid mist and sulfuric acid are considered to be the same air contaminant. The amendment is adopted under the Texas Health and Safety Code (Vernon 1990), the Texas Clean Air Act (TCAA), sec.382.017, which provides the TNRCC with the authority to adopt rules consistent with the policy and purposes of the TCAA. sec.101.1. Definitions. Unless specifically defined in the Texas Clean Air Act (TCAA) or in the rules of the Commission, the terms used by the Commission have the meanings commonly ascribed to them in the field of air pollution control. In addition to the terms which are defined by the TCAA, the following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise. Account-Any combination of facilities or sources, including federal sources, as defined in the Texas Clean Air Act (Title 5, Texas Health and Safety Code, sec.382.003) where the combined facilities or sources are: (A) under common ownership, management, and control; and (B) located on contiguous property or on properties that are contiguous except for intervening road, railroads, rights-of-way, waterways, or the like. Sulfuric acid mist/sulfuric acid-Emissions of sulfuric acid mist and sulfuric acid are considered to be the same air contaminant calculated as H point=5.02p [sup]2SO4 and shall include sulfuric acid liquid mist, sulfur trioxide, and sulfuric acid vapor as measured by Test Method 8 in Title 40 Code of Federal Regulations, Part 60, Appendix A. 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 25, 1994. TRD-9445687 Mary Ruth Holder Director, Legal Division Texas Natural Resource Conservation Commission Effective date: August 16, 1994 Proposal publication date: March 1, 1994 For further information, please call: (512) 239-1966 The Texas Natural Resource Conservation Commission (TNRCC) adopts the repeal of sec.114.11 and new sec.114.11, Alternative Fuel Requirements for Motor Vehicle Fleets, establishing the requirements of the Texas Alternative Fuel Fleet (TAFF) Program. The new section is adopted with changes to the proposed text as published in the February 11, 1994, issue of the Texas Register (19 TexReg 1018). The repeal is adopted without changes and will not be republished. The new sec.114.11 provides the following: coverage of all fleets of 15 or more vehicles in specified ozone and carbon monoxide (CO) nonattainment areas; fuel requirements, emission standards, and implementation schedules for covered fleets; accepted vehicle technologies and conversion installation requirements; a fleet data reporting requirement; provisions for exemptions; and provisions for the calculation, banking, and trading of mobile source emission reduction credits (MERCs). The TNRCC concurrently adopts a control strategy which fully describes the technical, administrative, and enforcement provisions of the TAFF program. The new rule and control strategy are proposed as a revision to the State Implementation Plan (SIP) for the control of ozone and CO in the Houston/Galveston, Beaumont/Port Arthur, and El Paso nonattainment areas. The new sec.114.11 includes wording from the original (repealed) text, modified for clarification and consistency with existing state statutes. This new sec.114.11 rule is necessary under the 1990 Federal Clean Air Act (FCAA) Amendments, which require the establishment of a clean fuel fleet program in all serious, severe, and extreme ozone nonattainment areas with a 1980 population of 250,000 or more. The FCAA Amendments also require a clean fuel fleet program in all CO nonattainment areas with a 1980 population of 250,000 or more and a design value of 16.0 parts per million (ppm) CO or greater, based on data from calendar years 1988 and 1989, provided that mobile sources contribute significantly to CO exceedances. The rule, as adopted, stipulates that mass transit, state agency, and school district fleets specified in Senate Bills 740, 769, and 7 must continue to comply with the compliance and fuel requirements already required by those bills. Under the new provision, beginning September 1, 1998, any new vehicle purchased, leased, or otherwise acquired by all affected fleets in the specified nonattainment areas must be certified to meet or exceed the low emission vehicle (LEV) standards. This provision also applies to all vehicles purchased, leased, or otherwise acquired by school districts and state agencies. However, the purchase requirement does not apply to a fleet if the fleet meets or exceeds the LEV vehicle standards in accordance with the following schedule: 30% by September 1, 1998; 50% by September 1, 2000; and 90% by September 1, 2002. These changes were made in order to provide an additional compliance option for affected fleet owners. The reporting section was amended to include the addition of vehicle identification numbers (VIN) in the annual fleet data report. Additionally, the initial reporting date for private, federal, and local government fleets was changed to September 1, 1996. This addition was needed for effective program compliance monitoring. The clause requiring the reporting of exempt vehicle compliance was modified and moved to the exemption requirement section. The waiver requirements as provided in the proposed rule have been removed. The rule, as adopted, provides waivers only to mass transit fleets, and only as provided for through existing state law. The waivers as proposed were removed in order to demonstrate equivalency with the Federal Clean Fuel Fleet (FCFF) program. The adopted rule also has a provision that allows vehicles converted, purchased, leased, or otherwise acquired by an affected fleet owner/operator before September 1, 1998 to be used for compliance with the fleet percentage requirements, provided that they are capable of operating on a TNRCC approved alternative fuel and meet or exceed the Tier I standards. However, fleets may only grandfather up to 30% of their fleet. This clause was added to allow fleet owner/operators the flexibility of using vehicles that have already been converted to operate on an alternative fuel. The 30% limitation on this provision is intended to ensure that equivalency with federal requirements is maintained. The mobile emission reduction credit section was renamed the "credit trading" section in order to better describe the section. The credit trading section was revised to include MERC calculation formulas. Also included is a credit for vehicles with reduced evaporative emissions. The MERC formulas were needed to allow the calculations of the MERCs. Credit for vehicles meeting the evaporative emissions criteria was included as an incentive for fleet owners/operators to acquire dedicated vehicles which produce significantly lower emissions due to their closed-loop fuel systems. An additional change to this section is the subsection on MERC trading. This amendment was needed to establish the procedures for trading of emission reduction credits. Under the adopted rule, reformulated gasoline and diesel fuels may be used for compliance purposes by some types of fleets, provided that the vehicles in which they are used meet or exceed the LEV standard. However, the fleets already affected by Senate Bills 740, 769, and 7 must continue to comply with the requirements of those bills using TNRCC approved alternative fuels. Reformulated gasoline and diesel fuels were allowed in order to provide greater flexibility to affected fleets while still providing emissions reductions. Public hearings were held February 28, 1994, in Houston, March 1, 1994, in Austin and Beaumont, and March 2, 1994, in El Paso to consider the proposal. The Commission requested comments from the public, the regulated community, state agencies, and from the United States Environmental Protection Agency (EPA) regarding the requirements of the proposed sec.114.11 and the control strategy. The following commenters supported the proposal with some suggested changes: Amoco Chemical Company, Autotronic Controls, Car and Truck Rental and Leasing Association, City of Houston, Diamond Shamrock (Environmental Division), Enfuels, Exxon Company USA, Houston-Galveston Area Council, Houston Lighting and Power, Hunton and Williams, Impco, Metropolitan Transit Authority of Harris County, Mobil Oil Corporation, Phillips 66 Company, Sierra Club, Stewart and Stevenson Services, Texas Mid-Continent Oil and Gas Association, Texas Propane Gas Association, Texas Railroad Commission, EPA, Valero Refining Company, and one private citizen. The following commenters opposed the proposal, but did offer suggested changes: Adams Laboratories, Inc., Alltel, American Automotive Leasing Association, American Cyanamid Company, Associates Corporation of North America, Browning- Ferris Industries, Del Papa Distributing Company, Desert Eagle Distributing, Diamond Shamrock (Fleet Services), El Paso Electric Company, Ethicon, Inc., Federal Express, Frito-Lay, Inc., Handleman Company, Hewlitt-Packard, Houston Distributing Company, Ingersoll-Rand, Johnson Controls, Lorillard Tobacco Company, Moore Business Forms and Systems Division, National Association of Fleet Administrators, Pride Petroleum Service, R. J. Reynolds, Simplex Time Recorder Company, Southern Pacific Lines, Star Enterprise, Texaco, Inc., Texas Utilities Services, United Parcel Service, United Services Automobile Association, Vought Aircraft Company, and one private citizen. The following discussion addresses general comments from interested parties, along with Commission responses. Comments are divided into the following sections: TAFF Fleet and Geographic Coverage; Fuel Requirements; Fleet Compliance Schedules; Exhaust Emission Standards; Reporting, Record Keeping, and Monitoring; Waivers, Exemptions, and Enforcement; Trading and Credit; Emission Reduction Calculations; Costs; and Miscellaneous. Each section includes a list of commenters on the issues in that section, summaries of the major issues raised by those commenters, and the staff responses. Comments were received on the issues regarding TAFF fleet and geographic coverage from the Car and Truck Rental and Leasing Association, Houston METRO, Stewart and Stevenson, El Paso Electric Company, Browning Ferris Industries, Simplex Time Recorder, Desert Eagle Distribution, EPA, Exxon, Texaco, Texas Utility Services, Sierra Club, and two private citizens. Comments were received questioning the TNRCC's authority to develop an alternative fuels program that includes private and local government fleets. The Commission has developed the TAFF program in order to comply with both state and federal mandates to reduce emissions from motor vehicles through the use of cleaner burning fuels. The FCAA Amendments of 1990 require states to implement the FCFF program in areas with a 1980 population of 250,000 or more classified as serious, severe, and extreme ozone nonattainment areas. The program also covers all CO nonattainment areas with a 1980 population of 250,000 or more and a design value of 16.0 ppm CO or greater, based on data from calendar years 1988 and 1989, provided that mobile sources contribute significantly to CO exceedances. The federal program, when implemented, would include private and local government fleets. However, provisions of the FCAA Amendments of 1990 allow states to opt-out of all or part of the FCFF program, provided states implement an alternative program that demonstrates equivalency to the FCFF program. The State of Texas, in the November 15, 1992, committal SIP, proposed to opt-out of the FCFF in order to implement the TAFF program. In addition, the 71st Texas Legislature passed Senate Bills 740 and 769 in 1989, which established the Texas Alternative Fuels Program (TAFP). The TAFP, as it relates to certain school districts, was modified by the legislature in 1993 with the passage of Senate Bill 7. The Commission was required by Senate Bill 769 to determine, based on air quality improvements, whether or not to include private and local government fleets under requirements that certain percentages of their fleets be capable of running on alternative fuels. The Commission will make this determination by December 31, 1996. Even though the Commission decided to defer making this alternative fuels determination, the Commission has broad authority under the Health and Safety Code, Texas Clean Air Act (TCAA), Chapter 382, and in particular, sec.382.011 and sec.382.017, to develop a state alternative fuel fleet program. The state program includes private and local government fleets, because those fleets would be included in the federal program and are necessary to demonstrate equivalency. Thus, the Commission is bound by federal requirements to develop and implement a program that includes requirements affecting local government and private fleets. The EPA and several companies requested clarification of how the TAFF will affect the current TAFP. The two alternative fuels programs are distinct, but will overlap. The existing TAFP will continue to be applicable to the affected fleets statewide as specified by Senate Bills 740, 769, and 7. The requirements outlined in the TAFF rule are applicable in the affected nonattainment areas of Houston/Galveston, Beaumont/Port Arthur, and El Paso only. However, the rule as adopted explicitly provides that state agency and school district fleets of more than 50 vehicles that operate in the affected nonattainment areas must continue to comply with state law and operate on approved alternative fuels. Additionally, the mass transit fleet percentage requirements are the same as those requirements stipulated in the Senate Bills. The TAFF program also establishes minimum emission standards for affected fleet vehicles, whereas the emphasis of the TAFP program is not on emission standards, but on the requirement that certain percentages of affected fleet vehicles be capable of operating on an approved alternative fuel. In addition, the TAFF program contains a new purchase requirement. Beginning September 1, 1998, all vehicles purchased, leased, or otherwise acquired in the Houston/Galveston, Beaumont/Port Arthur, and El Paso nonattainment areas by transit authorities, private fleets, state agencies, local government fleets, and school districts must be certified to meet or exceed the LEV standards. However, this new purchase requirement will not be applicable to any fleet if the fleet meets or exceeds the LEV standards in accordance with the following schedule: 30% of the fleet by September 1, 1998; 50% of the fleet by September 1, 2000; and 90% of the fleet by September 1, 2002. Finally, the TAFF program provides a grandfather provision. Vehicles converted, purchased, leased, or otherwise acquired before September 1, 1998 may be used for compliance with the fleet percentage requirements without meeting the LEV standard if the vehicles are capable of operating on a TNRCC approved alternative fuel, meet or exceed the Tier I standards, and do not exceed 30% of the owner/operator's fleet on September 1, 1998. Several companies requested clarification of how the covered fleet size was determined. The decision to develop a program which includes fleets of 15 or more vehicles is based on a compromise between the optimum fleet size required to demonstrate equivalency with the federal program and the existing TAFP. Leasing companies expressed concern about how their fleets will be affected by the TAFF program. Leased fleet vehicles that operate in the affected nonattainment areas are covered by the TAFF. It is the responsibility of both the individual leasing the vehicles and the lessor to ensure that the vehicles are certified to the appropriate emission standards and satisfy the program's minimum requirements. Stewart and Stevenson Services, Inc., requested clarification of the "control" definition in Appendix B that states when one firm leases, operates, supervises, or owns 51% or more of the facilities used by another person or firm, then the combined vehicles of both firms shall be used to determine the fleet size of the owner firm. The Commission has modified this definition to reflect that if a person or firm has equity ownership of 51% or more in each of two or more firms, the vehicles of those firms shall be aggregated; or if two or more firms have common corporate officers in whole or in substantial part, who are responsible for day- to-day operations of the company, the vehicles of those firms shall be aggregated. There were several comments presented concerning the geographic areas covered by the TAFF. The EPA suggested the TNRCC adopt the following definition of affected areas: "The FCAA Amendments require a clean fuel fleet program be implemented in all serious, severe, and extreme ozone nonattainment areas with a 1980 population of 250,000 or more. Also the program is required in all areas with a design value of 16.0 or greater ppm, based on data for calendar years 1988 and 1989, with a 1980 population of 250,000 or more. However, such a CO non-attainment area need not have the program if mobile sources do not contribute significantly to CO exceedences." This modification is consistent with the FCAA Amendments and does not change the original content of the control strategy. Therefore, elements of this definition have been incorporated into the TAFF SIP. The affected areas are Houston/Galveston, Beaumont/Port Arthur, and