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 1. ADMINISTRATION Part III. Office of the Attorney General Chapter 61. Crime Victims' Compensation The Office of the Attorney General adopts the repeal of sec.sec.61.7, 61.10, 61.19-61.21, 61.23-61.26, and 61.28; amendments to sec.sec.61.2, 61.6, 61.17, 61.27, 61.31, and 61.32; and new sec.sec.61.7, 61.10, 61.19-61.21, 61.23-61.26, 61.28, 61.35-61.38, concerning Crime Victims' Compensation. Sections 61.6, 61. 7, 61.10, and 61.31 are adopted with changes to the proposed text as published in the March 15, 1994, issue of the Texas Register (19 TexReg 1725). Sections sec.61.2, 61.17, 61.19-21, 61.23-61.28, 61.32 and 61.35-61.38 are adopted without changes and will not be republished. The repeals, amendments, and new sections are necessary to ensure timely administration of the Crime Victims' Fund and to give effect to the legislative intent of the Act. The public will benefit by having more information about the Fund and its benefits. Section 61.7 is repealed in order to adopt a new rule which more thoroughly explains the calculation of lost earnings. Section 61.10 is repealed to consolidate all rules setting limits on services. Sections 61.19-61.21 are repealed as duplicative of the statute. Section 61.23 is no longer applicable. Sections 61.24-61.26 and 61.28 are repealed in order to adopt similar rules which better clarify compliance, Medicaid eligibility, definitions of psychiatric care and counseling and the confidentiality of the application. No comments were received regarding adoption of the repeals. Section 61.2 is amended to make reference to the new Act and to define the terms "physical therapy" and "resident". The section is amended further to clarify what providers are eligible for reimbursement. Section 61.7 establishes the method by which lost earnings are calculated. Section 61.10 set limits on certain services and is amended to increase the limit on funeral expenses. Section 61.17 puts the burden on the claimant to inform the attorney general of any change in circumstance affecting their eligibility for payment. Sections 61.19-61.20 impose duties on law enforcement agencies to cooperate with the attorney general and on victims to cooperate with law enforcement. Section 61.21 sets out the criteria used to evaluate behavior of the victim when determining eligibility. Section 61.23 sets a time limit for supplying the attorney general with requested information. Section 61.24 requires the victim to use collateral sources first. Section 61.25 provides time limits on the claims process in order to administratively close claims. Section 61.26 simply clarifies the extent of confidentiality of the records maintained in the victim or claimant's file. Section 61.27 is amended to make reference to the new Act. Section 61.28 sets forth the policy for requesting that providers accept payment in the event of a reduction as payment in full. Sections 61. 31-61.32 are amended to clarify what kind of providers are eligible for reimbursement and to set limits on inpatient psychiatric care. Section 61.35 establishes the administrative review process. Section 61.36 sets a time limit for submitting bills for payment. Section 61.37 requires that the victim is actually billed for an amount reimbursed. Section 61.38 sets forth the policy of not paying criminals. No comments were received regarding sec.sec.61.17, 61.19, 61.23-61.24, 61.26 and 61.37-61.38. There was one general comment received in support of all the rules. Comments on sec.61.2 included a request to add "physical medicine and rehabilitation" to the definition of "physical therapy" and to use the term "physicians" instead of "psychiatrists". Additionally, there were requests to include "D.O.'s" in the term "psychiatrist" and that clinical nurse specialists or "C.N.S.'s" be included as reimbursable providers. A comment on sec.61.6 was that this rule should not apply to child victims. A comment on sec.61.7 suggested that federal withholding for one person and Medicare taxes be deducted to calculate "net earnings". There was an additional comment in support of this rule. A comment on sec.61.10 was that the limit on funeral expenses was too low. Comments on sec.61.20 opposed the requirement that victims participate in the prosecution of the crime in cases of family violence where there is fear of retaliation. Comments on sec.61.21 included general opposition to the rule's effect of evaluating the victim, the concern that victims of family violence may not be eligible if they fight back, concern over the definition of "provoke," and concern over the definition of "reasonably avoid the incident." The request was to clarify the rules or exempt battered women from them. Comments on sec.61.25 and sec.61.27 requested that the attorney general make reference to other particular sections in order to clarify the meaning of the rules. A comment on sec.61.28 questioned the authority of the attorney general to establish such a rule and asked that the attorney general be more specific with regard to expenses not affected by the Medical Fee Guidelines. There was also a comment in support of this rule. It was requested that clinical nurse specialists or "C.N.S.'s" be included as providers who may be reimbursed for mental health counseling under sec.61.31 and that osteopathic doctors or "D.O.'s" be included in the list of providers who may admit patients for inpatient psychiatric care under sec.61.32. Comments on sec.61.31 and sec.61.32 also opposed the limits imposed for inpatient psychiatric care and mental health counseling. Comments on sec.61.35 requested that reference to rights of the victim under subsections (b) and (c) also be referred to in subsection (a); questioned the authority for allocation of the burden of proof; and requested that the victims be told that they may hire an attorney at their own expense. A comment on sec.61.36 was that this rule was duplicitous. The following groups and associations submitted comments against the rules: Mothers Against Drunk Driving (MADD),the Texas Osteopathic Medical Association, the Texas Medical Association, the Texas Council on Family Violence, the Texas Association of Licensed Children's Services, People Against Violent Crime, and the Texas Crime Victim Clearinghouse. The agency agrees with the requested changes to sec.61.2 and sec.sec.61.31- 61.32 to include osteopathic doctors and clinical nurse specialists. However, the agency disagrees with the request to include "physical medicine and rehabilitation" in the definition of "physical therapy." The definition as proposed tracks the language of the definition used by the Texas Worker's Compensation Commission. The agency could find no general accepted definition of the term "physical medicine". The agency agrees with the comment regarding filing of claims with respect to child victims; however, this is addressed in the statute under Article 56.37(c)(1) of the Texas Code of Criminal Procedure. The agency also agrees with the comment on sec.61.7 asking that Medicare taxes also be deducted from "net earnings". The agency agrees with the comments on sec.61.20 and sec.61.21, concerning their application to victims of family violence; however, in order to comply with the Federal Victims of Crime Act (VOCA), the agency must maintain rules regarding cooperation with law enforcement, a basic tenet of the federal and state compensation statutes. Likewise, in order to maintain the integrity of the fund, prevent unjust enrichment of offenders, and benefit, to the extent possible innocent victims of crime, the behavior of the victim at the time of the crime must be analyzed. The concerns voiced regarding these rules will be addressed through proper training of the Eligibility and Prehearing Units of the agency on the dynamics of family violence. The agency agrees with the comment that there should be a reference to sec.61.35(a)(1) in sec.61.25(b) in order to clarify the meaning of the rule. While the agency agrees with the comment on sec.61.27 regarding the anomaly of this rule, it is a rule previously adopted in 1992 which is, in the opinion of the agency, a policy rule protecting child victims. The agency does agree that the cite to the new codification should be more particular. The agency agrees with comments on sec.61.31 and sec.61.32 regarding the limits on services for counseling and inpatient psychiatric care; however, since the Crime Victims' Fund is limited, there must be some parameters. Since the agency has recently resumed 100% payments to victims for medical services, these limits may soon be revisited. The agency agrees with the comment on sec.61.35 requesting that the agency advise the victim or claimant in correspondence that they may retain counsel during the administrative hearing process at their own expense even though it is not necessary to do so. The agency disagrees with the comment that there is no statutory authority for the allocation of the burden of proof. The agency refers to Articles 56.41 and 56. 48 of the Texas Code of Criminal Procedure for authority. The agency disagrees with the comment on sec.61.36 regarding its duplicity. The agency proposed this rule in order to establish a time limit for submission of bills, which is not found in another rule or law. 1 TAC sec.sec.61.2, 61.6, 61.7, 61.10, 61.17, 61.19-21, 61. 23-28, 61.31, 61.32, 61.35-61.38 The amendments and new sections are adopted under the Crime Victims' Compensation Act, Texas Code of Criminal Procedure, Article 56.33, which provides the Office of the Attorney General with the authority to promulgate and adopt rules consistent with the Act governing its administration, including rules relating to the method of filing claims and the proof of entitlement to compensation. sec.61.6. Filing of Application. In determining the time period for the claimant's filing of an application, the chief will consider the one year to begin with the last known event which constituted the criminally injurious conduct for which the compensation is sought. For crimes or incidents occurring on or after September 1, 1985, the limitation period will not include that period of physical incapacity which reasonably prevented the claimant from filing an application for compensation according to the Act, Article 56.37. It is the claimant's responsibility to provide written, medically documented evidence of such physical incapacity. sec.61.7. Loss of Earnings. The chief shall determine an award for actual loss of earnings and the anticipated loss of future earnings as follows: (1) If the victim was employed at the time of the incident upon which the claim is based and incurred a disability as a direct result of the criminally injurious conduct that prevented the victim from working, the chief shall compute the actual loss of earnings by determining the weekly net earnings of the victim multiplied by the disability period. In this subsection, "disability period" means the length of time that a victim is unable to work as a direct result of the personal injury or emotional trauma caused by the crime, as determined by a physician. In this subsection, "net earnings" means gross earnings less federal withholding's tax, FICA tax and Medicare taxes. (2) If the victim was unemployed at the time of the incident upon which the claim is based and incurred a disability as a direct result of the criminally injurious conduct that caused an anticipated loss of future earnings, the chief shall compute the anticipated loss of future earnings based on a sufficient showing by the claimant that the victim would have had earnings had not the victim suffered a personal injury, emotional trauma or death as a direct result of criminally injurious conduct. The chief may consider any relevant information in determining "sufficient showing" including, but not limited to: whether the victim received an offer of employment and was unable to begin employment as a direct result of a disability caused by the crime. (3) In making the computations under subsections (a) and (b) of this section, the chief shall consider any collateral source, as defined in the Act, Article 56.32(3). (4) No award for actual loss of past earnings and anticipated loss of future earnings may exceed the limits prescribed in the Act, Article 56.42(a)(1)(A). sec.61.10. Limits on Services. In addition to the rates established under the Act, the following limits for the provision of services are deemed to be an amount reasonably incurred under the Act, Article 56.32(8) of the Act: (1) Ground ambulance transportation rates are limited to $250 for each ambulance response and transport. (2) Air ambulance transportation rates are limited to $1500 for each air ambulance response and transport. (3) Funeral and burial expenses are limited to $4,500. (4) The cost of non-prescription drugs or over the counter drugs is not a pecuniary loss under the Act. Under unusual fact and circumstance, the chief may authorize awards in excess of the limits contained in this rule. sec.61.31. Mental Health Counseling Expenses. Counseling expenses are limited to 40 sessions or an amount not to exceed $3,000 for psychiatrists, psychologists, licensed professional counselors, marriage and family therapists and certified social workers-advanced clinical practitioners. Fees and billing procedures per session are to be determined as established by the Office of the Attorney General. The chief may reimburse psychologists (Ph.D.) at the rate not to exceed the amount established in the Texas Workers' Compensation Medical Fee Guidelines for reimbursement to psychiatrists (M.D.) for comparable services. The chief may reimburse clinical nurse specialists (CNS in psychiatric care), licensed professional counselors (LPC), licensed masters in social work-advanced clinical practitioner (LMSW-ACP) and licensed marriage and family therapists (LMFT) at the rate of 60% of the amount established in the Texas Workers' Compensation Medical Fee Guidelines for reimbursement to psychiatrists for comparable services. In the event the Texas Workers' Compensation Medical Fee Guidelines include a reimbursement rate for psychologists (Ph.D.), clinical nurse specialists (CNS in psychiatric care), licensed professional counselors (LPC), licensed masters in social work-advanced clinical practitioner (LMSW-ACP) and licensed marriage and family therapists (LMFT), the chief may reimburse those practitioners at the rate established by the Texas Workers' Compensation Medical Fee Guidelines. Under unusual facts and circumstances, additional sessions may be allowed, but limited to those which are pre-authorized and approved in accordance with general standards of utilization review. 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 August 5, 1994. TRD-9446214 Jerry Benedict Assistant Attorney General Office of the Attorney General Effective date: August 26, 1994 Proposal publication date: March 15, 1994 For further information, please call: (512) 475-4292 1 TAC sec.sec.61.7, 61.10, 61.19-61.21, 61.23-61.26, 61.28 The repeals are adopted under the Crime Victims' Compensation Act, Texas Code of Criminal Procedure, Article 56.33, which provides the Office of the Attorney General with the authority to promulgate and adopt rules consistent with the Act governing its administration, including rules relating to the method of filing claims and the proof of entitlement to compensation. 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 August 5, 1994. TRD-9446215 Jerry Benedict Assistant Attorney General Office of the Attorney General Effective date: August 26, 1994 Proposal publication date: March 15, 1994 For further information, please call: (512) 475-4292 TITLE 10. COMMUNITY DEVELOPMENT Part V. Texas Department of Commerce Chapter 161. Rural Industrial Development Finance Plan Definitions 10 TAC sec.161.1. The Texas Department of Commerce adopts the repeal of sec.161.1 of the Rural Industrial Development Finance Plan rules, without changes to the proposed text as published in the June 17, 1994, issue of the Texas Register (19 TexReg 4671). The rule is being repealed to eliminate public confusion. There were no comments received concerning adoption of the repeal. The repeal is adopted under the authority of the Texas Government Code, sec.481.021(a)(1), which authorizes the Texas Department of Commerce to promulgate rules and the Administrative Procedure Act, Government Code, Chapter 2001, which prescribes the standards for agency rulemakings. 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 August 5, 1994. TRD-9446234 Deborah C. Kastrin Executive Director Texas Department of Commerce Effective date: August 29, 1994 Proposal publication date: June 17, 1994 For further information, please call: (512) 320-9401 General Procedures 10 TAC sec.sec.161.11-161.16 The Texas Department of Commerce adopts the repeal of sec. sec.161.11-161.16 of the Rural Industrial Development Finance Plan rules, without changes to the proposed text as published in the June 17, 1994, issue of the Texas Register (19 TexReg 4671). The rules are being repealed to eliminate public confusion. No comments were received regarding adoption of the repeals. The repeals are adopted under the authority of the Texas Government Code, sec.481.021(a)(1), which authorizes the Texas Department of Commerce to promulgate rules and the Administrative Procedure Act, Government Code, Chapter 2001, which prescribes the standards for agency rulemakings. 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 August 5, 1994. TRD-9446235 Deborah C. Kastrin Executive Director Texas Department of Commerce Effective date: August 29, 1994 Proposal publication date: June 17, 1994 For further information, please call: (512) 320-9401 Policy Declaration 10 TAC sec.161.31, sec.161.32 Texas Department of Commerce adopts the repeal of sec.161.31 and sec.161. 32 of the Rural Industrial Development Finance Plan rules, without changes to the proposed text as published in the June 17, 1994 issue of the Texas Register (19 TexReg 4671). The rules are being repealed to eliminate public confusion. comments were received regarding adoption of the repeals. repeals are adopted under the authority of the Texas Government Code, sec.481.021(a)(1), which authorizes the Texas Department of Commerce to promulgate rules and the Administrative Procedure Act, Government Code, Chapter 2001, which prescribes the standards for agency rulemakings. 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 August 5, 1994. TRD-9446236 Deborah C. Kastrin Executive Director Texas Department of Commerce Effective date: August 29, 1994 Proposal publication date: June 17, 1994 For further information, please call: (512) 320-9401 Loan Assistance 10 TAC sec.sec.161.41-161.43 The Texas Department of Commerce adopts the repeal of sec. sec.161.41-161.43 of the Rural Industrial Development Finance Plan rules, without changes to the proposed text as published in the June 17, 1994, issue of the Texas Register (19 TexReg 4671). The rules are being repealed to eliminate public confusion. No comments were received regarding adoption of the repeals. The repeals are adopted under the authority of the Texas Government Code, sec.481.021(a)(1), which authorizes the Texas Department of Commerce to promulgate rules and the Administrative Procedure Act, Government Code, Chapter 2001, which prescribes the standards for agency rulemakings. 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 August 5, 1994. TRD-9446237 Deborah C. Kastrin Executive Director Texas Department of Commerce Effective date: August 29, 1994 Proposal publication date: June 17, 1994 For further information, please call: (512) 320-9401 Application to the Commission 10 TAC sec.sec.161.51-161.56 The Texas Department of Commerce adopts the repeal of sec. sec.161.51-161.56 of the Rural Industrial Development Finance Plan rules, without changes to the proposed text as published in the June 17, 1994, issue of the Texas Register (19 TexReg 4671). The rules are being repealed to eliminate public confusion. No comments were received regarding adoption of the repeals. The repeals are adopted under the authority of the Texas Government Code, sec.481.021(a)(1), which authorizes the Texas Department of Commerce to promulgate rules and the Administrative Procedure Act, Government Code, Chapter 2001, which prescribes the standards for agency rulemakings. 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 August 5, 1994. TRD-9446238 Deborah C. Kastrin Executive Director Texas Department of Commerce Effective date: August 29, 1994 Proposal publication date: June 17, 1994 For further information, please call: (512) 320-9401 Formal Action by the Commission 10 TAC sec.161.71, sec.161.72 The Texas Department of Commerce adopts the repeal of sec.161.71 and sec.161.72 of the Rural Industrial Development Finance Plan rules, without changes to the proposed text as published in the June 17, 1994, issue of the Texas Register (19 TexReg 4671). The rules are being repealed to eliminate public confusion. No comments were received regarding adoption of the repeals. The repeals are adopted under the authority of the Texas Government Code, sec.481.021(a)(1), which authorizes the Texas Department of Commerce to promulgate rules and the Administrative Procedure Act, Government Code, Chapter 2001, which prescribes the standards for agency rulemakings. 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 August 5, 1994. TRD-9446239 Deborah C. Kastrin Executive Director Texas Department of Commerce Effective date: August 29, 1994 Proposal publication date: June 17, 1994 For further information, please call: (512) 320-9401 Legal and Fiscal Document Prerequisites to the Releasing of State Funds Where Loan Assistance is Sought 10 TAC sec.161.81 The Texas Department of Commerce adopts the repeal of sec.161.81 of the Rural Industrial Development Finance Plan rules, without changes to the proposed text as published in the June 17, 1994, issue of the Texas Register (19 TexReg 4671). The rule is being repealed to eliminate public confusion. No comments were received regarding adoption of the repeal. The repeal is adopted under the authority of the Texas Government Code, sec.481.021(a)(1), which authorizes the Texas Department of Commerce to promulgate rules and the Administrative Procedure Act, Government Code, Chapter 2001, which prescribes the standards for agency rulemakings. 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 August 5, 1994. TRD-9446240 Deborah C. Kastrin Executive Director Texas Department of Commerce Effective date: August 29, 1994 Proposal publication date: June 17, 1994 For further information, please call: (512) 320-9401 Instruments Needed for Closing 10 TAC sec.161.91 The Texas Department of Commerce adopts the repeal of sec.161.91 of the Rural Industrial Development Finance Plan rules, without changes to the proposed text as published in the June 21, 1994, issue of the Texas Register (19 TexReg 4799). The rule is being repealed to eliminate public confusion. No comments were received regarding adoption of the repeal. The repeal is adopted under the authority of the Texas Government Code, sec.481.021(a)(1), which authorizes the Texas Department of Commerce to promulgate rules and the Administrative Procedure Act, Government Code, Chapter 2001, which prescribes the standards for agency rulemakings. 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 August 5, 1994. TRD-9446241 Deborah C. Kastrin Executive Director Texas Department of Commerce Effective date: August 29, 1994 Proposal publication date: June 21, 1994 For further information, please call: (512) 320-9401 General Information 10 TAC sec.161.101, sec.161.102 The Texas Department of Commerce adopts the repeal of sec.161.101 and sec.161.102 of the Rural Industrial Development Finance Plan rules, without changes to the proposed text as published in the June 17, 1994, issue of the Texas Register (19 TexReg 4671). The rules are being repealed to eliminate public confusion. No comments were received regarding adoption of the repeals. The repeals are adopted under the authority of the Texas Government Code, sec.481.021(a)(1), which authorizes the Texas Department of Commerce to promulgate rules and the Administrative Procedure Act, Government Code, Chapter 2001, which prescribes the standards for agency rulemakings. 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 August 5, 1994. TRD-9446242 Deborah C. Kastrin Executive Director Texas Department of Commerce Effective date: August 29, 1994 Proposal publication date: June 17, 1994 For further information, please call: (512) 320-9401 Chapter 179. Texas Rental Rehabilitation Program Subchapter A. Contract Administration 10 TAC sec.179.1 The Texas Department of Commerce adopts the repeal of sec.179.1 of the Texas Rental Rehabilitation Program rules, without changes to the proposed text as published in the June 17, 1994, issue of the Texas Register (19 TexReg 4673). No comments were received regarding adoption of the repeal. The repeal is adopted under the authority of sec.481.021(a)(1) of the Texas Government Code, which authorizes the Texas Department of Commerce to promulgate rules and the Administrative Procedure Act, Texas Government Code, Chapter 2001, which prescribes the standards for agency rulemakings. This agency hereby certifies that the repeal 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 August 5, 1994. TRD-9446243 Deborah C. Kastrin Executive Director Texas Department of Commerce Effective date: August 29, 1994 Proposal publication date: June 17, 1993 For further information, please call: (512) 320-9401 Chapter 186. Smart Jobs Fund Program Subchapter A. General Provisions 10 TAC sec.186.104 The Texas Department of Commerce adopts an amendment to sec.186.104 of the Smart Jobs Fund Program rules, without changes to the proposed text as published in the June 17, 1994, issue of the Texas Register (19 TexReg 4673). No comments were received regarding adoption of the rule. Section 186.104, Definitions, sets forth the definitions of terms applicable to the Smart Jobs Fund Program. Section 186.104(1) adds to the terms a definition of "authorized employer". Section 186.104(2), (4), (9), (12) , (15), (16), (19), (23) and (25) have been amended to clarify and simplify the definitions. Section 186.104(7), (10), (13) and have been deleted, because they are unnecessary to the Program's administration. The amendment is adopted under the authority of Texas Government Code, sec.481.153, and the Administrative Procedure Act, Texas Government Code, Chapter 2001, which prescribes the standards for agency rulemakings. 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 August 5, 1994. TRD-9446244 Deborah C. Kastrin Executive Director Texas Department of Commerce Effective date: August 29, 1994 Proposal publication date: June 17, 1994 For further information, please call: (512) 320-9401 Subchapter B. Methodologies for Determining Certain Variables 10 TAC sec.186.201 The Texas Department of Commerce adopts an amendment to sec.186.201 of the Smart Jobs Fund Program rules, without changes to the proposed text as published in the June 17, 1994, issue of the Texas Register (19 TexReg 4673). Section 186.201, Methodologies for Determining Certain Variables, is amended to include additional information for employers in the application packets and to clarify meaning. No comments were received regarding adoption of the rule. The amendment is adopted under the authority of the Texas Government Code, sec.481.153, and the Administrative Procedure Act, the Texas Government Code, Chapter 2001, which prescribes the standards for agency rulemakings. 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 August 5, 1994. TRD-9446245 Deborah C. Kastrin Executive Director Texas Department of Commerce Effective date: August 29, 1994 Proposal publication date: June 17, 1994 For further information, please call: (512) 320-9401 10 TAC sec.186.204 The Texas Department of Commerce adopts the repeal of sec.186.204 of the Smart Jobs Fund Program rules, without changes to the proposed text as published in the June 21, 1994, issue of the Texas Register (19 TexReg 4799). The repeal is adopted because the definition at sec.186.204 of the rules is unnecessary to the administration of the Program. No comments were received regarding adoption of the repeal. The repeal is adopted under the authority of the Texas Government Code, sec.481.153, and Administrative Procedure Act, the Texas Government Code, Chapter 2001, which prescribes the standards for agency rulemakings. 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 August 5, 1994. TRD-9446246 Deborah C. Kastrin Executive Director Texas Department of Commerce Effective date: August 29, 1994 Proposal publication date: June 21, 1994 For further information, please call: (512) 320-9401 Subchapter C. Application for Grants 10 TAC sec.sec.186.302, 186.306-186.308 The Texas Department of Commerce adopts amendments to sec. sec.186.302 and 186. 306-186.308 of the Smart Jobs Fund Program rules, without changes to the proposed text as published in the June 17, 1994, issue of the Texas Register (19 TexReg 4675). Section 186.302(d)(5), Application Requirements, has been deleted because the information is already provided in the application form. Section 186.302(6) and (7) have been clarified and now provide additional information on reporting trainee ethnicity which the Texas Department of Commerce must report to the Legislature. Section 186.302(f)(1) limits all travel costs to state government in-state rates in order to limit the amount of money that is spent on travel costs. It also clarifies that the executive director has the authority to determine additional reasonable direct-related traianing costs. Section 186.302(f)(3) clarifies the limit on administrative costs for grants. Section 186.302(f)(4) clarifies the need for information when requesting a waiver on matching costs. Section 186.302(g)(3) and (5) have been modified to streamline application processing time. Section 186.306(d) is added to provide that the executive director shall attempt to insure that projects which have an international impact receive priority treatment. Section 186.307 has been clarified and modified to include employers new to Texas as eligible providers. Upon the recommendation of Texas Department of Commerce staff, slight changes to the wording of the rule have been made in order to positively state the change. Thus, the adopted wording of the rule provides that employers new to Texas may provide training to their own employees with grant funds. Section 186.308(a) is now consistent with the new definition of authorized employer's representative and clarifies the contract execution process, including the reduction of the required number of original contracts from four to two. Comments were received from the Texas Association of Community Colleges. No changes are being made to the rules as a result of the comments below; however, two nonsubstantive changes recommended by Texas Department of Commerce staff for clarification. The Texas Association of Community Colleges requested that the Texas Department of Commerce publish guidelines for applicants based on the implementation history for the first years of the Smart Jobs Fund Program. Guidelines are available in the application packets. A report summarizing the allocations made during the first year of the Program is being prepared and will be made available to requestors and to Smart Jobs Fund Program applicants. No change to the rules is necessary to accommodate the Association's request. Staff of the Texas Department of Commerce has recommended, and the Policy Board of the Texas Department of Commerce, has agreed that the clarification proposed to 186.302(f)(3) may create confusion, rather than clarify, the existing rule. The rule as adopted, therefore, deletes the proposed modification to sec.186.302(f)(3) which had provided that administrative costs can only be ten percent of direct costs incurred by training projects. Thus, sec.186.302(f)(3) of the rules shall remain as it was prior to publication of the proposed rules. The Texas Association of Community Colleges requested that the application packets provided to applicants under sec.186.302(g)(2) include examples of a model application; identify "targeted industries" and "demand occupations" which were funded the first year of the Program; and publish the regional variance of "State Average Weekly Wage " and the variance adjustments as soon as wage data are determined each September. An application packet is being prepared to assist companies in accessing the Program. It will include examples and information regarding the first Program year's information; the regional variances in the "State Average Weekly Wage"; and the salary requirements for 1995. No change to the rules is necessary to accommodate the Association's request. The Texas Association of Community Colleges requested that the Texas Department of Commerce add a short "pre-application process" or "letter of intent" so that applicants may determine earlier in the process whether to continue the application process. The Texas Department of Commerce believes that the change is unnecessary, because sec.186.302(g)(3) of the rules already requires that the applicant be notified of whether the application is complete within ten business days after an application is received by the Texas Department of Commerce. The Texas Association of Community Colleges suggested that sec.186.307, Provider Eligibility, of the Smart Jobs Fund Program rules include criteria that, if met, would demonstrate a provider's qualifications to furnish job- related occupational or basic skills training such that some type of independent, third-party approval, such as accreditation or state, regional or national approval would be necessary. The Texas Department of Commerce disagrees with the suggested change and declines to adopt it. The Smart Jobs Fund Program is "employer driven". It is intended to allow the employer to select the training provider that the employer believes will best meet its training needs and budget. Formal third-party approval would take away from the employers' ability to select the training providers that best meet their needs. Accreditation information is available to the public and may be obtained and utilized by the employers in selecting training providers. The Texas Department of Commerce disagrees with the recommendation of the Texas Association of Community Colleges that a training evaluation provision be added, presumably to the requirements of sec.186.308. The evaluation of training under this "employer driven" program is the responsibility of the employer. The Texas Association of Community Colleges suggested that a standing advisory group of employers and providers be formed to advise the Texas Department of Commerce on the Smart Jobs Fund Program. A formal advisory group would create unnecessary work and expense for the Texas Department of Commerce. The advice and opinions of employers, providers and other members of the public, however, is always welcome. The final comment of the Texas Association of Community Colleges was that the application process be kept simple in order to encourage small businesses to apply. The Texas Department of Commerce agrees that the application process should be kept simple. It has endeavored to keep the process simple and short, as required by sec.481.156(3)(d) of the Smart Jobs Fund Program Act. The Texas Department of Commerce, which anticipates continued improvement to the application process, is satisfied with the results from the Program's first year, which indicate substantial participation in the Program by small and historically underutilized businesses. The amended sections are adopted under the authority of the Texas Government Code, sec.481.153, and the Administrative Procedure Act, the Texas Government Code, Chapter 2001 which prescribe the standards for agency rulemakings. sec.186.302. Application Requirements. (a)-(c) (No change.) (d) Business and Training Plan. Grant funds awarded hereunder shall pay for job-related occupational skills training and job-related basic skills training that enhance the employer's ability to carry out its business plan. An approved business and training plan will become part of any contract or subcontract for grant funds awarded. The business and training plan will specify a project start date and a project end date. Each business and training plan must contain the information required by the Smart Jobs Fund Program, sec.481.156(b). Each business and training plan shall also: (1)-(4) (No change.) (5) specify the projected cost per person enrolled, trained, hired, and retained in employment. This is based on dividing the total Smart Jobs Fund grant amount by the number of trainees; (6) specify the number and kind of jobs related to the project training that are available at the start of the project, and that will be available at the end of the project; and the wages to be paid to trainees on successful completion of the project. For existing jobs, state the beginning and ending wages; and (7) specify the geographic location of all training to be provided with grant funds. All trainee travel will be specified in the proposed budget. All trainee travel outside the geographic location in which the employer is located and all trainee travel to locations outside of Texas will be at the discretion of the executive director as specified in the contract. No trainee travel will be reimbursed from grant funds for any purpose other than training as specified in the employer's business and training plan. (e) The application shall include the following information: (1) whether the employer is a small business as defined by the Texas Government Code, sec.481.101(3); (2) whether the employer is a woman or minority group member, and if so, to which minority group the employer belongs; and (3) whether the trainees are women or minority group members, and if so, to which minority groups the trainees belong. (f) Budget. Each application shall include a budget consistent with the requirements of the Smart Jobs Fund Program and these rules. The budget shall include three parts: (1) specification of direct training-related costs; (2) specification of administrative costs; (3) specification of matching contributions. An approved budget will become part of any contract or subcontract for grant funds awarded hereunder. (A) Direct training-related costs may include: tuition; fees; books and classroom materials; instructor wages and salaries and reasonable benefits if the instructor is not an employee of a public education institution if grant funds are paying tuition and fees; instructor travel and per diem and trainee travel outside the employer's specified region of the state as approved by the executive director with per diem expenses not to exceed the State of Texas in- state allowable rates; reasonable equipment lease or rental costs during the term of the project; reasonable costs of pre- and post-training participant assessment, including recruiting and identifying trainees; costs of purchasing approved curricula specified in the applicant's business and training plan if they are not already a course offering at a convenient public education institution for which the grant is paying tuition and fees; costs of job analysis, task analysis, curriculum design, and job development as defined by the Department; wages, salaries, and reasonable benefits of instructional aides and trainees' counselors if such personnel are not employees of a public education institution if grant funds are paying tuition and fees; and such other reasonable direct training-related costs as may be appropriate as determined by the executive director. Such costs may include reasonable childcare expenses (except for existing employees who participate in training during normal working hours) in cases approved by the executive director and the costs associated with supporting dependent care expenses of trainees undergoing training in an approved curricula with a term of six months to two years. These costs may include reasonable childcare expenses and trainees' public transportation expenses (excluding taxi cab fares) related to training. In considering whether to include reasonable childcare and transportation expenses, the executive director will consider the ability of the employer to provide matching funds to be used for such expenses and the accessibility of other public and private funds to be used for such expenses. Continued payments of such expenses is contingent on the employer's satisfaction with the participant's progress during training. (B) Reimbursement for direct training-related costs will not include the lease, rental, purchase, or construction of facilities, the purchase of capital equipment, salaries, wages, or benefits paid to personnel assigned to manage or report on the project or the contract agreement. (C) Administrative costs may include the lease or rental of facilities excepting those facilities belonging to public education institutions where the curriculum specified in the business and training plan will be provided and for which the grant is paying tuition and fees; salaries, wages, and reasonable benefits paid to personnel assigned to manage or report on the project or the contract agreement; and such other reasonable expenses not included in direct training-related costs as are necessary to the successful completion of the project. (D) Employers with fewer than 50 employees receiving a grant must provide a matching amount of private funds in an amount at least equal to 10% of the total project cost. Projects that provide significant economic benefits to an entire region of the state may have all matching requirements waived at the discretion of the executive director. Such projects must provide information describing the region to which benefits will accrue and projected economic information which may include other relevant macroeconomic and microeconomic data that shows positive effects on the region's average weekly wage, tax base, employment rates, family income, purchasing power, expenditures on unemployment insurance, Aid to Families with Dependent Children, Medicaid, and other public assistance, and the availability of job openings in demand occupations. Employers may meet matching requirements by providing in-kind contributions. Documentation for in- kind contributions which are submitted as part of the employer's match must specify the dollar value of facilities, equipment, personnel, and consumable supplies contributed to the project. New equipment will be valued at cost. Existing equipment and facilities will be valued on a pro rata basis for the time used for training consistent with the United States Internal Revenue Service depreciation schedules for such assets based on data provided by the employer. Personnel contributions will be valued on a pro rata basis for the time spent on the project. In-kind contributions may not include the value of facilities, equipment, or personnel existing in public education institutions where such resources already are available to the employer as part of the institution's course offerings and for which the grant is paying tuition and fees. In-kind contributions may match either direct training-related costs or administrative costs. The sum of such contributions will be used to determine the total matching costs required for any grant awarded. (E) The Smart Jobs Fund shall not pay for the costs of preparing an application nor shall it reimburse an applicant or any employer for retroactive training costs incurred prior to the start date of the contract. (g) Application Process and Timeline: (1)-(2) (No change.) (3) Within ten business days after receiving an application, the Department shall notify the applicant whether the application is complete. If the application is incomplete, the Department shall specify in a letter the additional information required to complete the application. With this notification to the applicant, the Department shall identify a contact person on its staff who is available to assist the applicant in completing the application. (4) (No change.) sec.186.307. Provider Eligibility. Providers shall be required to demonstrate to the Department with certification that they have been in business for at least one year and that during that one-year period they have met the definition of "existing employer" as set forth in the definitions to the Smart Jobs Fund program. Employers new to Texas may provide training to their own employees with grant funds. 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 August 5, 1994. TRD-9446247 Deborah C. Kastrin Executive Director Texas Department of Commerce Effective date: August 29, 1994 Proposal publication date: June 17, 1994 For further information, please call: (512) 320-9401 Chapter 192. Open Records Charges 10 TAC sec.sec.192.1-192.7 The Texas Department of Commerce adopts new sec.sec.192.1-192.7, concerning open records charges, without changes to the proposed text as published in the June 17, 1994, issue of the Texas Register (19 TexReg 4676). Section 192.1, General Provisions, contains an introduction to the necessity for the rules and definitions applicable to the rules. Section 192.2, Charges for Providing Copies of Public Information, sets forth the charges which may be applicable to an open records request. Section 192.3, Access to Information Where Copies Are Not Requested, provides that no charge will be made for providing standard-size information for inspection so long as the information does not exceed 50 pages. It provides that personnel charges may be made for providing access to information in excess of 50 pages and for providing access to non-standard size information if such information is not readily available. Section 192.4, Format for Copies of Public Information, provides that, to the extent possible, requested information will be provided in the format in which it is requested. Section 192.5, Estimates and Waivers of Public Information Charges provides that the staff of the Texas Department of Commerce will attempt to provide estimates of the time involved in responding to an open records request when it appears that compiling the information will be time-consuming. It also provides that the information request will be filled as efficiently as possible to minimize the cost to the requestor. Section 192.5 also provides that full disclosure of the calculation of the costs of the open records request will be made to the requestor. It also allows the Texas Department of Commerce to provide copies at reduced or no cost when it is in the public interest to do so. The rules provide that the Texas Department of Commerce will not charge for the first set of copies provided to the same requestor within a 30-day period which do not exceed 25 standard size pages in length. Section 192.5 enables the Texas Department of Commerce to require a deposit in the amount of estimated charges from a requestor if the cost of filling the request is estimated to exceed $100. Section 192.6, Requests for Public Records, provides the agency address to which the public may direct requests for copies of public records. Section 192. 7, Charge Schedule, summarizes the charges which will be made by the Texas Department of Commerce for providing copies of public records. No comments were received regarding adoption of the rules. The new rules are adopted under the authority of the Texas Government Code, sec.481.021(a)(1), which gives the Texas Department of Commerce the authority to adopt rules to carry out its responsibilities; Chapter 428, Acts, 73rd Legislature (1993), which requires the adoption of rules on open records charges; and the Texas Government Code, Chapter 2001, which prescribes the standards for agency rulemaking. The rules are adopted in order to comply with the statutory requirement that agencies have rules setting forth their open records charges and to apprise the public of the charges the Texas Department of Commerce will assess for filling open records requests. 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 August 5, 1994. TRD-9446233 Deborah C. Kastrin Executive Director Texas Department of Commerce Effective date: August 29, 1994 Proposal publication date: June 17, 1994 For further information, please call: (512) 320-9401 TITLE 16. ECONOMIC REGULATION Part I. Railroad Commission of Texas Chapter 20. Administration Subchapter A. Contracts and Purchases 16 TAC sec.20.1 The Railroad Commission of Texas adopts new sec.20.1 concerning vendor protest procedures without changes to the proposed text as published in the June 21, 1994, issue of the Texas Register (19 TexReg 4805). New sec.20.1 establishes a procedure to handle protests about the solicitation or award of a contract by the commission. New sec.20.1 defines the procedures by which these protests may be filed with the commission, and the manner in which they will be resolved. No comments were received regarding adoption of the new section. New sec.20.1 is adopted under Texas Civil Statutes, Article 6447, which authorize the commission to make all rules necessary for its government and proceedings; and under Texas Civil Statutes, Article 601b, sec.3.06(b), which require an agency to comply with State Purchasing and General Services Commission procedures regarding competitive bidding. The State Purchasing and General Services Commission Procedures Manual sec.5, requires an agency acting under the delegation of authority to establish and maintain procedures to handle protests regarding vendor selection actions. 