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 4. AGRICULTURE Part I. Texas Department of Agriculture Chapter 1. General Procedures Subchapter A. General Rules of Practice 4 TAC sec.sec.1.28-1.30 The Texas Department of Agriculture (the department) adopts the repeal of sec.sec.1.28-1.30, concerning the availability and cost of public records, the suspension of rules by the department, and the effect of the invalidity of a rule, without changes to the proposed text as published in the August 5, 1994, issue of the Texas Register (19 TexReg 6081). Section 1.28 is being repealed and replaced with new sec. sec.1.40-1.45 concerning procedures and fees for inspection and copying of public records. Section 1.29 and sec.1.30 are being repealed and renumbered as sec.1.49 and sec.1. 50, respectively. The two sections are being renumbered in order to continue their placement as the last two sections in Chapter 1, Subchapter A, which contains the department's general rules of practice. No comments were received regarding adoption of the repeals. The repeals are adopted under the Texas Government Code, sec.sec.552.230, 552. 261, and 552.263, which provides the Texas Department of Agriculture with the authority to promulgate reasonable rules of procedure under which public records may be inspected, Acts 1993, 73rd Legislature, Chapter 428, which requires the agency to prescribe rules specifying the charges the agency will make for copies of public records; and the Texas Government Code, sec.2001.004, which provides the department with the authority to adopt general rules of practice. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 21, 1994. TRD-9448432 Dolores Alvarado Hibbs Chief Administrative Law Judge Texas Department of Agriculture Effective date: October 12, 1994 Proposal publication date: August 5, 1994 For further information, please call: (512) 463-7583 4 TAC sec.sec.1.40-1.45, 1.49, 1.50 The Texas Department of Agriculture (the department) adopts new sec.sec.1. 40- 1.45, concerning procedures and fees for the inspection and copying of public records, new sec.1.49, concerning the effect of the invalidity of a rule, and new sec.1.50, concerning the suspension of rules by the department, without changes to the proposed text as published in August 5, 1994, issue of the Texas Register (19 TexReg 6082). Acts 1993, 73rd Legislature, Chapter 428, sec.5 requires each state agency to adopt rules specifying the charges the agency will make for copies of public records. New sec.sec.1.40-1.45 are adopted to meet this legislative requirement. New sec.1.49 and sec.1.50, except for their renumbering, are identical to current sec.1.29 and sec.1.30, which the department has repealed in a separate submission. New sec.sec.1.40-1.45 provide definitions, general procedures, and charges for request of public information, provide for access for information when copies are not requested, and provide for prepayment and waivers of public information charges. New sec.1.49 provides for suspension of the department's procedural rules in certain instances. New sec.1.50 provides for the effect of invalidity of a rule under Chapter 1 of Title 4. No comments were received regarding adoption of the new sections. The new sections are adopted under the Texas Government Code, sec.sec.552.230, 552.261, and 552.263, which provides the Texas Department of Agriculture with the authority to promulgate reasonable rules of procedure under which public records may be inspected, Acts 1993, 73rd Legislature, Chapter 428, which requires the agency to prescribe rules specifying the charges the agency will make for copies of public records; and the Texas Government Code, sec.2001.004, which provides the department with the authority to adopt general rules of practice. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 21, 1994. TRD-9448433 Dolores Alvarado Hibbs Chief Administrative Law Judge Texas Department of Agriculture Effective date: October 12, 1994 Proposal publication date: August 5, 1994 For further information, please call: (512) 463-7583 TITLE 10. COMMUNITY DEVELOPMENT Part V. Texas Department of Commerce Chapter 175. Revenue Bonds for the Promotion and Development of Industrial Enterprises 10 TAC sec.sec.175.1-175.3 The Texas Department of Commerce adopts the repeal of sec. sec.175.1-175.3, concerning Revenue Bonds for the Promotion and Development of Industrial Enterprises, without changes to the proposed text as published in the August 16, 1994, issue of the Texas Register (19 TexReg 6412). The repeals are necessary, because the rules were replaced by the rules set forth in Chapter 180 of the Texas Administrative Code. The repeals delete the rules which were contained in Chapter 175 so that no confusion will result to the public. No comments were received regarding adoption of the repeals. The repeals are adopted under sec.481.021(a)(1), Government Code, which authorizes the Texas Department of Commerce to promulgate rules and the Administrative Procedure Act, Chapter 2001, Subchapter B, Rulemaking, Government Code, 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 September 26, 1994. TRD-9448595 Deborah C. Kastrin Executive Director Texas Department of Commerce Effective date: October 17, 1994 Proposal publication date: August 16, 1994 For further information, please call: (512) 936-0178 TITLE 22. EXAMINING BOARDS Part X. Texas Funeral Service Commission Chapter 201. Licensing and Enforcement-Practice and Procedure 22 TAC sec.201.17 The Texas Funeral Service Commission (the "Commission") adopts new sec.201. 17, to establish written guidelines and criteria for determining the eligibility of individuals with criminal backgrounds to obtain and to retain licenses as a funeral director, embalmer, provisional funeral director, or provisional embalmer. The new section is adopted without changes to the proposed text as published in the August 9, 1994, issue of the Texas Register (19 TexReg 6193). The new section applies to situations where an existing licensee or an applicant for a license has a criminal conviction. It recognizes that the conviction of a felony, and the conviction of a misdemeanor relating to the practice of embalming or funeral directing, are each violations of Texas Civil Statutes, Article 4582b, as specified in that article, and it identifies misdemeanors considered to be related to the practices of embalming and funeral directing. The rule deems that evidence of such convictions is prima facie evidence that an unreasonable risk of harm to the consuming public would be presented, and the types of mitigating evidence which will be considered to overcome that presumption is identified. No comments were received regarding adoption of the new section. The new section is adopted under Texas Civil Statutes, Article 4582b, sec.5, which provide the Texas Funeral Service Commission with authority to adopt rules to administer Article 4582b. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 22, 1994. TRD-9448469 Wayne L. Goodrum General Counsel Texas Funeral Service Commission Effective date: October 13, 1994 Proposal publication date: August 9, 1994 For further information, please call: (512) 834-9992 Chapter 203. Licensing and Enforcement-Specific Substantive Rules 22 TAC sec.203.27 The Texas Funeral Service Commission adopts the amendment of sec.203.27, concerning policy and procedures pertaining to failure of a licensee to comply with the continuing education requirements of sec.203.27. The amendment of sec.203.27 is adopted without changes to the proposed text as published in the August 9, 1994, issue of the Texas Register (19 TexReg 6195). The amendment is adopted to avoid the necessity of instituting license cancellation proceedings where a licensee fails to comply with the continuing education requirements of the rule. Under the amendment, a license may not be renewed in instances where the licensee has failed to comply with the continuing education requirements of the rule until those requirements have been complied with and a late compliance fee of $250 and the applicable renewal fee and any penalty fees are paid. No comments were received regarding the proposed amendment. The amendment is adopted under Texas Civil Statutes, Article 4582b, sec.5, which provide the Texas Funeral Service Commission with authority to adopt rules to administer Article 4582b. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 22, 1994. TRD-9448467 Wayne L. Goodrum General Counsel Texas Funeral Service Commission Effective date: October 13, 1994 Proposal publication date: August 9, 1994 For further information, please call: (512) 834-9992 Part XI. Board of Nurse Examiners Chapter 217. Licensure and Practice 22 TAC sec.217.8 The Board of Nurse Examiners adopts an amendment to sec.217.8, concerning inactive status, without changes to the proposed text as published in the August 5, 1994, issue of the Texas Register (19 TexReg 6086). This rule is being adopted to allow registered nurses to request their current license be placed on inactive status any time prior to the expiration date on the license. The Nursing Practice Act, Article 4515(b), allows for registered nurses to request that they be placed on an inactive status list. This rule offers the registered nurse an opportunity to go inactive at any time prior to the expiration of the license rather than only during the actual renewal cycle. No comments were received regarding the adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 4515, sec.1, which provides the Board of Nurse Examiners with the authority and power to make and enforce all rules and regulations necessary for the performance of its duties and conducting of proceedings before it. 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 September 21, 1994. TRD-9448406 Louise Waddill, Ph.D. R.N. Executive Director Board of Nurse Examiners Effective date: October 12, 1994 Proposal publication date: August 5, 1994 For further information, please call: (512) 835-8675 Part XVII. Texas State Board of Plumbing Examiners Chapter 363. Examinations Qualifications 22 TAC sec.363.1 The Texas State Board of Plumbing Examiners adopts an amendment to sec.363. 1, without changes to the proposed text as published in the July 26, 1994, issue of the Texas Register (19 TexReg 5689). The public benefit anticipated as a result of enforcing sec.363.1(c) will be enhanced public health, safety, and welfare by ensuring each person has access to clean water and clean air because of plumbing inspected by competent plumbing inspectors. The public benefit anticipated as a result of enforcing sec.363.1(e) is the public health, safety, and welfare will be enhanced because of the assurance medical gas systems have been installed in such a manner as to prevent infection and/or to prevent an unintended cross-connection of breathable and lethal gases because medical gas installers have participated in quality medical gas installation training programs. The first amendment provides that applicants for the plumbing inspector examination need not furnish the board with a written request from a city or political subdivision stating the applicant is employed or under consideration for employment. The second amendment includes specifically the National Fire Protection Association (NFPA) 99C Gas and Vacuum System Latest Edition in board- approved training programs in medical gas piping installation. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 6243-101, which provide the Texas State Board of Plumbing Examiners with the authority to prescribe, amend, and enforce all rules necessary to carry out the Plumbing License Law. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 19, 1994. TRD-9448429 Gilbert Kissling Administrator Texas State Board of Plumbing Examiners Effective date: October 12, 1994 Proposal publication date: July 26, 1994 For further information, please call: (512) 458-2145 22 TAC sec.363.11 The Texas State Board of Plumbing Examiners adopts an amendment to sec.363. 11, without changes to the proposed text as published in the July 26, 1994, issue of the Texas Register (19 TexReg 5690). The rule is justified because of the assurance medical gas systems have been installed in such a manner as to prevent infection and/or to prevent an unintended cross-connection of breathable and lethal gases because medical gas installers have participated in quality medical gas installation training programs. The rule concerns the course content of board-approved medical gas piping installation training programs to include specifically the National Fire Protection Association (NFPA) 99C Gas and Vacuum System Latest Edition in board- approved training programs in medical gas piping installation. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 6243-101, which provide the Texas State Board of Plumbing Examiners with the authority to prescribe, amend, and enforce all rules necessary to carry out the Plumbing License Law. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 19, 1994. TRD-9448430 Gilbert Kissling Administrator Texas State Board of Plumbing Examiners Effective date: October 12, 1994 Proposal publication date: July 26, 1994 For further information, please call: (512) 458-2145 Chapter 365. Licensing License Categories; Description; Scope of Work Permitted 22 TAC sec.365.4 The Texas State Board of Plumbing Examiners adopts an amendment to sec.365. 4, without changes to the proposed text as published in the July 26, 1994, issue of the Texas Register (19 TexReg 5690). The rule is justified because the public health, safety, and welfare will be enhanced by ensuring each person has access to clean water and clean air because of plumbing inspected by competent plumbing inspectors. This amendment to sec.365.4 is a companion to the adopted amendment to sec.363.1(c) which concerns eligibility criteria for the plumbing inspector examination and provides that applicants for the plumbing inspector examination need not furnish the board with a written request from a city or political subdivision stating the applicant is employed or under consideration for employment. However, the adopted amendment to sec.365.4 requires an individual to submit proof to the Texas State Board of Plumbing Examiners of his/her employment with a political subdivision as a plumbing inspector and to submit the appropriate licensing fee within one year from the date of passing the plumbing inspector's examination or he/she must undergo reexamination to be eligible for licensing as a plumbing inspector. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 6243-101, which provide the Texas State Board of Plumbing Examiners with the authority to prescribe, amend, and enforce all rules necessary to carry out the Plumbing License Law. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 19, 1994. TRD-9448431 Gilbert Kissling Administrator Texas State Board of Plumbing Examiners Effective date: October 12, 1994 Proposal publication date: July 26, 1994 For further information, please call: (512) 458-2145 TITLE 30. ENVIRONMENTAL QUALITY Part I. Texas Natural Resource Conservation Commission Chapter 277. Use Determination for Tax Exemptions for Pollution Control Property 30 TAC sec.sec.277.1, 277.2, 277.4, 277.6, 277.10, 277.12, 277.20 The Texas Natural Resource Conservation Commission (TNRCC) adopts new sec.sec.277.1, 277.2, 277.4, 277.6, 277.10, 277.12, and 277.20, concerning Use Determination for Tax Exemptions for Pollution Control Property. Sections 277. 2, 277.4, 277.6, 277.10, 277.12, and 277.20 are adopted with changes to the proposed text as published in the July 19, 1994, issue of the Texas Register (19 TexReg 5602). Section 277.1 is adopted without changes and will not be republished. The chapter will implement legislation enacted by the 73rd Legislature, House Bill 1920 and House Joint Resolution 86. Proposition 2, which was required by the legislation, was approved by Texas voters in November 1993. The purpose of the legislation is to provide relief through tax exemptions to individuals and companies required, by the government, to make capital investments for the prevention, monitoring, control, or reduction of air, water, or land pollution. In addition, tax rollback relief is provided for political subdivisions. The legislation and proposition provide for an exemption from property taxes for pollution control property purchased, acquired, installed, constructed, replaced, or reconstructed after January 1, 1994, to meet or exceed federal, state, or local environmental laws, rules, or regulations. The term "exceed" is interpreted to include voluntary projects which go beyond the minimum requirements of environmental laws, rules, or regulations, provided that the projects are initiated pursuant to or in compliance with an adopted or enacted law, rule, or regulation. Comments were solicited from TNRCC on a draft Technical Guidelines Manual to assist applicants applying for a use determination. The manual provides information on eligibility requirements, including specific examples of pollution control property that will be eligible. The staff also solicited comments from the public on the content and format of the manual and support documents consisting of a copy of the manual, a draft application form, predetermined equipment list (equipment that has been predetermined by the agency as pollution control), and examples of use determinations. The predetermined equipment list is currently being compiled and will be revised as required. The comments received during the public comment period regarding the manual are being reviewed and will be used by the staff as they continue to make revisions. A public hearing on this proposal was held on August 8, 1994, in Austin to consider the proposed new rules. The public comment period was closed on August 12, 1994. Testimony was received from 17 commenters. Comments and suggested changes to the rules were received from the following: Ecogas, Texas Department of Agriculture (TDA), Texas Association of Business (TAB), Texas Association of Taxpayers (TAT), Texas Center for Policy Studies (TCPS), Texas Chemical Council (TCC), Texas Cotton Ginners Association (TCGA), Eastman Chemical Company (Eastman), El Paso Natural Gas Company (El Paso), Houston Lighting & Power (HL&P), Texas Mid Continent Oil & Gas Association (TMOGA), Mitchell Energy & Development Corporation (Mitchell), Hoechst Celenese (Hoechst), Motorola, Southwestern Public Service Company (SPSC), Texas Municipal League (TML), and one individual. The individual commenter expressed total opposition to the proposed rules. General comments regarding the rules are as follows. Ecogas commented that the tax exemption rules should allow consideration for fueling or refueling for any public or private fleet of alternatively fueled vehicles. This should include compressed natural gas, liquified natural gas, propane, methane, electric powered vehicles, etc. The tax exemption should also apply to a terminal or garage for any private fleet of alternately fueled vehicles. There are several statutory and regulatory limitations on the type of facility that can be granted an exemption; however, nothing in the rule precludes application for the types of facilities mentioned in the comment. It is beyond the scope of this rulemaking to make specific determinations of pollution control property. Case-by-case use determinations will be made by TNRCC staff after the program is implemented. TDA commented that the application review fees, as high as $1,000 per device, will be excessively high to agricultural producers and should be reevaluated. TAB and TCC commented that the estimated program costs of $875, 000 per year will exceed administrative costs to operate the program and that a fee surplus will result. A fee reduction is recommended in such case. TCC stated that the agency should be more conservative and begin with a small staff to handle this program. The staff developed the proposed fees with the intent of recovering the costs to administer the program. Based on staff discussions, the fees in the proposed rule reflect the staff's best estimates for cost recovery. Whether or not these estimates were accurate will not be known until the program becomes operational. The fee structure will be reviewed by the TNRCC no later than June 30, 1995. Additional rulemaking may be proposed at that time if adjustments to the fees, either higher or lower, are deemed necessary. The actual staffing requirements are not yet finalized, but the agency will match the staffing needs with the estimated work load. TAP questioned whether the December 31 application due date can assure that TNRCC will complete all applications in time to obtain the tax exemptions for a given tax year. Hoechst suggested changing the deadline for submittal of applications from December 31 to January 31 of the following tax year. The issue raised by TAP has been discussed extensively by the external workgroup selected to assist in the development of the proposed rule. The December 31 due date was selected to provide a balance between providing applicants a reasonable time to complete their applications, with the staff time needed to complete its evaluation of all applications in a timely manner. The tax appraisers must receive all applications prior to May 1 in order to approve a tax exemption for the preceding tax year. It is the staff's goal to complete all applications received by December 31 before May 1 of the following year. Applications received after December 31 are still eligible for a use determination, but the review may not be completed by May 1. No later than June 30, 1995 the staff will review the time frames and may propose additional rulemaking. TCPS commented that specific language should be added to the chapter that precludes a tax exemption for control equipment installed under administrative or court order. The statute does not allow for exclusion of equipment that was installed under administrative or court order. TAB and El Paso commented that voluntary emission reduction projects should be eligible for tax exemption. The rule does not preclude voluntary projects from applying for a use determination. HL&P suggested that TNRCC should begin with a very small staff to handle the tax exemption review program and increase personnel as needed. The staff agrees that the TNRCC staff requirements to handle this program should be kept to a minimum. However, staffing considerations are beyond the scope of this rulemaking. These decisions will be made internally by TNRCC management and are not appropriate to address in the rules. Motorola suggested clarifying the statement in the preamble that a list of specific equipment and specific examples of pollution control property are included in the technical manual. Is this list separately maintained? Add the list of equipment recommended by the American Electronics Association (AEA) to Task Force 21 to the list of eligible equipment. The predetermined equipment list will be kept separate from the technical manual because the list will be continually revised by the staff. The example sheet will be incorporated into the manual. The AEA list attached to the comment letter has been reviewed by staff and will be considered for incorporation into the predetermined equipment list. TML commented that TNRCC must be diligent in assuring that the tax exemption rule is strictly interpreted rather than liberally interpreted. Any exemption that is granted will increase the tax burden