El Paso. Several public and private entities asked why the Dallas/Fort Worth area is not included in the proposed TAFF program. The clean fuel fleet requirements of the FCAA Amendments apply only to the serious, severe, or extreme nonattainment areas. The TAFF program is intended to at least ensure equivalency with the federal program. Therefore, because Dallas/Fort Worth is classified only as a moderate nonattainment area, it is not currently included. However, the Commission will be performing extensive technical studies regarding the benefits of using various alternative fuels and the cost- effectiveness associated with those fuels. The Commission will also conduct an overall air quality benefit analysis achievable from use and operation of motor vehicles on various alternative fuels. This study will be the basis for a future determination by the Commission on whether to extend the related programs to other areas of the state or to other types of fleets identified by Senate Bill 769. El Paso Electric Company expressed concern about including the El Paso area in the TAFF program without the benefit of completing urban airshed modeling (UAM). El Paso is classified as a serious ozone and CO nonattainment area. For this reason, it cannot be exempted from the TAFF program at this time. However, the TNRCC is currently conducting UAM for El Paso. Some commenters suggested that the TNRCC incorporate the federal definitions of "covered fleet" and "capable of being centrally refueled" into the TAFF. The definitions of "covered fleet" and "capable of being centrally refueled" were considered by the Commission. However, the TAFF control strategy purposely excluded the definition because those definitions were already considered in the existing state program, the TAFP, with which the TAFF program is trying to be consistent. Additionally, it is the intention of the Commission to include as many fleets as possible which meet or exceed the specified standards in order to achieve the maximum air quality benefits from the program. Houston METRO asked if "fleet" is the same as "revenue fleet"? A fleet is counted as the total number of vehicles controlled by a single entity. Comments were received on the issue of fuel requirements from the Texas Mid- Continent Oil and Gas Association, Phillips 66, Exxon, American Automotive Leasing Association, National Association of Fleet Administrators, Houston Lighting and Power, Texaco, Diamond Shamrock, Houston-Galveston Area Council, City of Houston, Mobil, Valero Refining Company, EPA, Star Enterprise, and one private citizen. Many fleet owners and oil companies suggested that the Commission consider classifying reformulated gasoline, low sulfur diesel, and California clean diesel as approved alternative fuels. As proposed, the TAFF SIP and rule were based on existing state legislation that promotes the use of alternative fuels rather than traditional fuels. However, upon Commission review of the comments on this issue, the rule has been modified to allow reformulated gasoline and diesel fuels to be used by fleets not now subject to the TAFP to comply with the fleet new purchase requirement. Beginning September 1, 1998, all vehicles purchased, leased, or otherwise acquired by all fleets must be certified to meet or exceed the LEV standard. This provision also applies to all nonexempt vehicles purchased, leased, or otherwise acquired by school districts and state agencies in the covered nonattainment areas. Several commenters requested clarification of the approval procedure for an alternative fuel. Section II.1 of the TAFF control strategy document has been modified to include a section that describes the manner in which any fuel can be added to the list of the TNRCC approved alternative fuels. One commenter expressed concern about the potentially harmful emissions associated with the use of methanol and ethanol as alternative fuels. Methanol and ethanol are currently classified as approved alternative fuels by the TNRCC. Vehicles using these fuels will be required to meet the appropriate emissions standards. Manufacturers are also obligated to meet EPA stipulated formaldehyde emissions level for vehicles using these fuels in order to obtain certification. Comments were received on the issue of fleet compliance schedules from Phillips 66, Texas Propane Gas Association, City of Houston, Sierra Club, Houston METRO, Houston-Galveston Area Council, Federal Express, American Automotive Leasing Association, Hunton Williams, EPA, Adams Laboratories, Alltel, American Cyanamid, Associates Corporation of North America, Diamond Shamrock, Ethicon, Inc., Frito-Lay, Inc., Handleman Company, Hewlitt-Packard Company, Ingersoll- Rand, Johnson Controls, Lorillard Tobacco Company, Moore Business Firms, National Association of Fleet Administrators, Pride Petroleum Services, R. J. Reynolds, Simplex Time Recorder Company, Southern Pacific Lines, USAA, Vought Aircraft Company, and Enfuels. Several comments were received regarding the proposed implementation schedule. Specifically, several commenters questioned the feasibility of the proposed implementation schedule and requested it be delayed; other commenters suggested that it be accelerated. The TAFF program, as proposed, provided an implementation schedule which was harmonized with the schedules listed in the TAFP, as established by Senate Bills 740 and 769, and the FCFF program. However, the TAFF rule and SIP have been modified to provide affected fleet owners/operators with two options that can be used to comply with the requirements of the program. One option is a new purchase requirement. Beginning September 1, 1998, all vehicles purchased, leased, or otherwise acquired in the Houston/Galveston, Beaumont/Port Arthur, and El Paso nonattainment areas by transit authorities, private fleets, state agencies, local government fleets, and school districts must be certified to meet or exceed the LEV standards. However, fleet owners/operators are allowed a second compliance option which utilizes an implementation schedule. Under this option, the new purchase requirement will not be applicable to any fleet if the fleet meets or exceeds the LEV standards in accordance with the following schedule: 30% of the fleet by September 1, 1998; 50% of the fleet by September 1, 2000; and 90% of the fleet by September 1, 2002. In addition, through a grandfather clause, fleet owners/operators can use vehicles purchased, leased, or otherwise acquired prior to September 1, 1998 to comply with the percentage requirement so long as they are capable of operating on a TNRCC approved alternative fuel, meet or exceed the Tier I standards, and do not exceed 30% of the owner/operator's fleet on September 1, 1998. The intent of these new options is to provide additional flexibility to fleet owners in their efforts to comply with the program, and to help ensure that equivalency with the federal program is met. Several businesses expressed concern over issues such as deficiencies in alternative fuel equipment technology, increased stringency of the equipment certification procedure, and a narrow selection of alternatively fueled vehicles as reasons for being skeptical of the effective implementation dates. The Commission has been working with alternative fuel technology equipment manufacturers and the EPA to coordinate the development and certification of vehicles which meet the appropriate emission standard requirements. Considering the current trend in technology development, the Commission believes that vehicle technology and fuels that meet the minimum standards will be available. The Commission also anticipates that allowing compliance through the use of reformulated gasoline or diesel will also help to address these concerns. The City of Houston suggested that a grandfather clause be added to avoid penalizing those fleets that have already acquired alternative fuels systems. The Commission expects that by 1998 most of the earlier alternative fuels systems which do not satisfy the required emission standard will have reached the end of their useful life and been retired. However, as part of the fleet percentage requirement that serves as an alternative compliance method to the 100% new purchase requirement, the TAFF program provides a grandfather clause. Under this requirement, a vehicle converted, purchased, leased, or otherwise acquired before September 1, 1998 may be used for compliance with the fleet percentage requirements if it is capable of operating on a TNRCC approved alternative fuel, it meets or exceeds the Tier I standards, and it does not exceed 30% of the owner/operator's fleet on September 1, 1998. The City of Houston commented that Table 1-1 of the proposed TAFF SIP revision appeared to show that the proposed 30% of fleet requirement will only apply to light-duty vehicles and light-duty trucks. The city also commented that based on information in the proposed TAFF SIP, the heavy-duty trucks with a gross vehicle weight rating (GVWR) between 8,501 and 26,000 pounds will not be covered until the year 2000. The City was correct in its interpretation of the proposed rule. However, the rule as adopted has been modified. Heavy-duty vehicles are still covered under the TAFF program. The 100% new purchase requirement, as outlined previously, also applies to heavy-duty vehicles acquired by the affected fleets. In addition, heavy-duty vehicles are also affected by the optional percent of fleet requirements (and the grandfather clause) also provided in the rule. However, under the adopted rule, the 30% of fleet in 1998 requirement will apply to heavy-duty vehicles as well, instead of only to light-duty vehicles and light-duty trucks. The emission standards for heavy-duty vehicles are defined in 40 Code of Federal Regulations (CFR) 88.105-94 and 40 CFR 88.31193. Several commenters wanted to know why the TAFF program is based on percent of fleet mandates instead of percent of purchase mandates, as is in the federal program. As proposed, the TAFF program was based solely on percent of fleet mandates instead of percent of purchase mandates, as in the federal program. However, the TAFF rule and SIP have been modified to provide affected fleet owners/operators with two options that can be used to comply with the requirements of the program. This was done in order to provide additional flexibility to fleet owners in their efforts to comply with the program, and to help ensure that equivalency with the federal program is met. One option is a new purchase requirement. Beginning September 1, 1998, all vehicles purchased, leased, or otherwise acquired in the Houston/Galveston, Beaumont/Port Arthur, and El Paso nonattainment areas by transit authorities, private fleets, state agencies, local government fleets, and school districts must be certified to meet or exceed the LEV standards. This requirement is the main focus of the program. However, fleet owners/operators may use a second compliance option which utilizes an implementation schedule. Under this option, the new purchase requirement will not be applicable to any fleet if the fleet meets or exceeds the LEV standards in accordance with the following schedule: 30% of the fleet by September 1, 1998; 50% of the fleet by September 1, 2000; and 90% of the fleet by September 1, 2002. In addition, through a grandfather clause, fleet owners/operators can use vehicles purchased, leased, or otherwise acquired prior to September 1, 1998 to comply with the percentage requirement so long as they are capable of operating on a TNRCC approved alternative fuel, meet or exceed the Tier I standards, and do not exceed 30% of the owner/operator's fleet on September 1, 1998. Several commenters requested clarification of the Appendix B definitions of "Bi-Fueled Vehicle" and "Dual-Fueled Vehicle." These definitions are used in order to maintain consistency with EPA's definitions. A Bi-Fueled Vehicle is a vehicle capable of simultaneous operation on a mixture of a conventional fuel and an alternative fuel. A Dual-Fueled Vehicle is a vehicle capable of operating either on a conventional fuel or an alternative fuel. Comments were received on the issue of the exhaust emission standards from Houston METRO, Houston-Galveston Area Council, EPA, and the City of Houston. Some commenters inquired about the emission standards for the heavy-duty weight class of vehicles and whether these vehicles could generate MERCs. The heavy-duty weight class of vehicles (8501-26,000 GVWR) is included in the program and can generate MERCs. Fleets may qualify for MERCs if they exceed the percentage requirements or the stipulated emission standards. The rule has been modified to incorporate the same percentage of fleet requirements for all affected fleets under the TAFF program. In addition, beginning September 1, 1998 all heavy-duty vehicles purchased, leased, or otherwise acquired must meet the LEV emission standards. The EPA recommended that the section entitled "Emissions Standards for Heavy- Duty Engines" be modified because those standards are still in development. The TNRCC will adopt the heavy-duty vehicle emission standards established by the EPA in 40 CFR 88.105-94 and 40 CFR 88.311-93. Comments were received on the issue of reporting, record keeping, and monitoring from the El Paso Electric Company, Texas Utilities Services, Enfuels, National Association of Fleet Administrators, American Automotive Leasing Association, Texaco, EPA, and the Texas Propane Gas Association. Fleet operators expressed concern over the reporting requirements. Specifically, concerns focused on the perceived potential financial burdens associated with the record keeping and administrative requirements of the TAFF program. The TNRCC recognizes that the affected fleets will devote additional time and resources in order to fulfill the reporting and record keeping requirements of the TAFF program. However, it is the intention of the Commission to effectively implement the TAFF program. The Commission will consider concerns regarding potential financial burdens associated with the record keeping and administrative requirements of the TAFF program. The Commission intends to work with fleet operators to identify areas of major concerns in an effort to improve methods for the administration of the TAFF program. The EPA requested clarification of how the TNRCC would notify the affected fleets regarding TAFF requirements and inquired about the TNRCC's additional costs associated with the administration and enforcement of the program. The TNRCC is currently establishing a computer data base of all fleets affected by the TAFF program. This information will be used to contact fleet managers for compliance purposes. The Commission will use the complete records provided by fleet managers for compliance documentation. However, it is the responsibility of the affected fleet owner to comply with the TAFF's provisions. With regard to costs, the Mobile Source Division of the TNRCC has gained experience from similar activities, such as the Employer Trip Reduction (ETR) program and the Inspection/Maintenance (I/M) program, and does not anticipate incurring significant additional costs. The EPA commented that the VIN is necessary to insure equipment meets the appropriate standards. The TNRCC has incorporated the VIN numbers into its record keeping process. Comments were received on the issue of waivers, exemptions, and enforcement from Sierra Club, the Texas Propane Gas Association, Autotronic Controls, EPA, Amoco, National Association of Fleet Administrators, Car and Truck Rental and Leasing Association, American Automotive Leasing Association, Diamond Shamrock, EPA, El Paso Electric Company, Houston Lighting and Power, City of Houston, Texaco, Adams Laboratories, Texas Utilities Services, Lorillard Tobacco Company, Ingersoll-Rand, Vought Aircraft, Moore Business Forms, Alltel, Johnson Controls, Hewlett-Packard, Pride Petroleum Services, Desert Eagle Distributing, R. J. Reynolds, Associates Corporation of North America, Houston METRO, Stewart and Stevenson Services, Inc., Handleman Company, Houston Distributing Company, IMPCO, Simplex Time Recorder Company, Star Enterprise, USAA, and a private citizen. The City of Houston inquired whether the inclusion of heavyduty vehicles (8, 501-26,000 lbs.) is necessary in the TAFF program to demonstrate equivalency with the FCFF program. Both the TAFF program and the federal program include heavyduty vehicle purchase requirements. Both light-duty vehicles and heavy-duty vehicles were considered in the calculations that demonstrated equivalency for emissions reductions (please see Appendix C of the TAFF SIP revision). Considering the fact that beginning September 1, 1998, 100% of vehicles purchased, leased, or otherwise acquired by all fleets must meet or exceed the LEV standards, the TAFF program will certainly demonstrate an at least equivalent emission reduction to that of the federal program, which requires that only certain percentages of total new purchases meet the minimum standard (30% in 1998, 50% in 1999, and 70% in 2000 and thereafter). In addition, the main objective of the TAFF program is to reduce emissions from motor vehicles, and the inclusion of heavyduty vehicles will help Texas achieve this goal. Modifications to the