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 August 8, 1994. TRD-9446300 Mary Ross McDonald Assistant Director, Legal Division, Gas Utilities/LP Gas Railroad Commission of Texas Effective date: August 29, 1994 Proposal publication date: June 21, 1994 For further information, please call: (512) 463-6717 TITLE 19. EDUCATION Part I. Texas Higher Education Coordinating Board Chapter 1. Agency Administration Subchapter A. General Provisions 19 TAC sec.1.9 The Texas Higher Education Coordinating Board adopts new sec.1.9 concerning Training for Members of Governing Boards and Board Trustees, without changes to the proposed text as published in the March 15, 1994, issue of the Texas Register (19 TexReg 1729). The Texas Education Code, sec.61.083, directs the Coordinating Board to establish, by rule, a training program for members of the governing boards of Texas public universities and boards of trustees for Texas community and technical colleges. Each member of the governing boards and boards of trustees will be required to attend one two-day seminar that will focus on the official role and duties of the members of the boards development, and governance as specified in the Texas Education Code, sec.61.083(d). Members of the governing boards and boards of trustees will be educated in the areas of budgeting, policy development, and governance. No comments were received regarding adoption of the amendments. The amendments are adopted under the Texas Education Code, sec.61.083, which provides the Texas Higher Education Coordinating Board with the authority to adopt rules concerning Training for Members of Governing Boards and Board Trustees. 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 August 9, 1994. TRD-9446322 James McWhorter Assistant Commissioner for Administration Texas Higher Education Coordinating Board Effective date: August 30, 1994 Proposal publication date: March 15, 1994 For further information, please call: (512) 483-6160 Subchapter K. Private and Out-of-State Public Degree-Granting Institutions Operating in Texas Chapter 5. Program Development 19 TAC sec.sec.5.211, 5.212, 5.213, 5.220, 5.221 The Higher Education Coordinating Board adopts amendments to sec.sec.5.211, 5.212, 5.213, 5.220, and 5.221 without changes to the proposed text as published in the March 15, 1994, issue of the Texas Register (19 TexReg 1729). The proposed amendments are necessary to clarify the Board's authority and its procedures for issuing certificates of authorization to otherwise exempt (Accredited) institutions that wish to have that recognition. The majority of the proposed changes are made to conform to changes of terminology made by the 73rd Texas Legislature. The effect of the change will be to incorporate statutory changes in Coordinating Board rules and to make the changes and clarifications available to all interested parties who use the rules. Enforcing the proposed rule will improve the Coordinating Board's effectiveness in protecting the public from fraudulent or substandard degrees as required by the Texas Education Code, Chapter 61, sec.61.301. One comment was received expressing concern that the amendments might have some adverse effect on the members of that organization. The comment received from the Texas Association of Private Schools was against the rule however, Coordinating Board staff met with the agency to answer questions and dispel any concerns about the impact, if any, on the Texas Association of Private Schools (TAPS) membership. All questions were answered to the satisfaction of the TAPS representatives and on June 9, 1994, the Coordinating Board was notified that there concerns were effectively covered. As a result of the dialogue with the TAPS board, no changes needed to be made in the proposed rules. The amendments are adopted under Texas Education Code, Chapter 61, Subchapter G, which provides the Texas Higher Education Coordinating Board with the authority to adopt rules concerning Private and Out-of-State Public Degree- Granting Institutions Operating in Texas. 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 August 9, 1994. TRD-9446323 James McWhorter Assistant Commissioner for Administration Texas Higher Education Coordinating Board Effective date: August 30, 1994 Proposal publication date: March 15, 1994 For further information, please call: (512) 483-6160 Chapter 21. Student Services Subchapter E. Tuition Equalization Grants Program 19 TAC sec.21.125 The Texas Higher Education Coordinating Board adopts an amendment to sec.21.125 concerning the Tuition Equalization Grants Program, without changes to the proposed text as published in the June 3, 1994, issue of the Texas Register (19 TxReg 4305). The amendment proposed is for the purpose of limiting the number of remedial or developmental courses a grant recipient would be allowed to take and retain eligibility for a grant. The change was suggested as a way to ensure that persons unprepared for college-level work would have a limited period of time for improving their skills to college level. The amendment will allow persons admitted to college with inadequate academic preparation to take up to the equivalent of one academic year of remedial work without losing eligibility for a grant. Remedial work in excess of the equivalent of one academic year would result in loss of eligibility for a grant. No comments were received regarding the adoption of the amendment. The amendment is proposed under the Texas Education Code, sec.61.229, which provides the Texas Higher Education Coordinating Board with the authority to adopt rules concerning the Tuition Equalization Grant Program. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on August 9, 1994. TRD-9446325 James McWhorter Assistant Commissioner for Administration Texas Higher Education Coordinating Board Effective date: August 30, 1994 Proposal publication date: June 3, 1994 For further information, please call: (512) 483-6160 TITLE 28. INSURANCE Part II. Texas Workers' Compensation Commission Chapter 133. General Medical Provisions 28 TAC sec.sec.133.200-133.205 The Texas Workers' Compensation Commission adopts the repeal of sec.sec.133. 200-133.205, concerning the spinal surgery second opinion process. The proposed repeals were published in the June 21, 1994, issue of the Texas Register (19 TexReg 4811). The repeals are being adopted in order to delete existing rules that are being replaced by one new sec.133.206, entitled Spinal Surgery Second Opinion Process. The adoption of this new rule has been submitted for simultaneous publication in this issue of the Texas Register. The repeals allow for the adoption of new sec.133.206, which carries out the commission's statutory duty to draft rules to assure that second opinions are rendered without undue delay and that liability for non-emergency spinal surgery is determined timely. This duty is placed on the commission by the Texas Labor Code, sec.408.026. The processes the new rule establishes will allow determination of the insurance carrier's liability for any spinal surgery that is recommended as a non-emergency procedure by the treating doctor, with procedures to resolve any dispute. The deadlines the new rule establishes for various responses and examinations are necessary to meet the statutory requirement that the commission adopt a rule to require that second opinions be rendered without undue delay. No comments were received regarding the repeal of these rules. The repeals are adopted under the Texas Labor Code, sec.402.061, which authorizes the commission to adopt rules necessary to administer the Act, and the Texas Labor Code, sec.408.026, which requires the commission to adopt rules as necessary to assure that the second opinion examination is obtained without undue delay and that liability is determined timely. 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 August 10, 1994. TRD-9446391 Susan Cory General Counsel Texas Workers' Compensation Commission Effective date: November 1, 1994 Proposal publication date: June 21, 1994 For further information, please call: (512) 440-3700 28 TAC sec.133.206 The Texas Workers' Compensation Commission adopts new sec.133.206, concerning the spinal surgery second opinion process, with changes to the proposed as text as published in the April 26, 1994, issue of the Texas Register (19 TexReg 2467). The changes were made in response to public comment received and commission review, and are described in this preamble and in the commission's responses to comments received. In addition, the commission has made two changes for clarification: (c)(3) and (j)(1). Subsection (j)(1) is revised to require the division to give notice of receipt of a narrative report rather than provide a copy of the report. This will expedite payment for second opinion examinations by allowing the division to more timely notify carriers of receipt of the narrative. Subsection (c)(3) is revised so doctors will be within 75 miles of the employee's residence rather than the residence at the time of injury. The last sentence in subsection (k) (3), "The carrier is entitled to be a party in any such proceeding", has been deleted because carriers are entitled to be parties to benefit contested case hearings, so there is no need to explicitly state it in the rule. The first sentence in (k)(3) has been reworded to make it clear that: the ten-day timeframe in which an appeal must be filed starts after receipt of notice from the commission regarding carrier liability for spinal surgery. Language was added to subsection (a)(13) that gives examples of what is meant by "proposed spinal area." Subsection (c)(4) was reworded to reflect that a doctor may be removed from the Spinal Surgeon Approved Doctor List (the List) "for just cause," in compliance with the procedures listed in the rule. Language was added to subsections (c)(4)(B), (c)(6), (c)(11), and (d)(4) to reflect that requirements regarding removal of a doctor from the List, reinstatement to the List, and orders issued by the commission for timely submission include all reports, records, and forms required by the rule to be filed by any doctor, not only those required by a second opinion doctor. In subsection (c)(8), the word "commission" was changed to "commissioners." The fourth line of subsection (c)(10) was changed from "After receipt, the doctor shall inform injured employees..." to "After receipt, the second opinion doctor shall inform injured employees..." Language was also added to (c)(10) to reflect that a treating doctor and surgeon must inform injured employees of the doctor's suspension from the List, and that insurance carriers will not be liable for costs of spinal surgery for which the Form TWCC-63 is filed while that doctor is suspended from the List. Subsection (d)(1)(B) was revised to remove from the second opinion doctor qualifications the requirement that the second opinion doctor be of the same specialty as the surgeon recommending spinal surgery. The revision leaves the requirement that he or she be a spinal surgeon with specialty training in spine surgery. A new paragraph (1) was added to subsection (i) that requires a second opinion doctor to provide second 30-day timeframes set out in the rule. Paragraphs (i)(1)-(4) in the proposal have been subsequently renumbered as (i) (2)-(5). A new subsection (m) has been added that describes the effective period of the rule as being from November 1, 1994, until January 1, 1996, and stipulates that the rule will be effective for initial Form TWCC-63's filed on or after November 1, 1994. Grammatical changes were made throughout the rule for clarity. The Texas Workers' Compensation Act (the Act) provides that a carrier is liable for spinal surgery if the surgery is an emergency procedure, if the commission orders the carrier to pay, if the insurance carrier waives or fails to timely request the right to obtain a second opinion, or if the second opinion by a doctor approved by the carrier or the commission concurs with the need for surgery. The rule sets out the circumstances under which a carrier is liable for spinal surgery costs and the costs which are included in a carrier's liability. The Act further requires the commission to adopt rules to assure that the second opinion examination is performed without undue delay. This rule is designed to determine liability for spinal surgery costs in a manner which provides for objective and timely second opinions and an appropriate appeals process. The rule sets out the responsibilities of the carrier, treating doctor, surgeon, injured employee, second opinion doctors, and the commission when spinal surgery is recommended as a non-emergency procedure. These include time deadlines, recordkeeping, and reporting requirements. The rule describes the process by which a carrier becomes liable for the costs of spinal surgery, including processes for: submission of the treating doctor or surgeon's recommendation of spinal surgery; notification of the carrier; carrier waiver or request for second opinion; employee request for a doctor to issue a second opinion; required qualifications for a doctor to issue a second opinion; selection of second opinion doctors; setting the second opinion appointments; reporting the second opinions; payment for the costs of the second opinions; appealing from second opinion(s); presumptions on appeal; and resubmission of a spinal surgery recommendation. The rule sets out procedures and liability for costs of a second-opinion exam, and sets the fee for second opinions. The rule defines what constitutes a concurrence, including that there must be agreement that surgery is needed in the same spinal area as proposed by the surgeon (e.g. cervical, thoracic, lumbar, or adjacent levels of different areas of the spine). The rule sets qualifications for doctors to perform second opinions on spinal surgery and requires the commission to maintain a list of spinal surgeons and to provide sublists of five qualified doctors from which a second opinion doctor may be chosen by the injured employee and the carrier. Also included is the medical review division's authority to issue orders requiring timely submission of doctors' reports, to refer for administrative violation a doctor who fails to comply with the rule or an order, and to refer a doctor to the commissioners for removal from the Approved Doctor List. A doctor must be on the spinal surgeon list to be reimbursed by the carrier for spinal surgery. The rule sets out actions which may result in division action to suspend or commission action to remove a doctor from the spinal surgeon list. This rule is required to carry out the commission's statutory duty to draft rules to assure that second opinions are rendered without undue delay and that liability for non-emergency spinal surgery is determined timely. This duty is placed on the commission by the Texas Labor Code, sec.408.026. The processes this rule establishes will allow determination of the insurance carrier's liability for any spinal surgery that is recommended as a non-emergency procedure by the treating doctor, with procedures to resolve any dispute. The deadlines this rule establishes for various responses and examinations are necessary to allow the commission to meet the statutory requirement that the commission adopt a rule to require that second opinions be rendered without undue delay. The rule as adopted improves the care of patients by increasing the objectivity of second opinions and eliminating the delays in the current process. Comments on the proposed new rule were received from the Texas Association of Business; Hammerman and Gainer; the Texas Workers' Compensation Insurance Fund; KSF Orthopaedic Center; Southwest Neurosurgical Associates, P.A.; Garland Orthopedic Clinic; the American Insurance Association; South Texas Orthopedic and Spinal Surgery Associates, P.A.; the Texas Orthopedic Association (T-Bones); the Texas Chiropractic Association; Williams Insulation Co. of Austin, Inc.; and an individual. A public hearing on the proposed rule was held on June 8, 1994. Members of the public who spoke at the hearing include: individuals representing the Texas Chiropractic Association; Hammerman & Gainer; the Texas Association of Business; the American Insurance Association; the Texas Workers' Compensation Fund; and the Texas Orthopedic Association (T-Bones). The following groups submitted comments which suggest changes to the rule as proposed, but did not specifically state whether they were in overall support or opposition to the rule: The Texas Association of Business; Williams Insulation; Southwest Texas Orthopedic Associates, P.A., KSF Orthopedic Center; Garland Orthopedic Clinic; and the Texas Workers' Compensation Insurance Fund. The following groups submitted comments which suggested changes to the rule as proposed, and expressed overall opposition to the rule: Hammerman & Gainer; the American Insurance Association; and the Texas Chiropractic Association. Comments were received for revisions, but in overall support of the rule as proposed from Dr. Brad Hall. Comments received reflecting overall support of the rule were received from an individual. A summary of the comments received and the commission responses are as follows. The following comments were received regarding definitions. One commenter requested a definition of the term "division", and wondered if it represented the Texas Workers' Compensation Commission or some other entity? The commenter also asked if there was a listed phone number. The commission response is as follows: "Division" is defined in (a)(1) of the rule. The division has a main phone number for general information as well as phone numbers for each staff member. One commenter felt that concurrence should be defined as same type and level of surgery. Another commenter stated that the rule should consider type and level of procedure and submit differences to medical review for resolution. A third commenter suggested that the commission amend the rule to substitute the word "level" for the word "area." The commission disagrees. Surgical philosophies vary widely. Type of procedure/level should be decided by the treating doctor or surgeon chosen by the employee. Doctors' philosophies about diagnostic tests also vary, and this can influence the level(s) at which surgical intervention is proposed. Medical Review resolution for each difference in proposed level/type would cause substantial delays for injured workers awaiting surgery when it is already agreed that surgery is needed. For clarification purposes, the commission has added examples of what is meant by proposed spinal area (e.g. cervical, thoracic, lumbar, or adjacent levels of different areas of the spine) to the definition of "concurrence" in subsection (a)(13). With guidance from his/her chosen doctor, employees should carefully consider all opinions when making the decision about which proposed surgery to undergo. To address the existence of varying opinions, the rule provides two quality checks to ensure that the injured worker and his/her doctor are able to arrive at the best decision: (i) (2) states "The narrative must indicate any differences of opinion in the type of procedure or level proposed for surgery. The second opinion doctor should contact the surgeon to discuss the... recommendations." subsection (i)(3) states "If the second opinion doctor believes an area of the spine other than the one the surgeon or treating doctor proposed, is indicated for surgery the division will notify the injured employee and advise him that he may wish to consult his treating doctor or surgeon about the differences." Another commenter stated that in order to consider the true anatomy of the lumbar region, the definition of emergency should be expanded by changing the phrase "spinal cord compression" to "compression of the cauda equina and/or exiting nerve roots." The commission disagrees. The phrase "including but not limited to" allows doctors to substantiate any emergency situation whether or not the specific condition is stated in the rule. Another commenter stated that the Act is not clear on whether the two concurring doctors have to agree on the type and level of surgery. The commission agrees. The rule as proposed and adopted clarifies, in (a) (13), that a concurrence exists when a second opinion doctor agrees that spinal surgery is needed, even if different types and/or levels are proposed. The commission has revised the subsection to give examples of different spinal areas (e.g. cervical, thoracic, lumbar, or adjacent levels of different areas of the spine). The following comments were received regarding carrier liability for spinal surgery costs. One commenter suggested that the commission insert the words "related to the compensable injury" after the words "the carrier is liable in any of the following situations for the reasonable and necessary costs of spinal surgery. " The commission agrees and has revised subsection (b)(1) for clarity and consistency. One commenter stated that the first sentence of (c)(5) is grammatically incorrect. The commission agrees. The rule as adopted has been revised in subsection (c)(5) by deleting the first word ("If") and the phrase "the doctor" preceding the phrase "will be suspended." The following comments have been received regarding commission sublists. One commenter stated that the injured worker and carrier should be allowed to choose from the approved doctor's list rather than a sublist of surgeons; and that a sublist will cause many carriers to waive their right to a second opinion, diminishing the intent of the rule and statute. The commission disagrees. The sublist provides more objectivity in the selection of a second opinion doctor. Staff disagrees that having a sublist would encourage carriers to waive their rights. The decision to waive versus request a second opinion should be based on medical rationale, not on whether a particular doctor is available to provide an opinion. One commenter felt that the carrier and injured worker should select second opinion doctors from the same sublist. Another commenter felt that a second opinion obtained by an injured worker should be used for his own decision- making, but such an opinion, if not by a doctor approved by the carrier or the commission, should not be a factor in determining carrier liability for payment. The commenter stated that this is covered under the statute's express provisions. The commission disagrees. The doctor chosen by the injured worker, from the sublist, is "approved by the commission." In order to reduce the timeframes associated with appeals, third opinions were eliminated, replaced with two concurrent second opinions. In order to preserve the right of either party to appeal, two second opinions must take place, and in order to create a two to one decision, the same doctor cannot be used for both examinations. However, the language of the rule is flexible and would allow the division to use the same sublist of five doctors for both the claimant and the carrier to choose from, with the addition of one more doctor to take the place of the doctor chosen. The division will have to determine which process is procedurally more efficient. The result may be that the same sublist is used for both the claimant and the carrier, or that two separate lists of five doctors are generated. The rule language allows the division the flexibility to try both approaches and, based on actual experience, to use the best one. The following comments were received regarding suspension from the List. One commenter stated that 30 day suspensions will result in prolonged treatment, a delay of MMI, a delay of surgery, and a delay of the second opinion results until the physician is reinstated. Another commenter felt that if doctors are taken off (the list) just on referral for administrative violations, such doctors will simply postpone surgery until they are back on the list, eventually driving up the indemnity and medical costs. The commenter stated that this will cause additional delay for the injured worker. The commission disagrees. A doctor who intentionally delays surgery or other treatment to an injured worker until back on the list would jeopardize his or her status not only on the approved list of spinal surgeons, but also on the TWCC Approved Doctors' List. While a doctor may be able to effectively delay an individual case, the doctor will be removed from the List before he can substantially affect the system. Under the previous rule, multiple delays were not sanctioned and the overall system was impacted. To meet this concern, however, the rule has been revised by adding the following language to (c)(4): "(C) intentionally postponing or delaying a recommendation for surgery while suspended from the List." Another commenter suggested that the number of "violations" before someone would be removed from the "list" is inadequate because many extenuating factors exist which can produce a delay in sending narrative reports. The commission agrees in part. Noncompliance by second opinion doctors in reporting examination results has been identified as an area causing major delays for injured workers in the spinal surgery process. As a part of the comprehensive plan to decrease delays in the system, the rule creates a progressive system for administering sanctions. The procedures outlined in (c) (4)-(c)(10) are progressive. For a doctor to actually be removed from the list, he/she must have repeatedly failed to meet rule requirements. However, the commission has added the phrase "for just cause" to subsection (c)(4) to allow exceptions. One commenter stated that in (c)(7), the word "again" has no time limit. The commenter further stated that a year's suspension may not be warranted when a long period of time has passed since the doctors' last violation. The commission disagrees that a time limit should be stated in the rule, but agrees that a suspension may not be warranted when a long period of time has passed since the doctor's last violation. A year's suspension requires a vote of the commissioners who may consider all the circumstances in a case, including the length of time between violations. No rule revision is required. One commenter felt that a $10,000 fine for failing to inform an injured worker when the doctor has been suspended, is excessive. The commenter recommended that neither the carrier, employee nor TWCC be liable for the cost of the second opinion performed while not on the list, and that a patient who wishes to have the opinion will be responsible for the charges. The commission disagrees in part. The $10,000 fine, which is a maximum fine, is consistent with sec.126.8 (Commission Approved Doctor List) which contains a similar consequence for a doctor's failure to inform an injured worker of the doctors' approval status. Staff disagrees with making an injured worker liable for the costs of an exam rendered by a suspended doctor. Section 126.9 (Choice of Treating Doctor and Liability for Payment) requires that in order for an injured employee to be billed for services received from an unapproved doctor, the health care provider must have had no knowledge of a violation of the treating doctor rules. With suspensions, the doctor would be inherently aware of the injured employee's selection of an unapproved doctor. Billing the injured employee would then create a private claims issue. The staff agrees with the comment regarding liability for the cost of the second opinion performed while not on the list and has clarified subsection (j) (2) to cover costs only if the exam is by a qualified doctor. The following comments were received regarding second opinion doctor qualifications. One commenter felt that any doctor certified to perform spinal surgery should be allowed to provide a second opinion (to address the problem of finding doctors in underserved areas). Another commenter suggested that the commission "...allow an interchange of doctor specialties as long as the second opinion doctor is certified to perform the same type of surgery as the first doctor, or is licensed to prescribe treatment of the spine." The commission agrees in part. The language in (d)(1)(B) has been revised to clarify that a second opinion must be rendered by a doctor who is a spinal surgeon with specialty training. Also, the rule allows the division to waive qualifications when needed to secure a timely and reasonable appointment, e.g. in underserved areas. The commission has revised subsection (d)(3) to clarify that the requirements of (d)(1)(B) cannot be waived. One commenter was concerned that if the doctor rendering the second opinion must be of the same specialty, the orthopedists who believe in discography will refer these cases back and forth to one another, and the amount of elective spinal surgery performed will skyrocket. The commission agrees in part. Groups of surgeons will not be able to refer back and forth because the second opinion doctor must be chosen from the sublist of five generated by the commission. Because the list is generated by the commission, objectivity will be preserved. However, the change in subsection (d)(1)(B) referenced above should meet this concern also. One commenter was concerned that having only surgeons on the list could create unintentional bias towards surgery. Other doctors, namely neurologists, should be able to render second opinions. Another commenter stated that the proposed process would exacerbate the problems with a shortage of qualified examining physicians and unfairly favor the claimant's position. Also, limiting the choice to "panel" doctors would increase delays since fewer doctors will be involved. The commission disagrees. In order to best assess the likelihood that surgery will help the injured worker, the doctor should have current experience as a practicing surgeon. It is imperative that second opinion doctors have the ability to effectively evaluate the pathologies requiring surgery. Surgeons have specific experience in preoperative care, as well as surgical follow-up, making them knowledgeable of the factors affecting success rates for surgical candidates. The commission also disagrees that fewer doctors will be available to render second opinions. Under the proposed system, all doctors who perform spinal surgery under the Act will be required to perform second opinions; this will increase the availability of qualified doctors. One commenter stated that chiropractors should be allowed to render second opinions. If not allowed, these doctors are denied their treating doctor status. The commission disagrees. The exclusion of chiropractors, or any other specialty that does not perform spinal surgery, from the list of approved spinal surgery doctors does not affect his or her status as a treating doctor. Second opinions are consultative exams only. One commenter stated that the rule does not address whether doctors who have been deleted from the approved doctor list (ADL)-the master list of treating doctors-can act as second opinion doctors, consulting doctors, referral doctors- that is, other than as a "treating doctor." Those who would argue that 'deleted' doctors would be able to perform second opinions would contend that such doctors are not providing "treatment." The commenter recommended amending the rule to require second opinion doctors to be on the ADL. The commission agrees. Doctors who are deleted from the ADL have presumably been deleted for inappropriate activities; therefore, they should not be eligible to provide second opinions. The rule has been revised in (d)(1) by including a new subparagraph (E) "currently active on the TWCC ADL" in the second opinion doctor qualifications. One commenter stated that if all doctors who have billed for spinal surgery are included in the Commission List and Sublist, the lists would include doctors who merely assist at surgery, including subspecialties such as general surgeons or general practitioners. These doctors may not be qualified to render second opinions and should not be included in the list. The commission disagrees. To establish a starting point for a mailing list, the commission used medical billing data. However, as stated in the rule, in order for a surgeon to be on the list, the doctor must provide information which demonstrates that he or she currently performs spinal surgery. One commenter stated that doctors who perform routine lumbar laminectomies, who do not perform lumbar fusions, are not qualified to render second opinions on lumbar fusion cases. The commission disagrees. Second opinion doctors must determine whether any pathologies exist that require surgical intervention. Specifically, a doctor who does not do fusions must still evaluate spinal stability. Regardless of whether the doctor agrees with the type of procedure proposed, the evaluation is considered a concurrence if any spinal surgery is needed. One commenter stated that "A 'spinal surgeon' who does not perform the above procedures in quantities of 15 per year or greater is not qualified to render a valid second opinion." The commission disagrees that a specific number of surgeries performed should be mandated by rule to qualify doctors to perform second opinions. The division will evaluate the doctor's qualifications to ensure that his or her current practice includes performing spinal surgery. The following comments were received regarding the requirement for a treating doctor/surgeon to provide records. One commenter suggested the commission include an alternative of having the patient carry records to the second opinion exam. The commission disagrees. No rule change is necessary. Many doctors successfully operate in the manner suggested by the commenter. The proposed and adopted language does not prohibit injured employees from continuing to transport the records, providing they are willing and able to do so. The rule does place the responsibility on the doctor to ensure that the records arrive. One commenter stated that copying costs for records/films can be substantial and asked whether the carrier would still be liable for the costs. The commission agrees. In order to clarify the carrier's responsibility to pay for these records, the rule has been revised by adding the following language to (j)(4): "The carrier shall be responsible for the reasonable copying costs of the films and records needed to perform a second opinion." One commenter suggested that the rule should be amended to allow for surgeons who refuse to make their records and x-rays available to the second opinion doctor to be subject to administrative violations. The commission agrees. Subsections (c)(4)(B), (c)(6), (c)(11), and (d)(4) have been revised to reflect that any doctor may be removed from the list or otherwise sanctioned by the commission for failing to timely submit reports, records, and forms; that one of the requirements to be reinstated to the list is a renewed commitment to timely submit reports, records, and forms; and that the commission may issue an order requiring timely submission of reports, records, and forms. The following comments were received regarding commission notification to carrier/acknowledgement date. One commenter suggested that the acknowledgement date should be the day after the TWCC-63 is placed in the carrier's box. The commission disagrees. The 14 days will begin on the same day as delivery only when the carrier representative signs for the TWCC-63 on the same day as delivery. The suggestion would allow carriers 15 days to respond in the majority of cases since the representative usually signs for the form on the day of delivery. One commenter suggested that the acknowledgement date should be the date the representative signs for the document because documents are often placed in the carrier boxes days after the date of the document. The commission disagrees. The rule addresses the actual date the document is placed in the box, not the date of the document. Carrier representatives do not always check their mail daily, and the commenter's proposal would provide extra time when the representative fails to check the box. The division will maintain record of the date each TWCC-63 is placed in the box to ensure carriers are allowed the full 14 days to respond. One commenter stated that subsections (g)(2) and (3) are confusing; and that the wording would give carriers a total of 45 days to set an appointment. The commission agrees. The intent of the rule is to require carriers to set the appointment to occur within 30 days of receipt of the TWCC-63 from the division. The rule has been revised in (g)(2) and (3) by changing the words "date the carrier filed the TWCC-63 with the division, requesting a second opinion" to "date the carrier receives the recommendation for spinal surgery and sublist from the commission." The following comments were received regarding carrier second opinion appointments. One commenter was concerned that if the second opinion doctor cancels for good reason, the carrier or employee should be able to choose another doctor from the ADL and receive 30 additional days from the date of notification of the cancellation in which to set another appointment. Another commenter stated that there needs to be an exception to the 30 day requirement for good cause, including situations where the exam had to be held outside 30 days from the acknowledgment date if the exam is cancelled or if claimant no-shows. The commenter also stated that good cause should also include situations where the carrier selected doctor is not available within 30 days. The commission disagrees. Doctors on the List are required to make appointments available within 30 days. When patients fail to attend a scheduled appointment, the standard office practice is to reschedule at the next available appointment. The following comments were received regarding employee-selected second opinion doctors. One commenter stated that when the carrier-selected doctor does not concur, the employee should not be required to attend an examination scheduled by the commission if the employee agrees with the nonconcurrence. The commission agrees. A claimant can abort the second opinion process at anytime. To clarify, (h)(1)(E) has been revised by adding the following language: "...unless the employee withdraws the request for spinal surgery." One commenter stated that the second to the last sentence of (e)(2) does not make sense as worded. The commission agrees and has corrected the typographical error. One commenter stated that (h)(4) says the commission should receive the notice within five days, but the requirement is ten days. The commission disagrees. Subsection (h)(2) indicates that the Division is notified of the injured employee's decision within five days. Subsection (h)(3) requires an amended TWCC-63. Subsection (h)(4) states that if the notice is not received within five days, the commission shall set an appointment. The provision is needed in order to ensure that a timely appointment is scheduled. Communication with the employee and/or his doctor will prevent both parties from setting an appointment during the second five days of the ten-day period. One commenter recommended changing the ten days for a response to a employee selected doctor to ten working days to allow time for holidays and weekends. The commission disagrees. Section 102.3(a)(3) specifies that if the last day of any time period falls on a weekend or holiday, the period is extended to include the last day that is not a weekend day or a holiday. The following comments were received regarding missed appointments. One commenter recommended that the commission require an employee to submit a written reason for missing the second opinion appointment. Failure to submit statement within 30 days could result in presumptive MMI. Another commenter stated that "...the Commission should issue sanctions to workers who fail to show up," and no-shows should result in presumption of MMI, allowing termination of TIBs. A third commenter suggested that the rule should provide that a claimant's failure to comply results in the immediate suspension of income benefits. The commission disagrees. Submission of a written reason for missing an appointment would place undue burden on the employee and would serve no useful purpose. The commission is addressing the issue of missed appointments in other rules under review by the commissioners. The following comments were received regarding payment for the second opinion exam. One commenter recommended reimbursement at $450 instead of $350. The commission disagrees. Input from doctors indicated $350 was reasonable. No comments from medical providers to the contrary were received. The following comments were received regarding appeals to Contested Case Hearings. One commenter stated that appeals should be made through APTRA (APA) in Austin because this is a medical benefit issue rather than an income benefit issue. Another commenter stated that the proposed process would take ten-12 weeks to resolve disputes, and medical treatment decisions need to be made more promptly. The commenter recommended revising the proposal to establish a more expeditious approach. Specifically, an APA process should be provided "for a special master who can weigh the opinions and make a prompt decision". A third commenter stated that the legislative intent was to have this type of dispute handled under the APA. The commenter felt that the proposed rule will weaken the agency's grip on the process because the standard of review will be "de novo" rather than under "substantial evidence." Another commenter stated that the limitation on admissible opinions may prohibit commission staff assistance in evaluation of the evidence. The commission disagrees with the comments which interpret the Act to require that spinal surgery disputes be settled through the APA process. sec.413.031, which is cited in the comments, applies only to procedures which require preauthorization pursuant to policies set by the commission. Spinal surgery second opinions are required by sec.408.026 which is a provision of the statute and not a commission policy. In addition, this is an issue of compensation-for medical benefits-which, by the terms of Chapter 410 itself, may properly be resolved through the Chapter 410 dispute adjudication proceedings (See sec.410.002). The commission does not agree that the proposed process would take ten-12 weeks to resolve disputes. The rule only allows for an expedited CCH which will occur within 20 days. The APA process currently averages more than 100 days. The commission does not agree that the changes in the standard of judicial review will weaken its control of the process. The commission disagrees that the change from APA hearings would prohibit use of the Medical Review Division staff's assistance in evaluating evidence. The following comments were received regarding the responsibilities of the surgeon/treating doctor. One commenter suggested that the commission increase Medical Review Division staffing to speed the process. The commission agrees. TWCC has addressed the administrative process to assist injured workers more effectively through additional staff and the formation of a distinct spinal surgery unit. One commenter stated that the rule places an increased administrative burden on the commission and surgeons. The commenter further stated that good surgeons may stop treating injured workers because they are required to file the TWCC-63, facilitate records transfers, and assist in obtaining a second opinion. The commission disagrees. Input from doctors did not reflect an impression of increased administrative burden on their part. The following comments were received regarding recommendations for surgery/submission of TWCC-63s by the surgeon instead of the treating doctor. One commenter requested clarification on the following question: if the treating doctor is not a surgeon but wants to recommend spinal surgery, does he or she have to get a surgeon to concur before recommending surgery? The commenter stated that the Act refers to concurrence with "the treating doctor's recommendation," raising questions about whether the commission can impose liability on a carrier if the treating doctor does not recommend surgery. The commenter wondered if the process started if the consulting surgeon recommends surgery and the surgeon does not? Section (e)(1) seems to violate the Act, sec.408.026, requiring a recommendation by the treating doctor. The commission disagrees. The commission agrees that the Act specifies that the treating doctor is responsible for recommending spinal surgery. The proposed rule simply allows the surgeon to facilitate the transmission of the treating doctor's recommendation. In order for the spinal surgery process to begin, a TWCC-63 submitted by the surgeon must indicate that the treating doctor recommends spinal surgery. The following comments were received regarding reporting second opinion results. One commenter recommended changing the timeframe for telephonic reporting from 48 hours to two working days to account for late Friday appointments and after hours appointments. Another commenter recommended changing the timeframe for narrative report from ten days to ten working days to allow for weekend and holiday typing and mailing delays. The commenter further recommends changing the requirement to requiring the narrative to be postmarked within ten days. The commission agrees with changing the time increment from hours to days. The commission disagrees with changing to "working days." The rule has been revised in what was proposed as (i)(1) but is now (i)(2), by changing "48 hours" to "two days." Section 102.3(a)(3) specifies that if the last day of any time period falls on a weekend or holiday, the period is extended to include the last day that is not a weekend day or a holiday. The following comments were received regarding commission waiver of requirements. One commenter stated that the Medical Review Division should be required to defend its waiver of the requirements as being based on "good cause." The commenter recommended that the rule be rewritten to read "(3) For good cause, the division may waive these requirements to secure timely and reasonable appointments. The commission disagrees. The rule states the reason for the commission waiving the requirements: "to secure timely and reasonable appointments." Adding good cause would not add anything to the rule because the proposed rule as written is even more specific than "good cause"-it states the actual reasons for waiving the requirements. However, subsection (d)(3) has been revised by the commission to provide that the qualification in subsection (d) (1)(B) (that a doctor rendering a second opinion must be a spinal surgeon with specialty training) cannot be waived. The following comments were received regarding carrier representatives maintenance of records. One commenter stated that the carrier, and not the carrier representative should keep the information. The commission disagrees with placing this responsibility with carriers instead of carrier reps. The carrier representative is the gatekeeper for the carrier and must be able to respond to the commission with needed information regarding spinal surgery cases. Another commenter stated that the rule should specify what information needs to be kept and in what form so that the commission has better access to information needed to monitor the process. The commission disagrees. The specific information to be kept is specified in the rule. The commission does not agree that the commission should specify the form and format of keeping the records. Many carriers already have an effective system in place and the commission would not wish to interfere with such systems. The following comments were received regarding miscellaneous issues. One commenter felt that because of (j)(2), the carrier would have to pay for cancelled appointments after a concurrence. The commission agrees and has changed the rule to require carriers to pay for cancelled appointments only when the exam is cancelled less than 24 hours before the scheduled time. One commenter felt that presumptive weight should be given to the surgeon recommending surgery because of the doctor having had the opportunity to follow the patient closely and having had a better opportunity to evaluate the patient's physical and psychological status. The commission disagrees. Presumptive weight is given to the surgeon when either of the two second opinion doctors concur. Another commenter was concerned that if a second opinion doctor cannot render a second opinion without additional testing, he or she would have to nonconcur and then reconsider under subsection (j)(2)(c). The commission agrees that this is the proper interpretation of the rule and the most appropriate method of handling this situation. Another commenter stated that because (l)(1) would dismiss an appeal when an addendum results in carrier liability, it would violate sec.408.027 which provides for an appeal of the amount of payment. The commission disagrees. Subsection (b)(3) of the rule allows the carrier to dispute the charges when the carrier is liable for payment. In addition, subsection (l)(1) only addresses addendums when the employee's condition changes after a nonconcurrence. The following comments were received regarding overall opinions of the rule. One commenter stated that the proposed rule is reasonable, fair, and will expedite the care of the spinally injured Texas worker. Another commenter stated that the