on the general public. Exemptions must only be granted for property clearly used to meet or exceed environmental laws. Proposition 2 was approved by the Texas voters as an amendment to the constitution. The staff intends to uphold the Texas constitution to the best of its abilities. The following comments pertain to sec.277.2, concerning Definitions. TAB suggested modifying the definition of predetermination in sec.277.2. New equipment should be eligible for addition to the predetermined equipment list if designated by the executive director. Also, clarify the intent of allowing equipment manufacturers to seek a use determination. The definition has been rewritten to clarify that equipment that is predetermined will be so designated either through a decision by the executive director (that list is currently being compiled) or possibly when an application under Tiers II or III is approved. That equipment may then be placed on the predetermined list if it is determined to be of general applicability. TCC commented that the definition of installation in sec.277.2 is not needed and should be deleted. The definition of predetermination should be revised. Predeterminations should not be limited to Tier I; and equipment manufacturers should not be allowed to request a predetermination for an entire line of equipment that they manufacture. HL&P also suggested revising the definition of predetermination to eliminate reference to equipment manufacturers. TMOGA commented that the definition of predetermination should retain the provision that allows manufacturers or retailers to make such requests, provided they are self-funded and do not interfere with processing of requests by property owners. The definition of installation is needed to clarify the statutory language which states "pollution control property must have been constructed, acquired, or installed." Staff disagrees that predeterminations should be extended beyond Tier I. The basis of the tiered fee structure is that predeterminations involve the least amount of staff resources and therefore have the lowest fee. More extensive review requires more staff resources, thereby increasing the fee. The staff does not agree that manufacturer submittals for use determinations can be prohibited. Any such use determinations that are added to the list of predeterminations will be listed on a generic rather than brand name basis. In the long run, more items added to the Tier I level will reduce staff workload by decreasing individual reviews. An individual suggested revising the definition of predetermination in sec.277.2 to exclude the word "produced" because property cannot be produced. The definition has been revised as per response to the comment by TAB previously addressed. The revised definition no longer includes the word "produced." Motorola suggested revising the definition of predetermination to either clarify or delete reference to Tier I and Tier II. These terms are not used in sec.277.20 regarding fees, so there is an inconsistency. The staff has revised sec.277.20 rather than sec.277.2 to clearly define the three tier fee structure. The following comments pertain to sec.277.4, concerning Applicability. TAP suggested revising sec.277.4(a)(3)(B) to clarify that used property may be eligible for a tax exemption for the new owner if it was not previously taxable. The staff agrees to the proposed change. TCPS commented that the proposed rules go too far in allowing voluntary pollution control projects to claim tax exemptions. This exceeds the statutory intent and should be changed. There is a danger of affecting the tax base of communities by too liberal use of the exemption. Revise sec.277.4(a) to delete "law" where it states "meet or exceed laws, rules, or regulations." The Commission has interpreted the intent of the statute to include eligibility for pollution control property which is installed, constructed, or acquired to meet or exceed laws, as well as rules or regulations. Therefore, the staff is opposed to the suggested change which would alter that interpretation. TCPS commented that buffer zones should be specifically excluded from a use determination in sec.277.4 or sec.277.6. SPS suggested revising sec.277.4 to allow buffer zones to be included with the land that is eligible for tax exemption. Buffer zones are used to comply with environmental regulations and should therefore be eligible. The staff believes that the rule language as proposed already prohibits buffer zones from obtaining a use determination. The staff believes that the statutory language intended to allow only land that actually contains pollution control property. Buffer zones do not actually control or reduce pollution, they merely alter the methodology used to determine off-property impacts. TCC strongly supports the addition of the term "laws" into sec.277.4(a) to encompass the entire body of environmental rules and regulations. TCC suggests a correction to the syntax error in sec.277.4(a)(3) by merging subparagraph (A) into subsection (a)(3) and moving subsection (a)(3)(B) into subsection (a)(4). Also, add a new subsection (a)(5) which will allow used equipment not previously used as control equipment to be reinstalled as control equipment and claimed for tax exemption. The staff agrees with part of the recommended changes. Recommended changes to paragraph (3) will be added, and paragraph (4) will be revised, but suggested paragraph (5) will be excluded. The staff believes that paragraph (5) exceeds the intent of the statute. Eastman suggested a clarification in sec.277.4(a) that pollution reductions projects not required by rule are eligible for tax exemption. HL&P suggested revising sec.277.4 to allow voluntary reduction projects to qualify for tax exemption. The staff believes that the term "exceed" is interpreted to include voluntary projects which go beyond the minimum requirements of environmental law, rules, or regulations. No changes to the proposed rule are needed to apply this interpretation. El Paso suggested that sec.277.4(a) should be revised to provide for tax allowances on sites where pollution has occurred prior to January 1, 1994, and for which a company proposes remedial action after January 1, 1994 to clean it up. The staff agrees that pollution control property constructed after January 1, 1994 would be eligible for consideration for tax exemption. The fact that pollution occurred on the site prior to that date is not a factor. It is only the pollution control property that is at issue. No revision of the proposed rule is needed to accomplish the desired objective. Mitchell suggested revising sec.277.4 to include control equipment that is constructed, acquired, or installed prior to January 1, 1994, even if the land is owned prior to January 1, 1994. Also, equipment constructed, acquired, or installed after January 1, 1994 should be eligible. Motorola suggested allowing tax exemptions for projects completed in 1994 but started prior to January 1, 1994. The statute clearly intends to allow only pollution control equipment that is constructed, acquired, or installed after January 1, 1994. Only that property that was constructed after January 1, 1994, is eligible for a positive use determination under the proposed rule. SPS stated that sec.277.4(a)(3) is inconsistent with the statutory language regarding eligibility of pollution control property purchased from another owner who previously used it as pollution control property. This restriction should either be removed or else TNRCC should state the statutory basis for it. The external workgroup, which included representatives from industry, cities, counties, school boards, public taxing authorities, the general public, and agency staff, thoroughly examined this issue during its deliberations. The staff will revise the rule to reflect that previous use as pollution control equipment is not required; however, the staff maintains that the equipment must move taxing authorities to be eligible for a positive use determination. The staff believes that this is consistent with legislative intent. The following comments pertain to sec.277.6, concerning Exceptions. SPSC suggested that the sentence in sec.277.6(1) should be restructured to be grammatically correct, by placing the subject "property" first. The staff agrees to the proposed change. New wording: "Property for which a use determination is requested solely on the basis that the property is used to manufacture or produce a product or provide a service that prevents, monitors, controls, or reduces air, water, or land pollution." The following comments pertain to sec.277.10, concerning Application for Use Determination. TAT suggested a minor revision to sec.277.10 for clarification. It also suggested a revision to allow applicants to use a copy or duplication of the official application form. Staff agrees to the suggested revisions. The staff agrees to the clarification and the revision to allow the use of a copy of the application form or a similar reproduction in lieu of an original. TCC suggested a revision to sec.277.10 to extend the application due date to January 31 or specify that applications received prior to December 31 will be guaranteed to be processed in time for the current tax year. Also, delete sec.277.10(7), because it is not necessary. HL&P suggested extending the due date to February 1 of the following year to allow industry opportunity to include year end decisions into the tax exemption request. Motorola suggested extending the due date to March 31 of the following year because the Tax Code, sec.11.43, provides for submittal of applications by May 1 with a 60-day extension feature. Applications received after December 31 may or may not allow proper time for agency processing. The staff will do its best to complete review of all applications received by December 31 prior to May 1, but cannot guarantee that unforeseen events may prevent this. This issue was addressed in the general comments as raised by TAT and Hoechst. In response to the comment about deleting sec.277.10(7), the staff believes that paragraph (7) provides appropriate protection against false claims and will not make the suggested change. An individual suggested that the word "reasonably" be deleted from sec.277. 10(6). The staff believes that it is appropriate for requests to be reasonable and disagrees with the suggested change. Motorola commented that sec.277.10 should provide additional guidance on how many applications should be filed for a single plant. The rule provides for both individual units and integrated systems as being eligible. The rule as currently written provides an applicant the flexibility of either combining units at a site or submitting separate applications for individual units if so desired. The technical guidance manual will be revised to provide additional guidance in making these decisions. The following comments pertain to sec.277.12, concerning Application Review Schedule. TAB, TCC, and HL&P suggested revising sec.277.12 to require TNRCC to issue a use determination within 30 days of receipt of the application. The TNRCC has customer service goals and a desire to operate this program in as efficient and cost effective a manner as possible. The staff intends to notify applicants of deficiencies within 30 days of receipt as stated in the rule. However, additional time limitations cannot be realistically established, nor would they be desired while trying to assure fair and equitable use determinations. TAB and TAT suggested revising sec.277.12(2) to add language stating that TNRCC will specify what information is needed in the deficiency letter. Staff agrees to specify the information needed within the rule. An individual objects to excluding public input from the review process in sec.277.12. The statute did not include public comment requirements, so the staff did not add such a requirement to the rules. Motorola suggested revising sec.277.12(2) to allow partial approval for an application that has multiple control systems and the review indicates deficiencies in one or more systems, but completeness for others. The staff agrees that some allowance for partial approval for an application should be made. Consequently, the rule has been revised in sec.277. 12(3)(A) to reflect this position. The staff also revised sec.277.20(a) to be consistent with this determination. The following comments pertain to sec.277.20, concerning Application Fees. TAB commented that the staff should continue to expand the Tier I equipment list to lessen the fee burden on small businesses. Section 277.20 should specify how the list will be updated and how those updates will be communicated to businesses. The staff agrees that the predetermined equipment list should be periodically reviewed and revised. However, we do not agree that the rules should address this issue, but more properly, it should be addressed in the technical manual. We plan to maintain the list as an appendix to the manual, so that it can be revised independent of the manual. This will allow needed revisions to the list without the formality of rulemaking. TCC commented that the fee structure in sec.277.20 should be revised into a two tier system: predetermined and not predetermined. Procedures used in predetermination or the actual list of items should be included in the rule. HL&P suggested revising the application fees in sec.277.20 to include only two tiers rather than three. Partial determinations should not be excluded from Tier I. The workgroup has reviewed the level of complexity of applications for use determinations and arrived at the three-tiered approach to simplify the fee structure as well as provide enough flexibility to have a fee based on the amount of estimated staff review required. El Paso and SPSC commented that the proposed fee structure in sec.277.20 seems to exceed the administrative costs for the agency to review the applications. El Paso suggested a flat fee of $100 should be assessed for all applications. SPSC suggested an individual assessment of the administrative costs for each application. A flat fee would be less equitable than the proposed three-tired system. It would result in inadequate fees to cover the administrative costs of reviewing complex applications, or else too high of a fee for simple predeterminations. The staff considered assessing the fees on a case-by-case basis, but decided that a complex accounting and billing system would be needed which would increase agency staffing requirements. Also, it would result in delays in issuing a use determination to mail a billing statement to an applicant after completing the review. The only mechanism to assure payment would be to hold up issuance until receipt of payment. An individual commented that the fees should be raised in sec.277.20 to offset some of the tax revenues that will be lost due to granting of tax exemptions. The statute only allows the fees to recover the administrative costs to the TNRCC. The fees are not intended as a means of generating revenues to fund other programs. Motorola stated that inconsistencies between sec.277.20 and the manual regarding fees should be corrected. The manual lists a Tier II fee of $250 and the rule states $500. Also, subsection (a)(3) states 100% for partial systems which should read greater than 100%. The staff has noted the error and has made corrections to the guidance manual and the rule as suggested. SPSC stated that the provision in sec.277.20 for forfeiture of the fee for returned applications should be removed. This encourages TNRCC to return applications. Rather, the fee should be retained and reapplied to the application upon resubmittal. The fee forfeiture provision was included to encourage applicants to submit a complete application and to recover administrative costs to the agency for incomplete applications that are not judiciously responded to by the applicant. TNRCC would not recover its administrative costs if fees for returned applications were reapplied to a new application. Comments pertaining to the technical guidance manual are as follows. TAT made the following comments on the technical manual. With regard to the technical guidance, under eligibility requirements, it states that a facility may submit an application before starting construction. Does this mean that a taxpayer may request a determination before purchasing property? Also, clarify whether the list of pollution control equipment is only illustrative, or if it intends to include all equipment that is eligible. Changes will be made regarding a facility that submits an application prior to purchasing the equipment to clarify the intent. The predetermined equipment list is intended to be all inclusive for predeterminations. However, for all other applications, the evaluation is done on a case-by-case basis, and the predetermined equipment list is not used. The list will be reviewed and periodically revised to add new categories of equipment. TCC suggested the following changes to the technical guideline manual introduction. Add that the manual is also for the TNRCC staff benefit. Clarify that the tax exemption applies to voluntary projects and that rollback relief is available. The staff agrees to clarify the intent of the manual by deleting reference to the applicant. The manual could actually be used by anyone, so the statement will be generalized. The staff has added reference to voluntary projects and rollbacks to the introduction to the manual. TCC suggested the following changes to technical guideline manual eligibility requirements. Clarify the intent of the list of equipment categories in Appendix A. It is inadequate as a list of predeterminations, and as such must be constantly revised. If merely used as a list of examples, the original list developed by the workgroup should be used and made part of the manual. The discussion of Appendix B should include examples from small business and political subdivisions. The last paragraph is confusing and should be eliminated. Response to the equipment list is the same as the comment by TAT. Regarding Appendix B, the technical guidance workgroup is developing additional examples to be added to the list that will relate to small businesses and political subdivisions. The staff agrees to clarify the paragraph relating a use determination to obtaining a preconstruction permit. The intent is to encourage submittal of an application for use determination as early as possible, without risk to the applicant of losing application fees for unnecessary determinations (e.g., changes in method of control being mandated during permit application review, thus rendering the use determination application inaccurate). TCC suggested the following changes to the technical guideline manual predeterminations. TCC is opposed to involving equipment manufacturers in making predeterminations. Also, predeterminations should not be limited to property that has been previously evaluated. Add a section that describes the predetermination list including supplemental information. The first comment was addressed in the response to the same issue raised by TCC in the Definitions section of this preamble. The staff agrees with the suggested language concerning predeterminations that have been previously evaluated, and has made that change to the manual. However, the staff does not agree with the suggested language to eliminate the right of manufacturers to request a use determination. The technical manual work group will consider adding language describing the predetermination equipment list, where it is kept, how it is updated, and how to obtain copies. TCC suggested the following changes to the technical guideline manual partial exemptions. TCC disagrees with our concept of reviewing discreet pieces of equipment, rather than a systematic approach. The applicant should be able to request a higher percentage for items on the predetermination list that are partials. This section should be rewritten with examples of partial projects. Under sec.277.10, a separate application is required for each unit of pollution control property or for each facility consisting of a group of integrated units which are installed for a common purpose. The commission considers that applications covering facilities with integrated units should be submitted on a project-by-project basis, such that unrelated aspects of pollution prevention, monitoring, control, or reduction would not be included in the same application. Except for property on the predetermined list, it would appear not to be appropriate for an applicant to file a single application for a facility consisting of segregated units with no common purpose. Neither would it be appropriate for a single application to cover property located in more than one appraisal district, regardless if the property is on the predetermined list. For example, the owner/operator of a large facility with several unrelated processes would necessarily have to submit several applications, if use determinations for the several processes were desired. In this regard, the applicant should keep in mind the Tax Code, sec.11.31(e), which states, in part, "The Texas Natural Resource Conservation Commission may charge a person seeking a determination that property is pollution control property an additional fee not to exceed its administrative costs for processing the information, making the determination, and issuing the letter required by this section." By the same token, the fee which is charged must not fall short of the costs incurred by the commission, in order for this program to succeed for the benefit of all applicants for use determinations. If companies appear to be submitting unreasonably large applications to the degree that unrelated processes are covered, or that the fee payment is grossly inadequate, then the commission may use the notice of deficiency process to rectify the situation. More importantly, however, submission of applications as set forth in sec.277.10 will enable the agency to process applications more expeditiously. This will further enable those eligible to benefit from the pertinent use determination as immediately as possible. It is the staff's position that once a percentage has been established on the predetermination list, that percentage is fixed for Tier I applications. Anyone wishing to seek a partial determination which differs from the predetermined list must submit a Tier III application. The technical guidance workgroup is developing examples of partial determinations to add to the manual. TCC commented that the technical manual should include an explanation of the application form, section by section. There are several suggested revisions to the application form included. The technical manual should include a schedule of the critical deadlines involved in an application, a processing flow chart, and information on how to obtain copies of the predetermination list. The technical guidance workgroup is developing examples of completed applications to be incorporated into the manual. The staff agrees that the title of sec.5 of the application form should be "predetermination," and will revise the wording of "purchase cost" to read "estimated cost" to mirror the statutory language. Section 6 relating to permit registration number, will be revised to specify the appropriate account number or numbers relative to the media (air, water, waste) that the application encompasses. The staff agrees to the suggested