waiver provisions were suggested, and EPA expressed concern over the potential for excessive waivers under the TAFF program. The TAFF rule and SIP have been modified to provide waivers only for mass transit fleets as stipulated in Senate Bills 740 and 769. Under this waiver provision, the concern over excessive waivers may be alleviated because waivers are limited only to transit fleets which are covered by the existing program established in 1991 based on Senate Bills 740 and 769. Additionally, those applying for waivers will have to supply sufficient documentation of their inability to comply. Several commenters inquired as to the status of administrative vehicles of the armed services. Comments were also received that suggested that emergency service vehicles be exempted. Administrative vehicles of the armed services are not excluded from the TAFF program. If these vehicles are not deemed necessary for national security by the Secretary of Defense, they will be part of the program. Emergency service vehicles will be exempted from the TAFF program if they have been designated as an emergency vehicle by the governing body of an incorporated city within the covered nonattainment area. Several commenters asked the TNRCC to give consideration to low mileage vehicles. The requests included exempting low mileage vehicles and allowing voluntary reductions in vehicle miles traveled to offset any fleet compliance mandates. Vehicles, even if they do not travel many miles, are necessary to meet equivalency with the federal program. Fleet operators requested that sales and service vehicles garaged at home be exempt under TAFF. As adopted, company vehicles that are garaged at home will be included under the requirements of the TAFF. However, the Commission will closely examine this issue as it makes the TAFP program effectiveness determination due by December 31, 1996 and determine then whether or not these vehicles will be excluded. Some commenters expressed concern over the TAFF rule requirement of the California Air Resources Board (CARB) certification for alternative fuel systems. It is the intention of the TNRCC to rely on the EPA certification process. The requirements for CARB certification, written approval from EPA, or demonstration of compliance with EPA Memorandum 1A were a result of the existing TAFP. This requirement resulted in noncompliance with the administrative provisions of the existing TAFP due to unavailability of certified systems by CARB or EPA. On May 4, 1994, the TNRCC passed a resolution that will be used to avoid violations during the interim period until EPA final rule on vehicle conversions is implemented. The EPA has recently announced the final certification procedure for alternatively fueled vehicles, and it will be published in the CFR. The TNRCC, in the administration of the TAFF program, will rely on the FCAA, sec.206(a), 40 United States Code, sec.7525(a), or any system that complies with and has received emission certification under 40 CFR, Parts 85, 86, or 88. Several commenters expressed concern over the enforcement of alternative fuel use in bi-fueled and flexible-fueled vehicles in the affected areas. The TNRCC will enforce alternative fuel use by bi-fueled and flexible-fueled vehicles when applicable through the record keeping and reporting requirements. The burden of proof will be on the fleet operators. Fleet managers will be responsible for providing the TNRCC with the fuel use data and emission certifications confirming compliance. The TNRCC is not mandating the method for proving which type of fuel has been used, in order to allow fleet managers to find flexible innovative methods of demonstrating compliance. Fleet compliance with TAFF will be enforced through administrative proceedings, civil lawsuits, and criminal proceedings by enforcement rules of the TNRCC established by the TCAA. Comments were received on the issue of credit trading from El Paso Electric Company, Texas Propane Gas Association, Houston METRO, Stewart and Stevenson Services, Inc., Browning Ferris Industries, United Parcel Service, Hunton Williams, EPA, and Simplex Time Recorder Company, and one private citizen. Several commenters inquired about the trading of MERCs between mobile and stationary sources. MERCs may be traded to stationary sources. However, stationary sources that earn Emission Reduction Credits cannot trade those credits for MERCs. One commenter suggested that MERC denial be part of the TAFF program if a company is not meeting the requirements of TAFF. Revisions to the enforcement section of the TAFF explicitly state the ability of the TNRCC to revoke approval of credit registration/certification upon determination of noncompliance. Penalties for noncompliance will be determined and administered through the standard enforcement procedures of the TNRCC. Comments were received concerning the possibility of an inspection/maintenance program for alternative fueled vehicles. Currently, vehicles fueled with the TNRCC approved alternative fuels are not required to participate in the biennial I/M program. It is the intention of the TNRCC to implement an I/M program for the alternatively fueled vehicles by 1998. Until the I/M program becomes available, the Commission believes the emissions certification procedure will be sufficient to determine compliance. However, fleet vehicles meeting the TAFF requirements using reformulated gasoline or diesel fuel must continue to comply with the I/M program. Several comments were received concerning the use of dedicated alternatively fueled vehicles, the credits they receive, and the possible exclusion of bi- fueled vehicles from the credit program. The trading portion of the TAFF is designed to give fleet owners the incentive to acquire dedicated alternatively fueled vehicles. Evaporative emissions benefits from closed-loop, dedicated gaseous fuel vehicles will be factored into the calculation of the credit. Any vehicles, whether bi-fueled or dedicated, which meet stipulated emission standards may generate a MERC. However, a dedicated vehicle will generate a larger total emissions reduction credit due to lower evaporative emissions. Several commenters asked about possible incentives for alternatively fueled vehicles. The TAFF SIP has provisions for incentives for alternatively fueled vehicles. Additionally, more incentives for acquiring approved alternatively fueled vehicles are being considered by the TNRCC. Houston METRO expressed concern over MERC generation by heavyduty vehicles voluntarily converted to use alternative fuels. Any voluntary acquisition of an alternatively fueled vehicle or other vehicle which meets the appropriate emission standard can generate credits under the emissions banking program and the trading portion of the TAFF. Heavy-duty vehicles also qualify and will need to be certified under the appropriate or more stringent emission standard. Houston METRO asked whether MERCs could be unbundled, i.e., if credit could be generated from reductions in just one pollutant. The TNRCC Emissions Banking protocol requires credit generation on a per pollutant basis. However, the combined NMHC+NO [sup]x point=8.03p set=8.03p>standard for heavy-duty vehicles will require policies to be developed to reconcile these combined credits. Comments were received requesting clarification of the duration of MERCs. A certified vehicle may generate MERCs over its lifetime as a fleet vehicle. The amount of a MERC for any given year depends on the rate of emissions measured in grams per mile and the total number of miles driven in a year. If a MERC is not sold or traded before the end of a year, then the MERC for that year is forfeited. The purpose of this procedure is to closely bring together the generation and consumption of the MERC. Several commenters asked how fleet owners will document fuel use in dual-fueled vehicles while in a nonattainment area for purposes of credit generation. The documentation and burden of proof of compliance will be the responsibility of the fleet owners and operators. Fleet owners will have to submit evidence for claiming any credit. The credit application must include documentation of annual mileage and fuel use. Some commenters asked whether the banking program could be based on the numbers of alternatively fueled vehicles as opposed to emission reductions. The TNRCC chose an emissions based trading program in order to increase the flexibility of credit applications and to establish consistency with the TNRCC Emissions Bank. Additionally, emission standards vary among the different classes of vehicles. Therefore, the banking program will be based on emission reductions rather than the numbers of alternatively fueled vehicles because of the potential problems that can result because of differences in the vehicle classes. Several commenters inquired as to how the TAFF program would coordinate with other emission reduction programs, such as ETR. The MERC credit and ETR credit will be available for alternatively fueled vehicles depending upon the certified emissions standards. However, fleets will not be able claim both an ETR credit and a MERC for the same vehicles. The EPA asked if a fleet's credits would have to be exhausted before any of its vehicles could be waived from the requirements of the TAFF program. The waiver provision affects transit fleets as stipulated in Senate Bills 740 and 769. The TAFF program itself has been modified to provide no other waiver provisions. Comments on the issue of emission reduction calculations from Texaco, EPA, Houston-Galveston Area Council, and the City of Houston. The City of Houston expressed concern over the vehicle turnover rate. The turnover rate used in Appendix C for estimating emission reductions does not represent a mandate to fleet owners. A fleet owner/operator is not required to retire vehicles after three years or at any time. The three-year turnover rate is an estimate of the average fleet turnover rate, based on the rate determined by the Radian Corporation in its study "Emission Reductions from Using Alternative Transportation Fuels." The National Association of Fleet Administrators indicates the average turnover rate of its member fleets is 2.5 years; EPA uses an average turnover rate of three years for its calculations. The City of Houston has indicated that its fleet turnover rate is seven years. The Commission does not expect all covered fleets to have the same turnover rate. One commenter asked which years were used to calculate the emission reductions and whether the areas in question would be in attainment for ozone by the deadline. Emission reduction calculations were performed for the years 1998, 2000, and 2010. No assumptions were made about whether the ozone nonattainment areas will reach attainment before the year 2010. The TNRCC assumed that the TAFF program would be fully implemented through the year 2010. A commenter doubted the accuracy of the cost estimates for the emission reductions. The commenter referenced the E. H. Pechan and Associates study as the basis for the cost analysis. Cost estimates were not calculated by the TNRCC for the equivalency determination. The conclusion drawn by the commenter is not accurate, because TAFF incorporates only the emission factors that were performed by E. H. Pechan and Associates based on their modeling with the MOBILE5 program. However, conservative assumptions were used in all cases, and most of these assumptions are stated in Appendix C of the TAFF control strategy. Comments on the issue of costs were received from Enfuels, National Association of Fleet Administrators, American Automotive Leasing Association, Diamond Shamrock, City of Houston, Car and Truck Rental and Leasing Association, Texas Propane Gas Association, El Paso Electric Company, Texas Utilities Service, Texaco, Exxon, Adams Laboratories, Lorillard Tobacco Company, Southern Pacific Lines, Ingersoll-Rand, Vought Aircraft Company, Moore Business Forms, Alltel, Frito-Lay, American Cyanamid company, Federal Express, Johnson Controls, Ethicon, Hewlett Packard, Simplex Time Recorder Company, Handleman Company, Pride Petroleum Services, Desert Eagle, Del Papa Distribution company, United States Automobile Association, Houston Distributing Company, R. J. Reynolds, Associates Corporation of North America, and Star Enterprise. Concerns were raised about a number of costs associated with the TAFF, certification of alternative fuels systems, additional mechanic training, specialized maintenance and refueling facilities, and additional original equipment manufacture (OEM) costs. Also of concern was the possible reduced resale value of certain alternatively fueled vehicles and the potential for voided warranties on converted OEM vehicles. Certain cost concerns may be alleviated by the provisions of the rule as adopted. The Commission intends not to pose undue burdens upon affected fleet owners, and several steps have been taken to provide a flexible program that also ensures significant reductions of mobile source pollutants. Fleets affected by existing state law must continue to abide by those requirements through and after September 1, 1998, which in part require them to use vehicles capable of operating on the TNRCC approved alternative fuels. Finally, the TAFF requires approved alternative fuels to be used to meet the provisions stipulated in the grandfather clause portion of the program relative to the optional fleet compliance schedule. The Commission does not mandate that any specific fuel be used by private and local government fleets, including school district fleets of at least 15 and fewer than 50 vehicles, after September 1, 1998, as long as the vehicles in those fleets meet a minimum of the LEV standard. Rather, fleet owners/operators of those types of fleets have the flexibility to use either approved alternative fuels or reformulated gasoline or diesel fuels for compliance. In addition, the rule provides specific warranty requirements which installers and manufacturers of alternative fuel systems and system components must satisfy. Some commenters suggested that companies could experience feasibility and economic problems if they are operating interstate fleets. The requirements of the TAFF program do not apply to fleets that are located within an nonattainment area but operate 50% or more of their time outside the nonattainment area. Comments were received on miscellaneous issues from Enfuels, a private citizen, Sierra Club, Adams Laboratories, Houston METRO, EPA, Houston-Galveston Area Council, and the Texas Propane Gas Association. Sierra Club suggested the TNRCC encourage other areas in the state to participate in the TAFF in order to improve the state's air quality. As previously noted, the TAFF applies only to the serious, severe, and extreme nonattainment areas in the state. However, in order to further improve the state's air quality, the TNRCC may consider in the future the establishment of similar programs in Dallas/Fort Worth and the near nonattainment areas of Austin, San Antonio, Tyler/Longview/Marshall, and Corpus Christi. Adams Laboratories, Inc., expressed concern about the absence of any type of enforcement for excessive polluters. This issue is beyond the scope of this rulemaking. A private citizen suggested that before a MERC program is implemented, the public has the right to a 30-day public notice period with opportunities for input through meetings and hearings. Hearings concerning the TAFF program were held in Austin, Beaumont, Houston, and El Paso. The credit trading program is part of the TAFF. Thus, the public has had an opportunity to comment. The TNRCC will continue its administrative procedure toward implementation of any program. Several commenters expressed concern about the procedure used to determine emission reductions and concern about the use of the MOBILE 5.0 estimation model. The emission reductions calculations were based on emission factors obtained from the Pechan study. For the purposes of the TAFF SIP, the emissions calculations were based on the LEV factors in that study in order to comply with the requirement to demonstrate equivalency to the federal program. However, those factors were used for comparison purposes only. The final reduction calculations will be prepared by staff at a later date using factors from EPA's final document "Lifetime Emissions from Clean Fuel Vehicles." A commenter inquired if the maximum I/M scenario in the Pechan study was used in calculating the emission reductions. An outline of the emission reduction calculation is included in Appendix C of the TAFF control strategy. Emission factors were obtained from the Pechan analysis, which includes the different I/M scenarios. Conservative assumptions were used in all cases, and most of these assumptions were stated in Appendix C. Chapter 114. Control of Air Pollution From Motor Vehicles 30 TAC sec.114.11 The repeal is adopted under the Texas Health and Safety Code (Vernon 1992) , the Texas Clean Air Act (TCAA), sec.382.017, which provides the TNRCC with the authority to adopt rules consistent with the policy and purposes of the TCAA. 