new rule is a significant improvement over the previous rules. The commission agrees. Another commenter stated that second opinion systems do not work, are of no value, and increase the cost of providing appropriate medical care, subjecting patients to undue pain and suffering due to delays. Another commenter stated that "The care of patients... will not be in any way impaired if this rule is not changed, and in fact... the care of the patients will be improved if it is not invoked." The commission disagrees. The Act requires that TWCC have a process for spinal surgery second opinions to occur. The proposed process will improve the care of patients by increasing the objectivity of second opinions and eliminating the delays in the current process. Another commenter stated that "... we fail to see how a relatively small percentage of disputes over the need for spinal surgery justified reforming the entire process.... We see no need for a major revision of the existing (rule)." Another commenter stated that this rule will cause the cost of workers' compensation insurance to increase secondary to the increase in the amount of spinal surgery. Another commenter stated that the original concerns and problems in the spinal surgery rule were lost in the process of amending the rule. The proposed rule forces third and fourth opinions, ultimately delaying the process and causing greater medical and indemnity costs. The commission disagrees. Any process that delays medical care must be adjusted in order to expedite the care of injured workers. The primary objective of reducing timeframes was overwhelmingly accomplished by reducing the average 200+ days to a maximum of 87 days. Also, objectivity is increased by TWCC providing sublists which eliminates the perception of "carrier doctors" and by increasing the pool of second opinion doctors to include all spinal surgeons. The new rule is adopted under the Texas Labor Code, sec.402.061, which authorizes the commission to adopt rules necessary to administer the Act, the Texas Labor Code, sec.408.026, which requires the commission to adopt rules as necessary to assure that the second opinion examination is obtained without undue delay and that liability is determined timely, and the Texas Labor Code, sec.410.002, which authorizes the commission to hold proceedings to determine the liability of an insurance carrier for compensation for an injury or death. sec.133.206. Spinal Surgery Second Opinion Process. (a) Definitions. The following words and terms, when used in this subchapter, will have the following meanings, unless the context clearly indicates otherwise. (1) Division-The Medical Review Division of the Texas Workers' Compensation Commission. (2) Medical emergency-A diagnostically documented condition including but not limited to: (A) unstable vertebral fracture of such critical nature that increased impairment may result without immediate surgical intervention; (B) bowel or bladder dysfunction related to the spinal injury; (C) severe or rapidly progressive neurological deficit; or (D) motor or sensory findings of spinal cord compression. (3) Treating doctor-The doctor who is primarily responsible for coordinating the injured employee's health care for a compensable injury. (4) Surgeon-The doctor listed on the form TWCC-63 as the surgeon to perform spinal surgery. (5) Acknowledgment date-The earlier of the date on which the insurance carrier representative in Austin signs for the TWCC-63 form or narrative report, or the day after the date the TWCC-63 form or narrative report is placed in the carrier's box. (6) List-A list maintained by the division of surgeons whose current practice includes performing spinal surgery. (7) Sublist-A sublist of five qualified doctors from the List, selected as required by subsection (c) of this section, and provided by the division to the injured employee and the carrier for selection of a second opinion doctor. (8) Qualified doctor-A doctor who meets the minimum qualifications as listed in subsection (d) of this section. (9) Carrier-selected doctor- A qualified doctor selected by a carrier within 14 days of the acknowledgment date, to render a second opinion on spinal surgery. (10) Employee-selected doctor-A qualified doctor other than the treating doctor or surgeon, selected by an employee to render a second opinion on spinal surgery. (11) Commission-selected doctor-A qualified doctor selected by the commission to render a second opinion on spinal surgery. (12) Second opinion doctor-A commission-selected doctor, an employee-selected doctor and\or a carrier-selected doctor, provided that the injured employee and the carrier each may select only one second opinion doctor. (13) Concurrence-A second opinion doctor's agreement with the surgeon's recommendation that spinal surgery is needed. Need is assessed by determining if there are any pathologies in the spine that require surgical intervention. Any indication by the qualified doctor that surgery to the proposed spinal area (e.g. cervical, thoracic, lumbar, or adjacent levels of different areas of the spine) is needed is considered a concurrence, regardless of the type of procedure or level. (14) Nonconcurrence-A second opinion doctor's disagreement with the surgeon's recommendation that spinal surgery is needed. (15) Refusal-Refusal to perform second opinion exam except when due to absence from the office because of illness, accident or personal leave. (b) Carrier Liability for Spinal Surgery Costs. (1) The carrier is liable in any of the following situations for the reasonable and necessary costs of spinal surgery related to the compensable injury and performed by a surgeon who was on the List at the time the TWCC-63 was filed with the commission by the treating doctor or the surgeon: (A) medical emergencies; (B) carrier waiver of second opinion; (C) no carrier request within 14 days of acknowledgment date, for a second opinion; (D) concurrence by both second opinion doctors; (E) no timely appeal after two second opinions, only one of which is a concurrence; (F) final and nonappealable commission order to pay. (2) The reasonable and necessary costs of spinal surgery include the services of the surgeons and ancillary providers during the hospital admission, and the hospital services. (3) If a carrier becomes liable for spinal surgery pursuant to the provisions of this section, any medical dispute resolution shall be limited to a dispute as to the reasonableness of the fees charged for the spinal surgery. (c) Commission List and Sublist. (1) The division will maintain a list of surgeons who perform spinal surgery, including specialty, any specialty training/certification in spinal surgery, and names of spinal surgeons with whom the surgeon is economically associated or shares office space. (2) The initial List will consist of all doctors who have billed for spinal surgery under the Texas Workers' Compensation Act (the Act), as indicated in the division's billing data base, and who have provided the required information set out in paragraph (1) of this subsection. The division will request the required information from each of these doctors. Failure of the doctor to timely respond may result in an order to respond to the division's request, issued pursuant to sec.102.9 of this title (relating to Submission of Information Requested by the Commission). A doctor may be added to the List by filing with the division a written request which includes both a statement that the doctor performs spinal surgery, and the additional information required by the division for the List. (3) If requested by an injured employee, a treating doctor or surgeon on behalf of the injured employee, or a carrier, the division will provide a sublist of five qualified doctors from which a second opinion doctor may be chosen. The sublist will be composed of qualified doctors located within 75 miles of the injured employee's residence, and will be selected from the List by the division on a rotating basis. If the List does not include five qualified doctors located within 75 miles of the injured employee's residence, the division will include on the sublist the qualified doctors who are located at a greater distance. (4) A doctor may be removed from the List for just cause in compliance with the following procedures, for any of the following actions: (A) two refusals, within a 90 day period or two consecutive refusals to perform within the required time frames a requested second opinion for which the doctor is qualified; (B) two untimely submissions, within 90 day period or two consecutive untimely submissions of second opinion narrative reports or any reports, records, or forms required by this section to be filed or provided; (C) intentionally postponing or delaying a recommendation for surgery while suspended from the List. (5) A doctor who has been referred for an administrative violation pursuant to subsection (d)(4) of this section and meets the criteria of paragraph (4) of this subsection will be suspended from the List by the division for 30 days. (6) The division will notify a doctor by delivery, return receipt requested, of suspension from the List. The suspension will be effective from the date of receipt of the notice by the doctor. A doctor who has been suspended from the List for 30 days may be reinstated to the List by filing with the division a written request which includes a commitment to perform timely and appropriate second opinions and to submit timely reports, records, and forms in compliance with this section. (7) The commissioners may suspend a doctor from the List for up to a one-year period, if a doctor who was suspended for 30 days and reinstated to the List, again meets the criteria of paragraph (4) of this subsection. (8) The division will again suspend the doctor from the List for 30 days, notify the doctor as required in paragraph (6) of this subsection and prepare a recommendation to the commissioners that the doctor be suspended from the List for a period of up to one year. (9) The division will notify the doctor by delivery, return receipt requested, of the division's intent to recommend to the commissioners that the doctor be suspended from the List. Within 20 days after receiving the notice, a doctor may request a hearing to be held as provided by sec.145.3 of this title (relating to Requesting a Hearing). The request must be in writing to the division and actually received in the commission's central office in Austin, Texas, within 20 days after the doctor's receipt of the notice of intent to suspend the doctor from the List. If a request for hearing is timely received, the commission will hold a hearing as provided in Chapter 145 of this title (related to Dispute Resolution-Hearings Under the Administrative Procedure Act). If no request for a hearing is timely filed, the division's recommendation will be reviewed by the commissioners at a public meeting and a decision made to either suspend or maintain the doctor on the List. (10) If the commissioners decide to suspend a doctor from the List, the commissioners will issue an order of suspension which states the length of the suspension and describes the effects of the suspension. The order may also state restrictions on reinstatement or impose a specific method for reinstatement to the List. The order will be delivered to the doctor, return receipt requested. After receipt, a second opinion doctor shall inform injured employees seeking second opinions on spinal surgery under the Act, of the doctor's suspension from the List and that the insurance carrier will not be liable for the costs of a second opinion exam performed by that doctor while he is suspended from the List. After receipt, a treating doctor or surgeon shall inform injured employees seeking spinal surgery under the Act, of the doctor's suspension from the List and that the insurance carrier will not be liable for the costs of spinal surgery for which the TWCC-63 is filed with the commission while that doctor is suspended from the List. Failure to inform the injured employee in the form and format prescribed by the commission may subject the doctor to administrative penalties of up to $10,000 and other sanctions as provided by the Act. (11) Unless a different period of suspension or method of reinstatement is provided by the commission order suspending the doctor from the List, a doctor suspended from the List may be reinstated as follows. A doctor may be reinstated to the List after a six month period by written request to the division which includes a renewed commitment to perform timely and appropriate second opinions and to submit timely reports, records, and forms in compliance with this section, provided appropriate members of the doctor's staff have attended a division seminar for providers within the suspension period. After a one year period, a doctor may be reinstated by written request to the division which includes a renewed commitment to perform timely and appropriate second opinions and to submit timely reports, records, and forms in compliance with this section. The division will immediately notify a doctor who has been reinstated to the List. The reinstatement will be effective from the date of the division's action to reinstate. (d) Second Opinion Doctor's Qualifications. (1) The doctor rendering a second opinion must meet the following minimum qualifications: (A) be a spinal surgeon on the List; (B) be a spinal surgeon with specialty training in spine surgery; (C) not be economically associated with or share office space with the treating doctor or the surgeon; (D) not be scheduled to perform or assist with the recommended surgery; and (E) currently active on the TWCC Approved Doctor List. (2) An out-of-state doctor who is not on the List may be approved by the division as a qualified doctor if the claimant is residing out-of-state. (3) When deemed necessary the division at its discretion may waive any of these requirements with the exception of paragraph (1)(B) of this subsection, to secure timely and reasonable appointments. (4) The division may issue an order requiring timely submission of a report, record, or form required by this section, recommend administrative violation proceedings, take action to remove a doctor from the List as described in subsection (c) of this section and/or take action to remove a doctor from the Approved Doctor List in compliance with sec.126.8 of this title (relating to Commission Approved Doctor List) for noncompliance with the order. (e) Submission of Request for Spinal Surgery and for Second Opinion by Employee-Selected Doctor; Doctors' Responsibilities and Records. (1) To recommend spinal surgery, the treating doctor or surgeon shall submit to the division a TWCC-63 in the form and manner prescribed by the division. The TWCC-63 may be faxed directly to the division. (2) The doctor submitting the TWCC-63 shall advise the injured employee of the injured employee's right to obtain a second opinion from a qualified doctor. If the injured employee decides to seek a second opinion, the injured employee or the treating doctor or surgeon on behalf of the employee, shall request that the division provide a sublist of qualified doctors. The injured employee with assistance from the treating doctor or surgeon shall select a qualified second opinion doctor from the sublist and schedule the appointment date prior to submitting the TWCC-63. The second opinion appointment should be scheduled to occur within 30 days from the date the TWCC-63 is submitted to the division. The name of the selected doctor and the appointment information shall be submitted on the TWCC-63 in the form and manner prescribed by the division. (3) The surgeon shall ensure that all medical records and films arrive at each second opinion doctor's office prior to the date of the scheduled second opinion. (4) The doctor submitting the TWCC-63 shall maintain accurate records to reflect: (A) medical information regarding emergency conditions; (B) injured employee notification of right to a second opinion; (C) the submission date of the TWCC-63, and any amended TWCC-63s; (D) the date and time of any second opinion appointment scheduled with employee-selected doctor; and (E) the date the medical records were sent by the surgeon to each second opinion doctor. (f) Commission Notification to Carrier. The division will notify the carrier via the carrier representative in Austin of the receipt of any required TWCC- 63's by placing copies in the carrier representative's box. The division will also provide a sublist to the carrier. The carrier representatives shall sign for the forms. The carrier representative is responsible for the receipt of and the response to TWCC-63s. (g) Carrier Waiver of or Request for Second Opinion by Carrier-Selected Doctor; Carrier Records. (1) The carrier must waive the second opinion or request a second opinion exam be performed by a carrier-selected doctor. This decision and choice of the carrier-selected doctor from a sublist must be made and submitted to the division on a TWCC-63 in the form and manner prescribed by the division and without undue delay but no later than 14 days after the acknowledgment date. The TWCC-63 may be faxed or delivered directly to the division. (2) The carrier shall set the appointment and include appointment information on the TWCC-63 in the form and manner prescribed by the division. The appointment date set by the carrier should be within 14 days and must not exceed 30 days from the acknowledgment date. (3) A carrier will be deemed to have waived a second opinion if the carrier chooses a doctor not on the sublist or sets an appointment which exceeds 30 days from the acknowledgement date. (4) The carrier shall notify in writing the injured employee, the treating doctor, and the surgeon of the appointment information. This notification shall be in the form and manner prescribed by the division and shall include a copy of the TWCC-63, and a narrative explanation of the purpose of the exam. (5) The carrier representative shall maintain accurate records to reflect: (A) the acknowledgment date of the TWCC-63; (B) the date the TWCC-63 required by paragraph (1) of this subsection was submitted to the division; (C) the date the notice required by paragraph (4) of this subsection was given; (D) if applicable, the name of the carrier-selected doctor and the date and time of the scheduled exam; and (E) the acknowledgment date of the narrative report required by subsection (i) of this section. (h) Division Notification to Employee of Option to Obtain a Second Opinion From an Employee-Selected Doctor. (1) If the carrier elects to have a second opinion and the employee has not already scheduled a second opinion from an employee-selected doctor, the division shall notify the employee of the following: (A) that the carrier will be obtaining a second opinion from a carrier- selected doctor and the date and time; (B) that the employee may obtain a second opinion from an employee-selected doctor; (C) the sublist from which the employee may select an employee-selected doctor; (D) the procedures and the time deadlines for obtaining a second opinion from an employee-selected doctor; and (E) if the carrier-selected second opinion is a nonconcurrence, that failure to select an employee-selected doctor pursuant to paragraph (2) of this subsection will result in a requirement to attend a medical examination scheduled by the commission unless the employee withdraws the request for spinal surgery. (2) The treating doctor or surgeon must within five days of receiving notification from the division, notify the division if the employee is going to select an employee-selected doctor. (3) If the injured employee selects the employee-selected second opinion doctor, the injured employee with assistance from the treating doctor or surgeon shall select a qualified second opinion doctor from the sublist and schedule the appointment date prior to submitting an amended TWCC-63 which contains the information required by subsection (e) of this section. The amended TWCC-63 must be filed with the division no later than ten days after the treating doctor or surgeon's receipt of notification from the division. (4) If the commission does not receive the notice within five days, the commission shall set the appointment with a doctor on the employee's sublist and notify the injured employee, treating doctor, surgeon, and carrier of the appointment information. The carrier will be notified via the carrier representative's box. (5) The second opinion exams scheduled in this subsection shall be set for a date later than the carrier-selected doctor second opinion appointment. (6) If the second opinion of the carrier-selected doctor is a concurrence the appointment scheduled in this subsection may be canceled. (7) Decisions, reports, records, and payments for second opinions obtained pursuant to this subsection shall be governed by the same provisions applicable to second opinions pursuant to subsections (i) and (j) of this section. (i) Second Opinion Decisions and Reports; Second Opinion Doctors' Records. (1) A second opinion doctor must provide appointments for requested second opinions within the 30-day time frames required by subsections (e)(2) and (g)(2) of this section. (2) The second opinion doctor's opinion must be based on physical examination of the injured employee and review of the medical records and films forwarded by the surgeon. The second opinion doctor shall call the designated phone number at the division within two days after the exam to submit the results of a second opinion. The message must include the injured employee's name and social security number, the date and time of the exam, the name of the second opinion doctor and a clear decision of a "concurrence" or "nonconcurrence" with the need for surgery. The second opinion doctor shall return any films within three days to the doctor who submitted the films. (3) The second opinion doctor must complete a narrative report regarding the second opinion exam which indicates the second opinion doctor's decision, and submit it to the division, the treating doctor, the surgeon, and the carrier, within ten days of the exam. The narrative must indicate any differences of opinion in the type of procedure or level proposed for surgery. The second opinion doctor should contact the surgeon to discuss the second opinion doctor's opinion and recommendations. Differences of opinion between the surgeon and the second opinion doctor do not affect the carrier's liability for the reasonable costs of spinal surgery. The division will notify the employee of the decision(s) of the second opinion doctor(s). (4) If the second opinion doctor believes an area of the spine other than the one the surgeon or treating doctor proposed, is indicated for surgery the division will notify the injured employee and advise him that he may wish to consult his treating doctor or surgeon about the differences, and that, based upon the differences, he may request an advisory opinion. (5) A second opinion doctor shall maintain accurate records to reflect the following for second opinions: (A) the date for which the exam was scheduled; (B) the circumstances regarding a cancellation, no show or other situations where the exam did not occur as scheduled; (C) the date of the examination; (D) the second opinion doctor's decision; (E) the date the decision was called into the division; (F) the date the narrative was mailed to the treating doctor, the surgeon, and the carrier; and (G) the date the narrative was sent to the division. (j) Payment for the Second Opinion Exam. (1) The division shall notify the carrier via the carrier representative of narrative reports received by the division. The carrier representative shall sign and acknowledge receipt of notice of narrative reports. Carriers shall not pay a doctor for a second opinion exam until receipt of notice of the narrative report. A carrier's timeframe for payment of the bill for a second opinion begins with the receipt of the bill from the doctor or the acknowledgment date of notice of the narrative report from the division, whichever is the later of the two dates, regardless of the time frame or process established by Chapter 134 of this title (relating to Guidelines for Medical Services, Charges, and Payments). (2) The insurance carrier is responsible for paying the reasonable costs of a second opinion exam by a qualified doctor whether requested by the injured employee or the carrier. The second opinion doctor's bill and the carrier's payment for second opinion exams shall be inclusive of the exam, review of records and films, and the preparation and submission of the reports, and shall be the lesser of the charged amount or the following fees for the applicable service: (A) $350 for second opinions (use code WC001); (B) $100 if the injured employee fails to show up for a scheduled second opinion exam or if a scheduled second opinion exam is cancelled by the employee with less than 24 hours notice (use code WC002); or (C) $150 to reconsider an earlier decision (use code WC003). (3) A carrier shall pay for the reasonable travel expenses for an injured employee to attend a second opinion appointment. (4) The carrier shall be responsible for the reasonable copying costs of the films and records needed to perform a second opinion. (k) Appeal to a Contested Case Hearing (CCH). (1) An employee may appeal to a CCH if there is no second opinion concurrence. (2) A carrier may appeal to a CCH if there is a second opinion nonconcurrence. (3) The appeal must be filed within 10 days after receipt of notice from the commission regarding carrier liability for spinal surgery. The appeal must be filed in compliance with sec.142.5(c) of this title (relating to Sequence of Proceedings to Resolve Benefit Disputes). The contested case will be scheduled to be held within 20 days of commission receipt of the request for a CCH. The hearings and further appeals shall be conducted in accordance with Chapters 140- 143 of this title (relating to Dispute Resolution/General Provisions, Benefit Review Conference, Benefit Contested Case Hearing, and Review by the Appeals Panel). (4) Of the three recommendations and opinions (the surgeon's, and the two second opinion doctors'), presumptive weight will be given to the two which had the same result, and they will be upheld unless the great weight of medical evidence is to the contrary. The only opinions admissible at the hearing are the recommendation of the surgeon and the opinions of the two second opinion doctors. (l) Resubmitting the Issue of Spinal Surgery. (1) If the injured employee's condition changes at any time after a nonconcurrence, the treating doctor or surgeon may submit the medical records and films which indicate and support the existence of a change to the second opinion doctors for reconsideration. The second opinion doctors shall issue an addendum to the original decision and send a copy to the division, the treating doctor, the surgeon, and the carrier with the word "ADDENDUM" clearly indicated on the narrative report. Addendum decisions, reports, records, and payments, and appeal to a CCH are governed by all of the provisions of this section. If the addendum second opinions result in carrier liability, any pending appeal shall be dismissed. (2) Addendum decisions, reports, records, and payment shall be governed by subsections (i) and (j) of this section with the following exception. The narrative report shall be submitted within ten days of the reviewing doctor's receipt of the request for an addendum opinion. (3) A recommendation for spinal surgery may be resubmitted at any time after the final appeal upholds the nonconcurrence. The reason for resubmission must be indicated on a TWCC-63 in the form and manner prescribed by the division. (m) This section will become effective November 1, 1994 (for initial Form TWCC-63's filed with the commission on or after that date) and remain effective until January 1, 1996. Effective: November 1, 1994 until January 1, 1996 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 August 10, 1994. TRD-9446390 Susan Cory General Counsel Texas Workers' Compensation Commission Effective date: November 1, 1994 Proposal publication date: April 8, 1994 For further information, please call: (512) 440-3700 TITLE 30. ENVIRONMENTAL QUALITY Part I. Texas Natural Resource Conservation Commission Chapter 330. Municipal Solid Waste The Texas Natural Resource Conservation Commission (TNRCC) adopts the repeal of Subchapter R, sec.sec.330.836, 330.851-330.856 and sec.330.875, and new Subchapter R, sec.sec.330.803, 330.851-330.856, 330.858, 330.875, 330.879, 330. 880-330.883, and new Subchapter X, sec.sec.330.900-330.909, 330.917, 330.920- 330. 930, and 330.930-330.939, and amendments to Subchapter R, sec.sec.330.801, 330.802, 330.805-330.809, 330.811-330.817, 330.821-330.827, 330.831-330.835, 330.837, 330.838, 330.840-330.843, 330.845-330.848, 330.861-330.863, 330,865- 330.868, 330.870-330.874, 330.876-330.878, 330.885-330.886, 330.888, and 330.889, concerning the waste tire recycling fund program. Sections 330.803, 330. 805-330.809, 330.822, 330.823, 330.825, 330.832, 330.835, 330.838, 330.843, 330.852, 330.871, 330.872, 330.876, 330.877, and 330.885 in Subchapter R; and in Subchapter X, sec.sec.330.900-330.904, 330.907, 330.908, 330.914, 330.920, 330. 922, 330.923, 330.926, 330.930-330.938 are adopted with changes to the proposed text as published in the April 19, 1994, issue of the Texas Register (19 TexReg 2830). Sections 330.801, 330.802, 330.811-330.817, 330. 821, 330.824, 330.826, 330.827, 330.831, 330.833, 330.834, 330.837, 330. 840-330.842, 330.845-330.848, 330.851, 330.853-330.856, 330.858, 330.861-330. 863, 330.865-330.868, 330.870, 330.873-330.875, 330.878-330.883, 330.886, 330. 888 and 330.889 in Subchapter R; and in Subchapter X, sec.sec.330.905, 330.906, 330.909-913, 330.915-330.917, 330.921, 330.924-330.925, 330.927, 330.929, and 330.939 are adopted without changes and will not be republished. Pursuant to Senate Bill 1340, enacted June 6, 1991, the Waste Tire Recycling Fund was created. The intent of the fund was to ensure that no new illegal dumps were created and to clean up existing illegal waste tire dumps throughout the state by collecting new waste tires free of charge at the point of generation. The issues and concerns associated with the elimination of illegal tire dumps across the state have existed for many years because tire dumps pose an imminent peril to the public health, safety, and welfare of citizens and the environment in the State of Texas. The repealed, new and amended rules will ensure the TNRCC's ability to adequately administer the Waste Tire Recycling Fund Program and facilitate cleanup of illegal waste tire dumps. The rules will also improve management and oversight of the regulated community operating under, and seeking reimbursement from, the fund. The rules will clarify existing confusion regarding program guidance and will incorporate extensive modifications that have been made in program operation since program implementation occurred on April 1, 1992 pursuant to adoption of Senate Bill 1051 by the 73rd Legislature. The rules also contain financial assurance requirements and guidance in calculating that financial responsibility to ensure funds exist to clean up a registered processor or storage facility(ies) should the owner/operator be financially incapable of performing the cleanup independently. The TNRCC received numerous comments requesting changes to Senate Bill 1340 and 1051. Because changes to legislation are beyond the scope of those rules, the TNRCC cannot respond to those comments in this context. However, such requested changes may be addressed during a future legislative session. In addition, the TNRCC received several comments expressing support for various section of these rules. To the extent that such comments requested rule changes, they have been addressed herein; comments merely expressing support have not been restated in these adopted rules. Comments on the proposed rules were received from the following groups, associations, businesses, and industries: Texas Automobile Dealers Association; The Goodyear Tire & Rubber Company; Environmental Recovery & Recycling Inc.; Tiregator Inc.; SPM Texas Tire Recyclers Inc.; Pro Tire Service; Southern Public Service Company; Akin, Gump, Stuass, Hauer, & Feld, L.L.P.; City of Houston; Holnam Texas; Tire Recycling of San Antonio; Gibson Recycling Inc.; Texas Tire Dealers and Retreaders Association; LaFarge Corporation; Scrap Tire Management Council; Safe Tire Disposal Corp. of Texas; Texas Department of Transportation; Scrap Tire Recycling, Inc.; Waste Recovery, Inc.; Brown McCarroll & Oaks Hartline; and several concerned citizens. The TNRCC held a second public meeting and opened an additional comment period to receive comments on modifications made to the proposed rules after the first public meeting and comment period. The second set of comments on the proposed rules were received from the following individuals, groups, associations, businesses, and industries: Brown & Potts, L.L.P.; Texas Association of Scrap Tire Recyclers; Tire Shredder Service, Inc.; Waste Recovery, Inc.; Gibson Recycling, Inc.; Tiregator, Inc.; Tire Recyclers, Inc.; Environmental Recovery and Recycling, Inc. and several concerned citizens. The TNRCC received one comment on sec.330.801 and sec.330.802(a) suggesting that the deleted reference to "disposal" of whole used or scrap tires be reinserted as a purpose of the WTRF program. Senate Bill 1051, through several mandates, requires the TNRCC to emphasize the need for recycling, reuse or energy recovery for scrap tires generated or located in illegal dumps in Texas. While the TNRCC still allows the disposal of whole used or scrap tires (halved, quartered or shredded for no reimbursement prior to landfilling) in landfills across the state, primarily because legislation does not prohibit this mechanism for disposal, the TNRCC feels compelled to support and further impress upon the regulated community the need to forward the majority of its tires to processing centers for recycling, reuse or energy recovery. As it is the plan of this program to ultimately accomplish 100% recycling, reuse or energy recovery for the scrap tires generated in the state annually, such intent must be conveyed in a positive manner in the rules. Therefore, the TNRCC declines to modify sec.330.801 and sec.330.802(a). The TNRCC received one comment on sec.330.802(a) requesting that this applicability section be made more specific regarding out-of-state end users and customers. This section is an introductory statement of general applicability and is not intended to override the more specific requirements established in other subsections of Subchapter R and Subchapter X. Further, the enabling legislation clearly outlines the limits of jurisdictional control and in each case, places limits on in-state program participants. Therefore, the TNRCC declines to modify sec.330.802(a). The TNRCC received one comment on sec.330.802(b) and sec.330.807 requesting that sec.330.807 be deleted as a requirement for a used tire that can be salvaged because such requirement was burdensome. The original sec.330.807 required a generator to maintain a generator's log in addition to maintaining manifests on-site. The TNRCC determined that a generator's log was unnecessary and chose instead to relax the record keeping duty by allowing generators to use the manifest alone as the source of documentation. Further, the TNRCC believes the current manifesting requirements function both as an inventory monitoring mechanism, and as a method to differentiate between the types of tires transported off-site. Therefore, because manifesting is a cornerstone in the WTRF program, serving to maintain the financial integrity of the fund, the TNRCC declines to modify sec.330.802(b) and sec.330.807. The TNRCC received one comment on sec.330.803 concerning the definition of "tire shred" as it relates to WTRF program eligibility. The statute describes an eligible tire shred as being nine square inches or less in size. Based on industry practices and for ease of reference, the rules use the terms "nine square inches or less" and "3 x 3 inch" interchangeably. However, the TNRCC recognizes this might cause confusion and agrees to modify the definition. The TNRCC received one comment on sec.sec.330.803, 330.823, 330.885(a)(1)(E), 330.930, 330.931(a)(1), and 330.931(e), requesting that the term "less than nine square inches in size" be corrected to reflect Senate Bills 1340 and 1051 which mandate that tires be shredded to "nine square inches or less in size". The TNRCC agrees that the legislation references "nine square inches or less in size" as the eligibility requirement for reimbursement from the WTRF and will correct the aforementioned sections. The TNRCC received one comment on sec.330.805 requesting that an exemption be created for fleet operators that can establish they return all their whole used or scrap tires to the retailers who provide service to them. Currently, the TNRCC defines a generator as an individual that accumulates whole used or scrap tires in such a quantity to require regular disposal (at a rate of 90 days or 500 tires on the ground or 2,000 tires in a trailer, whichever occurs first). If the fleet operator does not accumulate scrap tires but rather has a service that installs new tires and hauls away the scrap tires, then the retailer who disposes of the used or scrap tires must obtain registration as a generator. Several individuals or companies in the state operate in this manner. Since the rules, as written, provide for this method of operation, the TNRCC declines to modify the rules. The TNRCC received one comment on sec.330.805(b) requesting deletion of the statement requiring generators to ask where their whole used or scrap tires are being taken for disposal. Since most generators currently have contracts with processors for the disposal of their scrap tires, the need for a generator to know that his tires are being properly removed to the contracted processor is a critical business issue. Consequently, the TNRCC declines to modify sec.330.805(b). The TNRCC received two comments on sec.330.805(e) expressing concern due to the inability of tire recyclers to compete with processors for whole tires needed in their process. Since biased tires are recyclable as whole tires, the commenters want to be able to pay generators a small amount for such tires in order to keep them from processing facilities. Senate Bill 1051 mandates that no generator may receive remuneration in exchange for scrap tires. This change would require modified legislation and is not within the scope of these adopted rules. The TNRCC received one comment on sec.330.805(g) requesting that the restriction be eliminated that requires the generator to remove the rim from a scrap tire prior to the tire being transported off-site. Tires on the rim are not within the definition of scrap tires. Since they are not scrap or waste tires, they are not subject to the jurisdictional requirements of the WTRF program and, therefore, not subject to free-of-charge collection and transportation from the point of generation. Accordingly, the TNRCC declines to modify sec.330.805(g). The TNRCC received one comment on sec.330.806(d) requesting that the requirements for a generator to report changes to a manifest or failure to receive the returned portion of the manifest within 90 days, be eliminated. For ease in record review and to ensure WTRF program financial integrity, it is essential that the TNRCC be able to document and verify transportation activities, and confirm legitimacy of tires processed for reimbursement. Therefore, the TNRCC declines to modify sec.330.806(d). The TNRCC received two comments on sec.330.807(b) and sec.330.809(a) requesting that the generator's responsibility to initiate the manifest be discretionary, rather than mandatory. In order to efficiently track the course of waste tires from point of generation to final disposition for purposes of reimbursement program eligibility, the TNRCC must insist that generators initiate the manifest. Therefore, the TNRCC declines to change sec.330.807(b) and sec.330.809(a). The TNRCC received one comment on sec.330.807(b) and sec.330.809(a) requesting that should the TNRCC maintain the mandatory requirement for generator initiation of the manifest, the TNRCC have the burden to provide the manifest. The generator is in a better position to create and maintain appropriate records, particularly when manifests are used in great volumes on a daily basis. Additionally, this requirement would create an excessive financial burden to taxpayers. The TNRCC declines to modify sec.330.807(b) and sec.330.809(a). The TNRCC received one comment on sec.330.808(a)-(e) requesting to include the term "scrap tire pieces" with whole used or scrap tires because scrap tire pieces are a type of material that must be dealt with if the waste tire problem in the state is to be resolved. Further, in many sections of the rules, the TNRCC currently includes "pieces" in the definition for scrap tire, recognizing that certain generators must be assured that such tire pieces are eligible for free-of-charge collection and WTRF reimbursement. The TNRCC believes that modifying the definition will add clarity and improve consistency in the rules and agrees to change sec.330.808(a)-(e) to include the term "scrap tire pieces". Moreover, to ensure consistency throughout the rules, this modification will require similar changes to additional rule sections. The additional sections of the rules requiring modification include: sec.330. 805(a) and (b), sec.330.806(a) and (b), sec.330.807(a)-(d), and sec.330.809(a)-(d) . The TNRCC received one comment on sec.330.808(b) requesting that the burden of securing tires, in a completely locked and transportable container, not be placed on the generator. Tire security is a necessary requirement due to multiple generator reports of vandalism. Also, as to the issue of payment for the container, the TNRCC does not intend to interfere in the market-driven decisions of the industry; frankly, the TNRCC understands that the current industry practice is for the container to be provided by the processor at no cost to the generator. Accordingly, the TNRCC does not feel it is appropriate to regulate industry practices to such an exhaustive level and chooses not to make changes to sec.330.808(b). The TNRCC received one comment on sec.330.809 requesting clarification as to whether a generator may legally move his own scrap tires between his own business locations without obtaining a transporter's registration. The TNRCC understands the need might arise for tire redistribution between various business locations and agrees to include a transportation registration exemption for such individuals or companies. Further, the TNRCC believes that in conjunction with the issue previously mentioned, there exists a need for clarification regarding retreaders and/or recappers that are registered as generators and haul tires to or from customers. In order to eliminate future confusion regarding the treatment of recappers and/or retreaders under the WTRF program, the TNRCC will modify sec.330.809 to include language that resolves this issue. The TNRCC received one comment on sec.330.811(d) requesting that scrap tires and scrap tire pieces be exempted from the annual registration fees collected from transporters. The legislation specifically designates that only wholesale and retail dealers of new tires in the state are assured of free collection of waste tires from the point of generation. This change would require new legislation and is not within the scope of these adopted rules. However, it is the understanding of the TNRCC that many registered transporters that are also registered as processors will, as a service to their clientele, provide free-of- charge scrap tire removal from a registered generator's place of business. The TNRCC received four comments on sec.330.812(f)(1)(C), one comment on sec.330.835(a)(6)(A)(iii) and (viii), and one comment on sec.330.843(g)(1)(C) and (K), all requesting to modify the proposed language to better define the term "alteration" as it relates to suspension, revocation or denial of a registration. The commenters expressed concern regarding the potential for abuse of this term. The TNRCC agrees and will add a definition to sec.330.803 to define the term "alteration" as it relates to the rules contained in Subchapters R and X. Also, in an effort to clarify the record keeping responsibilities under Subchapters R and X, the TNRCC has added requirements outlining the correct methods for altering original documents in the following sections: sec.330.807(a), sec.330.815(c), sec.330.825(a), sec.330.835(d)(4), sec.330.845(b), sec.330.854(b), sec.330.933(d)(4), sec.330.935(d)(4), and sec.330. 937(c)(3). The TNRCC received one comment on sec.330.814 stating that the vehicular standards are redundant due to existing regulations enforced by other governmental agencies. The standards set forth in this section are specifically designed to prevent the types of health nuisances and safety hazards associated with the collection and transportation of whole used or scrap tires, scrap tire pieces or shredded tire pieces. As other governmental agencies regulate different aspects of vehicular safety, the TNRCC believes sec.330.814 is not redundant and declines to modify. The TNRCC received one comment on sec.sec.330.821-330.827, sec.sec.330.831- 330.840, and sec.sec.330.841-330.848, protesting the inappropriateness of an administrative approval process for shredding and storage facilities that occurs without the input and endorsement of the local affected municipality. Existing rules for the WTRF program require individuals or companies seeking registration as processors and/or storage facility owners or operators to comply with local ordinances no matter their location. In the absence of such compliance the rules do not allow the TNRCC to authorize operation and reimbursement under the program. Therefore, the TNRCC does not believe there is a necessity to change the rules. The TNRCC received one comment on sec.sec.330.821(g)(4), 330.831(c)(3)(D), and 330.831(c)(4), which affects sec.sec.330.841(g)(3)(D), 330.841(g)(4), 330.851(f)(3) (D), and 330.851(f)(4), requesting that the requirement for a processor to provide a detailed description of recycling, reuse or energy recovery activities be deleted. Senate Bills 1340 and 1051 mandate the evaluation by the TNRCC of recycling and energy recovery activities of each waste tire processor that received reimbursement from the WTRF. Accordingly, such a change would require new legislation and is not within the scope of these adopted rules. The TNRCC received two comments on sec.330.822(e), three comments on sec.330. 