change to sec.7. The staff needs the information requested in sec.8 to complete its evaluation of the application. The staff believes that the information requested in sec.9 is needed, but will add the suggested inclusion of sketches or block flow diagrams. The fee structure in sec.11 will be updated to reflect the final rule language. The staff agrees with the final comment with the exception of including a flow chart that covers activities which exceed the realm of the TNRCC such as actually obtaining a tax exemption. TCGA suggested cyclone preseparators, mechanical conveyors, high pressure blowers, and surface improvements for addition to the predetermined equipment list in Appendix A. It also suggested 12 additional equipment items to be added to the list of predeterminations, plus controls required by permit provisions. HL&P stated that the equipment list has been reduced from earlier versions developed in the workgroup and should be expanded to restore those items to the list. TMOGA suggested developing a list of predeterminations for generic equipment. Mitchell suggested expanding the list of predetermined equipment to include catalytic convertors, air/fuel ratio controllers, stratified charge kits, lean burn engine conversions, and stack emission monitoring devices. The predetermined equipment list is still being revised by the technical guidance workgroup. The suggested additions will be reviewed by that group and appropriate changes will be made. Since changes to the manual do not require rulemaking, the staff can continue to revise the manual beyond this rulemaking. TCGA pointed out two errors in the application form: Item 8, last sentence should read "purchased" rather than "purchase." Item 11, first tier fee should be $100. TCGA also stated that a $500 fee for Tier II should not be assessed for new pollution equipment not on the predetermined list which a permit engineer has evaluated and determined to meet Best Available Control Technology. The staff will make the two corrections to the application form that were pointed out by TCGA. Applications for property not on the predetermined equipment list will be assessed the Tier II or Tier III fees. The staff expects the list of Tier I items to continuously grow as new equipment is added. HL&P suggested revising the technical manual to allow entire pollution control projects to be approved as a unit rather than focusing on specific pieces of equipment. This will simplify the review process. The staff has interpreted the rules to allow applicants to file an application for use determination however they choose, whether it be on a unit by unit basis, or a pollution control project. The technical guidance workgroup will add this clarification to the manual. Mitchell suggested revising Appendix B to include wetland mitigation projects mandated by a Clean Water Act permit. Appendix B only lists pollution control equipment, so a wetland mitigation project may not be considered as equipment. However, specific equipment used for wetland mitigation projects may be added to the list in future revisions if deemed to qualify. The new rules are adopted under the Texas Health and Safety Code (THSC), sec.382.017 (Vernon 1990) and sec.361.061 (Vernon 1992), the Texas Clean Air Act (TCAA), the Texas Water Code (Vernon 1992), sec.5.102; and the Texas Solid Waste Disposal Act, sec.261.014, which provides the TNRCC with the authority to adopt rules consistent with the policy and purposes of the TCAA and the THSC. sec.277.2. Definitions. Unless specifically defined in the Texas Clean Air Act (TCAA), the Texas Solid Waste Disposal Act (TSWDA), the Texas Water Code (TWC), and the Texas Health and Safety Code (THSC), or in the rules of the Commission, the terms used by the Commission have the meanings commonly ascribed to them in the field of pollution control. In addition to the terms which are defined by the TCAA, the TSWDA, TWC, and THSC, the following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise. Installation-The act of establishing, in a designated place, something that is put into place for use or service. Pollution control property-A facility, device, or method for control of air, water, or land pollution as defined by the Property Tax Code, sec.11.31(b). Pre-Determination-A list of property, either 100% or partial, that the Executive Director has determined is pollution control property. An application for property that is on the predetermined equipment list, will be considered a Tier I application under the rule's fee structure. The predetermined equipment list will be updated by the staff as required. Use determination -A finding, either positive or negative, by the Texas Natural Resource Conservation Commission that the property is used wholly or partly for pollution control purposes. sec.277.4. Applicability. (a) To obtain a positive use determination, the pollution control property must be used, constructed, acquired, or installed wholly or partly to meet or exceed laws, rules, or regulations adopted by any environmental protection agency of the United States, Texas, or a political subdivision of Texas, for the prevention, monitoring, control, or reduction of air, water, or land pollution. In addition, pollution control property must meet the following conditions. (1) Property must have been constructed, acquired, or installed after January 1, 1994. (2) Land must include only the portion of the land acquired after January 1, 1994 that actually contains pollution control property. (3) Equipment, structures, buildings, or devices must not have been taxable by any taxing unit in Texas on or before January 1, 1994, except if construction of pollution control property is in progress on January 1, 1994, that portion of the property constructed, acquired, or installed after January 1, 1994, is eligible for a positive use determination. (4) Property purchased from another owner is eligible for a positive use determination if it is acquired, constructed, or installed by the new owner after January 1, 1994, will be used as pollution control property, and was not taxable by any taxing unit in which the property is located on or before that date. (b) The Executive Director shall determine the portion of the pollution control property eligible for a positive use determination. sec.277.6. Exceptions. The following are not entitled to a positive use determination under this chapter: (1) property for which a use determination is requested solely on the basis that the property is used to manufacture or produce a product or provide a service that prevents, monitors, controls, or reduces air, water, or land pollution; (2) property that is used for residential purposes, or for recreational, park, or scenic uses as defined by the Texas Health and Safety Code, sec.23.81; (3) motor vehicles; and (4) property that was subject to a tax abatement agreement executed before January 1, 1994. However, property acquired, constructed, or installed after expiration of a tax abatement agreement could be eligible for a positive use determination. sec.277.10. Application for Use Determination. In applying for a use determination under this chapter, a person or political subdivision shall present an official Texas Natural Resource Conservation Commission (TNRCC) application form or a similar reproduction, accompanied by the appropriate fee, pursuant to sec.277.20 of this title (relating to Application Fees) to the Executive Director of the TNRCC. An application must be submitted for each unit of pollution control property or for each facility consisting of a group of integrated units which have been, or will be, installed for a common purpose. Delivery of the application by the United States Postal Service, Certified Mail Receipt, is acceptable. If the applicant, other than a political subdivision, desires to apply for a use determination for a specific tax year, the application must be postmarked no later than December 31 of the previous tax year. Political subdivisions must submit an application by May 1 of the year that the use determination is being applied for. Applications received after these dates will begin to be processed in the order in which they are received and without regard for any appraisal district deadlines. The application form shall contain at least the following: (1) the anticipated environmental benefits from the installation of the facility, device, or method for the control of air, water, or land pollution; (2) the estimated cost of the pollution control facility, device, or method; (3) the purpose of the installation of such facility, device, or method, and the proportion of the installation that is pollution control property; (4) the specific law, rules, or regulations that are being met or exceeded by the use, installation, construction, or acquisition of the pollution control property; (5) if the installation includes property that is not used wholly for the control of air, water, or land pollution, sufficient cost or other information, presented by the person seeking the use determination, that demonstrates to the satisfaction of the Executive Director the proportion of the installation that is pollution control property; (6) any information that the Executive Director deems reasonably necessary to determine the eligibility of the application; (7) if the property for which a determination is sought has been purchased from another owner who previously used the property as pollution control property, a copy of the bill of sale or other information submitted by the applicant that demonstrates, to the satisfaction of the Executive Director, that the transaction involves a bona fide change in ownership of the property and is not a sham transaction for the purpose of avoiding tax liability; and (8) the name and address of the chief appraiser of the appraisal district for the County in which the property is located. sec.277.12. Application Review Schedule. Following submission of the information required by sec.277.10 of this title (relating to Application for Use Determination), the Executive Director of the Texas Natural Resource Conservation Commission (TNRCC) shall determine whether the pollution control property is used wholly or partly as a facility, device, or method for the control of air, water, or land pollution. If the determination is that the property is used partly for pollution control then the Executive Director shall determine the proportion of the property used for pollution control. (1) As soon as practicable, the Executive Director shall send notice by regular mail to the chief appraiser of the appraisal district for the county in which the property is located that the person has applied for a use determination under this chapter. (2) If the application is determined to be administratively incomplete, the Executive Director shall send a notice of deficiency to the applicant within 30 calendar days of receipt of the initial application. The letter will specify the deficiencies and the additional information that is required. Within 30 calendar days of receipt of a notice of deficiency, the applicant shall submit to TNRCC the information necessary to complete the application. If the response to the notice of deficiency does not result in a complete application, the application will be returned without prejudice. (3) The executive director shall determine whether the property is used wholly or partly to control pollution. The executive director is authorized to grant positive use determinations for some or all of the equipment included in the application that is deemed pollution control property. (A) If a positive determination is made, the Executive Director shall issue a use determination letter to the applicant stating that determination and the proportion of the property that is pollution control property. (B) If a negative determination is made, the Executive Director shall issue a denial letter explaining the reason for the denial. sec.277.20. Application Fees. (a) Fees shall be remitted with each application for use determination in an amount based on the following. (1) Tier I-The fee for an application for property that has been granted a predetermination as pollution control, either partial or 100%, and the application seeks no variance from that determination, shall be $100. (2) Tier II-The fee for an application for property that is used wholly (100%) for the control of air, water, and/or land pollution, but not designated as eligible for predetermination, shall be $500. (3) Tier III-The fee for an application for property used partially (greater than 100%) for the control of air, water, and/or land pollution shall be $1,000. (b) Fees shall be forfeited for applications for use determination which are denied or returned without prejudice. An applicant who submits an insufficient fee will receive a deficiency notice in accordance with the procedures in sec.277.12(2) of this title (relating to Application Review Schedule). The fee deficiency must be remitted with the response to the deficiency notice before the application will be deemed complete. (c) All fees shall be remitted in the form of a check or money order made payable to the TNRCC "Use Determination" and delivered with the application to the TNRCC-Use Determination, at the address listed on the application form. 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 September 23, 1994. TRD-9448582 Mary Ruth Holder Director, Legal Division Texas Natural Resource Conservation Commission Effective date: October 14, 1994 Proposal publication date: July 19, 1994 For further information, please call: (512) 239-1966 Chapter 330. Municipal Solid Waste The Texas Natural Resource Conservation Commission (TNRCC) adopts an amendment to sec.330.59, and the repeal of sec. sec.330.411-330.415, 330.431, 330. 432, 330.441-330.449, 330.461-330.465, 330.481-330.484, 330.501-330.504, 330. 511- 330.514 and 330.531-330.534, without changes to the proposed text as published in the May 10, 1994, issue of the Texas Register (19 TexReg 3562). The repealed sections are now included in Chapter 312, relating to Sludge Use, Disposal, and Transportation. Consequently, these sections of Chapter 330 are being repealed. Section 330.513, relating to additional permit requirements for compost sites and sites for processing grease trap waste, grit trap waste, or septage, will be moved to Subchapter E, sec.330.59(c) and (d). Therefore, sec.330.513 will be repealed and sec.330.59 will be amended to include these provisions. Public comment was solicited until June 10, 1994, and a public hearing was held in Harlingen, Texas on June 8, 1994. No comments were received regarding adoption of the amendment or repeals. The amendment is adopted under the Texas Water Code, sec.5.103, which provides the Texas Natural Resource Conservation Commission (TNRCC) with the authority to adopt any rules necessary to carry out the powers and duties under the provisions of the Texas Water Code and other laws of this state. Subchapter E. Permit Procedures 30 TAC sec.330.59 Additionally, the amendment is adopted pursuant to the Texas Solid Waste Disposal Act (the Act), the Texas Health and Safety Code, sec.361.011 and sec.361.024, which provide the TNRCC with the authority to regulate municipal solid waste and adopt rules consistent with the general intent and purposes of the Act. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 23, 1994. TRD-9448591 Mary Ruth Holder Director, Legal Division Texas Natural Resource Conservation Commission Effective date: October 17, 1994 Proposal publication date: May 10, 1994 For further information, please call: (512) 239-6087 Subchapter N. Management of Sludges and Similar Wastes 30 TAC sec.sec.330.411-330.415, 330.431, 330.432, 330.441-330.449, 330.461- 330.465, 330.481-330.484, 330.501-330.504, 330.511-330.514, 330. 531-330.534 The repeals are adopted under the Texas Water Code, sec.5.103, which provides the Texas Natural Resource Conservation Commission (TNRCC) with the authority to adopt any rules necessary to carry out the powers and duties under the provisions of the Texas Water Code and other laws of this state. Additionally, the repeals are adopted pursuant to the Texas Solid Waste Disposal Act (the Act), the Texas Health and Safety Code, sec.361.011 and sec.361.024, which provide the TNRCC with the authority to regulate municipal solid waste and adopt rules consistent with the general intent and purposes of the Act. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 23, 1994. TRD-9448592 Mary Ruth Holder Director, Legal Division Texas Natural Resource Conservation Commission Effective date: October 17, 1994 Proposal publication date: May 10, 1994 For further information, please call: (512) 239-6087 TITLE 31. NATURAL RESOURCES AND CONSERVATION Part II. Texas Parks and Wildlife Department Chapter 65. Wildlife Subchapter O. Late Season Migratory Bird Proclamation 31 TAC sec.sec.65.331-65.336 The Texas Parks and Wildlife Commission in a regularly scheduled public hearing held August 25, 1994, adopted amendments to sec.sec.65.331-65.336, concerning the Late Season Migratory Bird Proclamation. The adoption was made with changes from the proposed text as published in the July 19, 1994, issue of the Texas Register (19 TexReg 5614). Sections 65.332, 65.335, and 65. 336 were adopted without changes. Section 65.331 relating to definitions was changed to allow any nontoxic shot material that is approved by the Director of the U.S. Fish and Wildlife Service. Section 65.333(c)(2)(B) was amended to lengthen the Canada goose season in the Eastern Goose Zone. Section 65.334(c)(1)(A) was changed to increase the daily duck bag limit to four birds and to remove restrictions on drake mallards statewide, and sec.65. 334(c)(2)(B) was amended to extend the period by seven days where the daily bag limit for Canada geese in the Eastern Zone is two geese. The adopted rules are needed to comply with frameworks adopted by the U.S. Fish and Wildlife Service. The rules as adopted provide optimum hunter opportunities without adverse hunting pressure being applied to these resources. A total of six letters, 12 phone calls and six comments through regulatory public hearings were received concerning the proposed amendments to late season migratory bird rules. In general, the public comments were in favor of the rules as proposed. No groups or organizations made comments concerning the proposed rules. The amendments are adopted under the Parks and Wildlife Code, Chapter 64, Subchapter C, which provides the Parks and Wildlife Commission the authority to regulate seasons, means, methods, and devices for taking and possessing migratory game bird resources. sec.65.331. Definitions. The following words and terms, when used in this subchapter, shall have the following meaning, unless the context clearly indicates otherwise. Lawful archery equipment-Longbows and arrows, and includes compound bows and recurve bows. Lawful Shotgun -A shotgun not larger than 10 gauge, fired from the shoulder, and incapable of holding more than three shells (guns capable of holding more than three shells must be plugged with a one-piece filler which is incapable of removal without disassembling the gun, so the gun's total capacity does not exceed three shells). Nontoxic shot-Nontoxic shot includes steel shot, and copper, nickel, zinc chromate, and zinc chloride coated steel shot, or any other nontoxic material that is approved by the director of the U.S. Fish and Wildlife Service. sec.65.333. Open Seasons. (a)-(b) (No change.) (c) Statewide hunting hours, including falconry, for all migratory game birds listed herein are one-half hour before sunrise to sunset. (1) Ducks, coots, and mergansers. (A) High Plains Mallard Management Unit (that portion of Texas lying west of a line from the international toll bridge at Del Rio, thence northward following U.S. Highway 277 through San Angelo to Abilene, thence along State Highway 351 from Abilene to Albany and U.S. Highway 283 from Albany to Vernon, thence easterly along U.S. Highway 183 to the point of intersection with the Texas- Oklahoma state line in Wilbarger County): November 19, 1994-January 8, 1995. (B) Remainder of the state: November 19-November 27, 1994 and December 17, 1994-January 15, 1995. (2) Geese. (A) Western Zone (that portion of the state lying west of a line from the international toll bridge at Laredo, thence northward following IH 35 and 35W to Fort Worth, thence northwest along U.S. Highways 81 and 287 to Bowie, thence northward along U.S. Highway 81 to the Texas-Oklahoma state-line): Light goose species (snow, blue and Ross'), November 12, 1994-February 26, 1995. Dark goose species (Canada, brant and white-fronted), October 15, 1994-January 29, 1995. (B) Eastern Zone (remainder of the state): Light goose species (snow, blue, and Ross'), November 5, 1994-February 19, 1995. Dark goose species (Canada, brant, and white-fronted) November 5, 1994-January 15, 1995. Canada Geese only, January 16-29, 1995. (C) (No change.) (3) Sandhill cranes. (A) Zone A: November 12, 1994-February 12, 1995 in that portion of Texas lying west of a line beginning at the international toll bridge at Laredo, thence northeast along U. S. Highway 81 to its junction with Interstate Highway 35 in Laredo, thence north along Interstate Highway 35 to its junction with Interstate Highway 10 in San Antonio, thence northwest along Interstate Highway 10 to its junction with U.S. Highway 83 at Junction, thence north along U.S. Highway 83 to its junction with U.S. Highway 62, 16 miles north of Childress, thence east along U.S. Highway 62 to the Texas-Oklahoma state line. (B) Zone B: December 3, 1994-February 12, 1995 in that portion of Texas lying within boundaries beginning at the junction of Interstate Highway 35 and the Texas-Oklahoma state line, thence south along Interstate Highway 35 (following Interstate Highway 35 West through Fort Worth) to its junction with Interstate Highway 10 in San Antonio thence northwest along Interstate Highway 10 to its junction with U.S. Highway 83 in Junction, thence north along U.S. Highway 83 to its junction with U.S. Highway 62, 16 miles north of Childress, thence east along U.S. Highway 62 to the Texas-Oklahoma state line, thence eastward along the Texas-Oklahoma state line to Interstate Highway 35. (C) Zone C: January 7, 1995-February 12, 1995 in that portion of Texas lying within boundaries beginning at the international toll bridge at Brownsville, thence north and east along U.S. Highway 77 to its junction with U.S. Highway 87 at Victoria, thence eastward along U.S. Highway 87 to its junction with Farm Road 616 at Placedo, thence north and east along Farm Road 616 to its junction with State Highway 35, thence north and east along State Highway 35 to its junction with State Highway 6 at Alvin, thence west and north along State Highway 6 to its junction with U.S. Highway 290, thence westward along U.S. Highway 290 to its junction with Interstate Highway 35 at Austin, thence south along Interstate Highway 35 to its junction with U.S. Highway 81 in Laredo, thence southwest along U.S. Highway 81 to the international toll bridge in Laredo, thence south and east along the U.S.