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 6, 1994. TRD-9445492 Mary Ruth Holder Director, Legal Division Texas Natural Resource Conservation Commission Effective date: August 12, 1994 Proposal publication date: February 11, 1994 For further information, please call: (512) 239-1966 The new rule is adopted under the Texas Health and Safety Code (Vernon 1992), the Texas Clean Air Act (TCAA), sec.382.017, which provides the TNRCC with the authority to adopt rules consistent with the policy and purposes of the TCAA. sec.114.11. Emission and Alternative Fuel Requirements for Motor Vehicle Fleets. (a) Area designation. This section, except for subsection (c) of this section, is applicable only to the following areas: (1) all serious, severe, and extreme ozone nonattainment areas with a 1980 population of 250,000 or more; and (2) all carbon monoxide (CO) nonattainment areas with a 1980 population of 250,000 or more and a design value of 16.0 ppm CO or greater, based on data from calendar years 1988 and 1989. (b) Affected fleets. The following fleets are subject to the provisions and schedules of this section: (1) metropolitan rapid transit authorities created under Texas Civil Statutes, Article 1118x; regional transportation authorities created under Texas Civil Statutes, Article 1118y; and city transportation departments created under Texas Civil Statutes, Article 1118z; located in consolidated metropolitan statistical areas or metropolitan statistical areas with populations of 350,000 or more, which have not met the National Ambient Air Quality Standards for ozone, CO, nitrogen oxides, and/or inhaleable particulate matter; (2) owners and operators of the following categories of fleets, other than mass transit fleets covered by subsection (b)(1) of this section, and which operate in the areas designated in subsection (a) of this section: (A) all fleets of 15 or more vehicles which are registered in, or located within, nonattainment areas listed in subsection (a)(1) and (2) of this section; and (B) all fleets of 15 or more vehicles which are located outside of a nonattainment area listed in subsection (a)(1) and (2) of this section and operate 50% or more of their time within a nonattainment area. (c) Fuel requirements. (1) State agency and school district fleets specified in Senate Bill 740, Acts of the 71st Legislature, 1989, and Senate Bill 7, Acts of the 73rd Legislature, 1993, shall comply with the requirements of those bills through the use of the following Texas Natural Resource Conservation Commission (TNRCC) approved alternative fuels: (A) compressed or liquified natural gas; (B) liquified petroleum gas; (C) methanol or methanol/gasoline blends of 85% (M85) or greater; (D) ethanol or ethanol/gasoline blends of 85% (E85) greater; or (E) electricity. (2) Mass transit fleets affected by subsection (b)(1) of this section shall ensure that fleet vehicles, including purchased vehicle services, are capable of being operated on the TNRCC approved alternative fuels listed in paragraph (1) of this subsection in accordance with the following schedule: (A) 30% or more of fleet vehicles by September 1, 1994; and (B) 50% or more of fleet vehicles by September 1, 1996. (3) The exceptions to the requirement in paragraph (2) of this subsection are as provided in Senate Bills 740 and 769, 71st Legislature, 1989. (d) Fleet compliance requirements. (1) No provision of this subsection shall alter the alternative fuel requirements for state agency and school district fleets in Senate Bill 740, Acts of the 71st Legislature, 1989 and Senate Bill 7, Acts of the 73rd Legislature, 1993. (2) Beginning September 1, 1998, all vehicles purchased, leased, or otherwise acquired by all fleets affected by subsection (b)(1) and (2) of this section shall be certified to meet or exceed the low emission vehicle (LEV) standards. This provision also applies to all vehicles purchased, leased, or otherwise acquired by school districts and state agencies covered by subsection (b)(2) of this section. (3) The purchase requirement of subsection (d)(2) of this section shall not apply to any fleet affected by subsection (b) of this section if the fleet meets or exceeds the LEV vehicle standards in accordance with the following schedule: (A) 30% of the fleet by September 1, 1998; (B) 50% of the fleet by September 1, 2000; and (C) 90% of the fleet by September 1, 2002 and thereafter. (4) Vehicles converted, purchased, leased, or otherwise acquired prior to September 1, 1998 may be used for compliance with the fleet percentage requirements of subsection (d)(3) of this section if the vehicles: (A) are capable of operating on a TNRCC approved alternative fuel; (B) meet or exceed the Tier I standards; and (C) do not exceed 30% of the owner/operator's fleet on September 1, 1998. (e) Accepted vehicle technologies. The compliance requirements listed in subsection (d) of this section shall be fulfilled by vehicles that conform with all applicable federal and state safety requirements and have been United States Environmental Protection Agency (EPA) certified to meet or exceed the in-use LEV standard in accordance with one or more of the following processes: (1) the Federal Clean Air Act (FCAA), sec.206(a) 40 United States Code, sec.7525(a); (2) a system that complies with and has received emissions certification under 40 Code of Federal Regulations (CFR), Parts 85, 86, or 88; or (3) vehicles using a TNRCC approved alternative fuel or reformulated gasoline or diesel fuel must comply with these certifications requirements to ensure that established emissions standards are met. (f) Installer requirements. Installers of alternative fuel systems and system components must satisfy the following requirements. (1) Installers shall use systems or system components certified for each specific engine family. (2) Installers must obtain EPA certificates of conformity, approval letters, executive orders, or other supporting documentation for the accepted vehicle/vehicle configurations listed in subsection (e) of this section. (3) The installer and the system manufacturer shall be considered as one entity for the purposes of warranty responsibilities under the FCAA, sec.206 and sec.207, and related enforcement provisions; and (4) the manufacturer/installer of the alternative fuel system shall be responsible for any emissions related failures caused by problems in the design, manufacture, or installation of the system or system component over the useful life of the vehicle. (g) Emission standards. The following emission standards shall apply to the provisions of this section, including the incentive provisions of subsection (k) of this section. (1) The LEV, ultra-low emissions vehicle (ULEV), and inherently low emissions vehicle (ILEV) standards for dedicated, flexible-fueled, and dual-fueled light- duty vehicles, including light-duty trucks, are defined in the following subparagraphs: (A) light-Duty Vehicle Exhaust Emission Standards; (B) NMOG Exhaust Emission Standards for Flexible and Dual-Fueled Vehicles. (2) The emission standards for heavy-duty vehicles between 8501 lbs GVWR and 26,000 lbs GVWR are defined in the following subparagraphs: (A) the LEV and ULEV emission standards for heavyduty vehicles presented in 40 CFR 88.105-94; or (B) the ILEV emission standards for heavy-duty vehicles presented in 40 CFR 88.311-93. (h) Reporting requirements. Beginning September 1, 1994, for transit fleets affected by subsection (b)(1) of this section, and beginning September 1, 1996, for all fleets affected by subsection (b)(2) of this section, fleet owners or operators shall provide annual reports containing the following information in a format approved by the TNRCC: (1) company name, mailing address, telephone and FAX numbers; (2) name, title, mailing address, and telephone number of the person responsible for local management of the affected fleet vehicles; (3) the model year, make, model, vehicle identification number, fuel type(s), and certified emission standard of each vehicle currently in the fleet; (4) whether the vehicle is dedicated, flexible-fueled, dual-fueled, or bi- fueled; (5) if the vehicle is an alternatively fueled vehicle but not dedicated, documentation demonstrating the vehicle has operated at least 75% of the time on an alternative fuel when in an area listed in subsection (a)(1) and (2) of this section; and (6) the number and types of all vehicles projected to be acquired by the fleet during the next reporting period to comply with the requirements of this section. (i) Recordkeeping. Owners and operators of fleets affected by this section shall maintain complete and accurate records and shall make such records available to the TNRCC or the regional agency having jurisdiction in the area upon request. The information in the records shall include, but not be limited to, the following: (1) a copy of the information listed in subsection (h) of this section; (2) written documentation verifying that each vehicle satisfies the required emission standards. Replacement of lost, stolen, or otherwise missing emission certifications shall be the responsibility of the fleet manager; (3) name, address, and telephone number of the manufacturer or installer the of the alternative fuel systems or vehicles utilized by the fleet; and (4) vehicle miles traveled, fuel consumed, maintenance and repair, and other such records as may be necessary for determining air quality benefits from the use of alternative fuels. (j) Exemptions. (1) The following vehicles are exempt from the requirements of this section: (A) off-road vehicles; (B) rental agency vehicles offered for rent to the public; (C) emergency vehicles as defined in the Texas Motor Vehicle Code; (D) law enforcement vehicles; (E) national security vehicles; and (F) vehicles offered for sale at licensed dealerships. (2) An affected fleet owner/operator with vehicles that are exempt from the requirements of this section must submit, and update as requested by the TNRCC, documentation demonstrating that the vehicles qualify for an exemption as defined in this subsection. (k) Credit trading. The trading program established by this section shall be administered as follows. (1) Mobile Emission Reduction Credits (MERCs) must be banked in accordance with sec.101.29 of this title (relating to Emissions Banking). (2) MERCs may be generated on a per pollutant basis in the following ways: (A) after September 1, 1994, the use, conversion, purchase, or acquisition of more vehicles than required by the fleet percentage requirements of subsection (d) of this section; (B) the purchase or acquisition of vehicles which meet emissions standards more stringent than the LEV emission standards; and (C) the purchase or acquisition of a vehicle with certified levels of evaporative emissions less than five grams per test. (3) MERCs generated under this subsection may be used as follows. (A) A fleet owner or operator may use MERCs to comply with the requirements listed in subsection (d) of this section; (B) MERCs can be used to achieve compliance to the extent allowed in any provision of Chapter 115 of this title (relating to Control of Air Pollution From Volatile Organic Compounds) and sec.117.540 of this title (relating to Phased Reasonably Available Control Technology (RACT)) and as offsets as specified in the Emissions Banking Rule sec.101.29 of this title; (4) MERCs may be bought, sold, traded, or transferred in any manner in accordance with the laws of the State of Texas. MERCs must be acquired by fleet owners/operators prior to their use under paragraph (3) of this subsection. (5) The fleet owners or operators applying for a MERC shall submit a registration application to the TNRCC using an approved MERC registration form. The application must clearly state the following information for each vehicle generating credit: (A) the emissions standard of the vehicle as certified by the procedures in subsection (e) of this section; (B) the number of remaining vehicle miles to be traveled; (C) the number of years the vehicle will be used as a fleet vehicle; and (D) the results from the MERC calculation used to estimate the credit value in grams per year. (6) The MERC registration must include information sufficient to calculate the MERC(s) value under paragraph (2) of this subsection. (7) The TNRCC will evaluate the claimed credit(s) and may adjust the value of the MERC(s) based on the evaluation. (8) MERC registration applications must be received at least 90 days prior to using the MERC. (9) The TNRCC will have 30 days from the date of receipt to determine if the MERC registration application is complete. (10) The TNRCC will have 90 days from date of receipt of the completed application to approve or deny the MERC registration. (11) The TNRCC may revoke approval of a MERC registration under this section at any time upon determining the requirements of this section are not being met. (12) Denial of a registration may be appealed according to the provisions of sec.101.29(l)(2) of this title. 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 6, 1994. TRD-9445493 Mary Ruth Holder Director, Legal Division Texas Natural Resource Conservation Commission Effective date: August 12, 1994 Proposal publication date: February 11, 1994 For further information, please call: (512) 239-1966 Chapter 116. Control of Air Pollution by Permits for New Construction or Modification Subchapter B. New Source Review Permits The Texas Natural Resource Conservation Commission (TNRCC) adopts amendments to sec.116.110, concerning Applicability; sec.116.115, concerning Special Provisions; sec.116.116, concerning Amendments and Alterations; sec.116. 132, concerning Public Notice Format; and sec.116.133, concerning Sign Posting Requirements. Sections 116.115, 116.132, and 116.133 are adopted with changes to the proposed text as published in the March 1, 1994, issue of the Texas Register (19 TexReg 1441). Section 116.110 and sec.116.116 are adopted without changes and will not be republished. The changes have been developed to comply with the statutory requirements in the Texas Clean Air Act, Texas Health and Safety Code, sec.382.056 and sec.382.0513, regarding bilingual public notification for permit applications and permit general conditions, respectively. The changes to sec.116.115 create a list of general conditions within the rule that are applicable to all permits issued after March 31, 1994. This replaces the current practice in the Permitting Division of stating the provisions on the face of the permit and on a separate sheet attached to the permit upon issuance. The changes to sec.116.110 and sec.116.116 are editorial changes to reflect the change in terminology from permit "provisions" to "conditions" to be consistent with the statutory language. The changes to sec.116.132 require a permit applicant to provide public notice of the intent to obtain a permit in a foreign-language newspaper whenever the elementary or middle school located nearest to the facility has a bilingual education program. The changes to sec.116.133 extend the bilingual notification to the sign-posting requirements. Bilingual sign-posting is not included in the statutory requirement, but was initiated by the staff to maintain consistency with the existing public notification rules that require newspaper publication and sign-posting during the public comment period for each permit application. A public hearing on this proposal was held on March 29, 1994, in Austin to consider the proposed rule changes. Testimony was received from 12 commenters: one individual; the City of Dallas Air Pollution Control Section (Dallas); Exxon Company U.S.A. (Exxon); Texas Cotton Ginners Association (TCGA); Mitchell Energy and Development Corporation (Mitchell); Lloyd, Gosselink, Fowler, Blevins and Matthews (Lloyd); Eastman Chemical Company (Eastman); Texas Mid-Continent Oil and Gas Association (TMOGA); Phillips 66 Company (Phillips); and Texas Utilities Services (TU). The United States Environmental Protection Agency expressed no concerns about the proposed rules. The following discussion addresses general comments followed by comments regarding each specific section proposed for change. General Comments. Exxon and Phillips are opposed to the proposed changes to sec.116.132 and sec.116.133 as unnecessary and burdensome to the regulated community. The Legislature has mandated the bilingual public notification requirement in the Texas Health and Safety Code. The TNRCC has attempted to satisfy the statutory requirement in the proposed rules and also maintain consistency with existing public notification requirements. The TCGA is opposed to the requirement for bilingual publication when a school waives out of the bilingual education program. This exceeds the statutory language. Phillips and TMOGA commented that bilingual public notice requirements that are not part of the statutory requirements should not be included in the rules. The Legislature chose the required bilingual education program provided by 19 TAC sec.89.2(a) as a mechanism for balancing the need of an affected community for adequate notice and the cost to a business of publishing additional notice. Schools may waive out of a required bilingual program for reasons unrelated to the public notice needs of a community. The staff believes that requiring notice when a school has utilized the waiver provisions of 19 TAC sec.89.2(g) aligns closely with the intent of the statute and better serves the needs of the community without exceeding the intent of the statute. Eastman commented that the effectiveness of the existing sign-posting requirements, as a method of notifying the public of permitting activity, is questionable and should be studied by TNRCC. The sign-posting is a costly and time-consuming process which should be eliminated, if it is shown to be an ineffective method of communication to the public as compared to the newspaper notices. The current sign-posting requirements in sec.116.133 were added to comply with a statutory requirement. It would serve no purpose to delete this requirement from Chapter 116, because the statutory language would still remain. Also, the staff believes that the sign-posting is an effective means of informing the public that a new industrial facility is proposing to locate in the community or an existing facility proposes to increase its air emissions. The TCGA commented that the bilingual sign-posting requirement in sec.116. 