835(a)(3) and two comments on sec.330.843(F) requesting to modify the proposed language to define what constitutes a change in ownership, to clarify under what conditions a change in ownership is authorized and to increase the flexibility for filing times of new or amended application. The TNRCC is in partial agreement and will increase the time allowed before a new registration, resulting from a change in ownership, will be required to be submitted. Further, as the proposed rule disallows transfer of ownership, the TNRCC will amend the proposed rule to allow for transfer of ownership upon executive director approval. Additionally, this modification will result in changes to sec.sec.330.852(e), 330.933(a), and 330.937(a)(5). However, as to modifying the definition of "change of ownership", the TNRCC believes the federal tax identification number is the most comprehensive yet simple mechanism to track changes in ownership. In addition, as this is an existing requirement in federal regulations, the TNRCC, in its effort to simplify the regulations governing the WTRF program and to eliminate excessive work for application preparation, declines to change this section. The TNRCC received three comments on sec.330.822(f)(1)(H) requesting that the 180-day operational requirement for registered mobile tire processors be eliminated because market requirements and location changes could easily result in a period in excess of 180 days between needed use of the processing equipment. The TNRCC believes the commenter misread the section to some degree because the requirement only references that initial operation of the processing equipment, for allocation purposes, must occur within 180 days of executive director approval. However, the TNRCC will clarify sec.330.822(f)(1) (H) to ensure such confusion is eliminated. Further, the TNRCC will clarify sec.330.822(f)(1)(H) to base revocation or suspension on the processor's failure to properly notify the executive director of the delay in operation, their ultimate intention to operate and the schedule for facility start-up, rather than on a strict 180-day limit. The TNRCC received two comments on sec.330.832(b)(2) requesting modifications to the proposed language to clarify whether the 12-month removal time period applies to shredded tire pieces stored prior to January 1, 1996. The TNRCC agrees and will change sec.330.832(b)(2) to specify that the 12-month removal time period applies to shredded tire pieces housed at the storage facility after January 1, 1996. Removal of shredded tire pieces stored prior to the January 1, 1996 date will be resolved on an individual facility basis with each registered mobile tire processor and waste tire facility. The TNRCC received one comment on sec.330.835(a)(3) requesting the current definition of "change of ownership" be modified to link a change in ownership to a percentage of stock transferred. The TNRCC believes the current method of utilizing the federal tax identification number as the mechanism to determine whether a change in ownership has occurred, is adequate in that the requirements placed on the program participant are neither duplicative nor onerous. Therefore, the TNRCC declines to change sec.330.835(a)(3). The TNRCC received one comment on sec.330.835(a)(6)(A)(ii), which affects sec.330.822(f)(1)(B) and sec.330.843(g)(1)(B), stating concerns with the inability to determine "safe working order" of off-road vehicles and questioning whether parking citations were included in the vehicular safety standard. The TNRCC agrees that there exists some confusion in sec.330.835(a)(6) (A)(ii), sec.330.822(f)(1)(B), and sec.330.843(g)(1)(B) as written and will change the language accordingly. The TNRCC received one comment on sec.330.841 requesting that the proposed rule include additional language to ensure fair application. Specifically, the commenter requested the ability to refute or respond to the grounds for disapproval of an end use source. Pursuant to Senate Bill 1051, the TNRCC shall define recycling and may disapprove of the use a person identified by the processor has for tire pieces. Therefore, the burden rests with the processor to convince the executive director that the proposed recycling mechanism is legitimate in nature. Because the ability for a processor to respond to the executive director's decision to disapprove that specific recycling mechanism is inherent in the approval process, the TNRCC declines to modify this section. The TNRCC received three comments on sec.330.842(c) requesting clarification on the need for weighing all loaded containers by the end of each shredding shift. For ease in record review and to ensure WTRF program financial integrity, it is essential that the TNRCC be able to document and verify discrete shredding activities. Accordingly, the TNRCC declines to eliminate this requirement from sec.330.842(c). The TNRCC received three comments on sec.330.842(e) expressing concern about the requirement that each truck and trailer combination obtain a tare weight daily. Because there are several factors that can affect the overall weight of a truck and trailer combination, it is necessary to ensure accuracy for reimbursement purposes. Further, for ease in record review and to ensure WTRF program financial integrity, it is essential that the TNRCC be able to document and verify discrete shredding activities. Consequently, the TNRCC chooses not to modify sec.330.842(e). The TNRCC received one comment on sec.330.843(j) requesting the date for requiring registration applications to contain information regarding the source of recycling be changed. Senate Bill 1051 specifically designates the date by which such information will be required in all new and renewal applications. Consequently, this change would require new legislation and is not within the scope of these adopted rules. The TNRCC received one comment on sec.330.846 requesting clarification of the proposed language addressing the ability to dispose of the material resulting from the shredding process (specifically rubber contaminated wire and rubber contaminated fabric) in a landfill or monofill if the material received reimbursement from the WTRF. The proposed rule conditions the ability to dispose of shredded tire pieces in a landfill or monofill upon whether such pieces received reimbursement. As rubber contaminated wire and fabric are typical byproducts of the shredding process, their disposal in a landfill or monofill is clearly equally conditioned upon whether the original shredded tire pieces, from which those byproducts are derived, received reimbursement. Accordingly, the TNRCC declines to modify sec.330.846. The TNRCC received one comment on sec.sec.330.851-330.856 and 330.858 questioning the fairness of reimbursement for baling waste tires to be shipped out-of-state, as opposed to non-reimbursement for in-state delivery. Senate Bill 1051 places no restriction on baling tires for in-state or out-of-state delivery; the point of delivery is not the deciding factor. Reimbursement eligibility for baling of tires is only precipitated when such baled tires are used for energy recovery purposes. The TNRCC believes the rules as drafted correctly reflect the clear statutory mandate, and declines to modify sec.sec.330. 851-330.856 and 330.858. The TNRCC received one comment on sec.330.861(c) inquiring the reason the TNRCC has not implemented the RFP process for PEL assignment since PEL sites are so scarce. Senate Bill 1051 mandates the TNRCC to implement the RFP process for PEL assignment only when the number of tires in illegal sites on the listing falls below 500,000. Since the PEL still contains in excess of 500, 000 tires, the TNRCC is prohibited from initiating the RFP process. Consequently, the TNRCC is unable to modify sec.330.861(c). The TNRCC received three comments on sec.330.871(c)(1) proposing that shredding capacity be calculated from a demonstrated process to reflect accurate figures rather than using original anticipated shredding capacity. The TNRCC acknowledges that the two full years of reported shredding capacity figures more accurately reflect facility capabilities than do anticipated capacities contained in the original application. Accordingly, the TNRCC will modify sec.330.871(c)(1) to reflect this updated information. The TNRCC received one comment on sec.330.872(e)(10)(A), which affects sec.330.857(d), sec.330.872(e)(10)(B), sec.330.872(e)(10)(C), sec.330.877(b)(2)(A), sec.330.877(b)(2)(B), sec.330.877(b)(2)(C), sec.330.877(b)(5), sec.330.877(c), and sec.330.877(d), requesting that the phrase "energy recovered" be clarified. The TNRCC agrees that the language might cause confusion and will modify the aforementioned sections accordingly. The TNRCC received one comment on sec.330.876(d) seeking clarification of the conditions under which the reimbursement for more than $0.85 per waste tire unit can occur. Senate Bill 1051 specifies that the only conditions under which the reimbursement for more than $0.85 per waste tire unit can occur is when the TNRCC awards a contract for cleanup of a PEL site. The TNRCC believes the rule as drafted correctly incorporates the legislative mandate and, therefore, declines to amend sec.330.876(d). The TNRCC received one comment on sec.330.877(c) requesting that the 15% to 30% Priority Enforcement List (PEL) monthly range for reimbursement eligibility be reconsidered. Because the legislation specifically states the PEL range required for reimbursement eligibility, a change would necessitate new legislation and is not within the scope of these adopted rules. The TNRCC received three comments on sec.330.885(a)(1)(D) indicating that the requirement for additional financial assurance for the receiving facility would be burdensome and costly. Further, the comments indicated such an increase would effectively make it impossible for them to operate at a profit and thus, stay in business. The TNRCC agrees that the requirement appears to be excessive and, therefore, will eliminate sec.330.885(a)(1)(D) from the rules. The elimination of sec.330.885(a)(1)(D) requires relettering of the remaining listed requirements. Accordingly, items "E" and "F" become "D" and "E" to ensure the correct sequence of letters. Also, the elimination of sec.330.885(a) (1)(D) requires an additional modification in sec.330.886(d) to eliminate the calculation of additional financial assurance for the receiving facility in the general requirement for closure cost calculation. The TNRCC received fifteen comments on sec.330.885(a)(1)(E) requesting that the TNRCC eliminate the requirement to provide additional financial assurance to assist in recycling in the event of a processor's choosing not to reshred 3 X 3 inch shreds to 2 x 2 inch minus shreds should the facility close and require cleanup. The TNRCC is in partial agreement and will modify the rules to allow for a variance to accommodate the potential for an end use market that uses 3 x 3 inch shreds in its recycling process. However, the TNRCC believes specific conditions must be met prior to approval of this variance. These conditions shall be set forth in sec.330.885(a)(1)(F) of the proposed rules to accommodate a processor's need to include such additional factors in the amended Closure Cost Estimate for the waste tire storage facility. The TNRCC received three comments on sec.330.885(d)(2) requesting that the volumetric calculations for pile size (number of pounds per cubic yard of tires pieces contained in a tire pile) be revised upwards to 950 pounds per cubic yard. The TNRCC agrees that 950 pounds per cubic yard is an industry accepted standard and will change sec.330.885(d)(2) to reflect the increased value. The TNRCC received one comment on sec.330.889(h) stating that the requirement is too broad and difficult to enforce. The TNRCC agrees, in part, with the commenter, but has purposely included this section in order to provide a method to regulate the variety of potential mechanisms of future beneficial uses of whole used or scrap tires. Approvals and enforcement of such unknown beneficial use processes will occur on a case-by-case basis as technology develops. The TNRCC, therefore, chooses not to change sec.330.889(h). The TNRCC received two comments on sec.330.900(c)(1) and sec.330.904(c) requesting that the TNRCC reconsider the reimbursement eligibility of crumb rubber production under the Useful Product Reimbursement program. The TNRCC believes that crumb rubber is not in and of itself a useful product. Rather, it is an intermediate raw material that is used to produce a useful product. An example would be crumb rubber used to make rubberized asphalt. In this instance, the TNRCC interprets Senate Bill 1051, based on legislative intent, to mean that the rubberized asphalt is the useful product and, therefore, reimburses the individual or company that makes the rubberized asphalt. If the TNRCC authorized reimbursement for both the raw material and the final product itself, the TNRCC would be reimbursing more than the legislation allows. The statute specifically prohibits reimbursements of more than $0.25 for each weighed tire. Therefore, the TNRCC declines to change these sections. The TNRCC received three comments on sec.330.900(f) and (h) requesting that the unused portion of the waste tire resulting from the production of a useful product be eligible for reimbursement at a rate to $0.85 per 18.7 pounds under the WTRF program if the unused portion is greater than nine square inches in size. The TNRCC concurs with the request and will modify sec.330.900(f) and (h) to ensure such Useful Product Reimbursement program tire scraps are eligible for reimbursement as a scrap tire pieces, when the Useful Product Reimbursement program participant documents that the scraps are in-state eligible tires and are in excess of nine square inches in size. The TNRCC received one comment on sec.330.901(b)(2) requesting that "subsidize" be replaced with "promote" to better reflect the objectives of the Useful Product Reimbursement program. The TNRCC concurs and will change sec.330. 901(b)(2). The TNRCC received one comment on sec.330.901(c) stating that if Useful Product Reimbursement program participants are going to be required to clean up PEL sites as mentioned in other subsections, then this requirement should be translated into the classification of eligible tires. The TNRCC believes the option for Useful Product Reimbursement program participants to bid under the RFP contract process and/or be assigned PEL sites for cleanup should be available in the rules. As the subsection on classification does omit PEL tires, the TNRCC agrees to modify sec.330.901(c) by adding a classification for PEL tires. The TNRCC received one comment on sec.330.902(a) stating that Useful Product Reimbursement program participants need some time for operation prior to submittal of their initial reimbursement request. The TNRCC recognizes the general need for new facilities to "work out the bugs" and shares the concern that such time be made available to the Useful Product Reimbursement program participants prior to the first quarterly reimbursement period. Further, the TNRCC needs time to get such individuals or companies into our databases so reimbursement can occur in a timely manner. Therefore, the TNRCC agrees to modify sec.330.902(a). The TNRCC received one comment on sec.330.903(d) requesting that Useful Product Reimbursement program participants be required to track the types of tires received for reimbursement purposes. The TNRCC concurs that there is a need for accurate record keeping for reimbursement purposes. Further, the TNRCC foresees the potential for voucher reimbursement verification problems if adequate tracking is not instituted for both types of tires received at the facility (whole tires, tires pieces and/or tire shreds) and percentages of same tires (classified by generator, PEL and special authorization). Consequently, the TNRCC agrees to modify the tracking portions of sec.330.903(d) and add new subsection sec.330.903(e). The TNRCC received one comment on sec.330.904 requesting clarification on the types of tires eligible for reimbursement under the Useful Product Reimbursement Program. The language outlines which tires are not eligible for reimbursement under the Useful Product Reimbursement Program. By listing the excluded tires, the remaining tires are, therefore, eligible. However, the TNRCC agrees that the language may be somewhat confusing and will modify sec.330.904(a) and sec.330.904(b). The TNRCC received one comment on sec.330.904 questioning the lack of eligibility for recapping and retreading as a form of recycling under the auspices of the WTRF program. Senate Bill 1051 directed the TNRCC to develop and implement a program providing for the reimbursement of whole tires and/or shredded tire pieces as useful products. Tires that are retreaded and/or recapped are considered tires that are capable of being reused for their original purpose and are, therefore, exempted from program activities. Such tires, when discarded and no longer capable of being used for their original purpose, will find their way into the WTRF program and ultimately be recycled. In order to eliminate any confusion that might exist regarding eligibility under the Useful Product Reimbursement program, the TNRCC agrees to modify the rules and create sec.330.904(g). The TNRCC received one comment on sec.330.907 requesting that the TNRCC delete the condition in the definition of a useful product requiring a contract for the sale of a minimum of 75% of the product made on a quarterly basis. The legislation dictates that the TNRCC reimburse individuals that produce a useful product. In order to ensure that the product is useful, the TNRCC believes the product must be capable of being sold to the consumer. Requiring that the company confirm that a minimum of 75% of the product for which reimbursement is being sought during the quarterly period is contracted for sale, is the least burdensome method the TNRCC could devise to ensure that the intent of the legislation was being carried out. It is fair to assume that any company producing and selling such a product would have such a document available and, therefore, be able to provide the contract during the records review prior to submittal of the reimbursement voucher. The TNRCC, therefore, declines to change the section. The TNRCC received one comment on sec.330.907(a)(3) and sec.330.907(a)(5) requesting that the 75% contract requirement be eliminated in lieu of proof of sale and that the purchaser be an identifiable third party. The TNRCC agrees that this substituted language more accurately defines the actual sale process. Accordingly, the TNRCC will modify sec.330.907(a)(3) and sec.330.907(a)(5). The TNRCC received one comment on sec.330.908(c) stressing the need to develop general criteria or guidance for the amount of money a Useful Product Reimbursement program participant will receive for processing a tire to make a new useful product. The rules generally discuss the maximum amount a program participant may be reimbursed and the incremental increases dependent on type of product and complexity of process. However, the TNRCC agrees that greater specificity would be helpful to the potential Useful Product Reimbursement program participant in order to determine, prior to actual application submittal, the maximum range for reimbursement. Accordingly, the TNRCC will modify sec.330.908(c). The TNRCC received one comment on sec.330.920 requesting the method of allocation be amended to incorporate a method to distribute dollars unused monthly. The commenter suggested that any dollars remaining at the close of a month be distributed to processors that exceeded their monthly allocation of tires shredded or had carryover resulting from previous months' over-shredding. This suggestion would serve to keep processors current on payment for services rendered. Also, since the amount used to reimburse for carryover would only be the unused allocation dollars each month, reimbursements made would not reduce the base amount which the allocation model allowed for reimbursements each month and would, therefore, protect fund solvency. The TNRCC agrees that this method of distributing unused monthly fund monies would perhaps hold in check the size of processor's carryover. However, there would have to be conditions on the ability to pay out monthly. Specifically, distribution of the unused portion could only occur monthly after the reallocation month, the distribution of funds would have to occur on a percentage basis of the processor's existing carryover, and the TNRCC would have to retain the discretion to not reimburse the unused funds during any specific month. With the inclusion of these conditions, the TNRCC agrees to modify sec.330.920 to include a mechanism in sec.330.920(f) to pay a processor's accumulated carryover. The TNRCC received three comments on sec.330.920 requesting the method of allocation be amended to authorize the expenditure of the $5,060,000 withheld for the RFP system and the Useful Product Reimbursement (UPR) program, leaving only the statutory minimum ($500,000) to ensure fund solvency. The commenter recommends that the amount be divided evenly over the annual 12-month reimbursement period and used to reimburse processors for past monies owed for shredding. Currently, the monies intended for the RFP system and the UPR program will only be reserved when those programs become effective. Also, the unused dollar portion from each program's annual (for the RFP system) or quarterly (for the UPR program) reimbursement period will be redirected to the processor's portion of the WTRF and be made available for shredding reimbursement. As the funds necessary to support the previously-stated programs must be encumbered to ensure TNRCC ability to reimburse for services rendered, sec.330.920 will not be changed. The TNRCC received three comments on sec.330.920(a)(6) requesting that the allocation method be eliminated and the reimbursements be based on total number of tires shredded monthly divided by the percent of the monthly total processors claimed. The statutory minimum amount ($500,000) necessary to ensure fund solvency would be subtracted from the fund balance prior to the determination of funds available for payout. The dollars reserved for RFP system and UPR program reimbursements would not be taken into consideration. Senate Bill 1051 mandates that the TNRCC shall take at least four factors into consideration when determining the allocation mechanism for disbursements from the WTRF. Also, as Senate Bill 1051 requires implementation of an RFP system and a UPR program when certain conditions arise, the TNRCC is compelled to encumber the funds necessary to reimburse for services rendered prior to implementation of the work. Since this change would require a modification to the legislation and is not within the scope of these adopted rules, the TNRCC declines to change sec.330.920(a)(6). The TNRCC received four comments on sec.330.920(a)(8) requesting that all processors have the flexibility to receive allocations based on multiple processing registrations. The allocation model seeks to allocate tires under a fair system that does not unnecessarily favor large processors; processors of different sizes provide a variety of services to generators throughout the state. Consequently, the TNRCC does not believe a change is in order. The TNRCC received two comments on sec.sec.330.921, 330.922, and 330.923, all objecting to the emphasis placed on historical shredding capacity and program longevity. The legislation dictates the factors that will be considered in the allocation mechanism. Since the legislature requires that both program longevity and historical shredding be taken into consideration in any method developed to allocate the WTRF, eliminating these factors from consideration would require new legislation and is not within the scope of these adopted rules. Further, in an effort to promote recycling, the TNRCC proposed a graduated scale for end use market delivery and historical shredding capacity. This scale increases the emphasis on end use market delivery annually at the same rate that it decreases the emphasis on historical shredding capacity. The result of this reversal of emphasis is the assurance that recycling only gradually becomes the most important factor, providing the processors approximately two and one half years to accommodate this change by shifting their business emphasis. The TNRCC received four comments on sec.330.921(a)(2) requesting that historical shredding capacity be defined as the average number of tires shredded monthly between the date the processor registered and the date of allocation. Senate Bill 1051 bases allocation on the monthly average number of tires for which the processor has been historically reimbursed, not the average total number of tires shredded. Consequently, this change would require new legislation and is not within the scope of these adopted rules. The TNRCC received four comments on sec.330.922(a)(5) requesting that end use be calculated on a monthly basis, or on an averaged amount based on the most recent six-month period. This method of end use calculation fails to take into consideration the volume of tires stored at the facility since entry into the program versus total storage capacity. Also, basing end use calculations on either a monthly or semi-annual reporting period could be detrimental to processors that do not recycle on a daily basis but rather accumulate shreds on the storage site then ship for bulk recycling. However, the TNRCC acknowledges that sec.330.922(a)(5) was somewhat confusing and has modified the definition for "end use" for purposes of clarification. The TNRCC received one comment on sec.330.923(b) recommending that the allocation formula be modified to include another criterion that takes into consideration the actual capacity for demonstrated markets. The existing requirement, added by the agency, to determine the end use market delivery, is an adequate mechanism to consider the tires that an individual or company forwards to a recycler monthly. The TNRCC does not believe that two factors determining end use are warranted at this time and, therefore, declines to modify sec.330.923(b). The TNRCC received one comment on sec.330.923(c) requesting that the weighting factor for end use market delivery be increased to 100% after January 1, 1996. While the TNRCC advocates the complete recycling of all tires processed in Texas, the TNRCC believes that limiting allocation to only those processors that have 100% recycling at all times unnecessarily interferes in the day-to-day business of the tire market. Furthermore, Senate Bill 1051 does not authorize the TNRCC to create an all-or-nothing allocation scheme based on end use markets, but merely recommends the promotion of recycling as a condition for program recertification. Therefore, the TNRCC declines to change sec.330.923(c). The TNRCC received one comment on sec.330.923(b), (c), and (d) from the commissioners requesting that the weighting factor percentages after January 1, 1996, be adjusted in the following manner: end use market will increase to 80%; historical shredding capacity will decrease to 5.0%; registration date (program longevity) will decrease to 5.0%; and storage capacity will remain unchanged at 10%. Since a major concern of the TNRCC is the assurance that processors will be proactive in identifying, promoting and forwarding their tire shreds to end users, and since after January 1, 1996 the TNRCC can only reimburse processors for the shreds that they have forwarded to an end use market, it is logical to structure the allocation model to reflect an emphasis in end use after the January 1, 1996 date. Therefore, the TNRCC will modify sec.330.923(b), (c), and (d) to reflect the commissioners request. The TNRCC received seven comments on sec.330.926(a) requesting that the definition of a rural county in Texas be changed to amend the threshold from a population of 10,000 or less to 50,000 population or less and/or allow the generator to designate the destination of his tires. The Texas Tire Dealer and Retreaders Association submitted information to the TNRCC indicating that the tire dealers located in rural counties are currently adequately being serviced by the waste tire processors. Therefore, because no additional incentive is needed for waste tire processors to provide service to rural counties, the definition of a rural county will be changed to 50,000 or less population in sec.330.926(a). Also, sec.330.926(b) and (c) will be corrected to correspond to the modified county population limit reflected in sec.330.926(a). The TNRCC received one comment on sec.330.932 and sec.330.933 stating that the regulations on waste tire recycling facilities are highly detailed and burdensome. To the extent that certain burdensome requirements nonessential to basic design, operation and reporting standards are unnecessary to ensure proper regulation of a reimbursement program, those sections have been deleted. The sections eliminated and/or modified by these changes include sec.330.933(a) (3), sec.330.933(a)(4), sec.330.933(a)(5), sec.330.933(a)(7)(C)(viii), sec.330. 933(a)(8), sec.330.933(a)(8)(A), sec.330.933(a)(8)(B),sec.330.933(a)(8)(C), sec.330.933(a)(8)(E), sec.330.933(a)(8)(F), sec.330.933(b)(1), sec.330.933(b)(9), sec.330.933(b)(11), sec.330.933(c)(2)(E), sec.330.933(c)(2)(F), sec.330.933(c)(2) (G), sec.330.933(c)(2)(H), sec.330.933(c)(2)(I), and sec.330.933(c)(2)(K). The elimination of various sections resulted in relettering/renumbering to maintain proper format. The TNRCC received three comments on sec.330.934 and sec.330.935 criticizing that the requirements for registration as a waste tire energy recovery facility are burdensome and costly, and could act as a deterrent to potential tire derived fuel users in the state. The commenters indicated that, while some reasonable requirements governing the management, storage and use of tire derived fuel are appropriate, consideration should be given to eliminate the excessive requirements. The TNRCC believes tire derived fuel is a legitimate recycling mechanism. Further, the TNRCC is committed to providing a positive atmosphere for the development of waste tire recycling markets in the state. Therefore, the TNRCC agrees and sec.330.934 and sec.330.935 will be modified, by eliminating extensive sections, to lessen the requirements for registration as a waste tire energy recovery facility. The TNRCC received one comment on sec.330.934, 330.935 and 330.936 requesting clarification on the need for dual registration as a waste tire collection center and as a waste tire energy recovery facility. Registration as a waste tire collection center is reserved for governmental entities for the purpose of assisting them in organizing and operating a waste tire collection center with a minimum of regulatory requirements. Individuals or companies that operate as a waste tire energy recovery facility are not eligible to register and cannot receive authorization to operate as a waste tire collection center. The authorization to operate as a waste tire energy recovery facility allows registered entities to receive, by manifest, whole used or scrap tires or scrap tire pieces or shredded tire pieces from waste tire processors, waste tire transporters, and, indirectly, generators, and store such tires prior to burning the material as an alternative fuel source. The TNRCC agrees that the language may be confusing and will clarify sec.sec.330. 934-330.936. The TNRCC received one comment on sec.330.936 stating the requirements are too burdensome and costly for starting up transfer stations and collection centers. The TNRCC believes the commenter misread the section to some degree because there is no requirement for runoff control and fire prevention in the registration requirements for such facilities. Further, the TNRCC does not believe the existing requirements governing the construction and operation of the aforementioned facilities place an undue hardship on individuals, companies, or governmental entities interested in participating in the WTRF program. Consequently, the TNRCC is not inclined to modify sec.330.936. The TNRCC received one comment on sec.330.936(a) and sec.330.936(b) requesting clarification of the definitions for "transfer station" and "recycling collection center". The TNRCC agrees that the definitions may be somewhat confusing and will modify sec.330.936(a) and sec.330.936(b). In order to clarify confusion in the body of the rules, the TNRCC will make minor changes to the definition of "tire recycling collection center" and "tire transfer station". The TNRCC received one comment on sec.330.938, which is affected by changes in sec.330.934 and sec.330.935, criticizing that the requirements for registration as a transportation facility are unnecessary, burdensome, discourage recycling, and do not accomplish the goals set forth therein. The commenter indicated that the entire section should be dropped. While the TNRCC does not believe the requirements pertaining to transportation facilities should be deleted, the TNRCC has made extensive modifications to sec.sec.330.934 and sec.330.935, which in turn, clarify sec.330.938. Therefore, the TNRCC agrees to lessen the requirements placed on transportation facilities by amending sec.330.934 and sec.330.935. As indicated during the hearing on the proposed rules on May 16, 1994, the TNRCC identified several errors that would be corrected when the rules were republished. The sections that contain the errors are stated below with a brief description of the error and the correction made to the rules. In sec.330. 805(g), a comma had been omitted between the words "processor" and "or", creating confusion in the intent of the grouped individuals that can receive scrap tires. The comma will be included to clarify the requirement. In sec.330. 808(d), the word "subchapter" was not capitalized. Since it is referencing the title, Subchapter X, it should be capitalized. In sec.330.875(a) the citation relating to Texas Civil Statutes is incorrect. During the 73rd Legislative Session, Texas Civil Statutes was codified separately, therefore, the correct citation is Government Code, sec.552.001 et seq and sec.330.875(a) will be amended to reflect the correct citation. In sec.330.843(g)(1)(N) the citation relating to Shredding Outside of State is incorrect and will be amended to reflect sec.330.879(d) as the correct citation. In sec.330.851(b)(3) the citation relating to the Waste Tire Baling Facility Registration is incorrect. The correct citation for baling registration requirements is sec.330.852(c)(6). Therefore, sec.330.851(b)(3) will be corrected to reflect the correct citation. Section 330.851(f)(3) requires a listing of all registered facilities to which the baler currently delivers its "shredded tire pieces". However, a baler does not shred tires, it bales tires. Therefore, the phrase "shredded tire pieces" should be replaced with "baled tires" to correctly reflect the form of tire that is being delivered to recycling or energy recovery facilities. Section 330.852(h)(1) states that the "executive director" may suspend or revoke registration, or deny the issuance of an initial or renewal registration. However, in other sections of the proposed rules, this authority is vested in the commission and not the executive director. Therefore, in order to maintain consistency within the rules, sec.330.852(h)(i) has been changed to give the suspension and revocation authority to the commission. Section 330.854(c)(10) lists the items to be contained in a monthly operations report as items "A" through "M" but deletes letter "L" in the sequence. The letter "M" should be replaced with "L" to reflect the correct sequence of letters. Section 330. 885(a)(2)(A) references previous criteria in "paragraph (1)(A)-(C)" used in the determination of financial responsibility for processing facilities. Criterion "B" in the rules references calculations for a storage facility, not a processing facility, and is, therefore, inappropriately referenced. The correct reference is "paragraph (1)(A) and (C)". Section 330.902(a)(10) contains the statement that Useful Product Reimbursement Program applications for registration must be accompanied by a $500 non-refundable review fee. Senate Bill 1051 authorized the TNRCC to assess a $500 review fee only on processor and storage facility applications. This requirement will be removed from sec.330.902(a)(10) because it is not statutorily authorized. Section 330. 914(d) states that the executive director shall file a petition seeking an order from the commission to compel payment. Because the TNRCC cannot mandate the executive director to file a petition, the word "shall" will be replaced with the word "may". Section 330.923(b) sets up initial weighting factors beginning in fiscal year 1993 and 1994. Since those time periods have or will expire prior to the effective date of the rules, sec.330.923(b) will be deleted and sec.330.923(c) will be renumbered as sec.330.923(b) for current time periods to be adopted in the rules. Also, sec.330.923(c)(1) will be deleted due to fiscal year 1994 expiring prior to adoption of the rules. Section 330.923(c)(2) -(4) will be renumbered as sec.330.923(b)(1)-(3). Section 330.923(d) and (e) will be relettered as sec.330.923(c) and (d). Section 330.928 incorrectly describes the method of calculating the reallocation model. The method of calculation should read, "...waste tires were collected. The weighted index is then divided by 100 to negate the percent effect created by the previous calculation to determine the weighting factor for rural county collection. This index shall be used to calculate the number of reallocated tires each participating processor will receive by multiplying the number of unused initially allocated tires (from the first month of allocation) by the weighted index.". This error was specifically announced at the beginning of the public hearing for the proposed WTRF rules. Also, an example calculation worksheet was sent to all affected processors to explain the model and clarify the calculation error contained in the rules. This error will be corrected to allow for implementation of the Senate Bill 1051 requirement to allocate the fund. Section sec.330.931(a)(4) contains a requirement that is applicable to processors but is not applicable to generators. Therefore, the word "generators" will be replaced with "processors" to correct this inadvertent error. In sec.330.937(a)(6) the word "Facilities" is spelled incorrectly and such misspelling will be corrected. Section 330.937(a)(7)(C)(vii) includes a requirement that is inconsistent with requirements contained in other sections of the rules. The rules will be corrected to remove that requirement because no other registration section in the rules makes this demand on the applicant. In sec.330.937(b)(6) the word "Waste" is spelled incorrectly and such misspelling will be corrected. Several of the comments received during the second comment period and the second hearing reiterated original comments received during the first public meeting and comment period. Where comments received during the second public meeting merely repeated earlier comments, receipt of these comments are simply identified by changing a "one" comment to "two" comments (relating to the actual number of additional comments received) in the appropriate places of the preamble. New comments raising different concerns are addressed separately in the following paragraphs. The TNRCC received a new comment on sec.330.885(a)(1)(D) stating that the definition for a recyclable size tire chip was not the industry standard for a recyclable size tire chip. The TNRCC agrees and will amend the proposed rule to adopt the industry definition for a recyclable size tire chip. This change also will be made in sec.330.885(a)(1)(E) and sec.330.885(a)(1)(F). The TNRCC received a new comment on sec.330.482(c) suggesting that a requirement be placed on the processors to have the date, time, gross weight, tare weight and net weights stamped on the weigh tickets. (Because the rules do not have a sec.330.482(c), it is assumed that the commenter incorrectly typed the numbers and that the comment is actually made on sec.330.824.) Recent audits performed on behalf of the TNRCC on the processors' records revealed that hand written dates, times, etc. pose serious difficulties to staff's ability to verify the accuracy of the processors' records for their requested reimbursements. For ease in record review and to ensure WTRF program financial integrity, the TNRCC agrees to make this modification to sec.330.824(f). Additionally this modification will result in a corresponding change to sec.330. 842(e). The TNRCC received one comment on sec.330.824(b) and sec.330.842(c) requesting that the calibration of the scales be increased to a quarterly or semi-annual basis. To ensure WTRF program financial integrity, it is essential that scales be calibrated frequently enough to ensure that correct weights are measured throughout that period of time; the more time allowed between required scale calibrations, the larger the percentage of error becomes, resulting in a larger discrepancy of weights over time. Therefore the TNRCC declines to modify this section. The TNRCC received one comment requesting language be added to sec.330.885(D) to clarify that the section be applicable only to tire shreds which are shredded after the effective date of the adoption of these rules. While the TNRCC believes that such language is already in the modified rule, for clarification purposes the TNRCC will modify sec.330.885(D) per commenter's request. The TNRCC received a comment on sec.330.885(a)(1)(F) requesting the TNRCC to extend the 180-day period in subparagraph (F)(i) for good cause shown, including the fact that the waste tire recycling facility(ies) or waste energy recovery facility(ies) has an application pending for final regulatory authorization, such as a permit, to begin its process which utilizes shredded tire pieces. The TNRCC believes that the 180 day delivery date of tire shreds for recycling is a sufficient time frame to allow development of contracts and is consistent with the legislative mandate to promote recycling. While the TNRCC recognizes the potentially lengthy process inherent in obtaining a permit, the TNRCC also recognizes that not all applications result in the issuance of permits. Tire shreds are only exempted from the additional financial assurance requirements if such shreds are actually recycled, and therefore, no longer a potential cleanup problem for the taxpayers of Texas. Further, recycling and energy recovery facilities themselves are not authorized to store an unlimited and unregulated amount of tire shreds on-site. To indefinitely extend the already ample six month window is not consistent with the legislation or the existing rules. Consequently, the TNRCC declines to modify sec.330.885(a)(1)(F). The TNRCC received an additional comment requesting that a variance from sec.330.885(D) be granted if a processor who is also a waste tire recycling facility or waste energy recovery facility, has copies of internal memoranda showing the amount of shredded tire pieces used in recycling or energy recovery to document a viable end market for the tire shreds. The TNRCC agrees that such a processor should not have to produce a binding contract between a processor and waste tire recycling or energy recovery facility, if they are the same company, in order to request a variance from sec.330.885(D). Therefore, the TNRCC has added subsection sec.330.885(F)(iv) to allow the manifests, monthly operations reports, annual reports and semi-annual recycling reports submitted by the processor to the TNRCC to serve as documentation of viable end market for a processor that is also a recycling or energy recovery facility. The TNRCC received a new comment on sec.330.920(b)(2) requesting the TNRCC to include a factor for demonstrated developed end uses in the reallocation process. The only factor provided by the legislation for purposes of reallocation is rural collection, which threshold population was increased previously in these rules. Further, the original allocation process already incorporates demonstrated developed end uses as a factor, and increases its emphasis over time. Therefore, the TNRCC declines to modify sec.330.920(b)(2) to include demonstrated end uses. The TNRCC received two comments that stated sec.330.920(e) did not clearly indicate that reallocation would occur every six months. The TNRCC rules, as drafted, state that the new allocation will be recalculated at six-month intervals based on the calendar year. The TNRCC believes that the language is clear and declines to make any modifications to sec.330.920(e). The TNRCC received one comment requesting that sec.330.925(a), (c) and (d) be modified to allow 50% of the portion eligible for reallocation to be assigned to processors who have demonstrated developed end uses for the tire shreds. The allocation process already factors developed end uses into the model. In fact, its emphasis is increased over time. Consequently, the TNRCC does not believe incorporating developed end uses into the reallocation process is warranted at this time, therefore, declines to make modifications to sec.330.925. The TNRCC received a request to perform an analysis of the potential adverse economic effects on small businesses caused by the adoption of the proposed revisions to 30 Texas Administrative Code (TAC) Chapter 330, Subchapters R and X, pursuant to the Texas Government Code, sec.2006.002. A statement of the effect of the proposed rule on small businesses was contained in the Fiscal Note and published as part of the notice of the proposed revisions to 30 TAC Chapter 330 on April 19, 1994. As required by the Government Code, sec.2006.002(d), this statement of effect was published in the Texas Register (19 TexReg 2830). Accordingly, the TNRCC believes that the requirements of the Government Code, sec.2006.002 have been fully satisfied and declines to perform an additional analysis. Subchapter R. Management of Whole Used or Scrap Tires 30 TAC sec.sec.330.801-330.803, 330.805-330.809, 330.811-330.817, 330.821- 330.827, 330.831-330.835, 330.837-330.843, 330.845-330.848, 330. 851-330.854, 330.856, 330.858, 330.861-330.863, 330.865-330.878, 330.885, 330. 886, 330.888, 330.889 The amended and new sections are adopted under the Health and Safety Code, Chapter 361, as amended by Senate Bill 1051, Act of the 73rd Legislature, 1993, which provides the Texas Natural Resource Conservation Commission with the authority to establish the rules necessary to adequately administer the Waste Tire Recycling Fund, and implement the activities necessary to insure prompt and accurate pay out from the fund, and to register and monitor the activities of waste tire generators, transporters, fixed and mobile processors, and storage and disposal facility owners or operators, and under the Texas Water Code, sec.5.103, which gives the Texas Natural Resource Conservation Commission the powers, duties and responsibilities. The amendments implement the Administrative Procedure Act, Texas Government Code, Chapter 2002 (Vernon 1992). sec.330.803. Definitions. The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise. Other definitions, pertinent to specific sections, are contained within the appropriate sections. Alterate-The modification of any record keeping document kept or received by a processor that does not meet the requirements set forth in sec.330.807 of this subchapter (relating to Generator Record Keeping), sec.330.815 of this subchapter (relating to Transporter Record Keeping), sec.330. 