-Mexico international boundary to its junction with the U.S. Highway 77 international toll bridge at Brownsville. (D) (No change.) (4) Common snipe (Wilson's snipe or jacksnipe). October 22, 1994-February 5, 1995. (5) Woodcock. November 28, 1994-January 31, 1995. sec.65.334. Bag and Possession Limits. (a)-(b) (No change.) (c) The daily bag limits, except falconry, are as follows: (1) Ducks, coots, and mergansers. (A) Ducks: the daily bag limit is the aggregate of four ducks which may include no more than one mallard hen (including Mexican mallard or Mexican duck hens), one mottled duck, one pintail, one redhead, one canvasback, and two wood ducks. (B)-(C) (No change.) (2) Geese. (A) Western Zone: the daily bag limit for light geese (snow, blue, and Ross') is five, and the daily bag limit for dark geese (Canada, brant, and white- fronted) is three. (B) Eastern Zone: the daily bag limit for light geese (snow, blue, and Ross') is ten, and the daily bag limit for dark geese is one Canada goose or brant, and one white-fronted goose. During the period January 16-29, 1995, the daily bag limit for Canada geese is two. (3)-(5) (No change.) (d)-(g) (No change.) This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 21, 1994. TRD-9448457 Paul M. Shinkawa Acting General Counsel Texas Parks and Wildlife Department Effective date: October 13, 1994 Proposal publication date: July 19, 1994 For further information, please call: (512) 389-4812 TITLE 37. PUBLIC SAFETY AND CORRECTIONS Part XIII. Texas Commission on Fire Protection Chapter 401. Practice and Procedure The Texas Commission on Fire Protection adopts a new Chapter 401, concerning practices and procedures for contested cases and rulemaking proceedings, without changes to the proposed text as published in the June 10, 1994, issue of the Texas Register (19 TexReg 4490), except for sec.401. 103, concerning discovery sanctions, which was adopted with changes to correct subsection delineations. New Subchapter A, includes sec.sec.401.1, 401.3, 401.5, 401.7, 401.9 401.11, 401.13, and 401.15 concerning general provisions and definitions. New Subchapter B, includes sec.401.17 and sec.401.19, concerning rulemaking proceedings. New Subchapter C, includes sec.sec.401.21, 401.23, 401.25, 401.27, and 401.29, concerning parties. New Subchapter D, includes sec.sec.401.31, 401.33, 401.35, 401.37, and 401.39, concerning discovery. New Subchapter E, includes sec.sec.401.41, 401.43, 401.45, 401.47, and 401.49, concerning prehearing proceedings. New Subchapter F, includes sec.sec.401.51, 401.53, 401.55, 401.57, 401.59, 401.61, 401.63, 401.65, 401.67, 401.69, 401.71, 401.73, 401.75, 401.77, 401.79, 401.81, 401.83, 401.85, 401.87, 401.89, 401.91, 401.93, 401.95, and 401.97, concerning contested cases. New Subchapter G, includes sec.sec.401.101, 401.103, and 401.105, concerning conduct and decorum, sanctions, and penalties. New Subchapter H, includes sec.sec.401.111, 401.113, 401.115, 401.117, and 401. 119, concerning reinstatement. New Subchapter I, includes sec.sec.401.121, 401.123, 401.125, and 401.127, concerning notice and processing periods for license applications. The justification for these new sections is to clarify procedures that will apply agency wide and provide consistent practice and procedure in all cases within the agency's jurisdiction. New Subchapter A includes provisions for the chapter's purpose and scope, definitions, delegation of authority, construction, official action, presentations to the commission, computation of time, and written agreements. New Subchapter B includes requirements and procedures for petitioning for adoption of new rules or rule changes. New Subchapter C, includes provisions concerning appearances and right to an attorney in contested cases, classification of parties, intervention, consolidation and severance, and alignment of parties. New Subchapter D, includes outlines the forms and scope of discovery in contested cases, service and filing of discovery requests and responses, deadlines for responses, requests for admission, and discovery orders. New Subchapter E, establishes requirements for preliminary staff conferences, prehearing conferences before an administrative law judge, interim orders, appeals of interim orders, and prehearing statements. New Subchapter F, establishes requisites for the initiation, conduct, and appeal of contested cases in accordance with the Texas Administrative Procedure Act. New Subchapter G, outlines minimum standards of conduct and decorum in contested cases, discovery sanctions, and criteria for imposition of administrative penalties authorized by law. New Subchapter H, outlines procedures for applying for reinstatement of a license or certificate, evaluation of such applications, and commission action possible upon reinstatement. New Subchapter I, establishes requirements for notice of deficiency, maximum time periods, and appeals for violating time periods. No comments were received regarding adoption of the proposal. Subchapter A. General Provisions and Definitions 37 TAC sec.sec.401.1, 401.3, 401.5, 401.7, 401.9, 401.11, 401.13, 401.15 The new sections are adopted under the Government Code, sec.419.008, which provides the commission with authority to adopt rules for the administration of its powers and duties and Government Code, sec.2001.004, which requires a state agency to adopt rules of practice stating the nature and requirements of all available formal and informal procedures. 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 September 30, 1994. TRD-9448516 Jack Woods General Counsel Texas Commission on Fire Protection Effective date: October 14, 1994 Proposal publication date: June 10, 1994 For further information, please call: (512) 918-7184 Subchapter B. Rulemaking Proceedings 37 TAC sec.401.17, sec.401.19 The new sections are adopted under the Government Code, sec.419.008, which provides the commission with authority to adopt rules for the administration of its powers and duties and Government Code, sec.2001.004, which requires a state agency to adopt rules of practice stating the nature and requirements of all available formal and informal procedures. 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 September 30, 1994. TRD-9448517 Jack Woods General Counsel Texas Commission on Fire Protection Effective date: October 14, 1994 Proposal publication date: June 10, 1994 For further information, please call: (512) 918-7184 Subchapter C. Parties 37 TAC sec.sec.401.21, 401.23, 401.25, 401.27, 401.29 The new sections are adopted under the Government Code, sec.419.008, which provides the commission with authority to adopt rules for the administration of its powers and duties and Government Code, sec.2001.004, which requires a state agency to adopt rules of practice stating the nature and requirements of all available formal and informal procedures. 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 September 30, 1994. TRD-9448518 Jack Woods General Counsel Texas Commission on Fire Protection Effective date: October 14, 1994 Proposal publication date: June 10, 1994 For further information, please call: (512) 918-7184 Subchapter D. Discovery 37 TAC sec.sec.401.31, 401.33, 401.35, 401.37, 401.39 The new sections are adopted under the Government Code, sec.419.008, which provides the commission with authority to adopt rules for the administration of its powers and duties and Government Code, sec.2001.004, which requires a state agency to adopt rules of practice stating the nature and requirements of all available formal and informal procedures. 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 September 30, 1994. TRD-9448519 Jack Woods General Counsel Texas Commission on Fire Protection Effective date: October 14, 1994 Proposal publication date: June 10, 1994 For further information, please call: (512) 918-7184 Subchapter E. Prehearing Proceedings 37 TAC sec.sec.401.41, 401.43, 401.45, 401.47, 401.49 The new sections are adopted under the Government Code, sec.419.008, which provides the commission with authority to adopt rules for the administration of its powers and duties and Government Code, sec.2001.004, which requires a state agency to adopt rules of practice stating the nature and requirements of all available formal and informal procedures. 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 September 30, 1994. TRD-9448520 Jack Woods General Counsel Texas Commission on Fire Protection Effective date: October 14, 1994 Proposal publication date: June 10, 1994 For further information, please call: (512) 918-7184 Subchapter F. Contested Cases 37 TAC sec.sec.401.51, 401.53, 401.55, 401.57, 401.59, 401.61, 401.63, 401.65, 401.67, 401.69, 401.71, 401.73, 401.75, 401.77, 401.79, 401.81, 401.83, 401.85, 401.87, 401.89, 401.91, 401.93, 401.95, 401.97 The new sections are adopted under the Government Code, sec.419.008, which provides the commission with authority to adopt rules for the administration of its powers and duties and Government Code, sec.2001.004, which requires a state agency to adopt rules of practice stating the nature and requirements of all available formal and informal procedures. 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 September 30, 1994. TRD-9448521 Jack Woods General Counsel Texas Commission on Fire Protection Effective date: October 14, 1994 Proposal publication date: June 10, 1994 For further information, please call: (512) 918-7184 Subchapter G. Conduct and Decorum, Sanctions, and Penalties 37 TAC sec.sec.401.101, 401.103, 401.105 The new sections are adopted under the Government Code, sec.419.008, which provides the commission with authority to adopt rules for the administration of its powers and duties and Government Code, sec.2001.004, which requires a state agency to adopt rules of practice stating the nature and requirements of all available formal and informal procedures. sec.401.103. Discovery Sanctions. (a) After notice and opportunity for hearing, an order imposing sanctions, as are just, may be issued by the Hearings Officer for failure to comply with a discovery order, or subpoena issued pursuant to a commission for deposition or production of books, records, papers, or other objects. The order imposing sanctions may: (1) disallow any further discovery of any kind or of a particular kind of disobedient party; (2) require the party, the party's representative, or both to obey the discovery order; (3) require the party, the party's representative, or both to pay reasonable expenses, including attorney fees, incurred by reason of the party's noncompliance; (4) direct that the matters regarding which the discovery order was made shall be deemed established in accordance with the claim of the party obtaining the order; (5) refuse to allow the disobedient party to support or oppose designated claims or defenses or prohibit the party from introducing designated matters into evidence; (6) strike pleadings or parts thereof or abate further proceedings until the order is obeyed; or (7) dismiss the action or proceeding or any part thereof or render a decision by default against the disobedient party. (b) Appellate Review. Any discovery order or subpoena and any order imposing sanctions issued by the hearings officer is subject to review by an appeal to the fire marshal or executive director, according to the nature of the action or proceeding, in accordance with sec.401.45 of this title (relating to Appeal of an Interim Order). 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 September 30, 1994. TRD-9448522 Jack Woods General Counsel Texas Commission on Fire Protection Effective date: October 14, 1994 Proposal publication date: June 10, 1994 For further information, please call: (512) 918-7184 Subchapter H. Reinstatement 37 TAC sec.sec.401.111, 401.113, 401.115, 401.117, 401.119 The new sections are adopted under the Government Code, sec.419.008, which provides the commission with authority to adopt rules for the administration of its powers and duties and Government Code, sec.2001.004, which requires a state agency to adopt rules of practice stating the nature and requirements of all available formal and informal procedures. 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 September 30, 1994. TRD-9448523 Jack Woods General Counsel Texas Commission on Fire Protection Effective date: October 14, 1994 Proposal publication date: June 10, 1994 For further information, please call: (512) 918-7184 Subchapter I. Notice and Processing Periods for License Applications 37 TAC sec.sec.401.121, 401.123, 401.125, 401.127 The new sections are adopted under the Government Code, sec.419.008, which provides the commission with authority to adopt rules for the administration of its powers and duties and Government Code, sec.2001.004, which requires a state agency to adopt rules of practice stating the nature and requirements of all available formal and informal procedures. 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 September 30, 1994. TRD-9448524 Jack Woods General Counsel Texas Commission on Fire Protection Effective date: October 14, 1994 Proposal publication date: June 10, 1994 For further information, please call: (512) 918-7184 Chapter 403. Criminal Convictions and Eligibility for Certification and Licensure 37 TAC sec.sec.403.1, 403.3, 403.5, 403.7, 403.9, 403.11 The Texas Commission on Fire Protection adopts new Chapter 403, concerning criminal convictions and eligibility for certification and licensure, without changes to the proposed text as published in the June 10, 1994, issue of the Texas Register (19 TexReg 4503). The justification for adopting the new rules is that these guidelines will promote consistent decisions in consideration of criminal histories of applicants and eliminate wasted training expense and salary costs through the early review process. The new chapter establishes guidelines and criteria on the types of convictions which directly relate to the occupations regulated by the commission and also establishes procedures for suspension, revocation, or denial of a certificate, permit or license held or applied for by persons with criminal convictions. The new rules include a procedure for seeking early review by paid and volunteer fire departments in order to assist those departments in avoiding the time and expense of training a person who is not eligible for certification due to a criminal conviction. Several commentators in favor of the rules emphasized that the conviction guidelines were consistent with their own local policies, and might encourage municipalities without drug and alcohol policies to adopt them with special consideration given to driving while intoxicated because of Americans with Disabilities Act considerations. Another commentator spoke in favor of the rules as supportive of an alcohol and drug free workplace. Several commentators against the new rules expressed concern that the new rules would result in a loss of authority of local fire chiefs, whose job it was to impose discipline on the departments employees. Other commentators argued that more research should be done concerning the problems of convictions and that the rules would require additional legal staff to enforce. The commission disagreed with these comments for the reason that the rules concerning criminal convictions were required to be adopted by statute, not withstanding some loss of local control. Other commentators against the rule were concerned that mitigating factors would not be considered before a formal hearing and about retroactive application of the rules to current certificate holders. The commission disagreed with the comment concerning mitigating factors in that the rules specifically require consideration of those factors prior to a notice of intended action to deny or revoke a license or certificate based on a criminal conviction. With respect to the concern about application of the rules to current certificate holders, the commission directed the staff to draft a standard operating procedure implementing the new Chapter 403 which would apply the new rules to current certificate holders only where a conviction occurred after the effective date of the new rules. Comments for the proposed rule were made by representatives of the Irving Fire Department, the Arlington Fire Department, and the Texas State Association of Professional Fire Fighters. Comments against the proposal were made by representatives of the Duncanville Fire Department, the Villages Fire Department, the Odessa Fire Department, and the Houston Association of Professional Fire Fighters. The new chapter is adopted under Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; and Texas Civil Statutes, Articles 6252-13c and 6252-13d. 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 September 30, 1994. TRD-9448525 Jack Woods General Counsel Texas Commission on Fire Protection Effective date: October 14, 1994 Proposal publication date: June 10, 1994 For further information, please call: (512) 918-7184 Chapter 405. Charges for Public Records 37 TAC sec.sec.405.1, 405.3, 405.5, 405.7, 405.9, 405.11, 405.13, 405.15, 405.17 The Texas Commission on Fire Protection adopts new Chapter 405, concerning charges for public records, without changes to the proposed text as published in the June 10, 1994, issue of the Texas Register (19 TexReg 4505). The justification for the new section will be clearer and consistent agency wide guidelines for providing access to and charging for public records at reasonable amounts as determined by the General Services Commission. The new chapter standardizes charges for public records throughout the various divisions of the agency and follows the guidelines recommended by the General Services Commission which promotes statewide consistency of copy charges. No comments were received regarding adoption of the proposal. The new chapter is adopted under Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; and Texas Civil Statutes, Article 6252-17a, sec.9A(b), which requires each state agency to specify by rule the charges the agency will make for copies of public 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 September 30,1994. TRD-9448526 Jack Woods General Counsel Texas Commission on Fire Protection Effective date: October 14, 1994 Proposal publication date: June 10, 1994 For further information, please call: (512) 918-7184 Chapter 420. Administrative Practice and Procedure 37 TAC sec.sec.420.1, 420.3, 420.5, 420.7, 420.9, 420.11, 420.13, 420.15, 420.17, 420.19, 420.21, 420.23, 420.25, 420.27, 420.29, 420.31, 420.33, 420.35, 420.37, 420.39, 420.41, 420.43, 420.45, 420.47, 420.49, 420.51, 420. 53, 420.55, 420.57, 420.59, 420.61, 420.63, 420.65, 420.67, 420.69, 420.71, 420.73, 420.75, 420.77, 420.79, 420.81, 420.83, 420.85, 420.87, 420.89, 420.91, 420.93, 420.97, 420.99, 420.101, 420.103, 420.105, 420.107 The Texas Commission on Fire Protection adopts the repeal of Chapter 420, relating to Administration Practice and Procedure, without changes to the proposed text as published in the June 14, 1994, issue of the Texas Register (19 TexReg 4629). The repealed sections are replaced by a new Chapter 401 dealing with the same subject matter. The justification for the repeals is to delete obsolete language and replace it with the new rules that provide consistent practice and procedure in all cases within the agency's jurisdiction. The repealed sections are replaced by new rules that provide more detailed procedures that will apply agency wide. No comments were received regarding adoption of the proposal. The repeals are adopted under the Government Code, sec.419.008, which provides the commission with authority to adopt rules for the administration of its powers and duties and Government Code, sec.2001.004, which requires a state agency to adopt rules of practice stating the nature and requirements of all available formal and informal procedures. 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 September 30, 1994. TRD-9448527 Jack Woods General Counsel Texas Commission on Fire Protection Effective date: October 14, 1994 Proposal publication date: June 14, 1994 For further information, please call: (512) 918-7184 Chapter 423. Fire Suppression Subchapter A. Minimum Standards for Structure Fire Protection Personnel Certification 37 TAC sec.sec.423.1, 423.3, 423.5 The Texas Commission on Fire Protection adopts amendments to sec.sec.423.1, 423.3, and 423.5, concerning structural fire protection personnel, without changes to the proposed text as published in the June 10, 1994, issue of the Texas Register (19 TexReg 4510). The justification for this section will be clearer guidelines for higher level requirements and elimination of duplicative examination requirements. The amendments to Chapter 423 clarify the examination provisions to require examinations for all applicants for basic certification except that a certified part-time fire fighter who becomes employed in a full-time position may be certified without having to re-take the certification exam. The certified part- time fire protection employee is also exempted from current ECA certification requirements. Finally, changes to requirements for higher level certification concerning National Fire Academy Resident courses clarify those requirements to permit credit for "resident" courses delivered off campus and prohibit "double dipping." No comments were received regarding adoption of the proposal. The amendments are adopted under Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; and Texas Government Code, sec.419.022, which provides the commission with authority to establish minimum training standards for fire protection personnel and for advanced positions. 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 September 30, 1994. TRD-9448528 Jack Woods General Counsel Texas Commission on Fire Protection Effective date: October 14, 1994 Proposal publication date: June 10, 1994 For further information, please call: (512) 918-7184 Subchapter B. Minimum Standards for Aircraft Crash and Rescue Fire Protection Personnel 37 TAC sec.sec.423.201, 423.203, 423.205, 423.207 The Texas Commission on Fire Protection adopts amendments to sec.sec.423.201, 423.203, 423.205, and 423.207, concerning minimum standards for aircraft rescue and fire protection personnel certification. Section 423.203 is adopted with changes to the proposed text as published in the June 10, 1994, issue of the Texas Register (19 TexReg 4510). Section 423.203(b) and (c) should have been shown as no change with new sections being (d) and (e). Sections 423. 201, 423.205, and 423.207 are adopted without changes and will not be republished. The justification for this section will be clearer guidelines for higher level requirements and elimination of duplicative examination requirements. The amendments allow certified part-time fire fighters to become certified full-time without further examination; deletes the "on-campus" requirement for National Fire Academy resident courses; and disallows National Fire Academy courses used to qualify for lower level certifications to be used for higher level certifications, consistent with changes to requirements for structural fire protection personnel. No comments were received regarding adoption of the proposal. The amendments are adopted under the Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; and Texas Government Code, sec.419.022, which provides the commission with authority to establish minimum training standards for fire protection personnel in advanced or specialized fire protection personnel positions. sec.423.203. Minimum Standards for Basic Aircraft Rescue and Fire Protection Personnel Certification. (a) The effective date of this section shall be April 1, 1993. Training programs that are intended to satisfy the requirements for basic aircraft rescue and fire protection personnel certification, that are stated after the effective date of this section, must meet the curriculum, competencies, and hour requirements of these sections. All applicants for certification must meet the examination requirements of this section. (b)-(c) (No change.) (d) A person who holds or is eligible to hold a certificate upon employment as a part-time aircraft crash and rescue firefighter may be certified as an aircraft crash and rescue fire protection personnel, of the same level of certification, without meeting the applicable examination requirements. (e) If a person holds a current certification as a part-time aircraft crash and rescue firefighter, the Texas Department of Health emergency care attendant certification may be satisfied by documentation of equivalent training or certification in lieu of current certification by the Texas Department of Health. 