133(f) burdens the permit applicant with the responsibility of certifying the accuracy of a sign that the applicant cannot read. The TNRCC should provide the applicant with the correct language to be used on each sign. Eastman commented that the TNRCC must either standardize the signs and notice content for each foreign-language or else provide translations for each language encountered. Language should be added to sec.116.132 and sec.116.133 to affirm this. The staff will endeavor to provide technical guidance in the proper procedures and format to be used by a permit applicant in meeting the requirements of the rules. The New Source Review Section is currently developing example sheets of Spanish-language public notices and signs and will endeavor to develop similar documents in other languages as the need arises. This will be an evolving process that the staff will develop and modify over a period of time. For this reason, the staff does not agree with the suggestion by Eastman to specify the notice content or language in the rule. It would be impractical to revise the rules for every language change. It is ultimately the responsibility of the permit applicant to ensure that the requirements for a permit application are met. Phillips commented that the permit document should include reference to the section numbers that will contain the general conditions. The staff agrees that each permit general condition should be referenced in the permit document. The Permitting Division proposes to include a reference to the rule number applicable to each general condition in the permit. Eastman commented that permit special conditions that are applied broadly or generically should undergo rulemaking. Examples are fugitive emissions monitoring, vent controls, and cooling towers controls. The staff believes that only conditions that apply universally to all permitted facilities should be included in the rule language as a general condition. Those that are reviewed on a case-by-case basis should be included in the list of special conditions attached to each permit. The list of generic special conditions that are used by the Permitting staff are just a guide for the convenience of the reviewing engineer and can be changed or reworded to tailor a specific permit application. The staff is opposed to rulemaking for these special conditions because: they do not apply to every facility; and they would have to be used verbatim, in each case, to comply with the adopted rule language. An individual commented that sec.116.110(c)(1) should require a 30-day public comment period for changes of ownership. A new owner is bound by the terms of the permits and assumes responsibility for correcting any situations of noncompliance. Therefore, the staff is opposed to requiring public notification and potential public hearings for a change of ownership which is essentially an administrative function. The additional resources that would be required to administer the hearings and the expense to the permit holder for publishing the notices far outweighs any benefits that might be derived from requiring public notification. Eastman commented that references to approval by the Executive Director in sec.116.115 should allow a designee of the Executive Director to grant that approval. They also commented that the reference to "exemption" in sec.116. 115(a) should be changed to "permit exemption" to exclude facilities authorized by standard exemption; and that the language in sec.116.115(b)(1) should include "permit amendments" as being voided if construction does not begin. The term "Executive Director" is used throughout the rules and regulations of the TNRCC. It is generally understood that the Executive Director does not personally act on each activity or function that is associated with that position. The staff does not believe that any further clarification or definition is needed in the rule. The staff does not agree that the reference to "exemptions" in sec.116.115(a) should be eliminated. Earlier versions of Chapter 116 authorized a category of special exemptions that were considered as insignificant sources not requiring a permit, but did not meet the exact conditions for a standard exemption. Most special exemptions had unique special conditions attached to them. Although special exemptions are no longer part of Chapter 116, previously issued special exemptions are still valid. For that reason, reference to special conditions for exemptions must remain in the rule. The staff agrees that sec.116.115(b) should be revised to clarify that it applies to permit amendments. If the construction authorized by an amendment is not begun or completed as specified in sec.116.115(b)(1), then the authorization to construct under the amendment is void, but the preexisting permit remains valid. In subsection (b), TNRCC replaced "permits issued" with "permits issued or amended." In subsection (b)(1), TNRCC added the words "or permit amendment" after "permit" in the first sentence. Exxon and TMOGA suggested that sec.116.115(b) be revised to require that the general conditions also be included in the permit document. This would help avoid confusion as to what conditions are applicable to a particular permit, in the event that the rule language is revised in the future. Exxon proposed specific language to require the general conditions to be included in or with the permit. In an effort to aide permit holders in determining the general conditions applicable to their permit, the TNRCC will make an effort to include each general condition, or a reference to each general condition, in the permit document itself. Indeed, operating permits under the forthcoming Title V of the Federal Clean Air Act will require exactly that for certain sources. However, failure of the TNRCC to include a reference in the permit document to a statutory or regulatory requirement will not excuse the source from compliance with that requirement. The staff is opposed to making a regulatory requirement to include general conditions in a permit, since there is no regulatory requirement to even issue a permit certificate. Eastman commented that separate notifications for completion of construction and start-up in sec.116.115(b)(2) and (3) should not be required and should be replaced with a single start-up notification. In addition, start-up is often a phase rather than a point in time, which would indicate that a start-up schedule may be appropriate. It also suggested clarification of the completion of construction in sec.116.115(b)(2) as being when raw material may be introduced into process equipment for start-up. Also, the rule should allow verbal notification of start-up. Notification of the completion of construction, i.e., notification prior to start-up, is already required in sec.116.110(b), as is a separate notification after start-up. The staff is opposed to the change to sec.116.115(b)(2), because it would be inconsistent with sec.116.110(b). The staff has changed "start-up" to "commencement of operations" in sec.116.115(b)(3) for clarification, and to allow for phased operations. The staff believes that the suggested definition of "completion of construction" may not be accurate to describe every case, and therefore, opposes this change. The staff is opposed to allowing verbal notification as being too nebulous. It would be too easy for a telephone message to be lost or misplaced, whereas written notification provides a permanent record. Exxon and TMOGA had some concerns over the 30-day start-up notification requirements in sec.116.115(b)(3). Exxon suggested revising sec.116.115(b)(3) to provide some flexibility for facilities to exceed the 30-day notice requirement. The TMOGA suggested that sec.116.115(b)(3) be deleted. This should be a special condition, as appropriate, and not required for all facilities. A 30-day advance notice of start-up would cause unnecessary delays in actual start of operations. The staff has deleted the stipulation of 30 days prior to start-up, as stated in proposed sec.116.115(b)(3). However, the general requirement to notify the agency will remain in the rule for consistency with sec.116.110(b)(1) (A). Eastman, Exxon, and an individual had some concern over the language in sec.116.115(b)(4). Eastman questioned whether Executive Director approval should be required for testing procedures and that maybe this should be delegated to the regions. Eastman also commented that "coordinated with the regional representative" means that the regions must be advised of testing plans in a timely manner. Exxon suggested revising this paragraph to be more general by not specifically referring to the Source and Mobile Monitoring Section, but just requiring prior approval by the Executive Director. An individual commented that this paragraph should specify a minimum two-week advance notice to TNRCC prior to sampling. Also, replace the word "his" in the last sentence to be non-gender specific. The staff agrees with Eastman's comment that specific Executive Director approval should not be required for approving test procedures. However, the staff believes that whenever the Executive Director is specified in rule language, it is implied that a designated representative of that office is authorized for signature. This could be a regional director or another official of the TNRCC. Therefore, the staff believes that the regional approval of testing can be authorized without revising the proposed rule language. The staff agrees with Eastman's interpretation of coordination with the regions for testing. Whenever more specific test notification requirements are intended, they will be stated in specific special conditions in the permit. The staff agrees with Eastman's comment about specific reference to Source and Mobile Monitoring Section and will delete this reference from the rule. In response to the individual comment regarding advance notice of testing, there is a list of sampling special conditions that the permit engineer uses in preparing a draft permit. These conditions contain specific requirements, including specifying timeframes for sampling. Sampling requirements and test procedures may vary in each permit, so it would not be practical to state specific test requirements as a general condition. These conditions are inserted in a permit on a case-by-case basis, and the staff prefers to continue this practice. The staff has removed reference to gender in the last sentence. An individual suggested expanding the recordkeeping requirement in sec.116. 115(b)(6) from two years to five years to coincide with the five-year permit renewal compliance history requirement. Other recordkeeping requirements in Chapter 116 are based on a two-year period. The staff believes that two years of operating records is sufficient for verifying or making a determination of a compliance problem. The five-year period for compliance history is a statutory requirement for obtaining a preconstruction permit. The two-year recordkeeping requirement is used to verify or confirm a compliance problem; and the five-year compliance history period is used to evaluate a company's past enforcement record to determine if there is a reasonable basis for denial of a permit. The staff recommends against revising the existing recordkeeping timeframe on the basis that two years should be sufficient for discovering and confirming a compliance problem. Mitchell and TMOGA commented that there are many facilities with unstaffed sites with no structures for personnel or materials. This will make it unreasonable to maintain a copy of the permit on-site and comply with recordkeeping requirements in sec.116.115(b)(6). This subsection should be revised to allow unattended facilities to keep the documents at a designated location. Dallas commented that this paragraph should require the permit and any amendments to remain on site for the duration of the permit. The staff supports the assessment by Mitchell and TMOGA and will revise the proposed rule language to provide this flexibility for unattended sites. In response to the comment by Dallas, the staff believes that the proposed language already requires the permit to be retained permanently. The two-year recordkeeping requirement in the last sentence refers to compliance data and files, not the permit itself. No additional change to the rule language has been made. Eastman was concerned that sec.116.115(b)(7) states that the permit covers only sources of emissions listed in the Maximum Allowable Emission Rate Table (MAERT). Historically, some ancillary equipment with insignificant emissions are not identified, but still implicitly authorized to emit. The proposed wording could change this interpretation. The staff agrees with this assessment and has revised sec.116.115(b)(7) to reflect that the MAERT limits the emission rate only for the emission sources listed in the table. Several comments were received on sec.116.115(b)(8). Eastman suggested clarification that the paragraph applies only during normal operations and that upset and maintenance conditions are governed by sec.101.6 and sec.101.7. Lloyd made a similar comment, suggesting revision of this paragraph by adding the statement from sec.101.7(a) which defines what is considered to be good working order and operated properly. An individual suggested deleting the word "normal" from this paragraph, because it should require proper operation of emission controls at all times. The TNRCC agrees with the suggested change by Eastman and has incorporated language into the rule which references 30 TAC sec.101.7. The staff does not agree that the language of sec.101.6 is relevant to the definition of normal operations. At this time, it is appropriate that the staff clarify the TNRCC interpretation of "normal operating conditions." As stated in the preamble to the adoption of sec.101.7, published in the May 25, 1990, issue of the Texas Register (15 TexReg 2913), normal facility operations are defined as any operation other than start-up or shutdown; therefore, operation of control equipment is required at all times when the facility is operating. Definitions of good working order and operated properly were added to sec.101.7 at that time, as well. In that Texas Register preamble, the staff noted the amendment of sec.101.7 was not "to restrict variations in normal operation and maintenance that are considered normal." Lloyd, however, describes a situation that strays from these definitions. Lloyd assumes that permit emissions limits are based on less than 100% efficiency to account for the deterioration of the control equipment over time. Lloyd would have the TNRCC create additional flexibility by interpreting the emissions limit as variable to allow control equipment to deteriorate beyond a specified efficiency, so long as the allowable emission rate is not exceeded. This interpretation would not be in line with the definition of good working order. Lloyd has misinterpreted the meaning of compliance with permit limitations under 30 TAC sec.101.7. Allowable emission rates under a permit are enforceable limitations, but are considered to be maximums. 