825 of this subchapter (relating to Mobile Tire Processor Record Keeping), sec.330.835 of this subchapter (relating to Requirements for a Type VIII-R Waste Tire Storage Facility), sec.330.845 of this subchapter (relating to Waste Tire Facility Record Keeping), sec.330.854 of this subchapter (relating to Waste Tire Baling Facility Record Keeping), sec.330.933 of Subchapter X of this title (relating to Requirements for Registration for a Waste Tire Recycling Facility), sec.330.935 of Subchapter X of this title (relating to Requirements for a Waste Tire Energy Recovery Facility), and Subchapter X, sec.330.937 of this title (relating to Requirements for a Waste Tire Transfer Station or Recycling Collection Center). Baled tire-A tire that is, by mechanical process, compressed with other tires and maintained in that compressed state by wire straps for the purpose of transportation to individuals or companies that intend to use the baled tires for energy recovery purposes. Commission-Texas Natural Resource Conservation Commission. Executive director -Executive Director of the Texas Natural Resource Conservation Commission. Facility-All contiguous land, and structures, other appurtenances, and improvements on the land, used for processing, storage, recycling, reuse, energy recovery, or disposal of whole used or scrap tires or shredded tire pieces. Fleet operator -An individual or company that owns or operates more than 15 vehicles and generates 30 or more whole used or scrap tires per quarter. Generator-An individual(s) or company(ies) that accepts whole used or scrap tire for storage, is a fleet operator, is an automotive dismantler, or is a whole new or used tire retailer, wholesaler, manufacturer, or retreader. Green tire-The casing form of a tire that has not been cured or does not have a tread or marking of any kind. Manufacturer reject tire-A tire rendered defective in the manufacturing process, whether the tire is determined to be defective before or after consumer purchase. Mobile tire processor-An individual(s) or company(ies) registered as a mobile facility at which whole used or scrap tires or tire pieces are collected and shredded for delivery to a waste tire storage facility, or a facility that recycles, reuses, or recovers the energy from the shredded tire pieces. Monthly cumulative closure cost estimate-The accumulated total of financial assurance as approved by the executive director in the registration of facilities regulated by this subchapter and requiring financial assurance. Operator-The person responsible for the overall operation of the facility. Owner-The person or company who owns the facility or part of a facility. Postconsumer waste -A material or product that has served its intended use and has been discarded after passing through the hands of a final user. For the purpose of this subchapter, the term does not include industrial or hazardous waste. Recyclable material -Material that has been recovered or diverted form the solid waste stream for purposes of reuse, recycling, energy recovery, or reclamation, a substantial portion of which is consistently used in the manufacture of products which may otherwise be produced using raw or virgin materials. Recyclable material is not solid waste. However, recyclable material may become solid waste at such time, if any, as it is abandoned or disposed of rather than recycled, whereupon it will be solid waste with respect only to the party actually abandoning or disposing of the material. Shredding-The mechanical reduction of a whole used or scrap tire or scrap tire pieces to pieces that nine square inches or less in size, commonly referred to in this subchapter and Subchapter X as 3 x 3 inch chips. Shredded tire piece-A particle of a used or scrap tire or scrap tire piece that has been split, quartered, or shredded to nine square inches or less in size, commonly referred to in this subchapter and Subchapter X as 3 x 3 inch chips. Tire piece-A portion of a waste tire such as the sidewall, tread, bead, etc. generally though not necessarily disposed of by a business that uses some other part of the waste tire to make a product. The discarded portion of the waste tire, whether located on a PEL site, a generator site, or a special authorization site can be shredded for reimbursement from the WTRF and shall be addressed in any PEL site clean-up plan. Tire recycling collection center-A site operated by a governmental entity receiving whole used or scrap tires or scrap tire pieces from the general public for shipment to a registered mobile tire processor, waste tire facility, waste tire baling facility, waste tire energy recovery facility, or waste tire recycling facility. Such facilities can only be operated by governmental entities. Tire shredder-A piece of equipment used to split, shred, or quarter tires which is either stationary or bolted in place and cannot be transported from one area to another, or a piece of equipment used to split, shred or quarter tires which is mounted on wheels or is skid mounted and is hauled from one location to another within the state. Tire transfer station-A facility operated by an individual(s) or company(ies) registered as a mobile tire processor, waste tire facility, or waste tire baling facility that receives loose whole used or scrap tires or scrap tire pieces from a specifically designated generator for shipment to a registered mobile tire processor, waste tire facility, waste tire baling facility, waste tire energy recovery facility, or waste tire recycling facility. Transportation facility -A facility owned and/or operated by an individual(s) or company(ies) registered as a mobile tire processor, waste tire facility, or waste tire baling facility that stores baled or loose whole used or scrap tires or scrap tire pieces for periods longer than 30 consecutive calendar days at marine terminals, rail yards or trucking facilities. Useful product -A useful product is a recycled product that is made from whole used or scrap tires or scrap tire pieces or shredded tire pieces; is in a marketable form; has a contract for sale of a minimum of 75% of the product made on a calendar quarterly basis has been sold; is available for immediate sale upon completion of the processing; and the contracted product purchased by a third party is removed from the waste tire recycling facility during that calendar quarter. Useful product reimbursement program (UPRP)-A program that manages a schedule of reimbursement to registered waste tire recyclers that process weighed whole used or scrap tires or scrap tire pieces or shredded tire pieces into useful products. Waste tire-A scrap tire that has been disposed of and can no longer be used for the purpose for which it was originally intended. Waste tire baling facility-An individual(s) or company(ies) that bale tires for the purpose of energy recovery. A waste tire baling facility shall be a fixed and permanent facility. Waste tire energy recovery facility-An individual(s) or company(ies) that utilize whole used or scrap tires or scrap tire pieces as tire derived fuel or fuel supplement for energy recovery purposes. Waste tire facility -A registered fixed processing facility at which whole used or scrap tires or tire pieces are collected and shredded for delivery to a waste tire storage facility, or a facility that recycles, reuses, or recovers the energy from the shredded tire pieces. Waste tire recycling -Any process(es) in which all or part of baled or loose whole used or scrap tires or scrap tire pieces or shredded tire pieces are utilized either alone or in conjunction with other materials to make a product(s) (including energy recovery) which has a commercial market verifiable by the executive director or which has been otherwise approved as a site specific beneficial use by the executive director. Waste tire recycling facility-An individual(s) or company(ies) that utilize shredded tire pieces of less than nine square inches from registered WTRF processors as raw material for the purpose of manufacturing useful products, or utilize whole used or scrap tires or scrap tire pieces and convert either all or a portion thereof by any means including, but not limited to mechanical, chemical, or thermal processes in order to obtain a useful product(s). Waste tire recycling fund (WTRF)-The fund into which tire fees collected on new tires that are sold in Texas are deposited. Waste tire storage facility-A registered facility at which whole used or scrap tires or shredded tire pieces are collected and stored (before being offered as material) to facilitate the future extraction of useful material for recycling, reuse, or recovery. The term does not include a marine dock, rail yard, or trucking facility used to store tires that are awaiting shipment to a person for recycling, reuse, or energy recovery for 30 days or less. Waste tire transporter -A registered individual or company that collects and transports whole used or scrap tires, or tire pieces or shredded tire pieces for storage, processing, or disposal. Weighed tire-A unit of weight for shredded whole used or scrap tires that is equal to 18.7 pounds. sec.330.805. Generators of Whole Used or Scrap Tires. (a) Applicability. The regulations contained in these sections establish standards applicable to the generators of whole used or scrap tires or scrap tire pieces. For the purpose of this subchapter, a generator shall be a person that accepts whole used or scrap tires or scrap tire pieces for storage, is a fleet operator, is an automotive dismantler, or is a whole new or used tire retailer, wholesaler, manufacturer, or retreader. (b) Responsibility. Each generator shall be responsible for ensuring that scrap tires or scrap tire pieces are transported by a registered transporter. Each generator shall ask the transporter where their scrap tires or scrap tire pieces are being delivered to, and may designate the destination of the scrap tires or scrap tire pieces that they generate. (c) Generator. A generator shall not place a whole used or scrap tire or split, quartered, or shredded tire pieces in a dumpster for pickup by a collection vehicle that has an enclosed packer unit attached or that is used on a routine and/or regular collection route. All whole used or scrap tires and shredded tire pieces transported from a generator's location shall be transported and manifested in a separate, identifiable load. (d) Invoices. Whole used tires sold as good used vehicle tires shall be invoiced according to sec.330.807 of this title (relating to Generator Record Keeping). (e) Remuneration. A generator may not receive remuneration in exchange for scrap tires. (f) Resale. A wholesale or retail tire dealer who sells or offers to sell new tires not for resale shall accept from customers, without charge, used tires of the type and in a quantity at least equal to the number of new tires purchased. (g) Rim removal. Generators shall arrange to remove scrap tires from the rim prior to transport to a waste tire facility or mobile tire processor, or waste tire recycling facility. sec.330.806. Generator Registration. (a) Individuals or companies that regularly dispose of whole used or scrap tires or scrap tire pieces and are therefore designated as generators shall obtain a registration number from the executive director. The generator must contact the executive director, identify the business as a regular volume or large volume whole used or scrap tire scrapt tire pieces generator, provide the business name, business tax identification number or social security number, mailing address, street address, or physical location, and the city and/or county in which the business is located. (1) A regular volume generator is one that stores a maximum of one totally enclosed and lockable container. (2) A large volume generator is one that stores a maximum of three totally enclosed and lockable containers. (b) Registration numbers will be issued for each business collecting whole used or scrap tires or scrap tire pieces. (c) The recipient of a generator registration number shall notify the executive director within 15 days, in writing, of any changes to generator information contained in commission records. sec.330.807. Generator Record Keeping. (a) Maintenance of records. Originals of manifests, work orders, invoices or other documentation used to support activities related to the accumulation, handling, and shipment of whole used or scrap tires or scrap tire pieces shall be retained by the generator for a period of three years. All such records shall be made available to the executive director upon request. (1) Any change made to the face of an original record shall be made by drawing a single line through the item being changed, ensuring that such item remains legible and readable. To the side of such mark, the person making the change shall place his/her initials with the date of such change. (2) Any change made to the face of an original record and made in accordance with this section shall be accompanied by a written justification stating the reason and purpose for the change. This written justification shall be attached to the original record and maintained in the same manner set forth in subsection (a) of this section for a period of three years. The justification shall include the date of the change, the full name and position of the individual making the change, and the justification shall be prepared simultaneously with the change to the original records. (3) Should the executive director identify discrepancies/errors in records, and opportunity will be given to the mobile tire processor or waste tire facility to justify, in writing, any such errors or discrepancies. However, the executive director shall determine whether any written justification is adequate for the purposes of reimbursement. (b) Manifest. Generators shall initiate and maintain a record of each individual load of whole used or scrap tires or scrap tire pieces hauled off- site from their business location. The record shall be in the form of a five- part manifest or other similar documentation approved by the executive director. The generator shall complete the following information on the manifest: (1) name and address of the person who generated the whole used or scrap tires or scrap tire pieces and the type of generator; (2) generator's commission registration number; (3)-(4) (No change.) (5) whether the generator was momentarily charged by the transporter for the service of hauling away the whole used or scrap tires or scrap tire pieces; (6) number or weight in pounds and the type of whole used or scrap tires or scrap tire pieces collected for transportation; (7)-(9) (No change.) (c) Completed manifest. A generator shall obtain the completed manifest within three months after the scrap tires or scrap tire pieces were transported off- site by the transporter. (d) Uncompleted manifest. The generator shall notify the appropriate TNRCC regional office of any transporter, mobile or fixed tire processor or storage site owner who fails to complete the manifest, who alters the generator portion of the manifest or fails to return the manifest within three months after the off-site transportation of the whole used or scrap tires or scrap tire pieces. (e) Records. Generators shall maintain a record of whole used tires sold as good used vehicle tires and hauled off-site from their business location. The record shall be in the form of a manifest completed in accordance with subsection (b) of this section or a work order or invoice which includes the following information: (1) name and address of the person who sold the whole used tires; (2) date of the off-site shipment; (3) number and the type of whole used tires sold; and (4) name and address of the person or business who purchased the whole used tires. The generator shall retain the records for a period of three years and the records shall be made available to the executive director for review upon request. (f) Notice. The generator shall maintain a copy of the commission notice confirming the status as a registered generator and the notice shall be made available to the executive director for review upon request. sec.330.808. On Site Storage. (a) Generators of whole used or scrap tires or scrap tire pieces may store those same tires at the location where they are generated for a period not greater than 90 days. Whole used or scrap tires or scrap tire pieces stored at the generator's site must be transported off-site within 90 days of their accumulation. Tires stored outside in an uncontrolled pile shall be monitored for vectors, and appropriate vector control measures shall be utilized at least once every two weeks. (b) Whole used or scrap tires or scrap tire pieces generated by and stored at a generator's location may be collected in a transportable collection container that is mobile, completely enclosed, and lockable for a period of not greater than 90 days. The collection container shall be secured when it is unattended. The entire container shall be hauled from the site by a registered transporter, taken to a registered tire processing or storage facility, and shall be manifested. (c) Regular volume generators of whole used or scrap tires or scrap tire pieces may store those same tires at the location where they are generated provided the number of whole used or scrap tires or scrap tire pieces does not exceed 500 (or weight equivalent tire pieces or any combination thereof) on the ground or 2,000 (or weight equivalent tire pieces or any combination thereof) in a totally enclosed and lockable container. Large volume generators may store those same tires or tire pieces at the location where they are generated provided the number of whole used or scrap tires or scrap tire pieces does not exceed 500 (or weight equivalent tire pieces or any combination thereof) on the ground or 2,000 (or weight equivalent tire pieces or any combination thereof) in each of three totally enclosed and lockable containers. Whole used or scrap tires or scrap tire pieces stored outside in a controlled pile shall be monitored for vectors, and appropriate vector control measures shall be utilized at least once every two weeks. (d) Generators of whole used or scrap tires or scrap tire pieces shall only allow the accumulation of tires or tire pieces that were generated on-site to be stored at that same site. No whole used or scrap tires or scrap tire pieces from separately owned places of business shall be transferred to, accepted, or located at, a site where they were not generated, unless the site is registered with the commission as a large volume generator in accordance with sec.330.806 of this title (relating to Generator Registration) or a transfer station in accordance with Subchapter X, sec.330. 937 of this title (relating to Registration for a Transfer Station or Recycling Collection Center). Generators of whole used or scrap tires or scrap tire pieces with multiple places of business may consolidate and store the whole used or scrap tires or scrap tire pieces from several business locations to one location providing the number of whole used or scrap tires or scrap tire pieces does not exceed 500 (or weight equivalent tire pieces or any combination thereof) on the ground or 2,000 (or weight equivalent tire pieces or any combination thereof) in a totally enclosed and lockable container. Whole used or scrap tires or scrap tire pieces stored outside in a controlled pile shall be monitored for vectors, and appropriate vector control measures shall be utilized at least once every two weeks. (e) Retailers and wholesalers who sell whole used tires as a commodity shall do so only from stock that has been sorted, marked, classified, and arranged in an organized manner for sale to the consumer, or has been designated on the manifest as removed for reuse by a registered transporter. Used tires that are to be resold as commodities, but are not sorted, marked, classified, and arranged in an organized manner for sale to the consumer, shall be considered as stockpiled whole used or scrap tires and the site shall be subject to registration as a waste tire storage facility, if the number of whole used or scrap tires or scrap tire pieces at the generator site exceeds 500 (or weight equivalent tire pieces or any combination thereof) on the ground or 2,000 (or weight equivalent tire pieces or any combination thereof) in a totally enclosed and lockable container. sec.330.809. Transportation Requirements. (a) A generator shall initiate the manifest required in sec.330.807(b) of this title (relating to Generator Record Keeping) for each shipment of whole used or scrap tires or scrap tire pieces transported off-site. (b) A generator may designate the destination of all scrap tires or scrap tire pieces generated at the business location. (c) A generator may transport their scrap tires or scrap tire pieces to a waste tire facility or mobile tire processor, provided a tire transporter registration has been obtained from the executive director. Generators who do not transport their tires or tire pieces shall only use a tire transporter who is registered by the executive director. (d) A waste tire transporter or a mobile tire processor shall not charge a fee on or after April 1, 1992, to the wholesale or retail dealer of new tires for collecting whole used or scrap tires or scrap tire pieces for delivery to a waste tire facility or for collecting or shredding whole used or scrap tires or scrap tire pieces accepted for temporary storage from purchasers of new tires. This prohibition does not apply to the transportation of whole used or scrap tires classified as reusable under sec.330.808(e) of this title (relating to On Site Storage). This prohibition also does not apply to manufacturers, retreaders, fleet operators, automotive dismantlers, owners or operators of storage sites that contain whole used or scrap tires or scrap tire pieces, and wholesale and retail dealers of used tires. This prohibition also does not apply to the transportation of whole used or scrap tires or scrap tire pieces that are being disposed of in a permitted landfill. (e) Used or defective tires shipped back to the manufacturer or manufacturer's representative for adjustment are not required to be transported by a registered transporter, provided the generator retains, for a period of three years, written records of the shipments, indicating the date of shipment, destination and the number of tires in each shipment. These records shall be made available to the executive director for review upon request. (f) (No change.) (g) Generators who haul tires between their own business location (such as used tire retailers moving inventory between their own stores or trucking companies servicing their own fleets) do not have to be registered as transporters, but they do need to register as transporters if they haul any whole used or scrap tires or scrap tire pieces to or from any other place that is not part of their own business. (h) Retreaders and recappers who haul tires from customers for the purpose of retreading or recapping or for returning tires to customers after retreading or recapping do not have to register as transporters, however, they must register as transporters if they haul tires to a mobile tire processor, waste tire facility, waste tire recycling facility, waste tire energy recovery facility, waste tire transfer station, or landfill for disposal. sec.330.822. Mobile Tire Processor Registration. (a)-(d) (No change.) (e) A new registration application shall be submitted to the commission within ten days of a determination by the executive director that operation or management methods are no longer adequately described by the existing registration. If ownership of the registered mobile tire processor has changed, notification of the pending change shall voccur at least 60 days prior to the actual transfer of ownership or operations. A change in the federal tax identification number will constitute a change of ownership. Until the change of ownership and/or operations of the facility is approved in writing by the executive director, no WTRF reimbursements will occur. (f) Suspension, revocation or denial of initial or renewal registration procedures are as follows: (1) The commission may suspend or revoke a registration or refuse to issue an initial or renewal registration for: (A) (No change.) (B) failure to maintain on-road vehicles in safe working order as evidenced by at least two citations per vehicle, excluding parking citations, from the Texas Department of Transportation or local traffic law enforcement agencies; (C) alteration of any record maintained or received by the registrant; (D)-(G) (No change.) (H) failure to operate a registered mobile processing facility within 180 days of initial receipt of registration from the executive director without notification to the executive director of intent to operate and a schedule for facility start-up; (I)-(J) (No change.) (K) alteration of any request for reimbursement from the WTRF; (L) failure to complete the work required to clean-up a Priority Enforcement List (PEL) site described in sec.330.863 of this title (relating to Priority Enforcement List (PEL)) as stated in the executive director approved Site Clean- Up Plan; (M) failure to account to the executive director for recycling, reuse or energy recovery activities in the required five-year period; or (N) effective September 1, 1994, failure to comply with the requirements pursuant to sec.330.880(d) of this title (relating to Shredding Outside of State). (2)-(4) (No change.) (g) Each mobile tire processor shall maintain continuous commercial general liability insurance coverage during the registration term of their operations and comply with the following requirements: (1) (No change.) (2) evidence of commercial auto liability coverage with a minimum combined single limit of $1 million shall be provided to the Financial Assurance Section of the TNRCC at the address indicated in paragraph (4) of this subsection, prior to transporting the mobile tire equipment; (3) (No change.) (4) each certificate of insurance shall designate the TNRCC as a certificate holder in the following manner: TNRCC, Financial Assurance Section (WTRF Program), P.O. Box 13087, Austin, Texas, 78711-3087. (h) A mobile tire processor shall contact the Texas Natural Resource Conservation Commission's Region Office area they are vacating and the Texas Natural Resource Conservation Commission Region Office area they are entering at least 48 hours prior to the date the processing equipment is actually moved. This verbal notification shall be followed with written notification within ten days of the actual moving date. (i) A mobile tire processing facility shall be inspected to insure compliance with the application by the executive director prior to receiving final approval to operate. (j) Effective January 1, 1996, all new, amended, and renewal mobile tire processor registration applications shall contain requirements for the applicant to identify the individual or company registered pursuant to of Subchapter X, sec.330.933(a) of this title (relating to Requirements for a Waste Tire Recycling Facility) or of Subchapter X, sec.330.934(a) of this title (relating to Waste Tire Energy Recovery Facility Registration) that intends to accept for recycling, reuse, or energy recovery, the mobile tire processor's shredded tire pieces. The executive director shall only reimburse a mobile tire processor for those shredded tire pieces that have been delivered to a registered waste tire recycling facility or waste tire energy recovery facility. (k) Registration Fees. (1) Individuals or companies that prepare a new, renewed or amended application on forms obtained from the executive director for registration as a mobile tire processor shall pay a registration fee of $500. (2) Registration fees collected under paragraph (1) of this subsection shall be allocated to the commission forits reasonable and necessary costs associated with reviewing for approval, applications for the registration of mobile tire processor. sec.330.823. Delivery Requirement. Mobile tire processors seeking reimbursement from the WTRF shall deliver the shredded tire pieces of nine square inches or less in size to a registered waste tire facility, a registered waste tire storage facility, a registered waste tire recycling facility or registered waste tire energy recovery facility. sec.330.825. Mobile Tire Processor Record Keeping. (a) Maintenance of records. The mobile tire processor shall maintain originals of all records required by this section for a period of three years. These records shall be maintained at the same location as the shredder at all times and shall be made available to the executive director for review upon request. (1) Any change made to the face of an original record shall be made by drawing a single line through the item being changed, ensuring that such item remains legible and readable. To the side of such mark, the person making the change shall place his/her initials with the date of such change. (2) Any change made to the face of an original record and made in accordance with the subsection (a) of this section shall be accompanied by a written justification stating the reason and purpose for the change. This written justification shall be attached to the original record and maintained in the same manner set forth in subsection (a) of this section for a period of three years. The justification shall include the date of the change, the full name and position of the individual making the change, and the justification shall be prepared simultaneously with the change to the original records. (3) Should the executive director identify discrepancies/errors in records, and opportunity will be given to the mobile tire processor or waste tire facility to justify, in writing, any such errors or discrepancies. However, the executive director shall determine whether any written justification is adequate for the purposes of reimbursement. (b) Required records. A mobile tire processor shall maintain the following records: (1) manifests of whole used or scrap tires or shredded tire pieces. The manifest shall contain the following information filled out completely by the mobile tire processor prior to final disposition of the whole used or scrap tires or shredded tire pieces: (A)-(E) (No change.) (2)-(8) (No change.) (9) a log containing copies of the monthly operations reports. This report shall contain the following information and shall be completely filled out each month by the mobile tire processor: (A)-(G) (No change.) (H) the monthly and total financial assurance secured and recorded with the Texas Natural Resource Conservation Commission Financial Assurance Section; (I)-(M) (No change.) (10) (No change.) (11) a daily log identifying the location and time of all stops made by the transporter of tire shreds to and from a mobile shredding facility and to and from a registered waste tire storage facility, waste tire recycling facility, or waste tire energy recovery facility. (c) Annual report. Mobile tire processors shall submit to the executive director an annual summary of their activities through December 31 of each calendar year showing the number and type of whole used or scrap tires collected, shredded, the disposition of such tires or shredded tire pieces, and the amount by weight of shredded tire pieces delivered to a registered waste tire facility, waste tire storage facility, waste tire recycling facility, or waste tire energy recovery facility. The annual report shall be submitted no later than March 1 of the year following the end of the reporting period. The annual report shall be prepared on a form provided by the executive director. (d) (No change.) sec.330.832. Waste Tire Storage Facility Classification. (a) (No change.) (b) The executive director shall classify all waste tire storage facilities according to the following: (1) Type VIII-WT. A Type VIII-WT facility is one in which less than 500 whole used or scrap tires are stored on the ground or 2,000 whole used or scrap tires are stored in a totally enclosed and lockable container. Storage of whole used or scrap tires at a Type VIII-WT site shall be temporary. Whole used or scrap tires stored at a Type VIII-WT facility must be transported to a permitted or registered storage or disposal facility within 90 days following their accumulation. (2) Type VIII-R. A Type VIII-R facility is one in which more than 500 whole used or scrap tires or an equivalent amount of shredded tire pieces are stored on the ground or 2,000 whole used or scrap tires or an equivalent amount of shredded tire pieces are stored in a totally enclosed and lockable container. Storage of whole used or scrap tires or shredded tire pieces shall be temporary. Storage of whole used or scrap tires that are not designated as reusable whole used tires, is limited to 90 days from delivery date. Whole used or scrap tires that are 25 inches or more in rim diameter or that weigh a minimum of 500 pounds are exempt from this requirement. Shredded tire pieces resulting from tires shredded subsequent to January 1, 1996, shredded tire pieces may be stored for a period of time not to exceed 12 months, unless written authorization for a longer storage period has been granted by the executive director because the recycling market cannot accommodate the shredded tire pieces. A Type VIII-R site shall be registered by the executive director. (3) Type VIII-I. A Type VIII-I is a waste tire storage facility that contains more than 500 whole used or scrap tires and is considered by the executive director as an illegal tire site. These types of facilities shall be handled through the Priority Enforcement List (PEL) and routine inspection and enforcement activities. (4) Type VIII-L. A Type VIII-L is a designated recycling collection area at a permitted municipal solid waste landfill. An unlimited number of whole used or scrap tires may be stored at a Type VIII-L facility for a period of 90 days from delivery. sec.330.835. Requirements for a Type VIII-R Waste Tire Storage Facility. (a) Registration requirements. (1) Persons who store or intend to store more than 500 whole used or scrap tires and/or an equivalent amount of shredded tire pieces on the ground or 2,000 whole used or scrap tires and/or an equivalent amount of shredded tire pieces in a totally enclosed and lockable container shall register these sites with the executive director. Registration forms shall be provided by the executive director upon request. (2) (No change.) (3) A Type VIII-R registration shall expire 60 months from the date of issuance unless the storage site changes ownership prior to that time. A Type VIII-R registration is transferable contingent upon executive director approval. A change in the federal tax identification number will constitute a change of ownership. Registrations shall be renewed prior to the expiration date. Applications for renewal shall be submitted at least 60 days prior to the expiration date of the Type VIII-R storage facility registration. (4) Type VIII-R storage facility owners and/or operators shall submit an amendment to their application and a non-refundable $500 application review fee to the commission within 15 days of a change to their registration if: (A)-(C) (No change.) (5) A new Type VIII-R storage facility registration application and a non- refundable $500 application review fee shall be submitted to the executive director within ten days of a determination by the executive director that operations or management methods are no longer adequately described by the existing registration. If ownership of the registered Type VIII-R storage facility will change or the operator of a Type VIII-R storage facility will change notification of the pending change shall occur at least 60 days prior to the actual transfer of ownership or operations. Until the change of ownership and/or operations of the facility is approved in writing by the executive director no WTRF reimbursements will occur. (6) Suspension, revocation or denial of initial or renewal registration procedures are as follows: (A) The commission may suspend or revoke a registration or refuse to issue an initial or renewal registration for: (i) failure to maintain complete and accurate records required under this subchapter; (ii) failure to maintain on-road vehicles in safe working order as evidenced by at least two citations per vehicle excluding parking citations from the Texas Department of Transportation or local traffic law enforcement agencies; (iii) alteration of any record maintained or received by the registrant; (iv) failure to comply with any rule or order issued by the commission pursuant to the requirements of this subchapter; (v) failure to submit the annual report required in sec.330.835(d)(5) of this title (relating to Requirements for a Type VIII-R Waste Tire Storage Facility); (vi) failure to maintain financial assurance as required in sec.sec.330.885- 330.888 of this title (relating to Cost Estimate for Closure; Financial Assurance for Closure; Incapacity of Owners or Operators or Financial Institutions; and Wording of the Instruments); (vii) collection and/or storage of shredded tire pieces or whole used or scrap tires or scrap tire pieces without the registration; and (viii) alteration of any documentation used to substantiate a request for reimbursement from the WTRF. (B) A Type VIII-R storage facility registration shall be suspended for a period of one year; however, depending upon the seriousness of the offense(s), the time of suspension may be increased or decreased. A Type VIII-R storage facility registration is revoked automatically upon a second suspension. If the registration is suspended or revoked, a Type VIII-R storage facility shall not store waste tire shreds or whole used or scrap tires or scrap tire pieces regulated under this subchapter. (C) The holder of a Type VIII-R storage facility registration that has been revoked by the commission may reapply for registration pursuant to this subchapter as if applying for the first time, after a period of at least one year from the date of revocation. If a Type VIII-R storage facility registration is revoked by the commission a second time, the revocation shall be permanent. (D) Appeal of suspension, revocation or denial of initial or renewal registration procedures are as follows: (i) an opportunity for a formal hearing on the suspension or revocation of registration must be requested in writing by the registrant by certified mail, return receipt requested, provided the request is postmarked within 20 days after a notice of proposed revocation or denial of registration has been sent from the executive director to the last known address of the registrant; (ii) an opportunity for a formal hearing on the denial of registration or renewal of registration must be requested in writing by the applicant by certified mail, return receipt requested, provided the request is postmarked within 20 days after a notice of denial has been sent from the executive director to the last known address listed on the application. If the registration is denied, the individual or company shall not store shredded tire pieces or whole used or scrap tires or scrap tire pieces regulated under this subchapter; and (iii) the formal hearing under this paragraph shall be in accordance with the requirements of the Administrative Procedure Act, Government Code, Chapter 2002 and the Texas Solid Waste Disposal Act, Texas Health and Safety Code annotated Chapter 361 (Vernon 1992) and the rules of the commission. (E) If the registration is suspended or revoked, and a formal hearing has been timely requested by the registrant the Type VIII-R storage facility shall not accept for storage additional shredded tire pieces, whole used or scrap tires or scrap tire pieces regulated under this subchapter until a final decision has been made by the commission as result of the hearing. (D) If the suspension or revocation of the Type VIII-R storage facility registration is approved by the commission, the owner or operator of the facility shall remove all shredded tire pieces and whole used or scrap tires and scrap tire pieces stored at the facility within 60 days from the date of suspension or revocation in accordance with the requirements contained in this subchapter. (7) Preparation and submission of an application for a Type VIII-R storage facility shall be accompanied by a non-refundable $500 application review fee in accordance with the following procedures: (A) (No change.) (B) The application for a registration of a Type VIII-R storage facility shall be submitted in duplicate to the executive director with all supporting data also submitted in duplicate unless otherwise directed by the executive director. Within 30 days of receipt of the application, the executive director will forward to the applicant a letter acknowledging receipt of the application. (C) Data presented in support of an initial or renewal application for a Type VIII-R storage facility shall consist of: (i) the legal name, address and federal tax identification number of the individual, partnership, corporation, city, county or other governmental entity that is applying for the registration and will be responsible for operations at the Type VIII-R storage facility; (ii)-(xiii) (No change.) (xiv) a statement from the property owner shall be submitted on a form prepared by the executive director when the applicant is not a city, county, state agency, federal agency, or other governmental entity and is not the owner of record of the land described in the application, or does not have an option to buy the land. The statement shall be witnessed and notarized; (xv) a Type VIII-R storage facility layout plan showing location of the storage areas, oversize tires that qualify for WTRF reimbursement, and oversize tires that do not qualify for reimbursement, fire lanes, access roads (internal and external), fire control facilities, facility security and fencing, maintenance and control buildings, sanitation facilities, location and description of the type of tire processing equipment to be used, and other operational buildings to be located on the Type VIII-R storage facility; (xvi) a drainage plan showing drainage flow throughout the Type VIII-R storage facility area, specifically the potential for contaminated storm water run-off from storage piles, or wastewater run-off from areas of the waste tire storage facility where equipment is operated or stored; locations of streams; and any other important drainage feature of the facility. Any additional surface drainage controls that are necessary to ensure facility containment and treatment of potentially contaminated storm water or wastewater shall be designed by a registered professional engineer. If, during review of the application or after issuance of the registration, a detailed drainage plan is determined to be required, then it shall be prepared, signed, and sealed by a registered professional engineer within the time period requested by the executive director; (xvii)-(xix) (No change.) (b) Design requirements for Type VIII-R Waste Tire Storage Facility. (1) (No change.) (2) Whole used or scrap tires or shredded tire pieces may be stored using outside tire piles, inside storage, or lockable containers, or a combination of any of the aforementioned methods. (A)-(B) (No change.) (C) Whole used or scrap tires or shredded tire pieces may be stored in trailers provided the trailer is totally enclosed and lockable and shall not be capable of containing more than 2,000 whole used or scrap tires or equivalent number of shredded tire pieces. (3) Outside piles consisting of whole used or scrap tires or shredded tire pieces and entire buildings used to store whole used or scrap tires or shredded tire pieces shall not be within 20 feet of the property line or easements of the Type VIII-R storage facility. This setback line shall be kept open at all times and maintained free of rubbish, equipment, tires, or other materials. The executive director may grant a variance to the 20-foot property line or easement requirement on a case-by-case basis in cases of unusual building codes or site conditions. In order for the applicant to be granted a variance, the applicant must demonstrate to the satisfaction of the executive director that the distance that is the subject of the variance is adequate for fire fighting purposes and meets the other applicable requirements of this subchapter. (4) Whole used or scrap tires shall be split, quartered, or shredded within 90 days from the date of delivery to the Type VIII-R storage facility. Large whole used or scrap tires that are 25 inches or more in rim diameter or that weigh a minimum of 500 pounds are exempt from this requirement. Appropriate vector controls shall be used at a frequency based upon type and size of piles, weather conditions and other applicable local ordinances. (5) There shall be a minimum separation of 20 feet between outside tire piles consisting of whole used or scrap tires or shredded tire pieces. This 20-foot space shall be designated as a fire lane that totally encircles the tire piles and shall be an all-weather road. The open space between buildings and outside tire piles consisting of whole used or scrap tires or shredded tire pieces shall be a minimum of 20 feet and kept open at all times and maintained free of rubbish, equipment, tires, or other materials. (6)-(12) (No change.) (13) All oversized tires must be weighed in separately from other whole used or scrap tires and stored in separate piles if the oversized tires do not qualify for reimbursement from the WTRF. (c) (No change.) (d) Type VIII-R Waste Tire Storage Facility Record Keeping. (1) General Requirements. (A) -(B) (No change.) (C) All drawings or other sheets prepared for revisions to a Type VIII-R storage facility layout plan or other previously approved documents, which may be required by this subchapter, shall be submitted in duplicate. (2) (No change.) (3) Manifests. The Type VIII-R storage facility operator shall retain all manifests received from a mobile tire processor or waste tire facility, or waste tire transporter for whole used or scrap tires or shredded tire pieces delivered to the Type VIII-R storage facility or removed from the Type VIII-R storage facility. The Type VIII-R waste tire storage facility shall ensure that the top original of the five-part manifest shall be returned to the generator completely filled out within 90 days of the date and time of collection as indicated in Section 1 of the manifest form. (4) Maintenance of records and reporting. The Type VIII-R storage facility operator shall retain an original of all records showing the collection and disposition of the whole used or scrap tires or shredded tire pieces. Such records shall be retained for three years and made available for review to the executive director upon request. (A) Any change made to the face of an original record shall be made by drawing a single line through the item being changed, ensuring that such item remains legible and readable. To the side of such mark, the person making the change shall place his/her initials with the date of such change. (B) Any change made to the face of an original record and made in accordance with the above section shall be accompanied by a written justification stating the reason and purpose for the change. This written justification shall be attached to the original record and maintained in the same manner set forth above in subsection (a) of this section for a period of three years. The justification shall include the date of the change, the full name and position of the individual making the change, and the justification shall be prepared simultaneously with the change to the original records. (C) Should the executive director identify discrepancies/errors in records, and opportunity will be given to the mobile tire processor or waste tire facility to justify, in writing, any such errors or discrepancies. However, the executive director shall determine whether any written justification is adequate for the purposes of reimbursement. (5) (No change.) (e) Local ordinances. Where local ordinances require controls and records substantially equivalent to or more stringent than the requirements of this subchapter, the Type VIII-R waste tire storage facility owner or operator shall use such controls and records to satisfy the commission's requirements, upon review and approval by the executive director. sec.330.838. Requirements for a Type VIII-WT Waste Tire Storage Facility. (a) (No change.) (b) Persons who operate a Type VIII-WT storage facility shall monitor the facility for vectors and shall utilize a vector control system to control the presence and occurrence of vectors on an as needed basis. (c) Whole used or scrap tires stored in a Type VIII-WT storage facility shall be removed at least once every 90 days or when the accumulated number of whole used or scrap tires nears the 500 limit on the ground or nears the 2,000 limit in a totally enclosed and lockable container. sec.330.843. Waste Tire Facility Registration. (a) Persons that process whole used or scrap tires at a waste tire facility shall obtain a registration number from the executive director for the operation of the waste tire facility. The registration number assigned to the waste tire facility shall be stenciled on each piece of processing equipment in use at that facility. This registration number requirement is only applicable to waste tire facilities that have permanent equipment used to shred or reduce whole used or scrap tires to a particle size of nine square inches or less. (b) -(e) (No change.) (f) A new registration application shall be submitted to the executive director within ten days of a determination by the executive director that operation or management methods are no longer adequately described by the existing registration. If ownership of the registered waste tire facility will change, or the location of the equipment or facility will change notification of the pending change shall occur at least 60 days prior to the actual transfer of ownership or operations. Until the change of ownership and/or operations of the facility is approved in writing by the executive director no reimbursements will occur. A change in the federal tax identification number will constitute a change of ownership. (g) Suspension, revocation or denial of initial or renewal registration procedures are as follows: (1) The commission may suspend or revoke a registration, or deny the issuance of an initial or renewal registration ofr: (A)-(B) (No change.) (C) alteration of any record maintained or received by the registrant; (D)-(G) (No change.) (H) failure to operate a waste tire processing facility within 180 days of receipt of registration from the executive director; (I)-(J) (No change.) (K) alteration of any request for reimbursement from the WTRF; (L) failure to complete the work required to clean up a PEL site as stated in the executive director approved Site Clean-Up Plan; (M) failure to account to the executive director for recycling, reuse, or energy recovery activities in the required five year period; or (N) effective September 1, 1994, failure to comply with the requirements pursuant to sec.330.879(d) of this title (relating to Shredding Outside of State). (2)-(3) (No change.) (4) Appeal of suspension, revocation or denial of initial or renewal registration procedures are as follows: (A)-(B) (No change.) (C) The formal hearing under this paragraph shall be in accordance with the requirements of the Administrative Procedure Act, Texas Government Code, Chapter 2002 (Vernon 1992), the Texas Solid Waste Disposal Act, Texas Health and Safety Code, Chapter 361 (Vernon 1992), and the rules of the commission. (h) (No change.) (i) A waste tire facility shall be inspected to insure compliance with the application by the executive director prior to receiving final approval for storage. (j) Effective January 1, 1996, all new, amended, and renewal waste tire facility registration applications shall contain requirements for the applicant to identify the individual or company registered pursuant to Subchapter X, sec.330.933(a) of this title (relating to Requirements for a Waste Tire Recycling Facility) or Subchapter X, sec.330.934(a) of this title (relating to Waste Tire Energy Recovery Facility Registration) that intends to accept for recycling, reuse, or energy recovery, the waste tire facility's shredded tire pieces. The executive director shall only reimburse a waste tire facility for those shredded tire pieces that have been delivered to a registered waste tire recycling facility or waste tire energy recovery facility. (k) Registration fees. (1) Individuals or companies that prepare a new, renewed or amended application on forms obtained from the executive director for registration as a waste tire facility shall pay a non-refundable registration fee of $500. (2) Registration fees collected under paragraph (k)(1) of this subsection shall be allocated to the commission for its reasonable and necessary costs associated with reviewing for approval, applications for the registration of waste tire facilities. sec.330.852. Waste Tire Baling Facility Registration. (a) Effective March 1, 1994, individuals or companies that bale whole used or scrap tires for energy recovery purposes at a waste tire baling facility shall obtain a registration number from the executive director for the operation of the waste tire baling facility. The registration number assigned to the waste tire baling facility shall be stenciled on each piece of baling and processing equipment in use at that facility. This registration number requirement is only applicable to waste tire baling facilities that have permanent equipment used to bale whole used or scrap tires and intend to seek reimbursement from the WTRF