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 September 30, 1994. TRD-9448529 Jack Woods General Counsel Texas Commission on Fire Protection Effective date: October 14, 1994 Proposal publication date: June 10, 1994 For further information, please call: (512) 918-7184 Chapter 429. Minimum Standards for Fire Inspectors 37 TAC sec.sec.429.3, 429.5, 429.7 The Texas Commission on Fire Protection adopts amendments to sec.sec.429.3, 429.5, and 429.7, concerning minimum standards for basic fire inspector certification. Section 429.3 and sec.429.5 are adopted with changes to the proposed text as published in the June 10, 1994, issue of the Texas Register (19 TexReg 4511). Section 429.3(b) and (c) should have shown no change with a new section (d). Also, a typographical error in sec.429.5(a)(3)(B) changes the word intermediate to basic. Section 429.7 is adopted without changes and will not be republished. The justification for this section will be clearer guidelines for higher level requirements and elimination of duplicative examination requirements. The amendments allow certified part-time fire fighters to become certified full-time without repeating examination requirements; deletes the "on-campus" requirement for National Fire Academy resident courses; and disallows National Fire Academy courses used to qualify for lower level certifications to be used for higher level certifications, consistent with other disciplines. No comments were received regarding adoption of the proposal. The amendments are adopted under Texas Government Code, sec.419.008, which provide the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; and Texas Government Code, sec.419.022(a)(5), which provides the commission with authority to establish minimum standards for admission to employment as fire protection personnel and for advanced or specialized fire protection personnel positions. sec.429.3. Minimum Standards for Basic Fire Inspector Certification. (a) The effective date of this section shall be January 1, 1994. Training programs that are intended to satisfy the requirements of this section, that are started after the effective date of this section, must meet the curriculum, competencies, and hour requirements of this section. All applicants for certification must meet the examination requirements of this section. (b)-(c) (No change.) (d) A person who holds or is eligible to hold a certificate upon employment as a part-time fire inspector may be certified as a fire inspector, of the same level of certification, without meeting the applicable examination requirements. sec.429.5. Minimum Standards for Intermediate Fire Inspector Certification. (a) Applicants for intermediate fire inspector certification must complete the following requirements: (1)-(2) (No change.) (3) As part of the training specified in paragraph (3) of this section, complete the courses listed in one of the following options: (A) (No change.) (B) Option #2-Complete a minimum of 80 hours of instruction in any National Fire Academy resident program. The training must be in addition to any training used to qualify for basic fire inspector certification. (C)-(D) (No change.) (b)-(d) (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 September 30, 1994. TRD-9448530 Jack Woods General Counsel Texas Commission on Fire Protection Effective date: October 14, 1994 Proposal publication date: June 10, 1994 For further information, please call: (512) 918-7184 Chapter 431. Minimum Standards for Fire and Arson Investigator 37 TAC sec.sec.431.3, 431.5, 431.7 The Texas Commission on Fire Protection adopts amendments to sec.sec.431.3, 431.5, and 431.7, concerning minimum standards for fire and arson investigator, without changes to the proposed text as published in the June 10, 1994, issue of the Texas Register (19 TexReg 4512). The justification for this section is clearer guidelines for higher level requirements and elimination of duplicative examination requirements. The amendments allow certified part-time fire fighters to become certified full-time without repeating examination requirements; deletes the "on-campus" requirement for National Fire Academy resident courses; and disallows National Fire Academy courses used to qualify for lower level certifications to be used for higher level certifications, consistent with other disciplines. No comments were received regarding adoption of the proposal. The amendments are adopted under Texas Government Code, 419.008, which provide the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; and Texas Government Code, 419.022(a)(5), which provides the commission with authority to establish minimum standards for admission to employment as fire protection personnel and for advanced or specialized fire protection personnel positions. 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 September 30, 1994. TRD-9448531 Jack Woods General Counsel Texas Commission on Fire Protection Effective date: October 14, 1994 Proposal publication date: June 10, 1994 For further information, please call: (512) 918-7184 Chapter 447. Part-Time Fire Protection Employee 37 TAC sec.447.1 The Texas Commission on Fire Protection adopts an amendment to 447.1, concerning part-time fire protection employees, without changes to the proposed text as published in the June 10, 1994, issue to the Texas Register (19 TexReg 4513). The justification for the section as amended will be the elimination of unnecessary and duplicative examination costs for local governments. The amendment allows a person who is certified as a full-time fire protection employee to be certified as a part-time fire protection employee without repeating the examination requirement. No comments were received regarding adoption of the proposal. The amendment is adopted under Texas Government Code, 419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; and Texas Government Code, 419.0321, which provides that the commission shall create a separate certification class for part-time fire protection employees. 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 September 30, 1994. TRD-9448532 Jack Woods General Counsel Texas Commission on Fire Protection Effective date: October 14, 1994 Proposal publication date: June 10, 1994 For further information, please call: (512) 918-7184 Chapter 471. Standards for Volunteer Certification 37 TAC sec.471.5 The Texas Commission on Fire Protection finally adopts an amendment to sec.471.5, concerning standards for volunteer certification, with changes to the proposed text as published in the June 10, 1994, issue of the Texas Register (19 TexReg 4513). The changes include combining subsections (a) and (b) into one subsection in order to delete the numbering of definitions. The justification for this section as amended will be volunteer fire fighter training will be encouraged by recognizing completion of segmented portions of the basic volunteer fire fighter curriculum. The amendment deletes the numbering of each definition and adds the definition for "recognition of training." No comments were received regarding adoption of this proposal. The amendment is adopted under Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; and Texas Government Code, sec.419.071(e), which provides the Texas Commission on Fire Protection with authority to establish rules for qualifications relating to education, training programs, continuing education, and testing procedures for the volunteer certification program. sec.471.5. Definitions. Certain definitions are used in describing the minimum standards and related requirements as specified by the commission. Definitions used include: Accredited training -A curriculum or training program which carries written approval from the commission, credit hours that appear on an official transcript from an accredited college or university and any fire service training received from a nationally recognized source, i.e., The National Fire Academy. Approved training -Any training which will be used toward any level of certification must be submitted to the commission for approval prior to the commencement of the training. The training submission must be in a manner specified by the commission and contain all information requested by the commission. The commission will not grant credit twice for the same subject content or course. Assistant fire chief-The officer occupying the first position subordinate to the head of a fire department. Chairman-The presiding officer of the commission. Class hour-Defined as 50 minutes of instruction; also defined as a contact hour. Code-The official legislation creating the commission. College credits -Credits earned for studies satisfactorily completed at an accredited institution of higher learning in a program leading to an academic degree. Commission-Texas Commission on Fire Protection. Certified volunteer fire fighter-An individual who has successfully completed the requirements, as set forth in Chapter 473. Committee-Volunteer Fire Fighter Advisory Committee Coordinator-The official responsible for course curriculum, training facility, and/or school (other than fire department) by whatever title he/she may be called. Department-A fire department which is a part of, or is administered by, a city, a political subdivision, and/or volunteer organization of the state which is responsible for fire prevention and protection, excluding industrial fire brigades. Fire chief-The head of a fire department. Fire fighter-A full-time employee of a fire department who has met the certification requirements. Fire protection personnel-Any person who is a full-paid permanent employee of a government entity and who is assigned full-time duties in one of the following categories: fire suppression, fire inspection, fire and arson investigation, marine fire fighting, aircraft crash and rescue fire fighting, fire training, fire education, fire administration and others employed in related positions necessarily or customarily appertaining thereto, excluding industrial fire brigades. Full-paid-The ordinary and customary income from a particular job. Full-time-The number of hours that represents the regular, normal, or standard amount of time per week that employees of a government entity normally devote to work related activities. Government entity -The local authority having jurisdiction as employer of full-time, full-paid fire protection personnel and/or volunteer fire fighter in a state agency, incorporated city, village, town or county, education institution or political subdivision. High school-A school accredited as a high school by the Texas Education Agency or equivalent education agency. Instructor-An individual charged with the responsibility of conducting a training school and/or class under the provision of the Code. Module-Each individual subject area as included in the Basic Volunteer Fire Fighter Curriculum Manual, for example: ladders-32 hours. Municipality-Any incorporated city, village, or town of this state and any county or political subdivision or district in this state. Municipal pertains to a municipality as herein defined. Participating volunteer fire fighter-An individual who voluntarily seeks certification and regulation by the Commission under Chapter 419, Subchapter D. Participating volunteer fire department-A fire department who voluntarily seeks regulation by the Commission under Chapter 419, Subchapter D. Recognition of training-A document issued by the commission stating that an individual has completed the training requirements of a specific Phase level of the Basic Volunteer Fire Fighter Curriculum. School-Any school, college, university, academy or local training program which offers fire service training and included within its meaning the combination of course curriculum, instructors and facilities. Trainee-An individual who is enrolled in any approved fire service training program. Training officer -The officer or supervisor by whatever he or she may be called, in charge of the fire department training programs. Training points -One semester hour earned at any accredited college or university shall equal 20 class hours of accredited training other than college semester hours shall be equal to one training point. Volunteer fire fighter-Any person who has met the requirements for membership in a volunteer fire service organization, excluding industrial fire brigades. Years of experience -Defined as full-time, full-paid service as an employee of a government entity, and/or active membership in a volunteer fire service organization, excluding industrial fire brigades. 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 September 30, 1994. TRD-9448533 Jack Woods General Counsel Texas Commission on Fire Protection Effective date: October 14, 1994 Proposal publication date: June 10, 1994 For further information, please call: (512) 918-7184 Chapter 473. Volunteer Fire Fighter 37 TAC sec.473.1 The Texas Commission on Fire Protection adopts an amendment to sec.473.1, concerning basic volunteer fire fighter, with changes to the proposed text as published in the June 10, 1994, issue of the Texas Register (19 TexReg 4513). The change includes the deletion of words "nine hours of" in subsection (f)(4) to allow flexibility for the number of hours of the Wildland Fire Fighting course. The justification for this section will be that volunteer fire fighter training will be encouraged and duplicative training and examination costs for certifying full-time and part-time fire protection employees is eliminated. In addition, the public will benefit from the general encouragement of trained and certified volunteer fire fighters to provide fire protection to the public. The changes to this section allow for a phase program to be implemented for the volunteer fire fighters, which will segment the basic volunteer fire fighter curriculum into four portions. In addition, the changes eliminate duplicative training and examinations for persons already trained or certified as full-time or part-time fire protection employees. No comments were received regarding adoption of the proposal. The amendment is adopted under Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; and Texas Government Code, sec.419.071(e), which provides the Texas Commission on Fire Protection with authority to establish rules for qualifications relating to education, training programs, continuing education, and testing procedures for the volunteer certification program. sec.473.1. Minimum Standards for Basic Volunteer Fire Fighter. (a) (No change.) (b) In order to be certified under this chapter, a basic volunteer fire fighter must complete a commission approved basic volunteer fire fighter curriculum. An approved basic volunteer fire fighter curriculum shall consist of one of the following: (1) completion of the commission approved basic volunteer fire fighter curriculum as specified in Chapter 1, Basic Volunteer Fire Fighter Curriculum, of the commission's document titled "Commission Volunteer Certification Curriculum Manual", as adopted by reference in sec.473.3, of this title (relating to Basic Volunteer Fire Fighter Curriculum) and successfully pass the commission examinations as specified in Chapter 479, of this title, pertaining to Examinations for Volunteer Fire Fighter Certification; or (2) completion of the four Phase levels of the approved basic volunteer fire fighter curriculum as specified in Chapter 1, Basic Volunteer Fire Fighter Curriculum, of the commission's document titled "Commission Volunteer Certification Manual", as adopted by reference in sec.473.3 of this title (relating to Basic Volunteer Fire Fighter Curriculum) and successfully pass the commission examinations as specified in Chapter 479 of this title, pertaining to Examinations for Volunteer Certification; or (3) completion of an out-of-state training program deemed equivalent to a commission approved basic volunteer fire fighter curriculum, and successfully pass the commission examinations as specified in sec.439.17, of this title (relating to Testing for Proof of Proficiency); or (4) completion of a military training program deemed equivalent to a commission approved basic volunteer fire fighter curriculum, and successfully pass the commission examination as specified in sec.439.17, of this title (relating to Testing for Proof of Proficiency); (5) documentation of the receipt of an Advanced certification from the State Firemen's and Fire Marshals' Association of Texas before September 1, 1993; or (6) completion of a training program that meets or exceeds the standards set for an approved basic volunteer fire fighter curriculum and successfully pass the commission examination as specified in Chapter 479 of this title (relating to examinations for volunteer fire fighter certification). (c) All questions of training equivalency will be decided by the commission. (d) The commission approved basic volunteer fire fighter curriculum must be taught through a training facility that has been certified by the commission as provided in Chapter 477, of this title (relating to Volunteer Fire Fighter Training Facilities) or Chapter 427, Subchapter A, of this title (relating to Structure Recruit Training Facilities), except as provided in sec.471.7(d) or sec.473.1(b)(2), (3), (4), or (5). (e) A person who holds any level of Structure Fire Protection Personnel Certification issued by this commission as provided for in Chapter 423, Subchapter A or Part-time Fire Protection Employee certification as provided for in Chapter 447, may be certified as a Basic Volunteer Fire Fighter. If the certificate has been inactive for more than one year, the person must complete the two additional subject areas as provided for in sec.473.3 of this title and successfully pass the examination(s) as provided for in Chapter 479 of this title. (f) A person may be certified as Basic Volunteer Fire Fighter, if the person meets the following requirements: (1) has met the training requirements as set forth in Chapter 423, Subchapter A, Minimum Standards for Structure Fire Protection Personnel Certification, sec.423.1(b)(1); and (2) successfully passed the commission examinations as specified in Chapter 439, of this title, pertaining to Examinations for Certification; and (3) complete as a minimum the certification requirements and be certified by the Texas Department of Health, as a Emergency Care Attendant. Any higher level of emergency medical certification recognized by the Texas Department of Health, such as EMT or paramedic may also be used to satisfy the emergency medical training requirements of this section; and (4) complete as a minimum the training requirements and possess a certificate of completed training from the Texas forest Service or a commission approved course in Wildland Fire Fighting. 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 September 30, 1994. TRD-9448534 Jack Woods General Counsel Texas Commission on Fire Protection Effective date: October 14, 1994 Proposal publication date: June 10, 1994 For further information, please call: (512) 918-7184 Chapter 481. Volunteer Fire Fighter Certification Fees 37 TAC sec.481.3 The Texas Commission on Fire Protection adopts an amendment to sec.481.3, concerning volunteer fire fighter certification fees, without changes to the proposed text as published in the June 10, 1994, issue of the Texas Register (19 TexReg 4514). The justification for this section will be a reduction in cost to volunteer training facilities and individuals seeking volunteer certification from the commission, and generally encouragement of volunteer fire fighters providing services to their communities. The amendment changes the one time $10 certification fee to $5.00 and deletes unnecessary language in sec.481.3(f). No comments were received regarding adoption of this proposal. The amendment is adopted under the Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; and sec.419.073, which provides the Texas Commission on Fire Protection with authority to establish certification fees for the volunteer certification 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 September 30, 1994. TRD-9448535 Jack Woods General Counsel Texas Commission on Fire Protection Effective date: October 14, 1994 Proposal publication date: June 10, 1994 For further information, please call: (512) 918-7184 TITLE 40. SOCIAL SERVICES AND ASSISTANCE Part I. Texas Department of Human Services Chapter 48. Community Care for Aged and Disabled In-Home and Family Support Program 40 TAC sec.48.2703 (Editor's Note: The following amendment adopted by the Texas Department of Human Services was inadvertently left out of the September 23, 1994, issue of the Texas Register. The amendment was submitted on September 16, 1994 and the effective date is October 15, 1994.) The Texas Department of Human Services (DHS) adopts an amendment to sec.48. 2703, without changes to the proposed text as published in the August 12, 1994, issue of the Texas Register (19 TexReg 6344). The justification for the amendment is to revise the copayment schedule based on updated state median income figures compiled by the United States Department of Health and Human Services. The amendment will function by providing public access to the new copayment schedule. No comments were received regarding adoption of the amendment. The amendment is adopted under the Human Resources Code, Title 2, Chapters 22 and 35, which provides the department with the authority to administer public assistance and support services for persons with disabilities programs. The amendment implements the Human Resources Code, sec. sec.22.001-22.024 and sec.sec.35.001-35.012. 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 September 16, 1994. TRD-9448617 Nancy Murphy Section Manager, Media and Policy Services Texas Department of Human Services Effective date: October 15, 1994 Proposal publication date: August 12, 1994 For further information, please call: (512) 450-3765 TITLE 43. TRANSPORTATION Part I. Texas Department of Transportation Chapter 25. Traffic Operations General 43 TAC sec.25.7 The Texas Department of Transportation adopts the repeal of sec.25.7, concerning Highway Crossings by Oversize/Overweight Vehicles, without changes to the proposed text as published in the May 13, 1994, issue of the Texas Register (19 TexReg 3645). Repeal of this section is necessary due to the contemporaneous adoption of new sec.sec.28.80-28.82, which incorporate that subject matter in an amended form with minor wording changes and rephrasing for clarity, continuity and style. On May 26, 1994, the department conducted a public hearing on the proposed repeal of sec.25.7. No written or oral comments were received concerning the proposed repeal. The repeal is adopted under Texas Civil Statutes, Article 6666, which provide the Texas Transportation Commission with the authority to establish rules for the conduct of the work of the Texas Department of Transportation, and more specifically by Texas Civil Statutes, Article 6701d-11, sec.5-2/3 which authorize the commission to execute contracts to indemnify the department for the cost of providing repairs and maintenance to highway crossing locations when the requestor desires to move oversize and overweight vehicles across highways from private property to other private property. 