30 TAC sec.116.116(a), provides that representations in a permit or permit application regarding construction plans and operating procedures also become conditions upon which a permit is granted. Thus, the conditions and manner in which a plant is operated are also permit limitations, to the extent that those conditions were represented in the permit application. A facility can violate its permit limitations by failing to operate the emission abatement and control equipment represented in the permit application while still operating below specified emissions limitations. If more than one emissions limit or regulation applies to a facility, the most stringent of the applicable conditions will be used to determine whether the facility is in compliance and operating in good working order. For example, if a rule would allow a unit 100 tons per year (tpy) of particulate emissions, and the allowable emission rate in the unit's permit is 50 tpy, the permit holder could not claim that particulate emissions of 75 tpy represented "proper" operation. Similarly, if a permit applicant represented in its application that control equipment would be used during normal operations (which would become an enforceable condition pursuant to sec.116.116(a)), the permit applicant could not claim that compliance with an applicable TNRCC rule or allowable emission rate in the permit represents "proper" operation if the control equipment is turned off or inoperable. We agree that the TNRCC and permit holders should establish clear guidance for what is "proper operation" in specific situations, and suggest the best way to develop this understanding is through the permit review process. The applicant is in an especially good position to develop this understanding, since the applicant controls what goes into the permit application. If redundant control and abatement equipment are included in a permit application, and it is the intention of the applicant to operate that equipment on an intermittent basis, the applicant must represent that condition in the permit application and such intermittent operation must be included in, and approved by, the Best Available Control Technology (BACT) review. The staff does not agree with Lloyd's general assumption that emission limits are set "to account for the fact that efficiency of most systems decreases with use." No system is 100% efficient. Operating efficiency is merely one of the many parameters which may be analyzed during review of the BACT for a permitted source. Operating efficiency of a control device may, or may not, vary with time and the interpretation of any variation is done on a case-by-case basis for the BACT review. The calculation of these operating efficiencies and emissions limits are based on the representations made in the permit application on a case-by-case basis. Lastly, proper enforcement of permit limits and conditions requires that pollution control and abatement equipment be operated at all times, unless the permit specifically allows otherwise. The operation of air pollution control or abatement equipment pursuant to a TNRCC permit is integral to TNRCC's ability to ensure that a facility is achieving the appropriate level of control of air pollutants. Compliance with many permit limitations can only be determined by a stack emissions test. The ability of the TNRCC to protect the quality of the air of the state or enforce these permit requirements would be severely hindered if intermittent use of control or abatement equipment were allowed upon a determination by a facility operator that the permit limits were not endangered. Exxon suggested deleting the requirement in sec.116.115(b)(9) that when both federal and state rules apply to a facility, the most stringent rule takes precedence. The staff is opposed to changing this paragraph. It explains to the permit holder that future changes to regulations, both state and federal, may affect a permitted facility. There will likely be cases where a new or revised standard or requirement may impose additional restrictions on a facility. Also, if TNRCC permit engineers fail to include a federal requirement in a permit, the federal requirement is still applicable. The TNRCC does not have the authority to exempt a facility from a federal rule or requirement. Exxon suggested numerous editorial changes to sec.116.132, including substitution of "bilingual" instead of "alternate language" to be consistent with the statutory references to bilingual education program. The staff has adopted some of the minor editorial changes suggested by Exxon, such as substitution of "public notice" for "notification" and adding the word "education." However, we do not support replacing the term "alternate language" with the word "bilingual." We believe that "alternate language" is a more precise term and creates less confusion in the text. By using the phrase "alternate language," the rule clearly means an additional notice in a language other than English, and the second language. The staff does not agree with the other suggested changes on the basis that the rule language is sufficiently clear as proposed. Eastman suggested clarification of the term "general circulation" used in sec.116.132(a)(3) for uniform application of the rule. The determination of whether a newspaper or publication is of general circulation must be made on a case-by-case basis. The specific characteristics of a publication must necessarily be viewed with regard to the municipality or county within which notice is to be published. Factors to be considered when determining whether a newspaper or publication will satisfy public notice requirements include the frequency, content, and location of the publication, and the publication's target audience. Other factors may be considered as conditions warrant. The permit applicant is encouraged to discuss the requirements of public notice as well as the specific publications under consideration with the permit engineer as early in the permit process as possible to avoid any unnecessary delays or expense. Dallas commented that a distance limitation should be specified in sec.116. 132(c) and sec.116.133(f), beyond which the public notice requirements would not apply. A 3,000-foot distance from the nearest school is recommended. No distance limitation of the notice requirement is contemplated, or permitted, by the statute. Further, the staff believes that the alternate language notice requirement is designed not to protect the closest schools, but the communities of which those schools are a part. A distance limitation on the alternate notice requirement would contravene the intent of the statute. The TMOGA commented that the language in sec.116.132(c) exceeds the statutory scope upon which the rule is based. It includes other publications besides newspapers for the required notices; and it implicitly allows newspapers published outside of the United States but distributed in the United States to be included in the notice requirement. The rule should be revised to comply with the statute. Also, the requirement should be waived whenever the newspaper is published less than once monthly, and waived on a case-by-case basis for publishing less than once every two weeks. Publication of notice in other publications is provided for by statute. The staff believes this recognizes that fewer alternate language newspapers exist in the state, and that public notice in other publications may help to serve the needs of a community. The statute prohibits the TNRCC from requiring alternate language notice to be published outside the United States. It does not, however, prevent the TNRCC from allowing a permit applicant to publish alternate language notice outside the United States when that notice would best satisfy the needs of the community. There is no provision in the statute to allow waiver of the public notice requirements based upon the frequency of publication, recognizing that it may be more difficult to reach a community whose primary language is not English. However, the TNRCC may consider newspapers or publications published less frequently than once a month to not be of general circulation in a community. Because a permit application normally takes several months, a permit applicant will have ample opportunity to identify appropriate publications for public notice, and to ascertain their publication schedules, thereby avoiding any additional delay in the permit process caused by the new notice requirements. The TCGA and TMOGA suggested revising sec.116.132(c)(6) to require only a single publication in every case. The two successive issue requirement causes excessive delays in permit approval and is costly. The staff does not support the suggested change. The TNRCC understands that public notice requirements can be time-consuming and expensive. However, the right of the people to be informed of the activities in their community must also be considered. Currently, the staff is convinced that an appropriate balance between these competing concerns has been reached. To ensure that this balance is and remains appropriately maintained, the TNRCC will undertake to investigate the burdens, and effectiveness, of the various public notice requirements. Eastman is concerned that sec.116.132(c) and sec.116.133(f) will require bilingual public notice for schools that have English as a second language program. The reason for this is that 19 TAC sec.89.2(d) requires all limited English-proficient students for whom a district is not required to offer a bilingual education program to be placed in an English as a second language program. This could potentially result in public notice requirements in the language of any student who is not proficient in English. Therefore, the requirements of sec.89.2(d) should be specifically omitted from the rule. The statute and the rule reference bilingual education programs required under 19 TAC sec.89.2(a), excluding 19 TAC sec.89.2(d), by implication. However, because permit applicants may not be aware that multiple bilingual programs may be offered, the staff agrees with the commenter and has added language clarifying that programs offered under 19 TAC 89.2(d), will not trigger the requirements of this rule. This modification is not intended to add or delete any requirements under the rule. The TU, TMOGA, and Eastman were all opposed to the proposed requirement to require bilingual sign-posting and stated that the requirement to post bilingual signs in sec.116.133 is not part of the statutory language. All three commenters stated that sec.116.133(f) should be deleted in its entirety. The TU added the following statements. The statute was satisfied in that a newspaper notice is a sufficient and cost-effective method to inform the public. There should be no sign-posting requirement when the newspaper notice is not required. The cost could become excessive for facilities that require multiple signs and where there is more than one alternate language. Newspaper or publication notice is not required by the statute when an alternate language publication does not exist, or the publisher of such publication refuses to publish the notice. The staff believes that it is in exactly these conditions that alternate language sign-posting requirements most benefit a community. The statute does not contemplate allowing a permit applicant to choose in which alternate languages to publish. Although it is conceivable that a permit applicant would be required to post signs in multiple alternate languages, based upon experience to date, the staff believes that it is highly unlikely notice would be required in more than two alternate languages. Therefore, the staff believes that the sign-posting requirements will not overly burden a permit applicant. Exxon suggested numerous editorial changes to sec.116.133 for clarification of the rule. The staff believes that the proposed language for sec.116.133 is clearly stated and does not support the changes suggested by Exxon. Permit Application 30 TAC sec.sec.116.110, 116.115, 116.116 The amendments are adopted under the Texas Health and Safety Code (Vernon 1992), the Texas Clean Air Act (TCAA), sec.382.017, which provides the TNRCC with the authority to adopt rules consistent with the policy and purposes of the TCAA. sec.116.115. General and Special Conditions. (a) Permits, special permits, standard permits, and exemptions may contain general and special conditions. The holders of permits, special permits, standard permits, and exemptions shall comply with any and all such conditions. Upon a specific finding by the Executive Director that an increase of a particular pollutant could result in a significant impact on the air environment, or could cause the facility to become subject to review under the undesignated headings of this subchapter relating to Nonattainment Review or Prevention of Significant Deterioration Review, the permit may include a special condition which states that the permittee must obtain written approval from the Executive Director before constructing a source under a standard exemption or standard permit. (b) Holders of permits issued or amended prior to March 31, 1994, shall comply with the general conditions attached to the permit. For permits issued or amended after March 31, 1994, the following general conditions shall be applicable, but may not be specifically stated within the permit document. (1) Voiding of permit. A permit or permit amendment under this chapter is automatically void if the holder fails to begin construction within 18 months of date of issuance, discontinues construction for more than 18 consecutive months prior to completion, or fails to complete construction within a reasonable time. Upon request, the Executive Director may grant a onetime 18-month extension of the date to begin construction. (2) Construction progress. Start of construction, construction interruptions exceeding 45 days, and completion of construction shall be reported to the appropriate regional office of the Texas Natural Resource Conservation Commission (TNRCC or Commission) not later than 15 working days after occurrence of the event. (3) Start-up notification. The appropriate Air Program regional office of the Commission shall be notified prior to the commencement of operations of the facilities authorized by the permit in such a manner that a representative of the TNRCC may be present. Phased construction, which may involve a series of units commencing operations at different times, shall provide separate notification for the commencement of operations for each unit. (4) Sampling requirements. If sampling of stacks or process vents is required, the permit holder shall contact of the TNRCC Office of Air Quality prior to sampling to obtain the proper data forms and procedures. All sampling and testing procedures must be approved by the Executive Director and coordinated with the regional representatives of the Commission. The permit holder is also responsible for providing sampling facilities and conducting the sampling operations or contracting with an independent sampling consultant. (5) Equivalency of methods. It shall be the responsibility of the permit holder to demonstrate or otherwise justify the equivalency of emission control methods, sampling or other emission testing methods, and monitoring methods proposed as alternatives to methods indicated in the conditions of the permit. Alternative methods shall be applied for in writing and must be reviewed and approved by the Executive Director prior to their use in fulfilling any requirements of the permit. (6) Recordkeeping. A copy of the permit along with information and data sufficient to demonstrate compliance with the permit shall be maintained in a file at the plant site and made available at the request of personnel from the TNRCC or any air pollution control program having jurisdiction. For facilities that normally operate unattended, this information shall be maintained at the nearest staffed location within Texas specified by the permit holder in the permit application. This information shall include, but is not limited to, production records and operating hours. Additional recordkeeping requirements may be specified in special conditions attached to the permit. Information in the file shall be retained for at least two years following the date that the information or data is obtained. (7) Maximum allowable emission rates. The total emissions of air contaminants from any of the sources of emissions listed in the table entitled "Emission Sources-Maximum Allowable Emission Rates" shall not exceed the values stated on the table attached to the permit. (8) Maintenance of emission control. The facilities covered by the permit shall not be operated unless all air pollution emission capture and abatement equipment is maintained in good working order and operating properly during normal facility operations. Notification for upsets and maintenance shall be made in accordance with sec.101.6 and sec.101.7 of this title (relating to Notification Requirements for Major Upset and Notification Requirements for Maintenance). (9) Compliance with rules. Acceptance of a permit by a permit applicant constitutes an acknowledgement and agreement that the holder will comply with all rules, regulations, and orders of the Commission issued in conformity with the Texas Clean Air Act and the conditions precedent to the granting of the permit. If more than one state or federal rule or regulation or permit condition are applicable, then the most stringent limit or condition shall govern and be the standard by which compliance shall be demonstrated. Acceptance includes consent to the entrance of Commission employees and agents into the permitted premises at reasonable times to investigate conditions relating to the emission or concentration of air contaminants, including compliance with the permit. (c) There may be additional special conditions attached to a permit upon issuance or modification of the permit. Such conditions in a permit may be more restrictive than the requirements of Title 30 of the Texas Administrative Code. 