for the baling of whole used or scrap tires for energy recovery activities. (b) For the purpose of this subchapter, eligibility for reimbursement from the WTRF at the rate of 25 cents for each baled whole used or scrap tire shall be contingent upon the registered waste tire baling facility providing the financial assurance required by the executive director described in sec.sec.330.885-330.888 of this subchapter (relating to Cost Estimate for Closure; Financial Assurance for Closure; Incapacity of Owners or Operators or Financial Institutions; and Wording of the Instruments). (c) Waste tire baling facilities shall register their operation with the executive director prior to commencing operations. An application for registration shall be made on a form provided by the executive director upon request. An application submittal shall be accompanied by a non-refundable $500 application review fee pursuant to subsection (k)(1) of this section. The following registration information must be provided to the executive director: (1) the name, physical address, mailing address, county, and telephone number of applicant; (2) the name, mailing address, and telephone number of partners, corporate officers, and directors; (3) a description of the vehicles or equipment to be registered, including: (A) make, model, and year of the vehicle or equipment; (B) name of the vehicle or equipment owner; (C) vehicle license plate (tag number) including state and year, if applicable; (D) rated capacity of each piece of equipment or vehicle; (E) type of equipment or vehicle; and (F) area within Texas that the baling equipment will be located; (4) the anticipated number of whole used or scrap tires to be baled for energy recovery purposes per year; (5) a metes and bounds description of the site location of the facility; (6) the name of the waste tire energy recovery facility to be utilized by the waste tire baling facility for energy recovery of the baled whole used or scrap tires and the following information concerning that waste tire energy recovery facility: (A) name of responsible person, partners, corporate officers, and directors; (B) phone number of company and responsible person; (C) physical location and mailing address of the waste tire energy recovery facility; (D) detailed description of process to recover the energy from the baled whole used or scrap tires; and (E) listing of all federal, state and local permits, licenses, or registrations required for operation in Texas and out-of-state: (7) copies of contracts and agreements between the waste tire baling facility and the waste tire energy recovery facility or facilities for the burning of the baled whole used or scrap tires for which WTRF reimbursement is being sought; (8) financial assurance as referenced in sec.sec.330.885-330.888 of this title (relating to Cost Estimate for Closure; Financial Assurance for Closure; Incapacity of Owners or Operators or Financial Institutions; and Wording of the Instruments); and (9) federal tax identification number. (d) Persons who apply to the executive director for registration and receive the registration shall maintain a copy of the commission registration form containing their assigned registration number at their designated place of business and in each vehicle used to transport whole used or scrap tires to or from their waste tire baling facility. (e) A waste tire baling facility registration shall expire 60 months after the date of issuance unless the storage site changes ownership prior to that time. A waste tire baling facility is transferable contingent upon executive director approval. A change in federal tax identification number will constitute a change of ownership. A waste tire baling facility registration shall be renewed prior to the expiration date. Applications for renewal of registration must meet the requirements of subsection (b) of this section and shall be submitted at least 60 days prior to the expiration date. An application for renewal of registration must be obtained from the executive director. (f) A waste tire baling facility shall provide written notice and, if requested by the executive director, a revised application for registration to the executive director within 15 days of any change to the registration if: (1) the number of whole used or scrap tires handled or total waste tire baling facility operation has expanded by 50% over that originally registered; (2) the office or place of business has relocated or federal tax identification number has changed; (3) the registered name of the waste tire baling facility has changed; (4) the amount of tire baling equipment has increased or changed; (5) the intended area of the waste tire baling facility's operation has changed; or (6) the waste tire energy recovery facility accepting the baled whole used or scrap tires for energy recovery has changed. (g) A new registration application and a non-refundable $500 application review fee shall be submitted to the executive director within 10 days of a determination by the executive director that operation or management methods are no longer adequately described by the existing registration. If ownership of the registered waste tire baling facility will change, or the operator of the waste tire baling facility will change, notification of the pending change shall occur at least 60 days prior to the actual transfer of ownership or operations. Until the change or ownership and/or operations of the facility is approved in writing by the executive director, on reimbursements will occur. (h) Suspension, revocation or denial of initial or renewal registration procedures are as follows: (1) The commission may suspend or revoke a registration, or deny the issuance of an initial or renewal registration for: (A) failure to maintain complete and accurate records pursuant to sec.330.854 of this title (relating to Waste Tire Baling Facility Record Keeping); (B) failure to maintain equipment in safe working order; (C) alteration of any record maintained or received by the registrant; (D) delivery of baled whole used or scrap tires to a facility that is not a registered waste tire energy recovery facility and/or if the waste tire energy recovery facility is located out-of-state, not contained on the application approved for the registered waste tire baling facility; (E) failure to comply with any rule or order issued by the commission pursuant to the requirements of this subchapter; (F) failure to submit annual reports as required by sec.330.854(d) of this title (relating to Waste Tire Baling Facility Record Keeping); (G) failure to maintain financial assurance as required in sec.sec.330.885- 330.888 of this title (relating to Cost Estimate for Closure; Financial Assurance for Closure; Incapacity of Owners or Operators or Financial Institutions; and Wording of the Instruments); (H) failure to begin operation of a registered waste tire baling facility within 180 days of receipt of registration from the executive director; (I) collection of whole used or scrap tires for the purpose of energy recovery of the baled whole used or scrap tires without obtaining a registration as required in this subchapter; (J) failure to deliver baled whole used or scrap tires to a waste tire energy recovery facility as required in sec.330.851(c) of this title (relating to Waste Tire Baling Facility); (K) alteration of any request for reimbursement from the WTRF; (L) failure to complete the work required to clean-up a PEL site as stated in the executive director approved Site Clean-Up Plan; (M) failure to account to the executive director for all energy recovery activities for the baled whole used or scrap tires; or (N) effective September 1, 1994, failure to comply with the requirements pursuant to sec.330.880(d) of this title (relating to Shredding Outside of State). (2) A waste tire baling facility registration shall be suspended for a period of one year; however, depending upon the seriousness of the offense(s), the time of suspension may be increased or decreased. A waste tire baling facility registration is revoked automatically upon a second suspension. If the registration is suspended or revoked, a waste tire baling facility shall not bale, for reimbursement from the WTRF, any whole used or scrap tires regulated under this subchapter. (3) The holder of a waste tire baling facility registration that has been revoked by the executive director may reapply for registration pursuant to this subchapter as if applying for the first time, after a period of at least one year from the date of revocation. If a waste tire baling facility registration is denied or revoked by the executive director a second time, the revocation shall be permanent. (4) Appeal of suspension, revocation or denial of initial or renewal registration procedures are as follows: (A) An opportunity for a formal hearing on the suspension or revocation of registration may be requested in writing by the applicant by certified mail, return receipt requested, provided the request is postmarked within 20 days after a notice of proposed suspension or revocation or denial of the initial or renewal registration has been sent from the executive director to the last known address of the applicant. (B) An opportunity for a formal hearing on the denial of initial registration or renewal of registration may be requested in writing by the applicant by certified mail, return receipt requested, provided the request is postmarked within 20 days after a notice of denial of initial or renewal registration has been sent from the executive director to the last known address listed on the application. If the registration is denied, a person shall not process whole used or scrap tires regulated under this subchapter. (C) The formal hearing under this paragraph shall be in accordance with the requirements of the Administrative Procedure Act, Texas Government Code Annotated, sec.2001 et seq. (Vernon 1993) and the Texas Solid Waste Disposal Act, Texas Health and Safety Code, Annotated, Chapter 361 (Vernon 1993) and the rules of the commission. (i) Waste tire baling facilities which fail to provide documentation to the executive director, described in sec.330.853(c)(6)(A)-(E) of this title (relating to Waste Tire Baling Facility Registration), to assure that energy is recovered from the baled whole used or scrap tires are not eligible for reimbursement from the WTRF. (j) A waste tire baling facility and the designated waste tire energy recovery facility(ies) shall be inspected by the executive director to ensure compliance with the application prior to receiving final approval for baling or storage of whole used or scrap tires. (k) Registration fees. (1) Individuals or companies that prepare a new, renewed or amended application on forms obtained from the executive director for registration as a waste tire baling facility shall pay a registration fee of $500. (2) Registration fees collected under subsection (k)(1) of this section shall be allocated to the commission for its reasonable and necessary costs associated with reviewing for approval applications for the registration of waste tire baling facilities. sec.330.871. Waste Tire Recycling Fund (WTRF). (a) (No change. ) (b) Responsibility. (1) Each individual or company that operates as a mobile tire processor or waste tire facility and that is eligible to participate in the WTRF program shall be responsible for operating in compliance with the provisions of this subchapter. The mobile tire processor or waste tire facility shall be in compliance with all provisions of this subchapter at each existing registered mobile tire processor or waste tire facility prior to receiving final approval from the executive director to operate at any new or additional mobile tire processor, waste tire facility, waste tire baling facility, waste tire storage facility, waste tire recycling facility or waste tire energy recovery facility. (2) (No change.) (3) The executive director requires that all whole used or scrap tires on which the $2.00 or $3.50 WTRF fee is assessed for the replacement tire shall be subject to the free collection and transportation of those whole used or scrap tires from the generator's place of business (authorized by the Texas Health and Safety Code Annotated, Chapter 361, sec.361.480 entitled Tire Collection Fee Prohibited), provided the generator is a wholesale or retail dealer of new tires. (4) If a $2.00 or $3.50 WTRF fee is assessed on a replacement tire, then the tire that was disposed of as a waste tire shall not be charged an additional disposal fee by the wholesale or retail dealer of the tire. (5) A whole used or scrap tire that does not fit the criteria for assessment of the $2.00 or $3.50 WTRF fee as defined in sec.330. 872(d) of this title (relating to WTRF Program), shall not be eligible for reimbursement under the WTRF. (6) The WTRF shall maintain a balance of not less than $500,000. (7) If the number of tires on the PEL exceeds 500,000 but the executive director has reason to believe the fund will fall below $500,000, the executive director shall suspend the requirement to reimburse priority enforcement list tires in excess of the minimum 15%. Notification of nonpayment for tires shredded in excess of the minimum 15% shall be provided in writing by the executive director within 30 days of such notification from the Comptroller. (8) The executive director shall not reimburse a mobile tire processor and/or waste tire facility for processing scrap tires if the executive director determines that the processor: (A) has not provided adequate financial assurance; or (B) does not have adequate fire protection; or (C) is causing an imminent danger to public health or welfare. (c) Capacity assessment. Not later than October 1 of each odd-numbered year, the executive director shall determine if registrations for mobile tire processors and waste tire facilities shall be issued during the following two- year period of time. In order to complete this assessment, the executive director shall compare the total shredding or baling capacity of all registered mobile tire processors, and waste tire facilities to the total number of WTRF reimbursed waste tire units during the previous year as follows: (1) the total shredding or baling capacity by reviewing the average of the actual reported shredding or baling capacities during the previous two years for each registered mobile tire processor and waste tire facility; (2) the total number of waste tire units reimbursed shall be determined by obtaining, from the commission's reimbursement records, the total number of waste tire units reimbursed from the WTRF during the preceding 12-month period of time; (3) the value calculated from the procedure described in paragraph (1) of this subsection shall be compared with the number obtained from the procedure described in paragraph (2) of this subsection as follows: (A) If the total shredding or baling capacity exceeds the previous total reimbursements made, then the executive director shall not issue registrations for mobile tire processors and waste tire facilities until the next capacity assessment is completed; or (B) if the previous year's total reimbursements made exceeds the total shredding or baling capacity then the executive director shall issue registrations for mobile tire processors and waste tire facilities; (4) All registered mobile tire processors and waste tire facilities shall be notified, in writing, of the results of the capacity assessment within 20 days of completion of the assessment on each odd-numbered year; and (5) The results of the capacity assessment shall be published in the Texas Register not later than November 30 of each odd-numbered year. sec.330.872. Waste Tire Recycling Fund (WTRF) Program. (a) Purpose. The purpose of the WTRF is to provide a means for the shredding or baling of all whole used or scrap tires or tire pieces within the boundaries of the State of Texas, except when the conditions contained in sec.330.880 of this title (relating to Out-of-State Processing for Reimbursement) are complied with. It is the WTRF program's intent that the material contained in the tires can be effectively reused, recycled, or used in energy recovery facilities. The methods for recycling whole used or scrap tires or tire pieces are as follows: (1)-(3) (No change.) (4) beneficial use of whole tires; (5) shredding whole tires into pieces nine square inches or less in size; or (6) baling whole tires for use in waste tire energy recovery facilities. (b)-(c) (No change.) (d) Resale. A wholesale or retail dealer who sells or offers to sell new tires not for resale shall collect at the time and place of sale a waste tire recycling fee for each new tire sold as follows: (1) $2.00 for each tire that has a rim diameter of 12 inches but less than 17.5 inches; (2) $3.50 for each tire that has a rim diameter of 17.5 inches but less than 25 inches; and (3) $2.00 for a motorcycle tire, regardless of the rim diameter. The sale of a tire as original equipment in the manufacture of a new vehicle is a sale for resale and is not subject to the $2. 00 or $3.50 fee. A fee may not be assessed for a bicycle tire. This fee shall be deposited into the WTRF. The monies in the WTRF shall be used to reimburse the mobile tire processors and waste tire facilities that comply with the requirements of this subchapter for the shredding or baling of whole used or scrap tires or tire pieces. (e) Operation of the WTRF program. (1) (No change.) (2) A mobile tire processor or waste tire facility that intends to shred or bale whole used or scrap tires or tire pieces for reimbursement shall either shred the tires or pieces to a particle size of nine square inches or less or bale the whole used or scrap tires for the purpose of energy recovery at a registered waste tire energy recovery facility. (3) a mobile tire processor or waste tire facility shall shred or bale at least 15% but not more than 30% of the monthly weight of shredded or baled whole used or scrap tires or scrap tire pieces from PEL sites. (4) A mobile tire processor or waste tire facility shall shred or bale at least 25% of the monthly weight of shredded or baled whole used or scrap tires or scrap tire pieces from generator sites. (5) A mobile tire processor or waste tire facility shall shred or bale the remaining percentage of the monthly weight of shredded or baled whole used or scrap tires or scrap tire pieces from sources that have been designated by the executive director as special authorization tires or generator tires. (6) A mobile tire processor or waste tire facility shall submit his/her reimbursement request on a payment voucher to the executive director on a monthly basis. The payment voucher form shall be supplied by the executive director, or on a voluntary basis, supplied on a removable storage medium stored in an industry standard file format acceptable to the executive director. Use of such removable storage mechanism must first receive executive director approval. (7) A mobile tire processor or waste tire facility shall maintain and retain originals of all reimbursement records for a period of three years and shall make such records available to the executive director for review upon request. (8) The mobile tire processor or waste tire facility shall be reimbursed in an amount equal $0.85 for each 18.7 pounds of weighed tire shredded by the processor during the preceding calendar month except when the clean-up of PEL sites is through a competitive bid process pursuant to sec.330.861(b)-(g) of this title (relating to Priority Enforcement List). (9) A registered waste tire baling facility shall be reimbursed 25 cents per whole used or scrap tire from the WTRF for baling those tires during the preceding calendar month except when the clean-up of PEL sites is through a competitive bid process pursuant to sec.330.861(b)-(g) of this title (relating to Priority Enforcement List (PEL).) (10) Not later than the tenth day of the month following the month during which the mobile tire processor or waste tire facility shredded or baled for energy recovery whole used or scrap tires or tire pieces, the commission's region office shall inspect the documentation submitted by the mobile tire processor or waste tire facility as support for the reimbursement voucher request. The voucher request shall be signed by the mobile tire processor or waste tire facility and submitted to the commission's region office for overnight mailing to the central office for review. The reimbursement voucher request shall be submitted on a form to be provided by the executive director or on a removable storage medium stored in an industry standard file form approved by the executive director. The total pounds of whole used or scrap tires or tire pieces shredded or the total number of whole used or scrap tires baled by the mobile tire processor or waste tire facility during the previous calendar month shall be reported in the following manner: (A) the total pounds of tires shredded or the total number of tires baled that were used for energy recovery from PEL sites during the calendar month; (B) the total pounds of tires shredded or the total number of tires baled that were used for energy recovery from generators during the calendar month; and (C) the total pounds of tires shredded or the total number of tires baled that were used for energy recovery from special authorization sites during the calendar month. (f) Reimbursement restrictions. The WTRF shall not be used to reimburse for shredding or baling of: (1) innertubes; (2) scrap rubber products; (3) green tires; (4) industrial solid waste, excluding waste tires; (5) oversized tires, as defined by commission rule, unless the oversized tires are collected from a PEL site; or (6) manufacturer reject tires. sec.330.876. WTRF Reimbursement Policies and Procedures. (a) WTRF reimbursements provided by the State of Texas under this subchapter shall only be made for the following purposes and only upon compliance with this subchapter: (1) shredding of whole used or scrap tires or tire pieces in accordance with the reimbursement rate described in sec.330.877(a) of this title (relating to Payments to Waste Tire Facilities or Mobil Tire Processors); (2) making of whole used or scrap tires into a useful product by a registered waste tire recycler, at a rate not to exceed 25 cents for each weighed tire; (3) baling of whole used or scrap tires by an in-state registered waste tire baling facility at the reimbursement rate described in sec.330.851(c) of this title (relating to Waste Tire Baling Facility Registration). (b) To be eligible to receive reimbursement for the shredding of whole used or scrap tires or tire pieces, waste tire facilities or mobile tire processors shall, at their own expense, provide: (1)-(3) (No change.) (4) all payments associated with the acquisition, maintenance, and operation of any equipment or machinery needed to comply with the PEL site clean-up requirements described in sec.330.868 of this title (relating to Approval to Collect and Process Tires From PEL Sites) and shredding or baling of generator and special authorization tires. (c) (No change.) (d) An individual or company registered and authorized to operate and receive reimbursement from the WTRF, shall never be able to receive, directly or indirectly, more than 85 cents per weighed tire unit from the WTRF for any activities performed pursuant to this subchapter except when the cleanup of PEL sites is though a competitive bid process pursuant to sec.330.861(b)-(g) of this title (relating to PEL). sec.330.877. Payments to Waste Tire Facilities or Mobile Tire Processors. (a) The executive director each month shall reimburse mobile tire processors or waste tire facilities that shred whole used or scrap tires or tire pieces or bale whole used or scrap tires and meet the requirements of this subchapter and the rules adopted under this subchapter in an amount equal to 85 cents for each 18.7 pounds of whole used or scrap tires or tire pieces shredded or 25 cents for each whole used or scrap tire baled by the processor during the preceding calendar month except when the clean-up of PEL sites is through a competitive bid process pursuant to sec.330.861(b)-(g) of this title (relating to Priority Enforcement List (PEL)). (b) A waste tire facility or mobile tire processor that desires to receive reimbursement under this section for tires shredded by the waste tire facility or mobile tire processor, or tires baled by a waste tire baling facility during a calendar month must: (1) apply to the executive director in accordance with forms prescribed by the executive director, specifically, but not exclusively, the Monthly Reimbursement Voucher Report as described in sec.330.872(e)(10) of this title (relating to Waste Tire Recycling Fund (WTRF) Program) and the Monthly Operations Report as described in sec.330.825(b)(9) of this title (relating to Mobile Tire Processor Record Keeping), sec.330.845(c) (10) of this title (relating to Waste Tire Facility Record Keeping) and sec.330. 854(c)(10) of this title (relating to Waste Tire Baling Facility Record Keeping); (2) demonstrate that: (A) for mobile tire processors and waste tire facilities, not less than 90% of all whole used or scrap tire or tire pieces for which reimbursement is being sought have been shredded to a particle size of 9 square inches or less, and for waste tire baling facilities, that all whole used or scrap tires baled for reimbursement have been used for energy recovery; (B) not less than 15% and not more than 30% of the whole used or scrap tires or tire pieces shredded, or whole used or scrap tires baled and used for energy recovery were collected from illegal tire sites listed on the executive director's PEL pursuant to sec.330.863 of this title (relating to Priority Enforcement List); (C) not less than 25% of the whole used or scrap tires or tire pieces shredded, or whole used or scrap tires baled and used for energy recovery were collected from generators of whole used or scrap tires; (D) all shredding and baling equipment shall be used in accordance with the registration application (i.e.-if the equipment requires twice through processing to achieve the legislatively mandated shred size to be eligible for reimbursement then all whole used or scrap tires or tire pieces shall be shredded twice to be eligible for reimbursement); (3) provide any other information that the executive director determines is needed to accomplish the purposes of this subchapter; (4) he/she is in compliance with all requirements of this subchapter; (5) he/she has deposited the required financial assurance to cover the closure costs for the whole used or scrap tires or tire pieces and out-of-state tires shredded, or whole used or scrap tires baled and used for energy recovery during that month; and (6) he/she has not exceeded his or her waste tire storage facility's or waste tire energy recovery or waste tire recycling facility's maximum capacity authorized by the executive director. (c) A waste tire facility or mobile tire processor that in any month shreds or bales for energy recovery purposes more than 15% but not more than 30% PEL tires, shall be reimbursed for the amount in excess of 15% but not more than 30% that was shredded or baled and used for energy recovery and shall receive credit for that amount to meet the minimum requirement during a future month. (d) A waste tire facility or mobile tire processor that in any month exceeds the 25% minimum requirement of subsection (b)(2)(C) of this section, shall receive a credit for the amount in excess of 25% that was shredded or baled and used for energy recovery that may be used to meet the minimum requirement during a future month. At the time the credit is used to make up a deficiency in the amount of generator tires shredded in a specific month, the waste tire facility or mobile tire processor shall also receive reimbursement for the amount of carry over shredded tire pieces used. (e) A waste tire facility or mobile tire processor shall only receive reimbursement once for the shredding or baling for energy recovery purposes of a whole used or scrap tire or tire piece. (f) For the purposes of reimbursement, at the end of each operating month, any WTRF ineligible whole used or scrap tires or scrap tire pieces or shredded tire pieces brought into a waste tire facility or mobile tire processing facility shall be deducted from the total shredded tire weight for that month. sec.330.885. Cost Estimate for Closure. (a) As part of a facility's registration or permit application, an owner or operator of a Type VIII-R waste tire storage facility, a Type VIII-P waste tire processing facility, a waste tire baling facility, a waste tire recycling facility with greater than a 30 calendar day supply on site of baled or loose whole used or scrap tires or scrap tire pieces or shredded tire pieces, or a waste tire energy recovery facility, with baled or loose whole used or scrap tires or scrap tire pieces or shredded tire pieces on site for longer than 30 calendar days must prepare a written estimate, in current dollars, of the cost of closing the facility(ies). (1) The registration closure cost calculation for a Type VIII-R waste tire storage facility, a Type VIII-P waste tire processing facility, a waste tire baling facility, a waste tire recycler with greater than a 30 calendar day supply of baled or loose whole used or scrap tires or scrap tire pieces or shredded tire pieces, or a waste tire energy recovery facility, with baled or loose whole used or scrap tires or scrap tire pieces or shredded tire pieces on site for longer than 30 calendar days is determined by the sum of subparagraphs (A), (B), (C) and (D) of this paragraph, plus subparagraph (E), when applicable: (A) The estimated cost for the maximum number of whole tires generated from out of state stored at the facility is calculated as follows: Number of baled or loose whole tires generated from out of state and stored at the facility x $0.85/tire = Dollar cost estimate (B) The estimated cost to transport the maximum site capacity of tire pieces as depicted by the site layout plan to another registered storage site, waste tire recycling facility or waste tire energy recovery facility with documentable available storage capacity by a third party. The estimate shall include equipment and operator time for loading shreds. (C) The estimated cost to complete cleanup of the site of any and all debris. This shall be considered to be a minimum of $3,000 (D) If the Type VIII-R waste tire storage facility stores shredded waste tire pieces that are nine square inches or less in size but not two inch minus in size, then the registration closure cost calculation shall contain the estimated cost to reshred the shredded waste tire pieces to a recyclable size. For the purpose of this subchapter a recyclable size shall be defined as a two inch minus size. The two inch minus size is defined as an individual tire shred piece that will drop through a two-inch in diameter ring and from which substantially all of the wire has been removed. This section shall only be applicable to tire shreds which are shredded after the effective date of the adoption of these rules. (E) Upon application, the executive director may grant a variance to the requirements contained in subparagraph (D) of this paragraph. An applicant shall submit to a regional inspection of the processing facility and storage facility to confirm that all tire shreds are two inch minus size, and submit a copy of the regional inspector's report with the application for registration to the executive director. The applicant must confirm that the processing facility is capable of shredding to two inch minus size, by submitting diagrams that identify the components of the shredding operation that accomplish shredding to this size. Upon confirmation, the executive director shall provide appropriate written approval to the applicant. (F) Upon application, the executive director may grant a variance to the requirements contained in subparagraph (D) of this paragraph. For purposes of verifying viable end markets for shredded tire pieces that are nine square inches or less in size, but are not two inch minus in size, an applicant shall submit a copy of the binding purchase and/or sales contract(s) in effect between the applicant and waste tire recycling facility(ies) or energy recovery facility(ies). Such binding contract(s) shall specifically set forth the quantity of shredded tire pieces that are nine square inches or less in size but are not two-inch minus in size to be recycled each month and shall specify the method of transport to be used to deliver such shredded tire pieces to the waste tire recycling facility(ies) or waste tire energy recovery facility(ies). Any information considered confidential by the applicant shall be so indicated on each page and submitted with a cover letter requesting that it remain confidential. Such requests shall be recognized as confidential pursuant to sec.330.875 of this subchapter (relating to Confidentiality). (i) To be considered binding, such purchase and/or sales contract(s) shall be signed and executed by an authorized representative of the applicant and the waste tire recycling facility(ies) or waste energy recovery facility(ies); shall provide a street address, telephone number and contact person; and shall provide that delivery of such shredded tire pieces shall occur within 180 days of the date such pieces were shredded. (ii) Failure to remove shredded tire pieces that are nine square inches or less in size but are not two by two minus in size, within 180 days of the date such pieces were shredded, shall subject the processor to the requirements contained in subparagraph (D) of this paragraph. (iii) Should a contract(s) cease to be in effect, the processor shall inform the executive director in writing within 30 days of the cessation of such contract. The written notification shall contain an updated closure cost estimate. Immediately upon executive director review and approval of the closure cost estimate, a bond in the amount of the updated closure cost estimate shall be established by the processor. (iv) If a mobile tire processor or waste tire facility owns and/or operates a waste tire recycling or energy recovery facility and requests a variance from sec.330.885(D) for the purposes of verifying viable end markets for shredded tire pieces that are nine square inches or less in size, but are not two inch minus in size, such mobile tire processor or waste tire facility shall provide documentation in the form of manifests, monthly reports, annual reports and semi-annual recycling reports required for mobile tire processors in sec.330.825 of this subchapter and/or for waste tire facilities in sec.330.845 in lieu of a binding contact required in clause (i) of this subparagraph. (2) The registration closure cost calculation for an in state fixed, waste tire processor is determined by the sum of subparagraphs (A) and (B) of this paragraph. If a fixed waste tire processor is located out of state then the closure cost calculation is double the sum of subparagraphs (A) and (B) of this paragraph. (A) if the fixed processor has located the shredding equipment at a site different from a registered storage site the criteria in paragraph (1)(A) and (C) of this subsection apply; (B) the estimated cost to render the shredding equipment unusable and prevent access to the equipment or the cost of removing it from the site to a location acceptable to the executive director. (b) The registration closure cost estimate must equal the cost of closing the facility based on the maximum number of baled or loose whole tires generated from out of state stored at the facility, the maximum number of shredded tire equivalents, the financial assurance needed to store the shredded tire equivalents at the receiving facility, disabling any processing equipment as disclosed in the facility's registration application and, if applicable, the cost of reshredding the shredded tire equivalents to a recyclable size. The executive director shall evaluate and determine the amount for which evidence of financial assurance is required and may amend the closure cost estimate provided by the owner or operator. (c) Baled or loose whole tires generated from out of state and stored at the facility and shredded tire equivalent storage may not exceed the maximum numbers disclosed in the facility's registration application. An owner or operator seeking to increase the volume of whole tires generated out of state and/or shredded tire equivalents that may be stored at the waste tire storage facility shall submit a registration amendment for approval by the executive director. The amendment application shall include a recalculation of the registration closure cost estimate based on the requested volume increases. An owner or operator shall not increase the volume of whole tires generated from out of state and stored at the facility and/or shredded tire equivalents until the registration amendment has been approved by the executive director. Only upon approval of the executive director will the amended registration closure cost estimate be the basis for determining financial assurance closure requirements. (d) The financial assurance for closure shall be based upon the actual number of in state or out of state baled or loose whole used or scrap tires and/or the weight of pieces of used or scrap tires as depicted in the site layout plan. The quantities of such tires reported on the registration application form and used in the calculation of financial assurance shall be obtained from the site layout plan volumes by using the following conversion factors: (1) a typical whole tire shall be considered to occupy 4 cubic feet unless an exact count of all whole tires is to be maintained by an operator; (2) a cubic yard of tire shreds or pieces shall be considered to weigh 950 pounds per cubic yard; (3) a weighed tire (waste tire unit or equivalent) shall be considered to be 18.7 pounds of tire pieces; and (4) whole tires which were baled for the purposes of energy recovery shall have an accurate count of the number of tires in each bale prior to compression; however, baled whole tires not being considered for reimbursement may be reported by the weight of each bale. The calculated capacity of a site as calculated for the financial assurance may not be exceeded without the submission and approval of an amended registration application specifically including, but not limited to, new site layout plans to substantiate the revised capacity and new financial assurance calculations based upon the depicted volumetric capacity converted to weights, posting of the revised financial assurance and written approval for the amended registration. The owner or operator is also responsible for submitting a registration amendment to revise the registration closure cost estimate whenever requested to do so by the executive director. Registration amendments with revised registration closure cost estimates shall be submitted to the executive director within 15 days of the executive director's written request to revise the registration closure cost estimate. (e) The owner or operator must keep the following at the facility during the operating life of the facility: the latest approved registration closure cost estimate. 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 August 4, 1994. TRD-9446174 Mary Ruth Holder Director, Legal Division Texas Natural Resource Conservation Commission Effective date: August 25, 1994 Proposal publication date: April 19, 1994 For further information, please call: (512) 239-6087 Subchapter R. Management of Whole Used of Scrap Tires 30 TAC sec.sec.330.836, 330.851-330.856, 330.875 The repealed sections are adopted under the Health and Safety Code, Chapter 361, as amended by Senate Bill 1051, Act of the 73rd Legislature, 1993, which provides the Texas Natural Resource Conservation Commission with the authority to establish the rules necessary to adequately administer the Waste Tire Recycling Fund, and implement the activities necessary to insure prompt and accurate pay out from the fund, and to register and monitor the activities of waste tire generators, transporters, fixed and mobile processors, and storage and disposal facility owners or operators, and under the Texas Water Code sec.5.103, which gives the Texas Natural Resource Conservation Commission the powers, duties and responsibilities. The repeals implement the Administrative Procedure Act, Texas Government Code, Chapter 2002 (Vernon 1992). 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 August 4, 1994. TRD-9446172 Mary Ruth Holder Director, Legal Division Texas Natural Resource Conservation Commission Effective date: August 25, 1994 Proposal publication date: April 19, 1994 For further information, please call: (512) 239-6087 Subchapter X. Management of Whole Used or Scrap Tires or Shredded Tire Pieces 30 TAC sec.sec.330.900-330.917, 330.920, 330.922-330.939 The new sections are adopted under the Health and Safety Code, Chapter 361, as amended by Senate Bill 1051, Act of the 73rd Legislature, 1993, which provides the Texas Natural Resource Conservation Commission with the authority to establish the rules necessary to adequately administer the Waste Tire Recycling Fund, and implement the activities necessary to insure prompt and accurate pay out from the fund, and to register and monitor the activities of waste tire generators, transporters, fixed and mobile processors, and storage and disposal facility owners or operators, and under the Texas Water Code, sec.5.103, which gives the Texas Natural Resource Conservation Commission the powers, duties and responsibilities. The new sections implement the Administrative Procedure Act, Texas Government Code, Chapter 2002 (Vernon 1992). sec.330.900. Useful Product Reimbursement Program. (a) Applicability. The regulations contained in these sections establish the standards applicable to the creation and management of a schedule for reimbursement to registered waste tire recyclers that process weighed whole used or scrap tires or scrap tire pieces or shredded tire pieces into useful products. (b) Responsibility. (1) Each individual(s) or company(ies) that is seeking reimbursement from the Waste Tire Recycling Fund (WTRF) under the Useful Product Reimbursement Program for recycling weighed whole used or scrap tires or scrap tire pieces or shredded tire pieces into useful products shall register pursuant to Subchapter X, sec.330.933 of this title (relating to Requirements for Registration for a Waste Tire Recycling Facility). (2) Each individual(s) or company(ies) registered as a waste tire recycling facility pursuant to sec.330.933 of this title, shall further register as a Useful Product Reimbursement program participant in order to be considered eligible for reimbursement from the WTRF based on the reimbursement schedule outlined in sec.330.908 of this title (relating to Useful Product Reimbursement Schedule). (3) The individual(s) or company(ies) shall remain in compliance with all applicable provisions of this subchapter in order to maintain eligibility for reimbursement from the WTRF under the Useful Product Reimbursement Program for processing weighed whole used or scrap tires or scrap tire pieces or shredded tire pieces into useful products. (4) The individual(s) or company(ies) shall comply with all reporting requirements contained in sec.330.933(d) of this title (relating to Waste Tire Recycling Facility Record Keeping). (c) Prohibition. (1) For the purpose of this subchapter, individual(s) or company(ies) that intend to burn whole used or scrap tires or scrap tire pieces or shredded tire pieces or baled whole used or scrap tires as Tire Derived Fuel (TDF) for energy recovery shall not qualify for the Useful Product Reimbursement Program and are therefore ineligible for the 25 cents maximum reimbursement from the WTRF. (2) For the purpose of this subchapter, individual(s) or company(ies) that intend to, by mechanical means, shred whole used or scrap tires or scrap tire pieces or shredded tire pieces to crumb or powder size shall not qualify for the Useful Product Reimbursement Program and are therefore ineligible for the 25 cents maximum reimbursement from the WTRF. (3) Individual(s) or company(ies) seeking reimbursement under this subchapter for the process of making useful products from weighed tires shall have not previously, directly or indirectly, received reimbursement from the WTRF for the shredding or baling of such weighed whole used or scrap tires or scrap tire pieces or shredded tire pieces. (4) Individual(s) or company(ies) seeking reimbursement from the WTRF under the Useful Product Reimbursement Program as registered waste tire recycling facilities shall be operated entirely within the boundaries of the state. No out-of-state recycling shall be eligible for reimbursement from the WTRF. (5) Individual(s) or company(ies) seeking reimbursement from the WTRF under the Useful Product Reimbursement Program shall receive reimbursement only for in-state whole used or scrap tires or scrap tire pieces or shredded tire pieces that are processed into a useful product. (6) Individual(s) or company(ies) cannot seek reimbursement from the WTRF under the Useful Product Reimbursement Program for whole used or scrap tires approved for Beneficial Use under Subchapter R, sec.330.889 of this title (relating to Special Conditions for Beneficial Use of Whole Used or Scrap Tires). (d) Fee prohibition. Individual(s) or company(ies) that intend to participate in the Useful Product Reimbursement Program shall not charge a fee to retail or wholesale dealers for collecting for delivery to any registered waste tire recycling facility from the purchasers of new tires on or after April 1, 1992. This prohibition does not apply to the collecting of whole used or scrap tires or scrap tire pieces from manufacturers, retreaders, fleet operators, automotive dismantlers, and storage site owners or operators of whole used or scrap tires. (e) Registration. Individual(s) or company(ies) not seeking reimbursement from the WTRF under the Useful Product Reimbursement Program for the processing of weighed whole used or scrap tires or scrap tire pieces or shredded tire pieces into useful products are still required to obtain a registration from the executive director authorizing the operation of a waste tire recycling facility in the state under sec.330.932 of this title (relating to Waste Tire Recycling Facility Registration). (f) Waste disposal. All scrap tire pieces in excess of nine square inches remaining from the processing whole used or scrap tires or scrap tire pieces into useful products shall be eligible for reimbursement at a rate of $0.85 per weighed tire pursuant to Subchapter R, sec.330.872(f) of this title (relating to Waste Tire Recycling Fund (WTRF) Program) provided the individual or company seeking to dispose of its scrap tire material through this method documents the scraps of tire that are from in-state eligible tires and that the scraps of tire are in excess of nine square inches in size thus requiring processor shredding to WTRF program reimbursement size. (g) Confidentiality. Individual(s) or company(ies) that are seeking reimbursement from the WTRF under the Useful Product Reimbursement Program for the processing of weighed whole used or scrap tires or scrap tire pieces or shredded tire pieces into useful products shall be eligible for confidentiality protection if the individual(s) or company(ies) complies with the conditions outlined in of Subchapter R, sec.330. 