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 September 22, 1994. TRD-9448492 Diane L. Northam Legal Executive Assistant Texas Department of Transportation Effective date: October 13, 1994 Proposal publication date: May 13, 1994 For further information, please call: (512) 463-8630 Oversize and/or Overweight Permits 43 TAC sec.sec.25.60-25.67 The Texas Department of Transportation adopts the repeal of sec.sec.25.60-25. 67, concerning Oversize and/or Overweight Permits, without changes to the proposed text as published in the May 13, 1994, issue of the Texas Register (19 TexReg 3646). Repeal of these sections is necessary due to the contemporaneous adoption of new sec.sec.28.10-28.16, which incorporate that subject matter in an amended form with updated requirements. On May 26, 1994, the department conducted a public hearing on the proposed repeal of sec.sec.25.60-25.67. No written or oral comments were received concerning the proposed repeals. The repeals are adopted under Texas Civil Statutes, Article 6666, which provide the Texas Transportation Commission with the authority to establish rules for the conduct of the work of the Texas Department of Transportation, and more specifically by Texas Civil Statutes, Article 6701 1/2, which authorize the commission to issue permits for the movement of oversize manufactured housing, and industrialized housing and buildings; Texas Civil Statutes, Article 6701a, which authorize the commission to issue permits for the movement of oversize and overweight loads that cannot be reasonably dismantled; Texas Civil Statutes, Article 6701a-2 which authorize the commission to issue permits for the movement of oversize portable buildings; Texas Civil Statutes, Article 6701d-11, sec.3, which authorize the commission to issue annual permits for the movement of vehicles, that exceed the allowable vehicle width but do not exceed 144 inches in width, that are used to carry cylindrically shaped bales of hay; Texas Civil Statutes, Article 6701d-12, which authorize the commission to approve and certify bonds for a vehicle transporting ready-mix concrete, when such vehicle exceeds 34,000 pounds on a tandem axle but does not exceed 46,000 pounds, or a single axle load may not exceed 23,000 pounds, or a gross weight not to exceed 69,000 pounds; Texas Civil Statutes, Article 6701d-14, which authorize the commission to issue annual permits for the movement of poles required for the maintenance of electric power transmission and distribution lines; Texas Civil Statutes, Article 6701d-19a, which authorize the commission to approve and certify bonds for a vehicle transporting solid waste, when such vehicle exceeds 34,000 pounds on a tandem axle, but does not exceed 44,000 pounds on the tandem axle or 64,000 pounds of gross weight. 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 September 22, 1994. TRD-9448493 Diane L. Northam Legal Executive Assistant Texas Department of Transportation Effective date: October 13, 1994 Proposal publication date: May 13, 1994 For further information, please call: (512) 463-8630 Special Tolerance Permits 43 TAC sec.25.81 The Texas Department of Transportation adopts the repeal of sec.25.81, concerning Permit for Over Axle and Over Gross Weight Tolerances, without changes to the proposed text as published in the May 13, 1994 issue of the Texas Register (19 TexReg 3647). Repeal of this section is necessary due to the contemporaneous adoption of new sec.28.30, which incorporates that subject matter in an amended form with minor wording changes and rephrasing for clarity, continuity and style. On May 26, 1994, the department conducted a public hearing on the proposed repeal of sec.25.81. No written or oral comments were received concerning the proposed repeal. The repeal is adopted under Texas Civil Statutes, Article 6666, which provide the Texas Transportation Commission with the authority to establish rules for the conduct of the work of the Texas Department of Transportation, and more specifically by Texas Civil Statutes, Article 6701d-11, sec.5B, which authorize the commission to issue annual permits for the movement of vehicles, that exceed the legal axle weight limit by a tolerance of 10% and the legal gross weight limit by a tolerance of 5.0% 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 September 22, 1994. TRD-9448494 Diane L. Northam Legal Executive Assistant Texas Department of Transportation Effective date: October 13, 1994 Proposal publication date: May 13, 1994 For further information, please call: (512) 463-8630 Oversize and/or Overweight Permits for Certain Oil Well Related Vehicles 43 TAC sec.sec.25.90-25.98 The Texas Department of Transportation adopts the repeal of sec.sec.25.90-25. 98, concerning Oversize and/or Overweight Permits for Certain Oil Well Related Vehicles, without changes to the proposed text as published in the May 13, 1994 issue of the Texas Register (19 TexReg 3647). Repeal of these sections is necessary due to the contemporaneous adoption of new sec.sec.28.40-28.47, which incorporate that subject matter in an amended form with updated requirements. On May 26, 1994, the department conducted a public hearing on the proposed repeal of sec.sec.25.90-25.98. No written or oral comments were received concerning the proposed repeals. The repeals are adopted under Texas Civil Statutes, Article 6666, which provide the Texas Transportation Commission with the authority to establish rules for the conduct of the work of the Texas Department of Transportation, and more specifically by Texas Civil Statutes, Article 6701d-16, which authorize the commission to formulate and adopt rules and fees governing the issuance of oversize and overweight permits for the movement of certain oil well related vehicles. 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 September 22, 1994. TRD-9448495 Diane L. Northam Legal Executive Assistant Texas Department of Transportation Effective date: October 13, 1994 Proposal publication date: May 13, 1994 For further information, please call: (512) 463-8630 Oversize-Overweight Permits for Unladen Lift Equipment Motor Vehicles 43 TAC sec.sec.25.200-25.207 The Texas Department of Transportation adopts the repeal of sec.sec.25.200-25. 207, concerning Rules for Oversize and/or Overweight Permits for Unladen Lift Equipment Motor Vehicles, without changes to the proposed text as published in the May 13, 1994, issue of the Texas Register (19 TexReg 3648). Repeal of these sections is necessary due to the contemporaneous adoption of new sec.sec.28.60-28.66, which incorporates that subject matter in an amended form with updated requirements. On May 26, 1994, the department conducted a public hearing on the proposed repeal of sec.sec.25.200-25.207. No written or oral comments were received concerning the proposed repeals. The repeals are adopted under Texas Civil Statutes, Article 6666, which provide the Texas Transportation Commission with the authority to establish rules for the conduct of the work of the Texas Department of Transportation, and more specifically by Texas Civil Statutes, Article 6701d-18, which authorize the commission to issue annual permits for the movement of unladen lift equipment motor vehicles which because of their design for use as lift equipment exceed the maximum weight and width limitations prescribed by statute; and Texas Civil Statutes, Article 6701d-19b, which authorize the commission to formulate and adopt rules and fees governing the issuance of oversize and overweight permits for the movement of unladen lift equipment motor vehicles. 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 September 22, 1994. TRD-9448496 Diane L. Northam Legal Executive Assistant Texas Department of Transportation Effective date: October 13, 1994 Proposal publication date: May 13, 1994 For further information, please call: (512) 463-8630 Chapter 28. Oversize and Overweight Vehicles and Loads Subchapter A. General Provisions 43 TAC sec.28.1, sec.28.2 The Texas Department of Transportation adopts new sec.28.1, concerning Purpose and Scope, and new sec.28.2, concerning Definitions, without changes to the proposed text as published in the May 13, 1994, issue of the Texas Register (19 TexReg 3649). Section 28.1 states that the purpose of the chapter is to insure the safety of the traveling public and the permit applicant, and to protect the integrity of the highways and bridges, through the issuance of permits for the movement of oversize and overweight vehicles and loads, and the execution of special contracts for the movement of oversize and overweight vehicles and loads to travel across the width of a state highway. Section 28.2 defines words and terms used in this chapter. On May 26, 1994, the department conducted a public hearing on the proposed adoption of sec.28.1 and sec.28.2. No written or oral comments were received concerning the proposed new sections. The new sections are adopted under Texas Civil Statutes, Article 6666, which provides the Texas Transportation Commission with the authority to establish rules for the conduct of the work of the Texas Department of Transportation, and more specifically Texas Civil Statutes, Article 6701, which authorize the commission to issue permits for the movement of oversize manufactured housing, and industrialized housing and buildings; Texas Civil Statutes, Article 6701a, which authorize the commission to issue permits for the movement of oversize and overweight loads that cannot be reasonably dismantled; Texas Civil Statutes, Article 6701a-2, which authorize the commission to issue permits for the movement of oversize portable buildings; Texas Civil Statutes, Article 6701d-11, sec.3, which authorize the commission to issue annual permits for the movement of vehicles, that exceed the allowable vehicle width but do not exceed 144 inches in width, that are used to carry cylindrically shaped bales of hay; Texas Civil Statutes, Article 6701d-11, sec.5B, which authorize the commission to issue annual permits for the movement of vehicles, that exceed the legal axle weight limit by a tolerance of 10% and the legal gross weight limit by a tolerance of 5.0%; Texas Civil Statutes, Article 6701d-12, which authorize the commission to approve and certify bonds for a vehicle transporting ready-mix concrete, when such vehicle exceeds 34,000 pounds on a tandem axle but does not exceed 46,000 pounds, or a single axle load may not exceed 23,000 pounds, or a gross weight not to exceed 69,000 pounds; Texas Civil Statutes, Article 6701d- 14, which authorize the commission to issue annual permits for the movement of poles required for the maintenance of electric power transmission and distribution lines; Texas Civil Statutes, Article 6701d-16, which authorize the commission to formulate and adopt rules and fees governing the issuance of oversize and overweight permits for the movement of certain oil well related vehicles; Texas Civil Statutes, Article 6701d-18, which authorize the commission to issue annual permits for the movement of unladen lift equipment motor vehicles which because of their design for use as lift equipment exceed the maximum weight and width limitations prescribed by statute; Texas Civil Statutes, Article 6701d-19a, which authorize the commission to approve and certify bonds for a vehicle transporting solid waste, when such vehicle exceeds 34,000 pounds on a tandem axle, but does not exceed 44,000 pounds on the tandem axle or 64,000 pounds gross weight; and Texas Civil Statutes, Article 6701d-19b, which authorize the commission to formulate and adopt rules and fees governing the issuance of oversize and overweight permits for the movement of unladen lift equipment motor vehicles. 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 September 22, 1994. TRD-9448497 Diane L. Northam Legal Executive Assistant Texas Department of Transportation Effective date: October 13, 1994 Proposal publication date: May 13, 1994 For further information, please call: (512) 463-8630 Subchapter B. General Permits 43 TAC sec.sec.28.10-28.16 The Texas Department of Transportation adopts new sec. sec.28.10-28.16, concerning General Permits. Sections 28.11, 28.12, and 28.14 are adopted with changes to the proposed text as published in the May 13, 1994, issue of the Texas Register (19 TexReg 3641). Sections 28.10, 28.13, 28.15, and 28. 16 are adopted without changes and will not be republished. These new sections replace existing sec.sec.25.60-25.67, which are being contemporaneously repealed. In order to comply with enacted legislation, and provide greater safety to the general traveling public and the permit applicant through more uniform regulation and control of oversize and overweight permit loads, it is necessary to clarify the department's authority, policies, and procedures concerning the issuance of permits for the movement of oversize and overweight vehicles and loads. Section 28.10, concerning Purpose, describes the Texas Transportation Commission's authority to issue permits for the movement of oversize and overweight vehicles and loads that can not be reasonably dismantled when the size and weight exceeds the limits allowed by law. Section 28.11, concerning Permit Issuance Requirements and Procedures, provides procedures for applying for a permit for the movement of an oversize and overweight vehicle and load; provides for payment of permit fees; establishes maximum permit weight limits; establishes escort vehicle requirements; provides for general permit provisions; and provides for surety bond requirements. Section 28.12, concerning Single-Trip Permits Issued Under Texas Civil Statutes, Article 6701a, provides for general provisions for the issuance of single-trip permits for the movement of vehicles and loads that are overwidth, overlength, overheight, or overweight; and provides for convoy regulations for overlength loads. Section 28.13, concerning Time Permits Issued Under Texas Civil Statutes, Article 6701a, Article 6701d-11, sec.3, and Article 6701d-14, provides for general provisions for time permits that are issued for overwidth or overlength loads; and provides for annual permits for implements of husbandry, power line poles, and cylindrically shaped bales of hay. Section 28.14, concerning Manufactured Housing, Industrialized Housing and Building Permits, provides for the application, issuance, payment, and escort requirements for permits for manufactured housing or industrialized housing and buildings. Section 28.15, concerning Portable Building Permits, provides for the application, issuance, payment, and escort requirements for permits for portable buildings. Section 28.16, concerning Permits for Military and Governmental Agencies, establishes regulations for the movement of military and governmental loads on public, military, and governmental equipment. The new sections incorporate the subject matter of the repealed sections in an amended form to: comply with House Bill 1607, 72nd Legislature, 1991, that authorizes the issuance of annual permits for the movement of cylindrically shaped bales of hay; House Bill 1895, 73rd Legislature, 1993, that establishes escrow accounts for the payment of permit fees; House Bill 9, 72nd Legislature, First Called Session, 1991, that provides for a vehicle supervision fee; House Bill 1725, 72nd Legislature, 1991, that authorizes the issuance of a permit for the transportation of oilfield drill pipe and drill collars in a pipe box; and Senate Bill 1539, 72nd Legislature, 1991, that establishes escrow accounts for the payment of permit fees for manufactured housing; provide greater protection to the integrity of the highway infrastructure; provide increased safety to the traveling public and the permittee by decreasing hazards from the movement of oversize loads; increase productivity of the trucking industry, thereby aiding the State's economy; provide for minor wording changes; and provide for clarity, continuity, and style. On May 26, 1994, the department conducted a public hearing on the proposed adoption of new sec.sec.28.10-28.16. Eleven commenters gave oral testimony at this hearing, and five written comments were received by mail. The Texas Association of Structural Movers commented in favor of some provisions and against other provisions of the proposed new sections. One commenter suggested the department should announce proposed permit rules via the Central Permit Office's (CPO) automated telephone answering system. Proposed rule revisions could be announced to each permit applicant whenever the applicant calls the CPO to order a permit. The department believes that this is a worthwhile suggestion and intends to use this method to announce proposed permit rules when practical. One commenter requested that sec.28.11(c) be revised to authorize for the payment of permit fees with an American Express credit card. The department does not concur with this request due to the costs that would be incurred by the department from the use of the card. Two commenters suggested that the signing, lighting, and flagging requirements in sec.28.11(e) for the escort vehicle and the permitted vehicle be more clearly stated by setting up requirements for each vehicle. The department thinks that this suggestion merits further consideration and will study the issue for possible rule revision at a later date. Four commenters requested the department revise sec.28.11(e) (1) which currently states that an escort vehicle does not have authority to control traffic. They recommended using wording to indicate that an escort shall control traffic. The paragraph is revised to better describe the purpose and function of the escort vehicle. The paragraph will read, "The operator of an escort vehicle shall, consistent with applicable law, warn the traveling public when a permitted vehicle: must travel over the center line of a narrow bridge or roadway; makes any turning movement that will require the permitted vehicle to travel in the opposing traffic lanes; reduces speed to cross under a low overhead obstruction or over a bridge; or at any time that the permitted vehicle creates an abnormal and unusual traffic flow pattern." Five commenters requested that the department revise sec.28.11(e)(2) to allow the use of a warning sign with the words "Wide Load" instead of "Oversize Load." Two commenters suggested dropping the word "Load" from the term "Oversize Load." Several commenters requested that sec.28.11(e)(2)(A) be amended to specify the use of warning flags in addition to the required warning sign mounted on the roof of the escort vehicle. The department believes that these requests merit further review, and will consider these issues for future action. Seven commenters requested a reduction in the size limits of the warning sign. The department concurs with this recommendation. sec.28.11(e)(2)(B)(i) is revised to read, "Size: at least five feet but not more than 7 feet in length, and at least 12 inches but not more than 18 inches in height." sec.28.11(e)(2)(B)(iii) is revised to read, "Size of lettering: at least eight inches high but not more than 10 inches high with a brush stroke at least 1.41 inches wide." A commenter was concerned that the $5 million comprehensive general liability insurance requirement in sec.28.11(f)(1)(B)(iv) applied to all oversize and overweight permits. The commenter is mistaken about the insurance requirement in this rule. This requirement only applies to a permit issued for the transportation of an oversize load consisting of more than one commodity, that has been certified by the Texas Department of Commerce as having a significant positive impact on the economy of the state. One commenter requested the department eliminate the requirement in sec.28. 11(g) that a permit applicant must have a surety bond prior to obtaining a permit, and require the applicant to have liability insurance which is required by the Texas Railroad Commission. The surety bond is a statutory requirement that can only be eliminated by the legislature. One commenter was concerned that the $100,000 bond required in sec.28.11(g) (2)(B) for the movement of a load exceeding 250,000 pounds gross weight would be amended to provide that any load exceeding 200,000 pounds gross weight would be required to post a $100,000 bond prior to permit issuance. The commenter is mistaken. The department is not proposing to change the $100,000 bond requirement to apply to a load exceeding 200,000 pounds gross weight. Two commenters requested that one escort vehicle be required in sec.28.12(b) (1) for a load exceeding 12 feet wide, and two escort vehicles be required for a load exceeding 14 feet wide. Two commenters requested that one escort vehicle be required for a load 14 feet or more in width, and two escorts be required for a load 16 or more in width. The department does not concur with these requests. The department has discussed the use of escort vehicles with the Department of Public Safety, and has determined that the safety of the traveling public and the permitted vehicle will be adequately maintained by the proposed subsection. Requiring an escort vehicle at the reduced width limits requested by the commenters would place an unwarranted financial hardship on the trucking industry. A commenter suggested that a load 20 feet wide or greater be routed on the main lanes of Interstate highways. The department does not concur with this suggestion. The main lanes of Interstate and controlled access highways carry high volumes of traffic that are travelling at higher rate of speed than other routes. Routing a load that is 20 feet wide or greater on other roadways causes fewer traffic problems, and inconveniences fewer motorists. One commenter requested reducing the maximum length requirement in sec.28. 