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 25, 1994. TRD-9445685 Mary Ruth Holder Director, Legal Division Texas Natural Resource Conservation Commission Effective date: August 16, 1994 Proposal publication date: March 1, 1994 For further information, please call: (512) 239-1966 Public Notification and Comment Procedures 30 TAC sec.116.132, sec.116.133 The amendments are adopted under the Texas Health and Safety Code, Texas Clean Air Act (TCAA), sec.382.017, which provides the TNRCC with the authority to adopt rules consistent with the policy and purposes of the TCAA. sec.116.132. Public Notice Format. (a)-(b) (No change.) (c) Additional alternate language public notice. The requirements of this subsection are applicable whenever either the elementary school or the middle school located nearest to the facility or proposed facility provides a bilingual education program as required by the Education Code, sec.21.109, and 19 TAC sec.89.2(a) or if either school has waived out of such a required bilingual education program under the provisions of 19 TAC sec.89.2(g). Schools not governed by the provisions of 19 TAC sec.89.2 shall not be considered in determining applicability of the requirements of this subsection. Each affected facility shall meet the following requirements. (1) The applicant shall publish an additional notice at least once in each alternate language in which the bilingual education program is taught. If the nearest elementary or middle school has waived out of the requirements of 19 TAC sec.89. 2(a) under 19 TAC sec.89.2(g), the notice shall be published in the alternate languages in which the bilingual education program would have been taught had the school not waived out of the bilingual education program. (2) Each notice under this subsection shall be published in a newspaper or publication that is published in the alternate language in which public notice is required. (3) The newspaper or publication must be of general circulation in the municipality or county in which the facility is located or proposed to be located. (4) The requirements of this subsection are waived for each language in which no publication exists, or if the publishers of all alternate language publications refuse to publish the notice. (5) Notice under this subsection shall only be required to be published within the United States. (6) If the alternate language publication is published once a week or more frequently, then notice shall be published in two successive issues. Otherwise, only one publication shall be required. (7) If the alternate language publication is published less frequently than once a month, this notice requirement may be waived by the Executive Director on a case-by-case basis. (8) Each alternate language publication shall follow the requirements of subsections (a) and (b) of this section not otherwise inconsistent with this subsection. (d) Exemptions from alternate language notification. Elementary or middle schools that offer English as a second language under 19 TAC sec.89.2(d), and are not otherwise affected by 19 TAC sec.89.2(a), will not trigger the requirements of subsection (c) of this section. sec.116.133. Sign-Posting Requirements. (a)-(e) (No change.) (f) Alternate language sign-posting. The requirements of this subsection are applicable whenever either the elementary school or the middle school located nearest to the facility or proposed facility provides a bilingual education program as required by the Education Code, sec.21.109, and 19 TAC sec.89.2(a) or if either school has waived out of such a required bilingual program under the provisions of 19 TAC sec.89.2(g). Schools not governed by the provisions of 19 TAC sec.89.2 shall not be considered in determining applicability of the requirements of this subsection. Each affected facility shall meet the following requirements. (1) The applicant shall post an additional sign in each alternate language in which the bilingual education program is taught. If the nearest elementary or middle school has waived out of the requirements of 19 TAC sec.89.2(a) under 19 TAC sec.89.2(g), the alternate language signs shall be posted in the alternate languages in which the bilingual education program would have been taught had the school not waived out of the bilingual education program. (2) The alternate language signs shall be posted adjacent to each English language sign required in this section. (3) The alternate language sign-posting requirements of this subsection shall be satisfied without regard to whether alternate language notice is required under sec.116.132(c) of this title (relating to Public Notice Format). (4) The alternate language signs shall meet all other requirements of this section. (g) Exemption from alternate language sign-posting. Elementary or middle schools that offer English as a second language under 19 TAC sec.89.2(d), and are not otherwise affected by 19 TAC sec.89.2(a), will not trigger the requirements of subsection (f) of this section. 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 25, 1994. TRD-9445686 Mary Ruth Holder Director, Legal Division Texas Natural Resource Conservation Commission Effective date: August 16, 1994 Proposal publication date: March 1, 1994 For further information, please call: (512) 239-1966 TITLE 40. SOCIAL SERVICES AND ASSISTANCE Part XIX. Texas Department of Protective and Regulatory Chapter 700. Child Protective Services The Texas Department of Protective and Regulatory Services (TDPRS) adopts the repeal of sec.sec.700.106, 700.107, 700.1301-700.1306, 700.1309-700.1313, and 700.1764; adopts new sec.sec.700.1301, 700.1302, 700.1310-700.1316, 700.1320- 700. 1323, 700.1330-700.1334, 700.1340-700.1343, 700.1350, and 700.1351; and adopts an amendment to sec.700.1502 in its child protective services chapter. Sections 700.1320-700.1323, 700.1331, and 700.1350 are adopted with changes to the proposed text as published in the June 24, 1994, issue of the Texas Register (19 TexReg 4904). The repeal of sec.sec.700.106, 700.107, 700.1301-700. 1306, 700.1309-700.1313, and 700.1764; new sec. sec.700.1301, 700.1302, 700. 1310- 700.1316, 700.1330, 700.1332-700.1334, 700.1340-700.1343, and 700.1351; and the amendment to sec.700.1502 are adopted without changes and will not be republished. The justification for the repeals, new sections, and amendment is to reorganize, update, and clarify the department's policies for serving children who have been removed from their homes and placed in substitute care. The department's policies for serving children in substitute care have not been systematically revised since 1984. They require systematic revision now to accommodate changes in the Texas Family Code (especially in Chapter 18 regarding court reviews of the child's placement and case plan), amendments to Title IV-E of the Social Security Act of 1980 (regarding foster care and adoption assistance), the Office of Child-Care Licensing's new Minimum Standards for Child-Placing Agencies , the establishment of TDPRS as an independent state agency, TDPRS's recent implementation of a risk-based system for delivering protective services to families and children, and the recent revision of the department's policies for delivering services to families. The policies also require revision to address needs associated with the 100% increase in the number of children in TDPRS's managing conservatorship over the last ten years, including the need for more effective permanency planning. The new sections define substitute care and identify the department's primary responsibilities, goals, and objectives when a child is in substitute care; establish detailed policies for selecting a permanency planning goal for each child in substitute care, and for reviewing the goal at each review of the child's case plan; describe the different types of substitute caregivers with whom TDPRS places children, and identify the types of care that those caregivers provide; set forth requirements for developing a detailed case plan for each child in substitute care, and for reviewing the plan at least every six months; address special issues such as discipline and releasing information to prospective adoptive parents; establish requirements for special services to children in substitute care, including medical and dental services; and incorporate those parts of the repealed and amended sections that will remain in effect when the new sections are adopted. The proposal will function by ensuring that children who cannot be protected from abuse and neglect in their own homes receive the protection they need in temporary, planned substitute-care placements; receive care and remedial services consistent with their needs for permanency and belonging; and are either reunited with their families as soon as their families change the conditions that have placed the children at risk, or placed in alternative permanent living-situations if they cannot return home safely. No comments were received regarding adoption of the proposal. The department, however, has initiated minor changes to sec. sec.700.1320-700.1323, 700. 1331, and 700.1350. In sec.sec.700.1320-700.1323 and 700.1350, to improve the clarity and accuracy of the sections, the department changed the term "family group- home" to "foster group-home" and substituted the complete title "residential group-care facility" in several places where it had been abbreviated as "group- care facility." And in sec.700.1320 and sec.700.1331, the department has corrected typographical errors by deleting the word "years" in sec.700(c)(1)(B)(i) and deleting the word "and" in sec.700.1331(b)(8). Subchapter A. Administration 40 TAC sec.700.106, sec.700.107 The repeals are adopted under the Human Resources Code, Title 2, Chapter 22, which authorizes the department to administer public assistance programs, and Chapter 41, which authorizes the department to enforce laws for the protection of children. The repeals are also adopted under the Texas Family Code (TFC), Title 2, Chapter 34, which authorizes the department to provide services to alleviate the effects of child abuse and neglect. The repeals are also adopted under Texas Civil Statutes, Article 4413 (503), historical note (Vernon Supplement 1993), 72nd Legislature, which transferred all functions, programs, and activities related to the child protective services program from the Texas Department of Human Services to TDPRS. The repeals implement TFC, sec.14.02, concerning the rights, privileges, duties, and powers of a conservator. 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 27, 1994. TRD-9445712 Nancy Murphy Section Manager, Media and Policy Services Texas Department of Protective and Regulatory Effective date: September 1, 1994 Proposal publication date: June 24, 1994 For further information, please call: (512) 450-3765 Subchapter M. Substitute-Care Services 40 TAC sec.sec.700.1301-700.1306, 700.1309-700.1313 The repeals are adopted under the Human Resources Code, Title 2, Chapter 22, which authorizes the department to administer public assistance programs, and Chapter 41, which authorizes the department to enforce laws for the protection of children. The repeals are also adopted under the Texas Family Code (TFC), Title 2, Chapter 34, which authorizes the department to provide services to alleviate the effects of child abuse and neglect. The repeals are also adopted under Texas Civil Statutes, Article 4413 (503), historical note (Vernon Supplement 1993), 72nd Legislature, which transferred all functions, programs, and activities related to the child protective services program from the Texas Department of Human Services to TDPRS. The repeals implement TFC, sec.14.02, concerning the rights, privileges, duties, and powers of a conservator. 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 27, 1994. TRD-9445710 Nancy Murphy Section Manager, Media and Policy Services Texas Department of Protective and Regulatory Effective date: September 1, 1994 Proposal publication date: June 24, 1994 For further information, please call: (512) 450-3765 40 TAC sec.sec.700.1301, 700.1302, 700.1310-700.1316, 700.1320-700.1323, 700.1330-700.1334, 700.1340-700.1343, 700.1350, 700.1351 The new sections are adopted under the Human Resources Code, Title 2, Chapter 22, which authorizes the department to administer public assistance programs, and Chapter 41, which authorizes the department to enforce laws for the protection of children. The new sections are also adopted under the Texas Family Code (TFC), Title 2, Chapter 34, which authorizes the department to provide services to alleviate the effects of child abuse and neglect. The new sections are also adopted under Texas Civil Statutes, Article 4413 (503), historical note (Vernon Supplement 1993), 72nd Legislature, which transferred all functions, programs, and activities related to the child protective services program from the Texas Department of Human Services to TDPRS. The new sections implement TFC, sec.14.02, concerning the rights, privileges, duties, and powers of a conservator. sec.700.1320. Types of Placements. (a) Placement with relative caregivers. (1) Priority. Relatives and family friends are usually in a better position to meet a child's needs for belonging, stability, and continuity of care than unrelated licensed caregivers. In most cases, the child knows them already, and they have an ongoing relationship with the parents that makes it easier to work towards family reunification. Accordingly, when relatives or friends of the family are willing and able to care for a child in the Texas Department of Protective and Regulatory Services' (TDPRS's) managing conservatorship, the Office of Protective Services for Families and Children (PSFC) generally prefers to place the child with them. (2) Exception. When a child has important special needs that a relative caregiver cannot meet, PSFC tries to find a caregiver that can meet the child's special needs. (b) Placement with licensed caregivers. When no relatives or family friends are available to care for a child in TDPRS's managing conservatorship, PSFC ordinarily places the child with a licensed foster caregiver. The possibilities include: (1) foster family-homes; (2) foster group-homes; (3) residential group-care facilities; (4) emergency shelters; and (5) facilities under the authority of other state agencies. (c) Independent living arrangements. (1) Authorized arrangements. (A) Definition. An authorized independent-living arrangement consists of a residential arrangement in which a youth lives independently of a foster caregiver as part of the youth's planned preparation for adult living. (B) When appropriate. An authorized independent-living arrangement may be appropriate if: (i) the youth is 16 or older; and (ii) the arrangement is a planned aspect of the youth's participation in the preparation-for-adult-living program. (2) Unauthorized arrangements. (A) Definition. An unauthorized independent-living arrangement consists of a residential situation in which a youth lives independently without the permission of TDPRS or the court. (B) TDPRS's role. When a youth in TDPRS's managing conservatorship begins living in an unauthorized independent-living arrangement, TDPRS cannot approve or pay for the arrangement. The youth's worker, however, must try to remain involved enough in the youth's plans to ensure the youth's safety and welfare. sec.700.1321. Types of Licensed Caregivers. (a) Foster family-homes. (1) Definition. A foster family-home is the private home of a family that has been trained and appropriately licensed or verified to provide foster care for as many as six children at a time, including the family's own children. (2) When appropriate. Foster family-homes are appropriate for children of all ages who can take part in family life and live in the community without danger to themselves or others. (3) Licensing. To qualify for the placement of children in the Texas Department of Protective and Regulatory Services' (TDPRS's) managing conservatorship, a foster family-home must be: (A) trained and verified by the Office of Protective Services for Families and Children (PSFC); (B) independently licensed by the Office of Child-Care Licensing (CCL); or (C) trained and verified by a CCL-licensed child-placing agency. (4) Types of care. Depending on their licensure, foster family-homes can provide any of the four types of care specified in sec.700. 