875 of this title (relating to Confidentiality). (h) Reimbursement restriction. The unused portion of the weighed whole used or scrap tire utilized in the production of a useful product reimbursed under the Useful Product Reimbursement Program portion of the WTRF is eligible for additional reimbursement from the WTRF (i.e. 85 cents for 18.7 pounds of shredded rubber) provided the conditions required in (f) above are met. (i) Process requirement. Whole used or scrap tires or scrap tire pieces or shredded tire pieces must be altered by a mechanical, chemical or thermal process before it can be eligible for reimbursement from the WTRF under the Useful Product Reimbursement Program as a useful product. sec.330.901. Useful Product Reimbursement Program. (a) Purpose. The purpose of the Useful Product Reimbursement Program is to provide a means to reimburse individual(s) or company(ies) that make useful products from weighed whole used or scrap tires or scrap tire pieces or shredded tire pieces within the boundaries of the state. (b) Objectives. The objectives of the Useful Product Reimbursement Program are: (1) to provide a mechanism and schedule to reimburse individual(s) or company(ies) which recycle weighed whole used or scrap tires or scrap tire pieces or shredded tire pieces to make useful products; (2) to promote the future development of individual(s) or company(ies) involved in the production of useful products from weighed whole used or scrap tires or scrap tire pieces or shredded tire pieces within the boundaries of the state; and (3) to assist in the collection of whole used or scrap tires which are generated on a daily basis prior to being deposited at an illegal waste tire site. (c) Classification of tires. The weighed whole used or scrap tires or scrap tire pieces or shredded tire pieces which have been determined by the executive director to be eligible for reimbursement at a rate not to exceed 25 cents for each weighed tire under the Useful Product Reimbursement Program are categorized as follows: (1) whole used or scrap tires or scrap tire pieces from certain legal waste tire storage sites registered in the state; (2) whole used or scrap tires or scrap tires pieces from generators that accumulate the whole used or scrap tires on a daily basis; (3) shredded tire pieces from mobile tire processors, waste tire facilities or waste tire storage facilities that accumulate on a daily basis as a result of shredding activities; (4) whole used or scrap tires or scrap tire pieces from sources other than those indicated in paragraphs (1) and (2) of this subsection, as approved by the executive director. For the purpose of this subchapter, whole used or scrap tires in this fourth category shall be called special authorization tires. (For a complete description of special authorization tires refer to Subchapter R, sec.330.878(a)-(i) of this title (relating to Special Authorization Tires). (5) whole used or scrap tires or scrap tire pieces from waste tire piles in excess of 500 tires, defined as illegal waste tire sites and identified on the priority enforcement list (PEL), after those PEL sites are offered for cleanup through a competitive bid process when the number of PEL tires has fallen below 500,000. (d) Operation of the useful product reimbursement program within the WTRF. The Useful Product Reimbursement Program shall operate in the following manner: (1) the waste tire recycling facility registered as a Useful Product Reimbursement Program participant shall submit a reimbursement request on an invoice voucher to the executive director on a quarterly basis. The invoice voucher format shall be prepared by the Useful Product Reimbursement Program and shall be subject to executive approval, or on a voluntary basis, on a removable storage medium stored in an industry standard file format acceptable to the executive director; (2) the waste tire recycling facility registered as a Useful Product Reimbursement Program participant shall maintain and retain all reimbursement records for a period of three years and shall make such records available to the executive director for review upon request; and (3) the waste tire recycling facility registered as a Useful Product Reimbursement Program participant shall be reimbursed in an amount not to exceed 25 cents for each weighed whole used or scrap tire or scrap tire piece or shredded tire piece processed by the recycler during the preceding calendar quarter whether or not he elects to participate in the clean-up of PEL sites when the number of PEL tires has fallen below 500,000. sec.330.902. Useful Product Reimbursement Program Registration. (a) Registration requirements. (1) An individual(s) or company(ies) that is seeking reimbursement from the WTRF under the Useful Product Reimbursement (UPR) Program for recycling whole used or scrap tires, scrap tire pieces or shredded tire pieces into useful products shall register as a UPR participant with the executive director prior to commencing operations. Each UPR participant must also register the production facility where the useful product is manufactured as a Waste Tire Recycling Facility. Registration forms shall be provided by the executive director upon request. (2) Individual(s) or company(ies) that apply for and receive a UPR participant registration from the executive director shall maintain a copy of the registration at their designated place of business. (3) A UPR participant registration shall be reviewed annually but shall expire 60 months from the date of issuance unless the UPR business changes ownership prior to that time. (4) A UPR participant registration is non-transferable and will expire at the time that ownership changes. A change in the business federal tax identification number will constitute a change of ownership. The new owner shall submit a new registration application and obtain complete written registration approval from the executive director prior to commencing operation or becoming eligible for reimbursement from the WTRF. (5) Applications to renew registrations shall be submitted at least 60 days prior to the expiration date. The TNRCC will require a minimum of 60 days to process an administratively complete initial or renewal application. Failure to submit a application renewal 60 days prior to the expiration date may result in expiration of the registration prior to the issuance of a renewal registration. Products produced during the expiration period will not be eligible for reimbursement. (6) UPR participants shall notify the WTRF staff, in writing, within 15 days of: (A) change in any data submitted in support of the application for registration; (B) change in business physical or mailing address; (C) change in business name; (D) change in business ownership; or (E) change in business federal tax identification number. (7) A new UPR participant registration application and application review fee shall be submitted to the executive director within 15 days of a determination by the executive director that operations or management methods are no longer adequately described by the existing registration. Following the executive director's determination, the old registration number shall be canceled. (8) Failure of a UPR participant to comply with the requirements of this subchapter shall result in enforcement procedures in accordance with sec.330.939 of this title (relating to Penalties for Owners or Operators of Waste Tire Recycling Facilities, Waste Tire Energy Recovery Facilities, Waste Tire Transfer Stations or Recycling Collection Centers, and Transportation Facilities). (9) A UPR participant will not receive payment from the WTRF until and unless the requirements of this subchapter are fully complied with, including TNRCC approval and issuance of a UPR participant registration, and TNRCC approval and issuance of a waste tire recycling facility registration. (10) A UPR participant will not receive payment from the WTRF until and unless the waste tire recycling facility has been registered and has been processing whole used or scrap tires or scrap tire pieces or shredded tire pieces into useful products for one full calendar quarter. (11) Preparation and submission of an application to the executive director for a UPR participant registration shall be prepared in accordance with the following procedures: (A) the application for registration shall be prepared and signed by the applicant or authorized representative on a form provided or approved by the executive director; (B) the application shall include information necessary for the executive director to make an evaluation of the proposed operation and to ensure that the facility is located, designed, and operated so that the health, welfare, and physical property of the public as well as the environment are protected; (C) failure to submit complete information as required by these sections shall result in the return of the application to the applicant without further action by the executive director and forfeiture of the application review fee; (D) the submission of false information shall constitute grounds for denial of an initial or renewal application or suspension or revocation of a current UPR participant registration; (E) the UPR participant registration shall be issued upon receipt and approval of an administratively and technically complete application and the posting of the financial assurance, if required, by the waste tire recycling facility registration; (F) the application for a registration of a UPR participant shall be submitted as one original and one copy to the executive director with all supporting data also submitted in duplicate unless otherwise directed by the executive director; and (G) data presented in support of an initial or renewal application for a UPR participant shall consist of: (i) the legal business name, mailing address, telephone number and facsimile number, of the applicant; (ii) the business federal tax identification number (will be used for the purpose of determining ownership and ownership changes); (iii) the name, mailing address, telephone number and facsimile number of the responsible person making the application and accepting responsibility and liability for operations of the facility; (iv) the name, mailing address, telephone number and facsimile number, if applicable, of the property owner of the UPR facility or documentation sufficient to prove that the property owner is also the facility operator; (v) the maximum amount of whole used or scrap tires, scrap tire pieces, or shredded tire pieces (calculated in pounds) that will be on site at the UPR facility at any given time as described in the Waste Tire Recycling Facility Registration Application; (vi) the amount of whole used or scrap tires, scrap tire pieces, or shredded tire pieces necessary to provide a 30 calendar day raw material supply for the proposed recycling process; and (vii) the signature of an authorized representative empowered to make commitments for the applicant on a form provided by the executive director, and a statement that they are familiar with the application and all supporting data and are aware of all commitments represented in the application and that they are also familiar with all pertinent requirements in these regulations, local building, fire and zoning codes and they agree to develop and operate the UPR facility in accordance with the application and its supporting attachments, the sections in this subchapter, local building, fire and zoning codes and any special provisions that may be imposed by the executive director or other legal authority. (b) Manufacturing and production method disclosure. The UPR participant shall submit sufficient manufacturing and production information necessary for the executive director to evaluate the useful product and determine the rate of reimbursement for that product. The information submitted to the executive director by a UPR participant(s) which pertains to specific manufacturing and/or productions methods unique to the organization submitting the application will be subject to confidentiality as described in Subchapter R, sec.330.875 of this title (relating to Confidentiality). sec.330.903. Request for Reimbursement. (a) Not later than the 20th day of the month following the calendar quarter during which the waste tire recycling facility registered as a Useful Product Reimbursement Program participant processed the weighed whole used or scrap tires or scrap tire pieces or shredded tire pieces into useful products, the Useful Product Reimbursement Program participant shall submit the reimbursement invoice to the executive director in the Austin Central Office for review in order to approve the requested reimbursement invoice. (b) The executive director shall set aside fund money from the WTRF for purpose of reimbursing Useful Product Reimbursement Program participants for the recycling of whole used or scrap tires or scrap tire pieces or shredded tire pieces into useful products. (c) Upon review and approval by the executive director in the Austin Central Office of all eligible reimbursement invoices, the executive director shall calculate the total requested reimbursement amount during that calendar quarter and determine, if necessary, the percentage of the total requested amount the fund is capable of reimbursing. Upon determination of the specific quarterly percentage, the executive director shall apply that percentage to each eligible reimbursement invoice, determine the amount that will be reimbursed to each Useful Product Reimbursement Program participant who requested reimbursement, and attach a signed reimbursement voucher to the invoice which states the authorized reimbursement amount. (d) The reimbursement invoice prepared by the Useful Product Reimbursement Program participant shall contain the following information and shall be reviewed and approved by the executive director prior to use: (1) the total weight and/or number of whole used scrap tires, or the weight of scrap tire pieces or shredded tire pieces processed by the waste tire recycling facility registered as a Useful Product Reimbursement Program participant during the previous calendar quarter and reported in the following manner: (A) the total weight or the total number by type of in-state tires received at the waste tire recycling facility during the calendar quarter; (B) the total weight or the total number by type of out-of-state tires received at the waste tire recycling facility during the calendar quarter; (C) the total weight or the total number by type of tires processed into useful products during the calendar quarter; and (D) the type and quantity of useful products made and sold (including all bills of sale) during the calendar quarter; (2) the name, mailing address, telephone number and business tax number of the waste tire recycling facility registered as a Useful Product Reimbursement Program participant; (3) the months of the calendar quarter for which the useful product reimbursement invoice is being submitted; and (4) the signature and date of signature of the responsible person designated in the original application for registration as a Useful Product Reimbursement Program participant who can verify the accuracy of the information contained in the reimbursement invoice. (e) If the reimbursement invoice prepared by the Useful Product Reimbursement Program participant reports whole used tires received at the facility by number, the whole used tires must be counted and listed according to the following types: (1) passenger tires that have a rim diameter of less than 17.5 inches, which will be converted to weight at 18.7 pounds per tire; (2) truck tires that have a rim diameter from 17.5 inches but less than 25 inches, which will be converted to weight at 103 pounds per tire; and (3) oversized tires that have a rim diameter of over 25 inches must be weighed before processing and listed in terms of their individual weight. sec.330.904. Useful Product Reimbursement Program Restrictions. (a) The Useful Product Reimbursement Program shall observe the WTRF Program Restrictions and shall not reimburse the following types of weighed tires: (1) green tires; (2) manufacturer reject tires; or (3) oversized tires, as defined by commission rule, unless the oversized tires are collected from a PEL site. (b) The executive director shall only reimburse for weighed useful products made from whole used or scrap tires or scrap tire pieces or shredded tire pieces. (c) The executive director shall not recognize or reimburse for whole used or scrap tire pieces or shredded tire pieces processed to make crumb or powdered rubber. (d) The waste tire recycling facility registered as a Useful Product Reimbursement Program participant shall initiate processing with a whole used or scrap tire or scrap tire piece or shredded tire piece and make the resulting product capable and complete for sale to the consumer. (e) For the purposes of this subchapter, the processing of whole used or scrap tires as TDF for energy recovery shall not be considered eligible for reimbursement under the Useful Product Reimbursement Program. (f) The executive director shall not reimburse for out-of-state whole used or scrap tires or scrap tire pieces or shredded tire pieces utilized in the production of useful products for reimbursement from the WTRF. Adequate records to identify the origin of the weighed whole used or scrap tires (i.e. manifests) shall be maintained by the waste tire recycling facility to identify the out-of- state tires received for processing from the in-state tires received for processing. (g) For the purposes of this subchapter, the retreading and/or recapping of tires shall not be considered eligible for reimbursement under the Useful Product Reimbursement Program. sec.330.907. Definition of a Useful Product. (a) For the purposes of this subchapter, a useful product shall be defined by the executive director as a recycled product that: (1) is made from whole used or scrap tires or scrap tire pieces or shredded tire pieces; (2) is in a marketable form; (3) a minimum of 75% of the product made on a calendar quarterly basis has been sold; (4) is available for immediate sale upon completion of the processing; and (5) the product is purchased by a bona fide third party purchaser and is removed from the waste tire recycling facility site during that calendar quarter. (b) For the purposes of this subchapter, the executive director shall not reimburse as a useful product crumb rubber, powdered rubber or any other intermediate product made from whole used or scrap tires or scrap tire pieces or shredded tire pieces. (c) The determination that the useful product is eligible for reimbursement under the Useful Product Reimbursement Program from the WTRF in an amount not to exceed 25 cents shall be based on the information contained in the Useful Product Reimbursement Program application form completed by the waste tire recycling facility. The waste tire recycling facility shall contact the executive director to request and obtain the application for the Useful Product Reimbursement Program. (d) At least annually thereafter, the executive director shall confirm the continued eligibility of the useful product made by the waste tire recycling facility for reimbursement under the Useful Product Reimbursement Program from the WTRF. This annual inspection shall include, but not be limited to: (1) an on-site inspection of the waste tire recycling facility; (2) a complete review of all records maintained by the waste tire recycling facility in support of the reimbursement requested in the invoices; and (3) documentation that the product made and reimbursed as a useful product meets the conditions stated in subsection (a) of this section to maintain useful product eligibility. sec.330.908. Useful Product Reimbursement Schedule. (a) Upon receipt of the application requesting consideration for eligibility for reimbursement from the WTRF under the Useful Product Reimbursement Program, the executive director shall consider the type of useful product being processed, the complexity and difficulty in the processing of the useful product and the time involved in the processing of the useful product, and determine the reimbursement rate for the scrap tire pieces or shredded tire pieces used to process the useful product. (b) The same reimbursement rate shall be applied to all individual(s) or company(ies) registered as waste tire recycling facilities seeking reimbursement for the processing of a specific or similar type of useful product. (c) The reimbursement rate shall be 25 cents per weighed whole used or scrap tire. The reimbursement rate for scrap tire pieces and/or shredded tire pieces shall be determined using the factors set forth in subsection (a), but in no case shall be less than 5 cents per weighed tire or greater than 20 cents per weighed tire, and shall increase in 5-cent increments, according to the factors in subsection (a) of this section, to the maximum of 20 cents allowable. (d) A list of reimbursement rates shall be developed by the executive director six months after initiation of the Useful Product Reimbursement Program. The list shall contain all useful products approved for reimbursement and the reimbursement rate determined by the executive director. The useful product reimbursement rate list shall be made available to all interested parties upon request. sec.330.914. Overpayment from the WTRF. (a) If the executive director conducts an audit or investigation and concludes that reimbursement of a claim(s) was for an amount which was not justified, a notice of overpayment shall be delivered to the Reimbursement Responsible Party identifying the amount overpaid from the WTRF. (b) Upon receipt of a notice of overpayment, the Reimbursement Responsible Party shall submit a check returning the amount of the overpayment to the executive director. (c) All checks rendered to return overpayments shall be made to "The State of Texas Waste Tire Recycling Fund", and mailed to the Chief Fiscal Officer, Texas Natural Resource and Conservation Commission, P.O. Box 13087, Capitol Station, Austin, Texas 78711-3087 with the notation "WTRF Waste Tire Processor, Baler/Recycler No. _______, overpayment return." (d) If the overpayment has not been returned to the commission by the 30th calendar day after mailing of the notice of overpayment, excluding the date of mailing, the executive director may file a petition seeking an order from the commission to compel payment. (e) If, upon hearing, the commission issues an order compelling return of overpayment in any amount, the person found responsible for returning overpayment shall also be required to reimburse the commission for all reasonable hearing costs, including the costs of preparation. (f) Upon notification of any commission hearing or court appeal to resolve overpayment disputes, all records reviewed for the determination of overpayment shall be retained for a minimum of three years and/or until the hearing decision is issued and/or the Reimbursement Responsible Party is compliant with all decisions or orders. (g) The executive director may seek an order from the commission to compel cooperation with an audit or investigation when deemed necessary to achieve the purposes of this subchapter. (h) A Reimbursement Responsible Party who violates the requirements of this subchapter shall be subject to any action authorized by law to secure compliance, including the assessment of administrative penalties or civil penalties as prescribed by law. sec.330.920. WTRF Percentage Index Allocation Method. (a) Applicability. (1) For the purposes of sec.sec.330.920-330.930 of this title (relating to WTRF Percentage Index Allocation Method, WTRF Percentage Index Allocation Model Factors, Calculation of Factors for WTRF Percentage Index Allocation Model, Determination of the Weighting Factors for the Percentage Index Allocation Model, Notification of Allocation, Reallocation for Rural County Collection, Definition of Rural County, Reallocation Criteria, Calculation of Reallocation Model, Reallocation Notification, and Allocation Restrictions) and unless otherwise indicated, the WTRF includes the annual allocated fund dollar amount which consists of that portion of the WTRF that is available for reimbursement to the processors. It does not include the administrative funds for program operation for the TNRCC and the Texas Comptroller of Public Accounts. (2) The regulations contained in these sections establish the percentage index allocation system for the management of reimbursements from the WTRF in order to ensure the WTRF maintains a balance of not less than $500,000. (3) If the fund balance falls below $500,000, the executive director may suspend the requirement to reimburse for the shredding of priority enforcement list tires, special authorization tires and generator tires. (4) If reimbursement requests during any month result in the fund balance falling below $500,000, the executive director shall recalculate the voucher requests and pay a percentage of each request to reflect the funds available in excess of $500, 000. The recalculated voucher requests shall document the unreimbursed tires as carryover to be paid when the WTRF is not being allocated. (5) Unpaid carryover shall be reimbursed only when: (A) the executive director chooses to discontinue the WTRF allocation process, in which case the rate of carryover reimbursement shall be determined by the executive director; or (B) the processor's reimbursement request is less than the allocated amount, in which case the processor may be reimbursed for carryover up to the allocated amount. (6) The executive director shall implement the allocation process for the WTRF when the fund balance is equal to or less than $5,560,000. This amount is the sum of the conditions contained in subsection (c) of this section. (7) Should the WTRF balance exceed $5,560,000 for two consecutive months the executive director may chose to discontinue the WTRF allocation process until such time as the fund balance falls below $5,560,000. Upon reinstatement of the allocation process, all mobile tire processors and waste tire facilities shall use the allocation number in effect when allocation was discontinued until the next semi-annual allocation occurs (on a calendar year basis). The executive director shall notify processors, in writing, regular mail and certified mail, return receipt requested, of allocation discontinuation or reinstatement within ten days of such decision. (8) Only those multiple location, single-ownership processing registrations which were approved and under which separate reimbursements were requested by January 31, 1993, shall be given a separate allocation per facility. (b) Responsibility. (1) The executive director shall develop a model to allocate the WTRF to prevent fund depletion that takes into consideration the following weighting factors: (A) appropriate payments to reflect the varying amounts of money available in the fund; (B) a mobile tire processor's or waste tire facility's monthly average number of tires for which the processor has been reimbursed historically; (C) a mobile tire processor's or waste tire facility's shredding and storage capacity; (D) the date the mobile tire processor or waste tire facility was registered; and (E) the number of waste tire units a mobile tire processor or waste tire facility delivered to an end user(s) for recycling on a monthly basis. (2) The WTRF allocation management system developed by the executive director shall also consider a supplemental adjustment for reallocation. The reallocation model shall be employed when all registered mobile tire processors and waste tire facilities do not fully use their monthly allocation for reimbursement. The unused portion of the allocation may be assigned to another waste tire processor who can demonstrate having underutilized shredding and storage capacity available for service to rural counties in the state. (c) Funds reserved. The percentage index model for calculation of each processor's allocation shall be based on the total annual allocated fund dollar amount, converted to number of tires, less the following dollar considerations: (1) the legislative minimum of $500,000 required by the Texas Health and Safety Code, sec.361.475(h) (relating to Waste Tire Recycling Fund); (2) the Priority Enforcement List Request for Proposal amount totalling $3,060,000 encumbered annually for cleanup of the illegal waste tire dumps located in the state; and (3) the Useful Product Reimbursement Program amount totalling $2,000,000 set aside annually for reimbursement to individual(s) or company(ies) that produce a useful product according to the requirements contained in sec.sec.330.900- 330.909 of this title (relating to Useful Product Reimbursement Program, Useful Product Reimbursement Program Registration, Request for Reimbursement, Useful Product Reimbursement Program Restrictions, Public Notice of Intent to Operate, Useful Product Reimbursement Program Policies, Definition of a Useful Product, Useful Product Reimbursement Schedule, and Nonpayment of Requests for Reimbursement under the Useful Product Reimbursement Program). (d) Total fund reserved. The total amount deducted from the WTRF annually to account for the considerations contained in subsection (c) of this section is $5,560,000. The total number of tires allocated annually will be determined by subtracting $5, 560,000 from the annual allocated fund dollar amount then converting the resulting dollar amount to number of tires. The annual number of tires is then divided by twelve to determine the number of tires available for allocation monthly. (e) Reallocation intervals. A new allocation amount for all registered mobile tire processors and waste tire facilities will be recalculated at six month intervals based on the calendar year. (f) Unused allocated funds. Should monthly allocated dollars (funds) remain unused at the end of any month during which the program is allocating funds, other than those months involving new allocation or reallocation, then the unused funds may be available for distribution to processors that have unpaid carryover. The basis for reimbursement of unused monthly allocated funds will be based on a simple percentage method as follows: (1) all unpaid carryover for all registered processors that are operating in compliance with the WTRF will be totalled; (2) the executive director will determine each processor's individual portion of the total unpaid carryover by dividing the total unpaid carryover into each processor's individual unpaid carryover; (3) based on the amount of unused monthly allocated funds available for distribution, each individual processor will be paid a portion of their unpaid carryover by multiplying their portion of the unpaid carryover by the unused monthly allocated funds available; (4) the calculated amount of each individual processor's carryover that can be reimbursed will be determined in Austin using the unpaid carryover amount recorded on the most recent month's reimbursement voucher; (5) the Austin office will contact the qualifying processors and direct them to complete and sign a supplemental voucher and worksheet in the amount indicated, then mail the supplemental voucher and worksheet to Austin for processing within five days of the notification from the Austin office; (6) failure to respond within the five-day period of time indicated in paragraph (5) of this subsection will result in removal of that processor from consideration for supplemental reimbursement for that month; (7) the following conditions will apply to the distribution of unused monthly allocated funds: (A) funds must be available in the WTRF to ensure distribution of the unused monthly allocated funds will not result in noncompliance with subsection (c) of this section; (B) distribution of unused monthly allocated funds will occur during the months following reallocation and prior new allocation on a biennial basis; and (C) implementation of the process to distribute unused monthly allocation is discretionary on a monthly basis based on a determination by the executive director that subparagraphs (A) and (B) of this paragraph are adequate, and consideration or any other factors the executive director might deem necessary. (8) Reimbursement of unpaid carryover under this process is apart and separate from, and in no way affects or is affected by, or contingent upon, the conditions set forth in subsection (a)(5) of this section. sec.330.922. Calculation of Factors for WTRF Percentage Index Allocation Model. (a) Based on the requirements contained in sec.330. 920 of this title (relating to WTRF Percentage Index Allocation Method) the executive director shall develop equations to calculate the individual five criteria. The numbers resulting from the equations will be called factors. The factors will to be used to determine an allocation amount unique to each registered mobile tire processor and waste tire facility in the following manner: (1) the appropriate payment to reflect the amount of money in the fund is calculated by determining the total amount of money allocated to the fund during the previous 12-month period of time (June 1 May 31 for the July allocation and December 1 November 30 for the January allocation) plus the fund balance at the beginning of the 12-month period less the factors stated in sec.330.920 of this title (relating to WTRF Percentage Index Allocation Method); (2) the historical shredding capacity is calculated by dividing the total number of waste tire units reimbursed to each individual processor by the processor's program longevity (defined in paragraph (4) of this subsection); (3) the available storage capacity is calculated by subtracting from the total storage capacity of the storage facility (based on the capacity stated in the registration approval letter) the number of waste tire units stored at the storage facility at the time of allocation. Subsequent to that calculation, adequate capacity for the proposed six-month allocation period will be confirmed by comparing the remaining capacity with the proposed allocation number. If the processor's registered waste tire storage facility is determined to have inadequate available approved storage capacity for the full six-month allocation period or inadequate end use market delivery as described in paragraph (5) of this subsection, then the proposed allocation number for the six-month period will be adjusted to accurately reflect the available approved storage capacity and end use market delivery; (4) program longevity or the date the processor was registered is calculated by subtracting the initial date of registration (based on the date of the mobile tire processor or waste tire facility registration approval letter), from the date of allocation and dividing by 30 days, then rounding to the nearest whole number to determine number of months registered in the program; and (5) end use is calculated by subtracting the total amount of reimbursed waste tire units which remain stored in the processor's registered storage facility(ies) from the individual processor's total number of waste tire units reimbursed, then dividing that resulting number by the number of months the processor has been in the program using the number calculated in paragraph (4) of this subsection. (b) Upon calculating each processor's individual factors for all five criteria, using the equations described above, the total of all individual factors for each of the five criteria is determined by summing all individual processor's factors. Each individual factor is then divided by the total to give each processor a percentage factor. This percentage factor is then multiplied by the specific criteria weighting factor as determined by the executive director in sec.330.923 of this title (relating to Determination of the Weighting Factors for the Percentage Index Allocation Model) to produce a weighting factor specific for each of the five criteria for each processor. These specific weighting factors are totalled to obtain the weighted index for each registered processor. (c) The allocation for each processor is then determined by dividing the total number of tires available monthly as calculated in sec.330.920(c) and (d) of this title (relating to WTRF Percentage Index Allocation Method) by 100 to determine each processor's percentage of the total allocation which is essentially each processor's percentage of the shredding program. That number is then multiplied by the processor's individual weighted index as calculated in subsection (b) of this section to produce the specific individual allocation (in number of tires) for each processor. sec.330.923. Determination of the Weighting Factors for the Percentage Index Allocation Model. (a) The weighting factors are based on a total of 100% assuming the sum of the percentages for each of the four criteria equals 100% of the allocation to be distributed to the individual processors because the processors currently registered constitute 100% of the shredding program. The criteria of appropriate payments to reflect the varying amounts of money available in the fund will not be considered in this stage of the model calculation. (b) The weighting factor for shreds forwarded to an end use market shall be increased each fiscal year (September 1 August 31) based on the following graduated scale: (1) 50% for fiscal year 1995; (2) 65% through December of fiscal year 1996; and (3) 80% after January 1, 1996. (c) Concurrently, the weighting factor for historical shredding capacity shall be decreased each fiscal year (September 1-August 31) based on the following graduated scale to account for the increase in the end use weighting factor: (1) 30% for fiscal year 1995; (2) 15% through December of fiscal year 1996; and (3) 5.0% after January 1, 1996. (d) The weighting factor percentage for available storage capacity shall remain at 10% for fiscal years 1995, 1996 and thereafter, while the weighting factor percentage for registration date (program longevity) shall remain at 10%t for fiscal years 1995 and through December 31, 1995 of fiscal year 1996, but shall be reduced to 5.0% beginning January 1, 1996 and thereafter. sec.330.926. Definition of Rural County. (a) For the purposes of this subchapter, the executive director has defined a rural county in Texas as a county having a population of less than 50,000. This is a random method of rural determination for the purposes of WTRF reallocation only and is not intended for use in other TNRCC programs. (b) The executive director has determined that 203 counties in the state have a population of less than 50,000. A listing of the 203 designated rural counties may be obtained upon written request to the Texas Natural Resource and Conservation Commission, P.O. Box 13087, Capitol Station, Austin, Texas 78711- 3087 with attention to the WTRF program. (c) Within the 203 rural counties, the executive director has registered in excess of 3,537 waste tire generators. Only those waste tires collected from a registered generator on the list are eligible for rural county credit for reallocation. A listing of the designated rural county generators may be obtained upon written request to the Texas Natural Resource and Conservation Commission, P.O. Box 13087, Capitol Station, Austin, Texas 78711-3087 with attention to the WTRF program. sec.330.928. Calculation of Reallocation Model. Upon determination of processor qualification based on the criteria contained in sec.330.927 of this title (relating to Reallocation Criteria), the reallocation model will consider the total number of counties from which each processor collects waste tires. That factor will be divided by the total number of counties from which waste tires were collected. The weighted index is then divided by 100 to negate the percent effect created by the previous step to determine the weighting factor for rural county collection. This index shall be used to calculate the number of reallocated tires each participating processor will receive by multiplying the number of unused initially allocated tires (from the first month of allocation) by the weighted index. sec.330.930. Allocation Restrictions. When the TNRCC is allocating the fund, reimbursements from the WTRF for waste tire shredding to a nine square inch or less size shall only be made in the amount specifically indicated in the executive director's allocation or reallocation letter, unless an error in voucher calculations has been identified by the TNRCC regional or central offices, or the processor is in violation with rules and/or the statutes governing the WTRF program resulting in the withholding of shredding reimbursement. sec.330.931. Applicability and Responsibility for Recyclers of Whole Used or Scrap Tires or Scrap Tire Pieces or Shredded Tire Pieces. (a) Applicability. The regulations contained in these sections establish standards applicable to individuals or companies that either: (1) utilize shredded tire pieces of nine square inches or less from registered WTRF processors as raw material for the purpose of manufacturing useful products; (2) utilize whole used or scrap tires or scrap tire pieces and convert either all or a portion thereof by any means including, but not limited to mechanical, chemical, or thermal processes in order to obtain a useful product(s); (3) utilize whole used or scrap tires or scrap tire pieces as tire derived fuel or fuel supplement for energy recovery purposes; (4) collect or provide a collection site where whole used or scrap tires may be deposited by the general public or by designated and registered processors; or (5) store baled or loose whole used or scrap tires or scrap tire pieces for periods longer than 30 consecutive calendar days at transportation facilities such as marine terminals, rail yards or trucking facilities. (b) Recycling. For the purposes of this subchapter, waste tire recycling is defined as any process(es) in which all or part of baled or loose whole used or scrap tires or scrap tire pieces or shredded tire pieces are utilized either alone or in conjunction with other materials to make a product(s) (including energy recovery) which has a commercial market verifiable by the executive director or which has been otherwise approved as a site specific beneficial use by the executive director. (c) Responsibility. Each waste tire recycler shall ensure that their facility is registered and operated in accordance with the applicable sections of this subchapter. (d) Burning. For the purposes of this subchapter burning whole used or scrap tires does not constitute shredding. (e) Shredding. For the purposes of this subchapter shredding shall be defined only as the mechanical reduction of a whole used or scrap tire to pieces that are nine square inches or less in size. sec.330.932. Waste Tire Recycling Facility Registration. (a) Individuals or companies which utilize whole used or scrap tires, scrap tire pieces or shredded tire pieces for the purposes of recycling by any method other than energy recovery from tire derived fuel regardless of whether or not they receive reimbursement from the waste tire recycling fund, shall be subject to the specific requirements of this subchapter and shall be required to obtain a waste tire recycling registration from the executive director. (b) An application for a waste tire recycling facility registration shall be made to the executive director on a form provided by the executive director. (c) The executive director has the authority to approve or disapprove an individual or company identified by a mobile tire processor, waste tire facility or waste tire baling facility, as a legitimate end use source for their baled whole used, scrap tires, scrap tire pieces or shredded tire pieces. sec.330.933. Requirements for Registration for a Waste Tire Recycling Facility. (a) Registration requirements. (1) Any facility utilizing whole used or scrap tires, scrap tire pieces or shredded tire pieces for recycling purposes shall register the site(s) with the executive director. Registration forms shall be provided by the executive director upon request. (2) A copy of the recycling registration shall be maintained at the designated place of business. (3) A waste tire recycling registration shall expire 60 months from the date of issuance unless the waste tire recycling facility changes ownership prior to that time. A waste tire recycling registration is transferable contingent upon executive director approval. A change in the federal tax identification number will constitute a change of ownership. Prior to commencing operation of the facility, the new owner shall submit new registration applications and obtain complete written registration approval from the executive director. Applications to renew registrations shall be submitted at least 60 days prior to the expiration date. Failure to submit an application renewal at least 60 days prior to the expiration date may result in a lapse in registration. (4) Waste tire recycling facility owners and/or operators shall submit a written notification to their application to the commission within 15 days of a change in registration if: (A) any data submitted in support of the application for registration has changed; or (B) the office or place of business is relocated; or (C) the registered name of the facility owner or operator has changed. (5) A new waste tire recycling facility registration application shall be submitted to the executive director within 15 days of a determination by the executive director that operations or management methods are no longer adequately described by the existing registration. If the ownership of the registered waste tire recycling facility will change or the operator of a waste tire recycling facility will change, notification of the pending change shall occur at least 60 days prior to the actual transfer of ownership or operations. Until the change of ownership and/or operations of the facility is approved in writing by the executive director no reimbursements will occur. (6) Failure of an owner or operator of a waste tire recycling facility to comply with the requirements of this subchapter shall result in enforcement procedures in accordance with sec.330.939 of this title (relating to Penalties for Owners or Operators of Waste Tire Recycling Facilities, Waste Tire Energy Recovery Facilities, Waste Tire Transfer Stations or Recycling Collection Centers, and Transportation Facilities). (7) Preparation and submission of an application to the executive director for a waste tire recycling facility shall be in accordance with the following procedures: (A) The application for registration shall be prepared and signed by the applicant on a form to be provided by the executive director. The application shall include information necessary for the executive director to make an evaluation of the proposed operation to ensure that the facility is located, designed, and operated to protect the health, welfare, and physical property of the public, as well as the environment. Failure to submit complete information as required by these sections shall result in the return of the application to the applicant without further action by the executive director. The submission of false information shall constitute grounds for denial of the initial or renewal application, or suspension or revocation of the current waste tire recycling facility registration. The waste tire recycling facility registration shall be issued upon receipt and approval of an administratively and technically complete application, including the posting of the financial assurance, if required. (B) The application for a registration of a waste tire recycling facility shall be submitted as one original and one copy to the executive director with all supporting data also submitted in duplicate unless otherwise directed by the executive director. (C) Data presented in support of an initial or renewal application for a waste tire recycling facility shall consist of: (i) the legal name, mailing address, telephone number and facsimile number, if applicable, of the responsible individual, partnership, corporation, city, county or other governmental entity making the application and accepting responsibility and liability for operations; (ii) the name, mailing address, telephone number and facsimile number, if applicable, of the property owner of the waste tire recycling facility; (iii) the physical location, including county and street address, if applicable, of the waste tire recycling facility; (iv) the maximum amount of whole used or scrap tires, scrap tire pieces, or shredded tire pieces (in pounds) which will be on site at the waste tire recycling facility at any given time; (v) the current status of the waste tire recycling facility; (i.e. proposed or existing); (vi) the amount of whole used or scrap tires, scrap tire pieces, or shredded tire pieces necessary to provide a 30 calendar day raw material supply for the proposed recycling process; (vii) the storage method (piles on the ground, piles inside a building or enclosure, or totally enclosed and lockable containers that are locked during non-operational hours); (viii) a property owner affidavit in a format as furnished by the executive director submitted when the applicant is not a city, county, state agency, federal agency, or other governmental entity and is not the owner of record of the land described in the application, or does not have an option to buy the land. The statement shall be witnessed and notarized. If the property owner does not sign the statement, the applicant shall provide the executive director with documentation that the property owner has been properly notified and advised of his/her responsibilities and potential liabilities in relation to the operation of a waste tire recycling facility on the owner's land; (ix) statement and signature of the applicant, or the authorized representative empowered to make commitments for the applicant on a form provided by the executive director, stating that he is familiar with the application and all supporting data; and is aware of all commitments represented in the application; and that he is also familiar with all pertinent requirements in these regulations, local building, fire and zoning codes; and he agrees to develop and operate the waste tire recycling facility in accordance with the application and its supporting attachments, the sections in this subchapter, local building, fire and zoning codes and any special provisions which may be imposed by the executive director or other legal authority. (8) If the applicant seeking registration for a waste tire recycling facility intends to have more than a 30 calendar day supply of baled or loose whole used or scrap tires, scrap tire pieces, or shredded tire pieces at the facility site, then the applicant shall provide the following additional information: (A) a waste tire recycling facility site layout plan drawn to an acceptable scale showing location of the storage areas; fire lanes; access roads (internal and external); fire control facilities; facility security and fencing; maintenance and control buildings; location and type of waste tire handling and processing equipment to be used; (B) the jurisdictional location of the waste tire recycling facility by county, or extraterritorial jurisdiction of a city; and (C) evidence of financial responsibility in conformance with the requirements contained in Subchapter R, sec.sec.330.885-330.888 of this title (relating to Cost Estimate for Closure; Financial Assurance for Closure; Incapacity of Owners or Operators or Financial Institutions; and Wording of the Instruments). (9) The registration applicant and/or the registered waste tire recycling facility shall submit, upon request, copies of any documents which the executive director may deem necessary to properly manage the waste tire recycling fund. Such documents shall include, but not be limited to, purchase and/or sales contracts for baled or loose whole used or scrap tires or scrap tire pieces or shredded tire pieces. Any information considered confidential by the registrant shall be so indicated on each page and submitted with a cover letter requesting that it remain confidential. Such requests shall be recognized as confidential pursuant to of Subchapter R, sec.330.875 of this title (relating to Confidentiality). (10) A mobile tire processor shall not be located or operate at a waste tire recycling facility. (b) Design Requirements for a Waste Tire Recycling Facility. Unless otherwise required by the executive director, the design requirements contained herein are restricted to those applicants seeking registration for waste tire recycling facilities which intend to store more than a 30 calendar day supply of baled or loose whole used or scrap tires or scrap tire pieces or shredded tire pieces on site. (1) The waste tire recycling facility shall be designed to protect the health, welfare and safety of workers, and the general public, and the environment. (2) The waste tire recycling facility shall be limited to a maximum of three piles containing loose whole used or scrap tires on the ground. The registration application and financial assurance instruments shall define the maximum number of piles of baled whole used or scrap tires or scrap tire pieces on the ground and/or the number of piles of shredded tire pieces on the ground and/or the number of baled or loose whole used or scrap tires or scrap tire pieces, or shredded tire pieces in totally enclosed and lockable containers. Whole used or scrap tire or scrap tire piece piles and shredded tire piece piles on the ground shall be sized according to the maximum area and height authorized in Subchapter R, sec.330. 