12(d)(8) from 110 feet to 100 feet. Another commenter requested reducing the maximum length requirement from 110 feet to 95 feet. Also in sec.28.12(d)(10), two commenters requested reducing the maximum length requirement from 125 feet to 110 feet. Another commenter requested that the maximum length of 125 feet be reduced to 115 feet. The department has studied this matter with the Department of Public Safety, and has determined that the 110 feet and 125 feet limits are reasonable, and provide for the safety of the traveling public. Three commenters requested reducing the number of overlength vehicles from four to two overlength vehicles, and that the distance between the vehicles be changed from a minimum of 1,000 feet in sec.28.12(e); however, the commenter did not specify a minimum distance. Two commenters requested that loads exceeding 150 feet not be allowed to move in convoy. The department has studied this matter with the Department of Public Safety, and has determined that the length and number of vehicles in the convoy and the distance between each vehicles is reasonable, and provides for the safety of the traveling public. One commenter requested that the required height pole for loads exceeding 17 feet high be omitted for the movement of overheight houses in sec.28.12(f)(1) because permit requests for these loads are very thoroughly investigated by the mover and the district office prior to permit issuance. The department has written this paragraph with language that will allow the granting of an exception to this requirement based on a route and traffic study conducted by the CPO. Each permit request for moving an over-height house will be studied on its own merits. If conditions warrant the exclusion of a height pole, the CPO will exclude the requirement of the height pole at the time of permit issuance. Two commenters requested that the maximum height requirement be reduced from 17 feet to 16 feet. One commenter also requested that the maximum height requirement in sec.28.12(f)(2), be reduced from 18 feet to 17 feet. The department has studied this matter with the Department of Public Safety, and has determined that the heights as proposed are reasonable, and provide for the safety of the traveling public. One commenter stated that the proposed vehicle supervision fees in sec.28. 12(g) were adequate and fair to all permit applicants. Two commenters requested that permits for moving houses should pay a lower vehicle supervision fee than other loads that exceed 200,000 pounds gross weight. The department does not concur with this request. The type of load being moved is not justification for a reduced fee. House moves that exceed 200,000 pounds gross weight are as potentially damaging to the highways and bridges as any other type of load, and these moves require the department to expend the same amount of time and resources to review and analyze the routes and bridges as any other load exceeding 200,000 pounds gross weight. Another commenter recommended that the vehicle supervision fee for loads exceeding 200,000 pounds gross weight be calculated on the number of bridges on the route the permitted vehicle will travel. The department does not concur with this recommendation. Calculating the vehicle supervision fee on the number of bridges on the proposed route would create a job cost analysis problem for the permit applicant because the applicant will be unable to submit a bid to the shipper until the number of the bridges on the proposed route has been determined. Determining the number of bridges on a route that is several hundred miles long is a time consuming process that would unnecessarily delay the applicant in submitting a bid to the shipper, and ultimately would delay the applicant in obtaining a permit. A vehicle supervision fee based on a flat rate that is known by the applicant prior to bidding on a haul job will allow the applicant to prepare and submit a realistic bid to the shipper on very short notice. Another commenter wrote to request that the vehicle supervision fee not be applied to permit requests for loads, such as concrete beams, that were bid and awarded prior to the final adoption of these proposed permit rules because the permit applicant would be subjected to a fee that had not been calculated and included in their original bid proposal. House Bill 9, 72nd Legislature, First Called Session, 1991, established the vehicle supervision fee, along with a highway maintenance fee. Representative David Cain, author of the legislation, submitted a letter, dated September 4, 1991, advising the department that it was not his "intent to disturb the sanctity with regard to public works contracts" let prior to the effective date of the legislation, and that the department should not impose the new fees on such contracts. The department complied with Representative Cain's request concerning the highway maintenance fee which was set by the legislature. The vehicle supervision fee; however, was required by the legislation to be set by the department, which the department did not set in 1991. To comply with the spirit and intent of Representative Cain's concern expressed in the 1991 letter, since the principle is still valid, sec.28.12 is revised to exempt permit applicants from the vehicle supervision fee for loads required for the fulfillment of fixed price public works contracts entered into prior to the effective date of the section. Two commenters recommended that the department provide for a time period longer than five days in sec.28.12(g)(7) and (9) for the movement of identical loads of concrete beams when the loads exceed 200,000 pounds gross weight that are transported on identical hauling equipment and travel the same route that was analyzed and approved for the original load. The department concurs with this request. Paragraph (11) is added to grant this type of an exception to the five day time period for the movement of concrete beams. One commenter requested the department either revise or add a new loading diagram for moving overweight houses in sec.28.12(h). The department believes that this request merits further review, and will consider the issue for future action. One commenter wrote to request that in sec.28.13(b) overwidth prestressed concrete double tee beams be included with machinery and vehicles used in the construction, maintenance, soil conservation, timber and farming industries, in the types of loads that can be issued an overwidth time permit. The department does not concur with this request. The department has historically assisted the construction, soil conservation, timber and farming industries by providing for time permits for the movement of a limited number of vehicles and machinery directly allied to the business of these industries. Time permits for the movement of overwidth commodities, such as prestressed concrete double tee beams, would allow the uncontrolled movement of a limitless number of overwidth loads that would unnecessarily endanger the safety of the general traveling public. One commenter requested that an annual permit be issued for overlength loads, such as house moving beams in sec.28.13(c). The department cannot issue an annual permit for overlength loads, such as house moving beams, because Texas Civil Statutes, Article 6701a, does not provide for the issuance of an annual permit for this type of load. Two commenters requested sec.28.14(b) be amended to require that the permit applicant give either the HUD label number, Texas Seal number, or the industrialized housing and building serial number as identification of the item being moved. The department concurs and the subsection is revised to include these other identifying numbers. The new sections are adopted under Texas Civil Statutes, Article 6666, which provide the Texas Transportation Commission with the authority to establish rules for the conduct of the work of the Texas Department of Transportation, and more specifically by Texas Civil Statutes, Article 6701, which authorize the commission to issue permits for the movement of oversize manufactured housing, and industrialized housing and buildings; Texas Civil Statutes, Article 6701a, which authorize the commission to issue permits for the movement of oversize and overweight loads that cannot be reasonably dismantled; Texas Civil Statutes, Article 6701a-2, which authorize the commission to issue permits for the movement of oversize portable buildings; Texas Civil Statutes, Article 6701d-11, sec.3, which authorize the commission to issue annual permits for the movement of vehicles, that exceed the allowable vehicle width but do not exceed 144 inches in width, that are used to carry cylindrically shaped bales of hay; Texas Civil Statutes, Article 6701d-12, which authorize the commission to approve and certify bonds for a vehicle transporting ready-mix concrete, when such vehicle exceeds 34,000 pounds on a tandem axle but does not exceed 46,000 pounds, or a single axle load may not exceed 23,000 pounds, or a gross weight not to exceed 69,000 pounds; Texas Civil Statutes, Article 6701d-14, which authorize the commission to issue annual permits for the movement of poles required for the maintenance of electric power transmission and distribution lines; and Texas Civil Statutes, Article 6701d-19a, which authorize the commission to approve and certify bonds for a vehicle transporting solid waste, when such vehicle exceeds 34,000 pounds on a tandem axle, but does not exceed 44,000 pounds on the tandem axle or 64,000 pounds gross weight. sec.28.11. Permit Issuance Requirements and Procedures. (a) Application for permit. (1) General. The applicant must complete the application, and must comply with the designated methods of payment in subsection (c) of this section prior to contacting the CPO for issuance of a permit. The applicant must list a specific load description, such as the model and serial number for any item of machinery, or in the case of concrete beams, the beam number shall be stated. (A) The owner of a vehicle permitted under the provisions of Texas Civil Statutes, Article 6701a, must file a surety bond with the CPO prior to permit issuance, as provided in subsection (g)(1) and (2) of this section. (B) When an application is made by telephone, the permit officer will request all information in the application for entry into the department's computer for record keeping purposes and generation of the permit number. The information will be verified and a route will be selected. (C) The official permit issued by the CPO is stored in the department's mainframe computer located in Austin. (D) A permit request made by mail or facsimile will be returned to the applicant by mail or facsimile. (E) The CPO is closed on Sunday, New Year's Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day, and Christmas Day. (2) Single-trip permit application. An application for a single-trip permit may be made to the CPO by telephone, by submitting a facsimile permit request, or by taking the application in person to a cash collection office. All applications made by telephone are recorded. (3) Time permit application. An application for a time permit issued under Texas Civil Statutes, Articles 6701a and 6701d-14, must be submitted by mail or by facsimile to the CPO. (b) Permit issuance. (1) General. The applicant must legibly enter all information and the permit number on the permit, when the permit request is made by telephone. (A) The original permit, a facsimile copy of the permit, or a CPO computer generated permit must be kept in the permitted vehicle until the day after the date the permit expires. (B) A permit is void when an applicant: (i) gives false or incorrect information; (ii) does not comply with the restrictions or conditions stated in the permit; or (iii) hanges or alters the information on the applicant's copy of the permit. (C) A permittee may not transport an overdimension load with a void permit; a new permit must be obtained. (2) Single-trip permit. Specific types of single-trip permits are covered in sec.28.12 of this title (relating to Single-Trip Permits Issued Under Texas Civil Statutes, Article 6701a), sec.28.14 of this title (relating to Manufactured Housing, Industrialized Housing and Building Permits), and sec.28.15 of this title (relating to Portable Building Permits). (3) Time permit. A time permit may be issued by mail or by facsimile. Specific types of time permits are covered in sec.28.13 of this title (relating to Time Permits Issued Under Texas Civil Statutes, Article 6701a and Article 6701d-14). (c) Payment of permit fee. (1) Credit card. A permit ordered by telephone or facsimile may be purchased with a credit card. (A) A PAC must be established and maintained according to the contract provisions stipulated between the PAC holder and the financial institution under contract to the department and the Texas State Treasury. (B) A permit purchased with a credit card will pay a service charge of $1.00 in addition to the permit fee. (2) Cash. Cash is acceptable as payment of a permit ordered by telephone, and the payment must be made at a cash collection office. Cash is not the preferred form of payment. (A) A cashier's check, or a money order is acceptable as payment of a permit, and the payment may be made at a cash collection office or at the CPO prior to receipt of the permit. (B) A company check or a personal check is not acceptable as payment of a permit. (3) Escrow accounts. A permit applicant may establish an escrow account with the department for the specific purpose of paying any fee that is related to the issuance of a permit under this subchapter. (A) A permit applicant that desires to establish an escrow account shall complete and sign an escrow account agreement, and shall return the completed and signed agreement to the department with a check in the minimum amount of $305, which shall be deposited to the appropriate fund by the department in the State Treasury. Five dollars per deposit will be charged as an escrow account administrative fee and shall be deposited in the state highway fund. (B) When the permit applicant's escrow account balance has been reduced to $150, the department will generate a statement that will be furnished to the holder of the escrow account with instructions to submit a cashiers's check or money order, payable to the department in the minimum amount of $305, which shall be used to replenish the escrow account. (C) Upon receipt of the replenishment check, the department will charge $5.00 as an escrow account administrative fee, and will credit the remainder of the check to the balance of the escrow account holder. (D) An escrow account holder must submit a written request to the department to terminate the escrow account agreement. Any remaining balance will be returned to the escrow account holder. (4) Refunds. A permit fee will not be refunded after the permit number has been issued; however, a refund may be made after permit issuance if it is necessary to correct an error made by the permit officer. (d) Maximum permit weight limits. (1) General. An overweight permitted vehicle will not be routed over a load restricted bridge, unless a special exception is granted by the CPO, based on an analysis of the bridge. (A) An axle group must have a minimum spacing of four feet, measured from center of axle to center of axle, between each axle in the group to achieve the maximum permit weight for the group. (B) The maximum permit weight for an axle group with spacings of five or more feet between each axle will be based on an engineering study conducted by the CPO. (C) A permitted vehicle will be allowed to have air suspension, hydraulic suspension and mechanical suspension axles in a common weight equalizing suspension system for any axle group. (D) Two or more consecutive axle groups must have an axle spacing of 12 feet or greater, measured from the center of the last axle of the preceding group to the center of the first axle of the following group, in order for each group to be permitted for maximum permit weight. When two or more consecutive axle groups have an axle spacing of less than 12 feet, measured from the center of the last axle of the preceding group to the center of the first axle of the following group, the department will grant reduced permit weights for each axle group based on the number of axles in the group and the spacing between the groups as shown in the following Appendix A, which is titled "Maximum Permit Weight For Axle Groups Spaced Less Than 12 Feet." Figure 1: 43 TAC sec.28.11(d)(1)(D) (E) The CPO may permit axle weights greater than those specified in this section, for a specific individual permit request, based on an engineering study of the route and hauling equipment. (2) Maximum axle weight limits. Maximum permit weight for an axle or axle group is based on 650 pounds per inch of tire width or the following axle or axle group weights, whichever is the lesser amount: (A) single axle-25,000 pounds; (B) two axle group-46,000 pounds; (C) three axle group-60,000 pounds; (D) four axle group-70,000 pounds; (E) five axle group-81,400 pounds; (F) axle group with six or more axles-determined by the CPO based on an engineering study of the equipment, which will include the type of steering system used, the type of axle suspension, the spacing distance between each axle, the number of tires per axle, and the tire size on each axle. (3) Weight limits for load restricted roads. Maximum permit weight for an axle or axle group, when traveling on a load restricted road, will be based on 650 pounds per inch of tire width or the following axle or axle group weights, whichever is the lesser amount: (A) single axle-22,500 pounds; (B) two axle group-41,400 pounds; (C) three axle group-54,000 pounds; (D) four axle group-63,000 pounds; (E) five axle group-73,260 pounds; (F) axle group with six or more axles-determined by the CPO based on an engineering study of the equipment, which will include the type of steering system used, the type of axle suspension, the spacing distance between each axle, the number of tires per axle, and the tire size on each axle; and (G) two or more consecutive axle groups having an axle spacing of less than 12 feet, measured from the center of the last axle of the preceding group to the center of the first axle of the following group-10% less than the permit weights as shown in Appendix A of sec.28.11(d)(1)(D) of this title (relating to Permit Issuance Requirements and Procedures). (e) Escort vehicle requirements. (1) General. The operator of an escort vehicle shall, consistent with applicable law, warn the traveling public when a permitted vehicle: must travel over the center line of a narrow bridge or roadway; makes any turning movement that will require the permitted vehicle to travel in the opposing traffic lanes; reduces speed to cross under a low overhead obstruction or over a bridge; or at any time that the permitted vehicle creates an abnormal and unusual traffic flow pattern. (A) The CPO has the authority to require escort vehicles for the safe movement of a permitted vehicle, except for manufactured housing which has specific requirements established in Texas Civil Statutes, Article 6701, provided the CPO has determined that the use of escort vehicles would provide for the safe movement of the permitted vehicle, and would protect the traveling public during the movement of the permitted vehicle. (B) A motorcycle, a motorized bicycle, or a motorized quadricycle may not be used as the primary escort vehicle for a permitted vehicle traveling on the state highway system; however, a police officer may use a motorcycle to control traffic and to assist the primary escort vehicle during the movement of the permitted vehicle. (C) The permittee must select and provide for escort vehicles and police assistance when they are required by the CPO. (D) The permittee must provide any needed assistance from utility companies, telephone companies, television cable companies, etc., when it is necessary to raise or lower any overhead wire, traffic signal, street light, television cable, sign, or other overhead obstruction. (E) Police assistance may be required by the CPO to control traffic when a permitted vehicle is being moved within the corporate limits of cities, or at such times when police assistance would provide for the safe movement of the permitted vehicle and the traveling public. (2) Equipment requirements. The following are special equipment requirements for escort vehicles and permitted vehicles. (A) An escort vehicle must be equipped with two flashing amber lights or one rotating amber beacon of not less than eight inches in diameter, affixed to the roof of the escort vehicle, which must be visible to the front, sides, and rear of the escort vehicle while actively engaged in escort duties for the permitted vehicle. (B) An escort vehicle must display a sign, on either the roof of the vehicle, or the front or rear of the vehicle, with the words "OVERSIZE LOAD". The sign must meet the following specifications: (i) Size: at least five feet but not more than seven feet in length, and at least 12 inches but not more than 18 inches in height; (ii) Color: yellow background with black lettering; (iii) Size of lettering: at least eight inches but not more than 10 inches high with a brush stroke at least 1.41 inches wide; (iv) Visibility: The sign must be visible from the front or rear of the vehicle while escorting the permitted vehicle, and such signs must not be used at any other time. (C) An escort vehicle must maintain two-way radio communications with the permitted vehicle and other escort vehicles involved with the movement of the permitted vehicle. (D) Warning flags must be either red or orange fluorescent material, at least 18 inches square, securely mounted on a staff or securely fastened by at least one corner to the widest extremities of an overwidth permitted vehicle, and at the rear of an overlength permitted vehicle or a permitted vehicle with a rear overhang in excess of four feet. (f) General provisions. (1) Multiple commodities. (A) Except as provided in subparagraph (B) of this paragraph, when a permitted commodity creates a single overdimension, two or more commodities may be hauled as one permit load, provided legal axle and gross loads are not exceeded, and provided no illegal dimension of width, length or height is created or made greater by the additional commodities. For example, a permit issued for the movement of a 12-foot wide storage tank may also include a 10-foot wide storage tank loaded behind the 12-foot wide tank provided that the addition of the 10- foot wide tank does not create an illegal axle or gross weight, or an illegal length, or an illegal height. (B) When the transport of more than one commodity in a single load creates or makes greater an illegal dimension of length, width, or height the department may issue an oversize permit for such load subject to each of the following conditions. (i) The permit applicant or the shipper of the commodities files with the department a written certification by the Texas Department of Commerce, approved by the Office of the Governor, attesting that issuing the permit will have a significant positive impact on the economy of Texas and that the proposed load of multiple commodities therefore cannot be reasonably dismantled. As used in this clause the term significant positive impact means the creation of not less than 100 new full time jobs, the preservation of not less than 100 existing full-time jobs, that would otherwise be eliminated if the permit is not issued, or creates or retains not less than one percent of the employment base in the affected economic sector identified in the certification. (ii) Transport of the commodities does not exceed legal axle and gross load limits. (iii) The permit is issued in the same manner and under the same provisions as would be applicable to the transport of a single oversize commodity under this section; provided, however, that the shipper and the permittee also must indemnify and hold harmless the department, its commissioners, officers, and employees from any and all liability for damages or claims of damages including court costs and attorney fees, if any, which may arise from the transport of an oversized load under a permit issued pursuant to this subparagraph. (iv) The shipper and the permittee must file with the department a certificate of insurance on a form prescribed by the department, or otherwise acceptable to the department, naming