1322 of this title (relating to Types of Care). (b) Foster group-homes. (1) Definition. A foster group-home is a residential care facility whose staff have been trained and appropriately licensed or verified to provide foster care for 7 to 12 children at a time. (2) When appropriate. Foster group-homes are appropriate for children and adolescents who: (A) need experience in living with groups; (B) share a need for major services that group-living will help to support (examples: maternity care, vocational planning and training); (C) have physical, mental, or emotional disabilities requiring specialized services within the capabilities of a group-home; or (D) need to make the transition from an institutional or therapeutic setting to a setting in which they can begin learning to live more self-sufficiently. (3) Children under five. Children under five must not be placed in foster group-homes unless the placement represents the only way to meet a child's special needs (examples: placement with siblings, proximity to the child's parents). (4) Licensing. To qualify for the placement of children in TDPRS's managing conservatorship, a foster group-home must be: (A) trained and verified by PSFC; (B) independently licensed by CCL; or (C) trained and verified by a CCL-licensed child-placing agency. (5) Types of care. Depending on their licensure, foster group-homes can provide any of the four types of care specified in sec.700.1322 of this title (relating to Types of Care). (c) Residential group-care facilities. (1) Definition. A residential group-care facility is a facility that is licensed to provide foster care for 13 or more children at a time. (2) When appropriate. Group-care facilities are appropriate for: (A) emergency foster-care placements while a child's and family's needs are being assessed; (B) temporary placements in which siblings need to be kept together while their service plans are being developed; (C) children who have physical, mental, or emotional disabilities requiring specialized services that are within the capabilities of the group-care facility under consideration; (D) children for whom peer relationships and group-living have more value than living in a family-home or a group-home; (E) children who need the structure, controls, and planned socialization that an institution normally provides to develop the basic personal and interpersonal skills they must have to begin living in a family-home, in a group-home, or independently; (F) teenagers who would react adversely to living in a family-like setting because they are trying to free themselves from close family ties; and (G) teenagers whose conflicts with authority would be disruptive in a foster family-home. (3) Limitations. (A) Facilities on probation. PSFC does not place children in group-care facilities that are on probation with CCL. (B) Children under five. PSFC does not place children under five in group-care facilities unless doing so represents the only way to meet a particular child's special needs (examples: placement with siblings, proximity to the child's parents). (C) Closing for the holidays. If a group-care facility closes for a period of holidays, PSFC must ensure that the children it has placed there stay with other caregivers until the facility reopens. (4) Licensing. To qualify for the placement of children in TDPRS's managing conservatorship, a residential group-care facility must be independently licensed by CCL. (5) Types of care. Depending on their licensure, group-care facilities can provide any of the four types of care specified in sec.700.1322 of this title (relating to Types of Care). (d) Emergency shelters. (1) Definition. An emergency shelter is a residential group-care facility that CCL has licensed to provide emergency shelter for children. (2) When appropriate. Emergency shelters are appropriate for children who need emergency placements. Shelters that function as assessment centers are particularly appropriate for children with special needs. (3) Length of stay. If a child's stay in an emergency shelter must exceed the time frames specified in the following chart, a supervisor must approve an extension of the placement, and the child's worker must document the reasons for extending it in the child's case record: Insert for Figure 1 for 40 TAC sec.700.1321(d)(3). (4) Type of care. Of the four types of care specified in sec.700.1322 of this title (relating to Types of Care), emergency shelters provide only emergency care. (e) Facilities under the authority of other state agencies. When appropriate, the court may order a child in TDPRS's managing conservatorship to be placed in a foster-care facility operated or regulated by: (1) the Texas Youth Commission; (2) the Texas Juvenile Probation Commission; (3) the Texas Department of Mental Health and Mental Retardation; (4) the Texas Education Agency; (5) the Texas Department of Health; (6) the Texas Commission on Alcohol and Drug Abuse; (7) the Texas Commission for the Blind; or (8) the Texas School for the Deaf. sec.700.1322. Types of Care. (a) Emergency care. (1) Definition. Emergency care consists of the temporary foster care provided to a child immediately after removal when there is not enough time to find a nonemergency caregiver. (2) When appropriate. The Office of Protective Services for Families and Children (PSFC) places children in emergency care: (A) when a child is removed from his home and there is not enough time to explore the issues pertinent to finding an appropriate caregiver; and (B) when a child's current placement is disrupted and it is not possible to find another caregiver immediately. (3) Duration. Emergency foster-care placements are not intended to last long. As soon as a child is placed in emergency care, the child's worker must make a concerted effort to find a more lasting placement unless there is an exceptional reason for not doing so. Whenever a child's stay in an emergency-care placement must exceed 30 days, a supervisor must approve the extended stay. (4) Around-the-clock availability. Every region must ensure that emergency foster-care services are available 24 hours a day, seven days a week. (5) Types of providers. (A) In most cases, emergency foster care must be provided by a caregiver that is specifically licensed to provide emergency foster care. To be so licensed, the caregiver must be: (i) an emergency shelter (or assessment center); (ii) a foster family-home; (iii) a foster group-home; or (iv) a residential group-care facility. (B) In some cases, emergency foster care can also be provided by an emergency residential-care facility that is exempt from licensure (examples: hospitals, juvenile detention centers). (b) Basic care. (1) Definition. Basic care consists of the foster care provided to every child whom PSFC places into foster care at level-of-care (LOC) 01 or 02. (2) When appropriate. Basic care is appropriate for children: (A) whose general functioning is adequate; (B) whose problems are transient; and (C) who need: (i) a normal home environment; (ii) routine supervision; and (iii) occasional guidance and discipline. (3) Types of providers. Basic care can be provided only by: (A) foster family-homes; (B) foster group-homes; and (C) residential group-care facilities. (c) Therapeutic care. (1) Definition. Therapeutic care consists of structured, supportive foster care and therapeutic services provided to children with professionally identified emotional or behavioral problems by foster family-homes, foster group-homes, and residential group-care facilities that have been licensed or verified to provide therapeutic services to children in their care. (2) When appropriate. Therapeutic care is appropriate for children with emotional or behavioral problems who need: (A) structured, supportive care and occasional therapeutic counseling at: (i) LOC 02 if TDPRS separately contracts for the therapeutic services, or (ii) LOC 03 if the caregiver provides or contracts for the therapeutic services; or (B) a structured individual-treatment program and regular therapeutic counseling at LOC 04, 05, or 06. (d) Supportive care. (1) Definition. Supportive care consists of specialized supportive care and services provided to children who are medically fragile, mentally retarded, or developmentally delayed by foster family-homes and group-homes that have been licensed or verified to care for children who: (A) have primary medical needs; (B) are mentally retarded or developmentally delayed (requiring "habilitative" care); or (C) display autistic behavior, as specified in the Office of Child-Care Licensing's Minimum Standards for Child-Placing Agencies. (2) When appropriate. Supportive care is appropriate for children who are so medically fragile, mentally retarded, or developmentally delayed that they have substantial limitations in at least three of the following major areas of life- activity: (A) self-care; (B) mobility; (C) communication; (D) learning; (E) self-direction; (F) capacity for independent living; and (G) capacity for economic independence. sec.700.1323. Subsequent Placements. (a) Notifying the child's parents. (1) A child's worker must notify the child's parents whenever there is a change in the child's placement, unless the parents: (A) cannot be found; (B) have had their parental rights terminated; or (C) have executed an affidavit of relinquishment as specified in the Texas Family Code, sec.15.03. (2) If the safety of the child or the caregiver is likely to be compromised by giving the parents information that could be used to find the caregiver, the worker must ensure that the notification excludes such information. (b) Administrative review of foster parent concerns about new placements. (1) Keeping foster parents informed. When a child is in a foster family-home or group-home that the Office of Protective Services for Families and Children (PSFC) has trained and verified, and the Texas Department of Protective and Regulatory Services (TDPRS) plans to remove the child from the home and make a different placement under the child's permanency plan, the child's worker must advise the foster parents of the planned placement unless the child's safety is at risk. (2) Resolving differences. If the child's foster parents have concerns about the removal or the planned placement, PSFC staff must confer with them and try to resolve their concerns informally. (3) Administrative review. If the foster parents still disagree with PSFC's plans for removing a child from their care after discussing their concerns with staff informally, they may request a formal administrative review. PSFC must conduct an administrative review at the request of a PSFC-verified foster family whenever the following conditions are satisfied: (A) the foster parents have requested the review within ten days of receiving PSFC's notification about the decision to place the child; (B) the placement decision has not been mandated by the court; (C) the placement decision is not the result of an investigation of a report of child abuse or neglect in the foster home; and (D) the foster parents' concerns address the child's permanency plan. (4) Expeditious conduct of the review. When PSFC receives a foster-parent request for an administrative review, staff must conduct the review as expeditiously as possible. PSFC's implementation of the child's placement plan, however, must not be delayed by the review. (5) Regional procedures. Every region must: (A) establish written procedures for conducting administrative reviews of placement decisions in response to requests from foster parents whom PSFC has trained and verified; and (B) give a copy of its review procedures to each PSFC-verified foster home in its jurisdiction. At its own discretion, a region may also give a copy of its review procedures to any foster home that has been licensed by the Office of Child-Care Licensing (CCL) or verified by a CCL-licensed child-placing agency, if the home is caring for a child in TDPRS's managing conservatorship. sec.700.1331. The Child's Service Plan. (a) Time frame. Within 45 days after a child's placement in substitute care, the Office of Protective Services for Families and Children (PSFC) must develop a written plan for services to the child. As specified in sec.700.1330(b) of this title (relating to The Case Plan), the child's service plan is part of the case plan. (b) Required content. The child's service plan must: (1) document the continuing need for the child's placement in substitute care; (2) identify the caregiver with whom the child has been placed; (3) document the appropriateness of the type of substitute care the caregiver is providing; (4) document that, of the available settings consistent with the best interest and needs of the child, the setting of the current placement is both: (A) the least restrictive; and (B) the one in closest proximity to the parents' home; (5) either: (A) document that the current placement is close enough to the child's school to allow the child to continue to attend the same school; or (B) explain why not; (6) specify the expected outcomes of the placement and the estimated length of stay; (7) identify the child's needs and specify how they will be met while the child is in substitute care; (8) identify all the services that will be provided to help the child's caregiver meet the child's needs; (9) identify the child's permanency-planning goal, and specify: (A) the actions that will be taken to achieve it; (B) the services that will be provided to prepare the child for it; (C) the obstacles that could prevent its achievement; and (D) the actions that will be taken to overcome those obstacles; (10) if the child is 16 or older, identify the services being provided to prepare the child to live independently as an adult; and (11) indicate how PSFC will ensure compliance with all specific orders of the court regarding the child. (c) Participation. PSFC must ask the following individuals to participate in developing the child's service plan: (1) the child's worker in the conservatorship unit; (2) the worker supervising the placement, if different from the worker in the conservatorship unit; (3) the child, unless the child is too young to participate; (4) the child's parents, unless they: (A) cannot be found; (B) have had their parental rights terminated; or (C) have: (i) executed an affidavit of relinquishment as specified in the Texas Family Code, sec.15.03; and (ii) indicated that they do not want to participate in the child's case; (5) the substitute caregiver; (6) the attorney or guardian ad litem , or both; and (7) when appropriate, other professionals and volunteers who are providing services to the child or the child's family. (d) Distribution. PSFC must send a copy of those parts of the child's service plan that identify services to be provided under the plan to each individual who has participated in developing the child's service plan as specified in subsection (c) of this section. sec.700.1350. Special Services. (a) Day care for children in foster homes that the Office of Protective Services for Families and Children (PSFC) has verified. Children in the Texas Department of Protective and Regulatory Services' (TDPRS's) managing conservatorship who have been placed in foster family-homes and group-homes that PSFC has trained and verified may receive TDPRS-paid day-care services from licensed and registered day-care providers if: (1) regional funds are available to pay for the services; and (2) the services meet the child's and the foster family's needs. (b) Contraceptive services. Any child in TDPRS-paid foster care may request and receive any contraceptive service except sterilization without the consent of the child's parents, caregivers, or managing conservator. 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 27, 1994. TRD-9445713 Nancy Murphy Section Manager, Media and Policy Services Texas Department of Protective and Regulatory Effective date: September 1, 1994 Proposal publication date: June 24, 1994 For further information, please call: (512) 450-3765 Subchapter O. Foster and Adoptive Home Development 40 TAC sec.700.1502 The amendment is adopted under the Human Resources Code, Title 2, Chapter 22, which authorizes the department to administer public assistance programs, and Chapter 41, which authorizes the department to enforce laws for the protection of children. The amendment is also adopted under the Texas Family Code (TFC), Title 2, Chapter 34, which authorizes the department to provide services to alleviate the effects of child abuse and neglect. The amendment is also adopted under Texas Civil Statutes, Article 4413 (503), historical note (Vernon Supplement 1993), 72nd Legislature, which transferred all functions, programs, and activities related to the child protective services program from the Texas Department of Human Services to TDPRS. The amendment implements TFC, sec.14.02, concerning the rights, privileges, duties, and powers of a conservator. 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 27, 1994. TRD-9445711 Nancy Murphy Section Manager, Media and Policy Services Texas Department of Protective and Regulatory Effective date: September 1, 1994 Proposal publication date: June 24, 1994 For further information, please call: (512) 450-3765 Subchapter Q. Purchased Protective Services 40 TAC sec.700.1764 The repeal is adopted under the Human Resources Code, Title 2, Chapter 22, which authorizes the department to administer public assistance programs, and Chapter 41, which authorizes the department to enforce laws for the protection of children. The repeal is also adopted under the Texas Family Code (TFC), Title 2, Chapter 34, which authorizes the department to provide services to alleviate the effects of child abuse and neglect. The repeal is also adopted under Texas Civil Statutes, Article 4413 (503), historical note (Vernon Supplement 1993), 72nd Legislature, which transferred all functions, programs, and activities related to the child protective services program from the Texas Department of Human Services to TDPRS. The repeal implements TFC, sec.14.02, concerning the rights, privileges, duties, and powers of a conservator. 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 27, 1994. TRD-9445708 Nancy Murphy Section Manager, Media and Policy Services Texas Department of Protective and Regulatory Effective date: September 1, 1994 Proposal publication date: June 24, 1994 For further information, please call: (512) 450-3765