835 of this title (relating to Requirements for a Type VIII-R Waste Tire Storage Facility). (A) Tire piles consisting of baled or loose whole used or scrap tires, scrap tire pieces, or shredded tire pieces shall be no greater than 15 feet in height nor shall the pile cover an area greater than 8, 000 square feet. (B) Baled or loose whole used or scrap tires or scrap tire pieces or shredded tire pieces may be stored in an enclosed building or other type of covered enclosure. Where applicable, local fire prevention codes must be met and appropriate precautions taken. Inside storage piles or bins shall not exceed 12,000 cubic feet with a 10-foot aisle space between piles or bins. (C) Baled or loose whole used or scrap tires or scrap tire pieces or shredded tire pieces may be stored in trailers provided the trailer is totally enclosed and lockable and shall be capable of being towed on public streets and highways. (3) Outside piles consisting of baled or loose whole used or scrap tires or scrap tire pieces or shredded tire pieces and entire buildings used to store baled or loose whole used or scrap tires or scrap tire pieces or shredded tire pieces shall not be located within 20 feet of the property line or easements of the waste tire recycling facility. The executive director may grant a variance to the 20-foot property line or easement requirement. In order for the applicant to be granted a variance, the applicant must demonstrate to the satisfaction of the executive director that the distance that is the subject of the variance is adequate for fire fighting purposes and meets the other applicable requirements of this subchapter. (4) Appropriate vector controls shall be used as necessary and in accordance with other applicable ordinances and regulations. (5) There shall be a minimum separation of 20 feet between outside tire piles consisting of baled or loose whole used or scrap tires or scrap tire pieces or shredded tire pieces. This 20-foot space shall be designated as a fire lane and shall be an all-weather road as determined by the local fire authority and completely encircle each pile. The open space between buildings and outside tire piles consisting of baled or loose whole used or scrap tires or shredded tire pieces shall be a minimum of 20 feet and kept open at all times and maintained free of rubbish, equipment, tires, or other materials. (6) The waste tire recycling facility shall be completely enclosed with at least a six-foot high chain-link type security fence with no less than three strands of taut barbed wire encircling the top of the fence and with lockable gates of the same design as the fence. In the event that local zoning ordinances prohibit such a fence, the waste tire recycling facility shall submit proof of such ordinances to the executive director in order to obtain approval of an alternative fence design. Storage buildings or enclosures not enclosed with a chain-link type security fence shall be secured by lockable doors. Waste tire recycling facilities shall be kept locked during all non-operational hours. (7) The waste tire recycling facility shall have an adequate fire protection system as defined by the local fire authority marshal and shall be in conformance with all local and state fire code requirements. The fire marshal within whose jurisdiction the waste tire recycling facility is located shall review the fire protection system. A letter from the fire marshal approving the fire protection system and the fire protection measures in the site layout plan and site operating plan shall be included in the application for waste tire recycling facility registration. (8) The waste tire recycling facility shall have five pound or larger dry chemical or other approved fire extinguisher(s) located throughout the entire site. Fire extinguishers used at waste tire recycling facilities shall be equally spaced throughout the facility to provide quick access from any location within the facility. The minimum number of fire extinguishers for each waste tire recycling facility shall be one per acre. (9) Each site shall conspicuously display at each entrance a sign at least 1- 1/2 feet by 2-1/2 feet in size with clear, legible letters stating the name of the waste tire recycling facility using the words "waste tire recycling facility", the registration number prefixed by "Texas Natural Resource Conservation Commission Registration Number MSW", the facility's telephone number(s), and operating hours. (c) Waste Tire Recycling Facility Standard Operating Plan. Unless otherwise required by the executive director, the standard operating plan requirements contained herein are restricted to those applicants seeking registration for waste tire recycling facilities which intend to store more than a 30 calendar day supply of baled or loose whole used or scrap tires or scrap tire pieces or shredded tire pieces on site. (1) The purpose of the waste tire recycling facility standard operating plan is to allow the executive director to review and approve the specific guidance and instructions for the management and operation of a waste tire recycling facility in order to ensure compliance with the Health and Safety Code, sec.361.486(b). The site operating plan shall contain instructions in sufficient detail to enable the facility operator(s) to conduct day-to-day operations in compliance with the requirements contained in this subchapter. (2) The waste tire recycling facility operating plan shall include guidance or instructions on the following: (A) security, facility access control, the hours and days during which tire- hauling vehicles will be accepted, traffic control, and safety; (B) control of loading and unloading of baled or loose whole used or scrap tires or scrap tire pieces or shredded tire pieces within designated areas so as to minimize operational problems at the facility; (C) fire prevention and control plans, and any special training requirements for firefighting personnel who may be called for assistance; (D) vector control procedures for any type of vector which may be found at the facility; and (E) incorporation of other instructions as necessary to ensure that the waste tire recycling facility personnel comply with all of the operational standards for the facility. (d) Waste Tire Recycling Facility Record Keeping. The record keeping requirements shall be complied with by all waste tire recycling facility applicants regardless of the quantity of baled or loose whole used or scrap tires or scrap tire pieces or shredded tire pieces stored at the site, or whether the waste tire recycling facility intends to house more or less than a 30 day calendar day supply of such tires or tire shreds. (1) General requirements. (A) A legible copy of the complete waste tire recycling facility registration application as approved by the executive director including the facility layout plan, facility operating plan, and all other supporting data to the application, shall be maintained at the waste tire recycling facility site for review by all authorized personnel. Any deviation, as determined by the executive director, from any part of the site layout plan or operating plan or other supporting data without prior approval from the executive director shall be a violation of this subchapter. (B) The facility supervisor shall be knowledgeable of current applicable commission rules and the operational requirements of the approved waste tire recycling facility application. (2) Daily log. Individuals or companies that store baled or loose whole used or scrap tires or scrap tire pieces or shredded tire pieces subject to control under this subchapter shall maintain a record of each individual delivery and removal. Such records shall be in the form of a daily log or other similar documentation approved by the executive director. The daily log shall include, at a minimum: (A) the weight of baled or loose whole used or scrap tires or scrap tire pieces or shredded tire pieces received at the waste tire recycling facility identified by load; (B) the weight of baled or loose whole used or scrap tires or scrap tire pieces or shredded tire pieces, removed from the waste tire recycling facility by disposal, resale, recycling, or reuse identified by load; (C) a description of specific events at the facility relating to routine maintenance, on site fires, nearby fires, theft or vandalism, spraying for vectors, observation or evidence of vectors, or other similar events or occurrences; and (D) the name, signature and date of the facility representative acknowledging the truth and accuracy of the daily log. (3) Manifests. The waste tire recycling facility operator shall retain all manifests received from a waste tire transporter or mobile tire processing facility for whole used or scrap tires or scrap tire pieces or shredded tire pieces delivered to or from the waste tire recycling facility. The waste tire recycling facility shall ensure that the top original of the five-part manifest shall be returned to the generator. (4) Maintenance of records. The mobile tire processor shall maintain originals of all records required by this section for a period of three years. These records shall be maintained at the same location as the shredder at all times and shall be made available to the executive director for review upon request. (A) Any change made to the face of an original record shall be made by drawing a single line through the item being changed, ensuring that such item remains legible and readable. To the side of such mark, the person making the change shall place his/her initials with the date of such change. (B) Any change made to the face of an original record and made in accordance with sec.330.933 of this title (relating to Requirements for Registration for a Waste Tire Recycling Facility) shall be accompanied by a written justification stating the reason and purpose for the change. This written justification shall be attached to the original record and maintained in the same manner set forth subsection (a) of this section for a period of three years. The justification shall include the date of the change, the full name and position of the individual making the change, and the justification shall be prepared simultaneously with the change to the original records. (C) Should the executive director identify discrepancies/errors in records, and opportunity will be given to the mobile tire processor or waste tire facility to justify, in writing, any such errors or discrepancies. However, the executive director shall determine whether any written justification is adequate for the purposes of reimbursement. (e) Local ordinances. Where local ordinances require procedures, controls and records substantially equivalent to or more stringent than the requirements of this subchapter, the waste tire recycling facility owner or operator shall use such controls and records to satisfy the commission's requirements, upon review and approval by the executive director. sec.330.934. Waste Tire Energy Recovery Facility Registration. (a) Individuals or companies that utilize baled or loose whole used or scrap tires or scrap tire pieces or shredded tire pieces for the purposes of recycling by energy recovery from tire derived fuel shall be subject to the specific requirements of this subchapter and shall be required to obtain a waste tire energy recovery registration from the executive director. (b) The executive director shall not disapprove or fail to register an individual or company authorized by the state to use tire derived fuel for energy recovery purposes. (c) All applicable federal, state, and local air, water, hazardous or industrial waste, or municipal solid waste permits and/or registrations for operation as a waste tire energy recovery facility shall be obtained prior to submittal of an application for registration as a waste tire energy recovery facility under the WTRF program. (d) Individuals or companies that intend to operate as an waste tire energy recovery facility are not required to obtain additional registrations under the WTRF program rules in order to operate, unless the individual or company intends to personally transport whole used or scrap tire, scrap tire pieces or shredded tire pieces from registered generators, processors, or storage facility owners or operators in the state. Under this condition the waste tire energy recovery facility shall obtain registration as a waste tire transporter pursuant to Subchapter R, sec.330.812 of this title (relating to Transporter Registration). sec.330.935. Requirements for a Waste Tire Energy Recovery Facility. (a) Registration requirements. (1) Any facility utilizing whole used or scrap tires, scrap tire pieces or shredded tire pieces for energy recovery purposes shall register each site with the executive director on forms provided by the executive director upon request. (2) Individuals or companies that apply and receive a waste tire energy recovery registration from the executive director shall maintain a copy of the registration at the designated place of business. (3) A waste tire energy recovery registration shall expire 60 months from the date of issuance unless the facility is sold prior to that date in which case the registration expires effective the time of sale. Applications to renew registrations shall be submitted at least 60 days prior to the expiration date. Failure to submit an application renewal at least 60 days prior to the expiration date may result in a lapse in registration. (4) Waste tire energy recovery facility owners and/or operators shall submit written notification, to their application to the commission within 15 days of a change to their registration if: (A) any data submitted in support of the application for registration has changed; (B) the office or place of business is relocated; or (C) the registered name of the facility owner or operator has changed. (5) A new waste tire energy recovery facility registration application shall be submitted to the executive director within 15 days of a notification that ownership of the registered facility has changed (the registration number shall be canceled upon the effective date of the ownership transfer). (6) Failure of an owner or operator of a waste tire energy recovery facility to comply with the requirements of this subchapter shall result in enforcement procedures in accordance with sec.330. 939 of this title (relating to Penalties for Owners or Operators of Waste Tire Recycling Facilities, Waste Tire Energy Recovery Facilities, Waste Tire Transfer Stations or Recycling Collection Centers, and Transportation Facilities). (7) Preparation and submission of an application to the executive director for a waste tire energy recovery facility shall be in accordance with the following procedures. (A) The application for a registration of a waste tire energy recovery facility shall be submitted as one original and one copy to the executive director with all supporting data also submitted in duplicate unless otherwise directed by the executive director. (B) Data presented in support of an initial or renewal application for a waste tire energy recovery facility shall consist of: (i) the legal name, mailing address, telephone number and facsimile number, if applicable, of the responsible individual, partnership, corporation, city, county or other governmental entity making the application and accepting responsibility and liability for operations; (ii) the name, mailing address, telephone number and facsimile number, if applicable, of the property owner of the waste tire energy recovery facility; (iii) the physical location, including county and street address, if applicable, of the waste tire energy recovery facility; (iv) the jurisdictional location of the waste tire energy recovery facility by county, or extraterritorial jurisdiction of a city; (v) the maximum weight in pounds of baled or loose whole used or scrap tires or scrap tire pieces or shredded tire pieces that will be on site at the waste tire energy recovery facility at any given time; (vi) the weight in pounds of whole used or scrap tires or scrap tire pieces or shredded tire pieces necessary to provide a 30-day supply of tire derived fuel for energy recovery; (vii) supply the TNRCC with the numbers of all other applicable federal, state, and local permits and/or registrations listed in sec.330.934(c) in this subchapter (relating to Waste Tire Energy Recovery Facility Registration); (viii) a property owner affidavit in a format as furnished by the executive director submitted when the applicant is not a city, county, state agency, federal agency, or other governmental entity. The statement shall be witnessed and notarized. If the property owner does not sign the statement, the applicant shall provide the executive director with documentation that the property owner has been properly notified and advised of his/her responsibilities and potential liabilities in relation to the operation of waste tire energy recovery facility on the owner's land; and (xiv) statement and signature of the applicant provided by the applicant, or the authorized representative empowered to make commitments for the applicant, stating that he is familiar with the application and all supporting data; is aware of all commitments represented in the application; and that he is also familiar with all pertinent requirements in these regulations, any local building, zoning and fire codes; that he agrees to develop and operate the waste tire energy recovery facility in accordance with the application and its supporting attachments, the sections in this subchapter, any local or state building, zoning or fire codes, and any special provisions which may be imposed by the executive director. (8) The applicant seeking registration for a waste tire energy recovery facility shall submit evidence of financial responsibility pursuant to Subchapter R, sec.sec.330. 885-330.888 of this title (relating to Cost Estimate for Closure; Financial Assurance for Closure; Incapacity of Owners or Operators or Financial Institutions; and Wording of the Instruments), unless the applicant documents, pursuant to sec.330.935(a)(7)(B)(vii) of this subchapter (relating to Requirements for a Waste Tire Energy Recovery Facility) that the facility will not store in excess of a 30-day supply of tire derived fuel for energy recovery purposes and/or the applicant documents, pursuant to sec.330.935(c)(2) of this subchapter (relating to Requirements for a Waste Tire Energy Recovery Facility) that the applicant accepts only whole tires generated from in-state sources. (b) Design requirements for a waste tire energy recovery facility. The waste tire energy recovery facility shall have an adequate fire protection system in accordance with applicable fire and building codes. The fire marshal authority within whose jurisdiction the waste tire energy recovery facility is located shall review the fire protection system. A letter from the local fire marshall approving the fire protection system and fire protection measures shall be included in the application for waste tire energy recovery facility registration. (c) Waste tire energy recovery facility record keeping. (1) Monthly Report. Individuals or companies that store baled or loose whole used or scrap tires, scrap tire pieces, or shredded tire pieces subject to control under this subchapter shall maintain a record of each individual delivery and removal. Such records shall be in the form of a monthly report approved by the executive director. The monthly report shall include, at a minimum: (A) the number of baled whole used or scrap tires and weight of loose whole used or scrap tires or scrap tire or shredded tire pieces received at the waste tire energy recovery facility; (B) the number of baled whole used or scrap tires and loose whole used or scrap tires, scrap tire pieces, or shredded tire pieces thereof, removed from the waste tire energy recovery facility by disposal, resale, recycling, reuse or energy recovery; (C) the name, signature and date of the facility representative acknowledging the truth and accuracy of the monthly report; and (D) the monthly report shall be submitted to the executive director by the 20th day of the month following the month the data was collected. (2) Manifests. The waste tire energy recovery facility operator shall retain all manifests received from a transporter of baled or loose whole used or scrap tires or scrap tire pieces or shredded tire pieces delivered to the waste tire energy recovery facility. The waste tire energy recovery facility shall ensure that the top original of the five-part manifest shall be returned to the generator. (3) Maintenance of records and reporting. The waste tire energy recovery facility operator shall retain all records showing the collection and disposition of the whole used or scrap tires, scrap tire pieces or shredded tire pieces. Such records shall be retained for three years and made available for review to the executive director upon request. (A) Any change made to the face of an original record shall be made by drawing a single line through the item being changed, ensuring that such item remains legible and readable. To the side of such mark, the person making the change shall place his/her initials with the date of such change. (B) Any change made to the face of an original record and made in accordance with the above section shall be accompanied by a written justification stating the reason and purpose for the change. This written justification shall be attached to the original record and maintained in the same manner set forth previously in subsection (a) of this section for a period of three years. The justification shall include the date of the change, the full name and position of the individual making the change, and the justification shall be prepared simultaneously with the change to the original records. (C) Should the executive director identify discrepancies/errors in records, and opportunity will be given to the mobile tire processor or waste tire facility to justify, in writing, any such errors or discrepancies. However, the executive director shall determine whether any written justification is adequate for the purposes of reimbursement. (d) Local ordinances. Where local ordinances require procedures, controls and records substantially equivalent to or more stringent than the requirements of this subchapter, the waste tire energy recovery facility owner or operator shall use such procedures, controls and records to satisfy the commission's requirements, upon review and approval by the executive director. sec.330.936. Registration as a Waste Tire Transfer Station or Recycling Collection Center. (a) Waste tire transfer stations shall be operated only by registered waste tire processors and shall accept whole used or scrap tires or scrap tire pieces only from specifically designated generators. A waste tire transfer station may be located at a waste tire generator site but not at a registered waste tire processing facility. Recycling collection centers shall be operated only by governmental entities and shall accept whole used or scrap tires or scrap tire pieces from only the general public. (b) Individuals or companies, or governmental entities who receive or collect whole used or scrap tires or scrap tire pieces from the general public or from specifically designated generators for shipment to a recycler for the purposes of recycling, regardless of whether or not they receive reimbursement from the waste tire recycling fund, shall be required to obtain a site specific waste tire transfer station or recycling collection center registration from the executive director. (c) An application for a waste tire transfer station or recycling collection center registration shall be made in writing to the executive director on an approved form provided by the executive director. sec.330.937. Requirements for a Waste Tire Transfer Station or Recycling Collection Center. (a) Registration requirements. (1) Any site receiving whole used or scrap tires or scrap tire pieces from the general public or a specifically designated generator for shipment to a registered mobile tire processor, waste tire facility, waste tire baling facility, waste tire energy recovery facility, or waste tire recycling facility, shall register the site with the executive director as a waste tire transfer station or recycling collection center. Registration forms shall be provided by the executive director upon request. (2) Individuals or companies, or governmental entities who apply and receive a waste tire transfer station or recycling collection center registration from the executive director shall maintain a copy of the registration at the waste tire transfer station or recycling collection center. (3) A waste tire transfer station or recycling collection center registration shall expire 24 months from the date of issuance unless facility ownership changes, in which case the registration expires at the time of sale of the facility. Applications to renew registrations shall be submitted prior to the expiration date. Failure to submit a renewal prior to the expiration date shall be considered a voluntary withdrawal of the registration by the applicant effective midnight of the expiration date. (4) Waste tire transfer station or recycling collection center owners and/or operators shall submit a written amendment, by letter, to their application to the commission within 15 days of a change to their registration if any data submitted in the application for registration has changed. (5) A new waste tire transfer station or recycling collection center registration application shall be submitted to the executive director within 15 days of a determination by the executive director that operations or management methods are no longer adequately described by the existing registration. If ownership of the registered waste tire transfer station or recycling collection center will change or the operator of the waste tire transfer station or recycling collection center will change, notification of the pending change shall occur at least 60 days prior to the actual transfer of ownership or operations. Until the change of ownership and/or operations of the station or center is approved in writing by the executive director, the station or center shall not operate. (6) The commission shall suspend or revoke a waste tire transfer station or recycling collection center registration or deny an initial or renewal application for registration for cause as provided in sec.330.939 of this title (relating to Penalties for Owners or Operators of Waste Tire Recycling Facilities, Waste Tire Energy Recovery Facilities, Waste Tire Transfer Stations or Recycling Collection Centers, and Transportation Facilities). The commission may suspend or revoke a waste tire transfer station or recycling collection center registration or deny an initial or renewal application for registration if the waste tire transfer station or recycling collection center is not in compliance with local zoning, building and fire codes. An opportunity for a formal hearing on the suspension or revocation may be requested by the applicant. The request for formal hearing shall be made within 20 days after receipt of the notice of suspension or revocation sent by the executive director to the last known address of the registrant or it shall be deemed waived. If the registration is suspended or revoked, and a formal hearing has been timely requested by the applicant, the waste tire transfer station or recycling collection center shall not accept additional whole used or scrap tires or scrap tire pieces regulated under this subchapter until a final decision has been made by the commission as result of the hearing. If the suspension or revocation of the waste tire transfer station or recycling collection center registration is approved by the commission, the owner or operator of the facility shall remove all whole used or scrap tires or scrap tire pieces at the facility within 30 calendar days from the date of final approval of the suspension or revocation. (7) Preparation and submission of an application to the executive director for a waste tire transfer station or recycling collection center shall be in accordance with the following procedures: (A) The application for registration shall be prepared and signed by the applicant on a form to be provided by the executive director and shall include information necessary for the executive director to make an evaluation of the proposed operation to ensure that the facility is located, designed, and operated to protect the health, welfare, and physical property of the public, as well as the environment. (B) The application for a registration of a waste tire transfer station or recycling collection center shall be submitted as one original and one copy to the executive director with all supporting data also submitted in duplicate unless otherwise directed by the executive director. (C) Data presented in support of an initial or renewal application for a waste tire transfer station or recycling collection center shall consist of: (i) the legal name, mailing address, telephone number and facsimile number, if applicable, of the responsible individual, partnership, corporation, city, county or other governmental entity making the application and accepting responsibility and liability for operations; (ii) the physical location, including county and street address, if applicable, of the waste tire transfer station or recycling collection center; (iii) the maximum number of whole used or scrap tires or scrap tire pieces which will be allowed to accumulate on site at the waste tire transfer station or recycling collection center at any given time; (iv) the estimated number of whole used or scrap tires or scrap tire pieces to be received daily; (v) the current status of the waste tire transfer station or recycling collection center (i.e. proposed or existing); (vi) a witnessed and notarized certification by the applicant that the waste tire transfer station or recycling collection center is in accordance with all local codes and zoning ordinances; (vii) when the applicant is not a governmental entity, a property owner affidavit in a format as furnished by the executive director shall be submitted. The statement shall be witnessed and notarized; (viii) a legible waste tire transfer station or recycling collection center site layout plan drawn to scale showing location of no more than ten totally enclosed and lockable tire storage containers which are to be locked during non- operational hours, any access roads, fire control facilities, facility security and fencing and other operational buildings to be located at the waste tire transfer station or recycling collection center; and (ix) an applicant's statement and signature provided by the applicant, or the authorized representative empowered to make commitments for the applicant, stating that: the applicant is familiar with the application and all supporting data; is aware of all commitments represented in the application; is familiar with all pertinent requirements in these regulations; and agrees to develop and operate the waste tire transfer station or recycling collection center in accordance with the application and its supporting attachments, the sections in this subchapter. (b) Design requirements for a waste tire transfer station or recycling collection center. (1) A waste tire transfer station or recycling collection center registration shall be site specific and shall be designed to maintain the health, welfare and safety of the workers, the general public and the environment. (2) A waste tire transfer station or recycling collection center shall be limited to a maximum of ten totally enclosed and lockable containers or buildings. (3) There shall be no tires on the ground. (4) Appropriate vector controls shall be used as necessary and in accordance with other applicable ordinances and regulations. (5) Unless operated by a government entity and a variance has been requested and approved by the executive director, then the waste tire transfer station or recycling collection center shall have an operator present at all times when the site is open and the tire containers shall be securely locked whenever the operator is not present. (6) The waste tire transfer station or recycling collection center shall be completely enclosed with at least a six foot high chain-link type security fence with no less than three strands of taut barbed wire encircling the top of the fence and with lockable gates of the same design as the fence. In the event that local zoning ordinances prohibit such a fence, proof of such ordinances shall be submitted to the executive director in order to obtain approval of an alternative fence design. Storage buildings or enclosures not enclosed within a chain-link type security fence shall be secured by lockable doors. Waste tire transfer stations or recycling collection centers shall be kept locked during all non-operational hours. (7) The waste tire transfer station or recycling collection center shall have an adequate fire protection system and shall be in conformance with all local and state fire, building and zoning code requirements. (8) Each waste tire transfer station or recycling collection center shall conspicuously display a sign with clear, legible letters at least two inches in height stating the name of the waste tire transfer station or recycling collection center using the words "waste tire transfer station" or "waste tire recycling collection center", the registration number prefixed by "Texas Natural Resource Conservation Commission Registration Number MSW_____", the facility's normal and emergency telephone numbers, and operating hours. (9) No tire shall be allowed to remain at a waste tire transfer station or recycling collection center longer than 90 days. (10) The Type VIII-WT restrictions on the maximum number of tires on a site do not apply to waste tire transfer stations or recycling collection centers. (c) Waste tire transfer station or recycling collection centers record keeping. (1) General requirements. (A) A legible copy of the complete waste tire transfer station or recycling collection center registration application including attachments as approved by the executive director shall be maintained at the waste tire transfer station or recycling collection center facility for review by all authorized personnel. (B) The facility owner or operator shall be knowledgeable of current applicable commission rules. (2) Manifests. The waste tire transfer station or recycling collection center owner or operator shall ensure that all manifests are properly initiated for all whole used or scrap tires or scrap tire pieces removed from the waste tire transfer station or recycling collection center facility. (3) Maintenance of records and reporting. The waste tire transfer station or recycling collection center owner or operator shall retain all manifests showing the collection and disposition of the whole used or scrap tires or scrap tire pieces. Such original manifests shall be retained for three years and made available for review to the executive director upon request. (A) Any change made to the face of an original record shall be made by drawing a single line through the item being changed, ensuring that such item remains legible and readable. To the side of such mark, the person making the change shall place his/her initials with the date of such change. (B) Any change made to the face of an original record and made in accordance with the above section shall be accompanied by a written justification stating the reason and purpose for the change. This written justification shall be attached to the original record and maintained in the same manner set forth in subsection (a) of this section for a period of three years. The justification shall include the date of the change, the full name and position of the individual making the change, and the justification shall be prepared simultaneously with the change to the original records. (C) Should the executive director identify discrepancies/errors in records, and opportunity will be given to the mobile tire processor or waste tire facility to justify, in writing, any such errors or discrepancies. However, the executive director shall determine whether any written justification is adequate for the purposes of reimbursement. (d) Local ordinances. Where local ordinances require controls substantially equivalent to or more stringent than the requirements of this subchapter, the waste tire transfer station or recycling collection center owner or operator shall use such controls to satisfy the commission's requirements, upon review and approval by the executive director. sec.330.938. Requirements for a Transportation Facility. Any transportation facility storing baled or loose whole used or scrap tires or scrap tire pieces or shredded tire pieces for periods longer than 30 calendar days at transportation facilities such as marine terminals, rail yards or trucking facilities, shall register the facility with the executive director pursuant to sec.330.934 and sec.330.935 of this title (relating to Waste Tire Energy Recovery Facility Registration and Requirements for a Waste Tire Energy Recovery Facility). 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 August 4, 1994. TRD-9446173 Mary Ruth Holder Director, Legal Division Texas Natural Resource Conservation Commission Effective date: August 25, 1994 Proposal publication date: April 19, 1994 For further information, please call: (512) 239-6087 TITLE 40. SOCIAL SERVICES AND ASSISTANCE Part I. Texas Department of Human Services Chapter 90. Nursing Facilities and Related Institutions Subchapter D. Facility Construction Construction Standards for Facilities Serving Persons with Mental Retardation or Related Conditions 40 TAC sec.90.92 The Texas Department of Human Services (DHS) adopts an amendment to sec.90. 92, concerning introduction, application, and general requirements in its Nursing Facilities and Related Institutions rule chapter, with changes to the proposed text as published in the May 17, 1994, issue of the Texas Register (19 TexReg 3822). The justification for the amendment is to include methods for determining the evacuation capability of ICF-MR residents under Chapter 21 of the Life Safety Code of the National Fire Protection Association. Ratings of "impractical," "slow," or "prompt" are based on a score validated at the time of the Life Safety Code and Health Survey. Each rating has special evacuation requirements for the facility to follow and must be consistent with client characteristics and fire drills. The amendment will function by improving safety of ICF-MR residents. During the public comment period, DHS received comments from New Avenues of Hope, Inc., and Community Living Concepts, Inc. A summary of the comments and DHS's responses follow: Comment: One commenter suggested that DHS officially define the terms "relief staff" and "substitute staff." Response: DHS believes that both terms are self-explanatory and that to define them further would place too many restrictions and limitations on the provider and regulatory staff. Comment: One commenter stated that although the rules are clear regarding annual updates of evacuation difficulty scores (E-scores), in practice, implementation is inconsistent when DHS conducts certification surveys. Response: This comment has been sent to DHS state office regulatory staff. Comment: One commenter suggested spelling out "evacuation difficulty scores (E- scores)" whenever a reference to E-scores is used in the rules. Response: DHS is adopting subsection (b)(2) to add the correct language on the initial reference, but will use the abbreviation afterwards. Comment: One commenter suggested new, clearer language for subsection (b)(2) (B)(viii) and (C)(viii). Response: DHS agrees and is adopting the rule with the requested clarifications. Comment: One commenter suggested a number of clarifications to the language proposed in subsection (b)(2)(B)(ix) and (C)(ix). Response: DHS agrees and is adopting the rule with the suggested clarifications and adding a clarification of its own concerning fire drills "as they are conducted" throughout the year. In addition to changes resulting from public comments, DHS is adopting the proposal with a number of corrections that were published as corrections of error in the May 31, 1994, issue of the Texas Register (19 TexReg 4282). These corrections concern the titles of the undesignated head and sec.90.92 and the substitution of the word "must" for "to" in sec.90.92(b)(2), line 13. The amendment is adopted under the Health and Safety Code, Chapter 242, which provides the department with the authority to regulate long-term care nursing facilities and under Texas Civil Statutes, Article 4413 (502), historical note (Vernon Supplement 1993), 72nd Legislature, which transferred all functions, programs, and activities related to long-term care licensing, certification, and surveys from the Texas Department of Health to the Texas Department of Human Services. The amendment implements the Health and Safety Code, sec. sec.242.001-242.186. sec.90.92. Introduction, Application, and General Requirements for Facilities Serving Persons with Mental Retardation or Related Conditions. (a) (No change.) (b) Purpose. (1) (No change.) (2) The method of determining the evacuation capability of residents under NFPA 101, Chapter 21, is by rating each resident and each staff member to determine an evacuation difficulty score (E-score). If the E-score is 1.5 or less, the evacuation capability of the facility is prompt; greater than 1.5 to five is slow; greater than five is impractical. The worksheets to be completed are located in NFPA 101, 1985 Edition, Appendix F. Intermediate Care Facilities for the Mentally Retarded (ICFs-MR) with 15 beds or fewer must meet the evacuation requirement for their designated Chapter 21 rating. The ratings and their requirements follow. (A) Impractical rating. (i) The facility must have one evacuation and/or fire drill per shift each calendar quarter (minimum of 12 drills per year). (ii) The facility must actually evacuate clients once a year on each shift. (iii) All facility staff, including relief and substitute staff, must participate in drills as soon as possible after beginning employment on their shift. (iv) For initial certification, one client must be admitted. (v) E-scores are not required for certification under this rating. (B) Slow rating. (i) The facility must have one evacuation and/or fire drill per shift each calendar quarter (minimum of 12 drills per year). (ii) The facility must actually evacuate clients once a year on each shift. (iii) Staff on each shift must participate in drills. (iv) New and/or relief or substitute staff must participate in a drill within ten days of employment on their assigned shift. (v) For initial certification, two clients must be admitted. (vi) E-scores must be calculated as soon as possible, but within ten calendar days of admission. (vii) Initial E-scores are based on four drills, as follows: (I) two conducted during the daytime; and (II) two conducted during the nighttime, after the first 30 minutes and within the first three hours of sleep. (viii) After the initial E-scores are obtained, a worksheet for rating residents must be completed for all newly admitted clients to obtain an E-score. The evacuation capability is calculated as described in clause (vii) of this subparagraph. (ix) E-scores must be updated annually or sooner if significant changes occur in any client's evacuation capability. These updated scores are based on the group's overall performance during fire drills as they are conducted throughout the year. Scores do not have to be calculated in accordance with the drills required for newly admitted clients based on the requirements stated in clause (vii) of this subparagraph. (C) Prompt rating. (i) The facility must have one evacuation and/or fire drill per shift each calendar quarter (minimum of 12 drills per year). (ii) The facility must actually evacuate clients once a year on each shift. (iii) Staff on each shift must participate in drills. (iv) New and/or relief or substitute staff must participate in a drill within ten days of employment on their assigned shift. (v) For initial certification, all six clients must be admitted. (vi) E-scores must be calculated as soon as possible, but within ten calendar days of admission. (vii) Initial E-scores are based on four drills, as follows: (I) two conducted during the daytime; and (II) two conducted during the nighttime, after the first 30 minutes and within the first three hours of sleep. (viii) After the initial E-scores are obtained, a worksheet for rating residents must be completed for all newly admitted clients to obtain an E-score. The evacuation capability is calculated as described in clause (vii) of this subparagraph. (ix) E-scores must be updated annually or sooner if significant changes occur that would affect a client's evacuation capability. These updated scores are based on the group's overall performance during fire drills as they are conducted throughout the year. Scores do not have to be calculated in accordance with the drills required for newly admitted clients based on the requirements stated in clause (vii) of this subparagraph. (3) (No change.) (c)-(f) (No change.) This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on August 9, 1994. TRD-9446363 Nancy Murphy Section Manager, Policy and Document Support Texas Department of Human Services Effective date: September 15, 1994 Proposal publication date: May 17, 1994 For further information, please call: (512) 450-3765 Part XV. Texas Veterans Commission Chapter 452. Administration General Provisions 40 TAC sec.452.1 The Texas Veterans Commission adopts new sec.452.1 concerning charges for copies of public records, without changes to the proposed text as published in the June 7, 1994, issue of the Texas Register (19 TexReg 4414). The rule is justified to recover the costs for providing copies of public records in circumstances where such a practice would provide the most benefit for the state. The rule provides the following with regard to charges for copies of public records that the Commission may charge the amounts set forth in General Services rule (1 TAC sec.sec.111.61-111.70), that it may charge actual costs for particular items set forth in the proposed new section, or that the Executive Director may waive or reduce these charges if he determines that the waiver or reduction of the fee is in the public interest because furnishing the information can be considered as primarily benefiting the general public. No comments were received regarding adoption of the new section. The new section is adopted under Texas Civil Statutes, Article 6252-17a, as amended by House Bill 1009, 73rd Legislature, which requires agencies to adopt rules specifying charges for copies of Open Records. 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 August 5, 1994. TRD-9446268 Douglas K. Brown Executive Director Texas Veterans Commission Effective date: August 29, 1994 Proposal publication date: June 7, 1994 For further information, please call: (512) 463-5538