the department, its commissioners, officers, and employees as named or additional insureds on its comprehensive general liability insurance policy for coverage in the amount of $5 million per occurrence, including court costs and attorney fees, if any, which may arise from the transport of an oversized load under a permit issued pursuant to this subparagraph. The insurance policy to be procured from a company licensed to transact insurance business in the State of Texas. (v) The shipper and the permittee must file with the department, in addition to all insurance provided in clause (iv) of this subparagraph, a certificate of insurance on a form prescribed by the department, or otherwise acceptable to the department, naming the department, its commissioners, officers, and employees as insureds under an auto liability insurance policy for the benefit of said insureds in an amount of $5 million per accident. The insurance policy to be procured from a company licensed to transact insurance business in the State of Texas. If the shipper or the permittee is self-insured with regard to automobile liability then that party must take all steps and perform all acts necessary under the law to indemnify the department, its commissioners, officers, and employees as if the party had contracted for insurance pursuant to, and in the amount set forth in, the preceding sentence and shall agree to so indemnify the department, its commissioners, officers, and employees in a manner acceptable to the department. (vi) Issuance of the permit is approved by written order of the commission which written order may be, among other things, specific as to duration and routes. (C) An applicant requesting a permit to haul a dozer and its detached blade may be issued a permit, as a non-dismantable load, if removal of the blade will decrease the overall width of the load, thereby reducing the hazard to the traveling public. (2) Oversize hauling equipment. A vehicle that exceeds the legal size limits, as set forth by Texas Civil Statutes, Article 6701d-11, Section 3, may only haul a load that exceeds legal size limits, but such vehicle may haul an overweight load that does not exceed legal size limits, except for the special exception granted in sec.28.13(b)(6) of this title (relating to Time Permits issued under Texas Civil Statutes, Article 6701a and Article 6701d-14). (3) Registration. A vehicle registered with a permit plate will not be permitted under Texas Civil Statutes, Article 6701a. A permitted vehicle operating under Texas Civil Statutes, Article 6701a, must be registered with one of the following types of vehicle registration: (A) current Texas license plates that indicate the permitted vehicle is registered for maximum legal gross weight or the maximum weight the vehicle can transport; (B) Texas 72/144-hour temporary registration; or (C) current out-of-state license plates that are apportioned for travel in Texas. (4) Restrictions pertaining to road conditions. Movement of a permitted vehicle is prohibited when: (A) visibility is reduced to less than 2/10 of one mile; or (B) the road surface is hazardous due to: (i) weather conditions such as rain, ice, sleet, or snow; or (ii) highway maintenance or construction work. (5) Daylight and night movement restrictions. A permitted vehicle may be moved only during daylight hours, unless an exception is granted based on a route and traffic study conducted by the CPO. (6) Curfew restrictions. The operator of a permitted vehicle must observe the curfew movement restrictions of any city in which the vehicle is operated. (7) Amendments. A permit may be amended for the following reasons: (A) vehicle breakdown; (B) changing the intermediate points in an approved permit route; (C) extending expiration date due to vehicle breakdown; (D) extending expiration date due to weather conditions which would not allow the move to start on time or caused the move to be delayed; (E) changing route origin, route destination, or vehicle size limits, provided the permit has not begun; and (F) correcting any mistake that is made due to permit officer error. (g) Surety bonds. (1) General. The following conditions apply to surety bonds specified in Texas Civil Statutes, Article 6701a, Article 6701d-12, and Article 6701d-19a. (A) The surety bond must: (i) be made payable to the department with the condition that the applicant will pay the department for any damage caused to the highway by the operation of the equipment covered by the surety bond; (ii) be issued on an annual basis with an expiration date of August 31; (iii) include the complete mailing address and zip code of the principal; (iv) be filed with the CPO and have an original signature of the principal; (v) have a single entity as principal with no other principal names listed; (vi) be countersigned by a Texas resident agent of the surety company issuing the surety bond, if it is not issued in the State of Texas. (B) A certificate of continuation will not be accepted. (C) The owner of a vehicle bonded under Texas Civil Statutes, Articles 6701a, 6701d-12, or 6701d-19a, that damages the state highway system as a result of the permitted vehicle's movement will be notified by certified mail of the amount of damage and will be given 30 days to submit payment for such damage. Failure to make payment within 30 days will result in the department's placing the claim with the attorney general for collection. (D) The venue of any suit for a claim against a surety bond for the movement of a vehicle permitted under the provisions of Texas Civil Statutes, Article 6701a, will be any court of competent jurisdiction in Travis County. (2) Permit surety bonds. (A) A surety bond required under the provisions of Texas Civil Statutes, Article 6701a, must be submitted on the department's standard surety bond form, Form 439; and be in the amount of $10,000. (B) An applicant desiring a permit for a load exceeding 250,000 pounds gross weight must obtain a surety bond, issued on Form 440, in the amount of $100,000. (C) A facsimile copy of the surety bond is acceptable in lieu of the original surety bond, for a period not to exceed 10 days from the date of its receipt in the CPO. If the original surety bond has not arrived in the CPO by the end of the 10 days, the applicant will not be issued a permit until the original surety bond has been received in the CPO. (D) The surety bond requirement does apply to the delivery of farm equipment to a farm equipment dealer. (E) A surety bond is required when a dealer or transporter of farm equipment or a manufacturer of farm equipment obtains a permit. (F) The surety bond requirement does not apply to driving or transporting farm equipment which is being used for agricultural purposes if it is driven or transported by or under the authority of the owner of the equipment. (3) Ready-mix concrete or solid waste vehicle surety bonds. (A) A surety bond is required for a vehicle operated under provisions of Texas Civil Statutes, Article 6701d-12 or Article 6701d-19a. The surety bond must: (i) be in the amount of $1,000 per vehicle (For example, if 10 trucks are covered by the surety bond then the total amount of the surety bond would be $10,000.); (ii) indicate the total amount of coverage; and (iii) be submitted in duplicate to the CPO on Form 1382 or Form 1575. (B) Form 1382-A or Form 1576 must be completed in duplicate and submitted to the CPO for certification of each vehicle bonded under Forms 1382 or Form 1575. (C) The CPO will certify and return to the principal, one copy of Form 1382 or Form 1575, and one copy of Form 1382-A or Form 1576. (D) Form 1382-A or Form 1576 must be carried in the cab of the bonded vehicle. (E) When a vehicle is added, a new Form 1382 or Form 1575 must be submitted to the CPO that indicates the new increased amount of the surety bond. (F) Form 1383 or Form 1577 must be used to add or delete a vehicle covered by Form 1382 or Form 1575, and must be completed in duplicate and submitted to the CPO for certification. (G) The CPO will certify and return to the principal, one copy of Form 1383 or Form 1577 when a new vehicle is added to the surety bond. When a vehicle is dropped from the surety bond the CPO will make the necessary revision to the principal's file. (H) Form 1383 or Form 1577 must be carried in the cab of the bonded vehicle. (I) A facsimile copy of Forms 1382, 1382-A, 1383, 1575, 1576 or 1577 is not acceptable in lieu of the original surety bond. sec.28.12. Single-Trip Permits Issued Under Texas Civil Statutes, Article 6701a. (a) General. (1) The requirements stated in sec.28.11(b)(1) and (2) of this title (relating to Permit Issuance Requirements and Procedures) govern a permit issued under this section. (2) The following information applies to a single-trip permit issued under Texas Civil Statutes, Article 6701a, for an overdimension load. (A) The permit fee is $30, and may be issued for an overdimension load that cannot be reasonably dismantled when the department determines that movement may be accomplished without material damage to the highways, bridges, and other appurtenances. (B) A permitted vehicle must be routed over the most direct route available taking into consideration: (i) the size and weight of the overdimension load in relation to vertical clearances, width restrictions, and weak or load restricted bridges; (ii) the geometrics of the roadway in comparison to the overdimension load; and (iii) sections of highways restricted to specific load sizes and weights due to construction, maintenance, and weather conditions. (C) When a permit applicant desires a route other than the most direct, more than one permit will be required for the trip. (D) A permitted vehicle will be allowed return movement of the empty oversize/overweight hauling equipment to the permitted vehicle's point of origin, provided the return movement is completed within the time period stated in the permit. (3) The permitted vehicle will be restricted to daylight movement only, unless an exception is granted by the CPO. Exceptions will be based on a route and traffic study. (4) A permitted vehicle operating under a single-trip permit must be registered under Texas Civil Statutes, Article 6675a-2 or Article 6675a-16, for maximum gross weight as set forth by Texas Civil Statutes, Article 6701d-11, sec.5, not exceeding 80,000 pounds total gross weight. (5) A permitted vehicle that has been granted night movement must have a front and a rear escort vehicle at all times when the permitted vehicle is moving on the state highway system, unless an exception is granted based on a route and traffic study conducted by the CPO. (6) The maximum size limits for a permit issued under Texas Civil Statutes, Articles 6701a, 6701a-2, and 6701d-14, for weekend or holiday movement is 14 feet wide, or 16 feet high, or 110 feet long; however, the CPO may allow weekend or holiday movement for a specific permitted vehicle with greater size limits based on a route and traffic study conducted by the CPO. (b) Overwidth loads. (1) An overwidth load must: (A) travel in the outside traffic lane on multi-lane highways, when the width of the load exceeds 12 feet; (B) have a front escort vehicle if the width of the load exceeds 14 feet but does not exceed 16 feet when traveling on a two-lane highway, unless an exception is granted by the CPO based on a route and traffic study; (C) have a rear escort vehicle if the width of the load exceeds 14 feet but does not exceed 16 feet when traveling on a roadway of four or more lanes, unless an exception is granted by the CPO based on a route and traffic study; and (D) have a front and a rear escort vehicle for all roads, when the width of the load exceeds 16 feet, unless an exception is granted by the CPO based on a route and traffic study. (2) A permitted vehicle exceeding 16 feet in width will not be routed on the main lanes of a controlled access highway. However, the load may be permitted on the frontage roads when such are available, provided the movement will not pose a safety hazard to other highway users. (3) The CPO may grant an exception to travel on the main lanes based on a route and traffic study. (4) An applicant requesting a permit to move an overdimension load exceeding 20 feet overall width will be furnished with a proposed route, which the applicant must physically inspect to determine if the overdimension load can safely negotiate the proposed route, unless an exception is granted based on a route and traffic study conducted by the CPO. (5) The applicant must notify the CPO in writing whether the overdimension load can or cannot safely negotiate the proposed route. If any section of the proposed route is unacceptable, the applicant shall provide the CPO with an alternate route around the unacceptable section. (6) When a permit is issued for an overwidth trailer, it will be permitted to move empty to and from the job site. (c) Houses and storage tanks. (1) Final approval for the issuance of a permit for a house or storage tank exceeding 20 feet in width will reside with each district engineer on the proposed route. (2) The issuance of a permit for a house exceeding 20 feet in width will depend on: (A) the amount of inconvenience and hazard to the traveling public, based on traffic volume; (B) highway geometrics and time of movement; and (C) the overall width, measured to the nearest inch, of the house includes the eaves or porches. (3) The issuance of a permit for a storage tank exceeding 20 feet in width will depend on: (A) the amount of inconvenience and hazard to the traveling public, based on traffic volume; (B) highway geometrics and time of movement; and (C) the overall width, measured to the nearest inch, of the storage tank includes valves or other projections. (4) A tank must be empty. (5) The proposed route must include the beginning and ending points on a state highway. (6) A permit will not be issued for a newly constructed house or storage tank that exceeds 32 feet overall width. (7) A permit will not be issued for an old house or old storage tank that exceeds 40 feet overall width, unless an exception is granted by the CPO based on a route and traffic study. (8) A permit may be issued for the movement of an overweight house provided: (A) the applicant completes and submits to the CPO a copy of a diagram for moving overweight houses, as shown in Appendix B of this section; (B) each support beam, parallel to the centerline of the highway, is equipped with an identical number of two axle groups which may be placed directly in line and across from the other corresponding two axle group or may be placed in a staggered offset arrangement to provide for proper weight distribution; (C) that, when a support beam is equipped with two or more two axle groups, each two axle group is connected to a common mechanical or hydraulic system to insure that each two axle group shares equally in the weight distribution at all times during the movement; and, when the spacing between the two axle groups, measured from the center of the last axle of the front group to the center of the first axle of the following group, is eight feet or more, the front two axle group is equipped for self-steering in a manner that will guide or direct the axle group in turning movements without tire scrubbing or pavement scuffing; and (D) the department conducts a detailed analysis of each structure on the proposed route and determines the load can be moved without damaging the roads and bridges. (9) The CPO may waive the requirement that a loading diagram be submitted for the movement of an overweight house, provided the total weight of all axle groups located in the same transverse plane across the house do not exceed the maximum weight limits specified in sec.28.11(d)(2) of this title (relating to Permit Issuance Requirements and Procedures). (d) Overlength loads. (1) An overlength permit may be issued to a vehicle or vehicle combination transporting a load that projects more than three feet in front of the foremost portion of the vehicle transporting the load, or when the load projects more than four feet beyond the rearmost portion of the load carrying surface of the vehicle transporting the load. (2) A single vehicle, such as a motor crane, that has a permanently mounted boom is not considered as having either front or rear overhang as a result of the boom because the boom is an integral part of the vehicle. (3) When a single vehicle with a permanently attached boom exceeds the maximum legal length of 45 feet, a permit will not be issued if the boom projects more than 25 feet beyond the front bumper of the vehicle, or when the boom projects more than 30 feet beyond the rear bumper of the vehicle, unless an exception is granted by the CPO, based on a route and traffic study. (4) Maximum permit length for a single vehicle is 75 feet. (5) A load extending more than 20 feet beyond the rearmost portion of the load carrying surface of the permitted vehicle must have a rear escort, unless an exception is granted by the CPO, based on a route and traffic study. (6) A load extending more than 20 feet beyond the foremost portion of the permitted vehicle must have a front escort, unless an exception is granted by the CPO, based on a route and traffic study. (7) A permit will not be issued for an overdimension load with: (A) more than 25 feet front overhang; or (B) more than 30 feet rear overhang, unless an exception is granted by the CPO, based on a route and traffic study. (8) A permitted vehicle exceeding 110 feet overall length, but not exceeding 125 feet overall length must have: (A) a front escort vehicle when traveling on a two-lane highway; or (B) a rear escort vehicle when traveling on a multi-lane highway. (9) An applicant requesting a permit to move an overdimension load exceeding 125 feet overall length will be furnished with a proposed route, which the applicant must physically inspect to determine if the overdimension load can safely negotiate the proposed route, unless an exception is granted based on a route and traffic study conducted by the CPO. The applicant must notify the CPO in writing whether the overdimension load can or cannot safely negotiate the proposed route. If any section of the proposed route is unacceptable, the applicant shall provide the CPO with an alternate route around the unacceptable section. (10) A permitted vehicle exceeding 125 feet overall length must have a front and a rear escort vehicle at all times, unless an exception is granted based on a route and traffic study conducted by the CPO. (e) Convoy regulations for overlength loads. (1) A permitted vehicle that is not overwidth or overheight, and does not exceed 150 feet overall length, may be moved in a convoy consisting of not more than four overlength permitted vehicles. A permitted vehicle that is not overwidth or overheight that exceeds 150 feet, but does not exceed 180 feet overall length, may be moved in a convoy consisting of not more than two overlength permitted vehicles. (2) Each permitted vehicle in the convoy must: (A) be spaced at least 1,000 feet but not more than 2,000 feet from any other permitted vehicle in the convoy; and (B) have a rotating amber beacon or an amber pulsating light, not less than eight inches in diameter, mounted at the rear top of the load being transported. (3) The convoy must have a front escort vehicle and a rear escort vehicle on all highways at all times. (f) Overheight loads. (1) Any permitted vehicle that exceeds 17 feet in height must have a front escort vehicle equipped with a height pole to accurately measure overhead obstructions, unless an exception is granted based on a route and traffic study conducted by the CPO. (2) Any permitted vehicle exceeding 18 feet in height must have a front and rear escort vehicle, unless an exception is granted based on a route and traffic study conducted by the CPO. (3) An applicant requesting a permit to move an overdimension load with an overall height of 19 feet or greater will be furnished with a proposed route, which the applicant must physically inspect to determine if the overdimension load can safely negotiate the proposed route, unless an exception is granted based on a route and traffic study conducted by the CPO. (4) An applicant requesting a permit under paragraph (3) of this subsection must notify the CPO in writing whether the overdimension load can or cannot safely negotiate the proposed route. If any section of the proposed route is unacceptable, the applicant shall provide the CPO with an alternate route around the unacceptable section. (g) Overweight loads. (1) The maximum weight limits for an overweight permit are specified in sec.28.11(d) of this title (relating to Permit Issuance Requirements and Procedures). (2) The applicant shall pay, in addition to the single-trip permit fee of $30, a highway maintenance fee in an amount based on the following weights: GROSS HIGHWAY WEIGHT MAINTENANCE IN POUNDS FEE 80,001 TO 120,000-$50; 120,001 TO 160,000-$75; 160,001 TO 200,000-$100; 200,001 AND ABOVE-$125. (3) A permit issued for an overdimension load exceeding 200,000 pounds gross weight will have a total permit fee that includes the single-trip permit fee, the highway maintenance fee, and the vehicle supervision fee (VSF). (4) A permit may be issued to transport an overdimension load exceeding 200,000 pounds gross weight but not exceeding 254,300 pounds gross weight, provided that the axle weights of the load conform to the axle weight limits and axle spacing requirements as set forth by sec.28.11(d) of this title (relating to Permit Issuance Requirements and Procedures), regardless of whether the load crosses any bridge, and provided the axle spacing distance is 95 feet or greater, measured from the center of the first axle to the center of the last axle. (5) For a permit issued under paragraph (4) of this subsection, the permittee will pay the $30 single-trip permit fee, the $125 highway maintenance fee, and the vehicle supervision fee of $35. (6) A permit may be issued to transport: (A) an overdimension load exceeding 200,000 pounds gross weight but not exceeding 254,300 pounds gross weight, when the axle weights do not conform to the axle weight limits and axle spacing requirements as set forth by sec.28.11(d) of this title (relating to Permit Issuance Requirements and Procedures), and provided the load does not cross any bridge; or (B) an overdimension load that exceeds 254, 300 pounds gross weight that does not cross any bridge. (7) For a permit issued under paragraph (6) of this subsection, the permittee will pay the $30 single-trip permit fee, the $125 highway maintenance fee, and the vehicle supervision fee of $100. If the permittee has additional identical loads that are to be moved over the same route within five days of the movement date of the original permit, the total fee for each additional load will be $30 for the single-trip permit, $125 for the highway maintenance fee, and $35 for the vehicle supervision fee. (8) A permit may be issued to transport: (A) an overdimension load that exceeds 200,000 pounds gross weight but does not exceed 254,300 pounds gross weight, when the axle weights do not conform to the axle weight limits and axle spacing requirements as set forth by sec.28.11(d) of this title (relating to Permit Issuance Requirements and Procedures), and provided the load does cross a bridge; (B) an overdimension load that exceeds 200,000 pounds gross weight but does not exceed 254,300 pounds gross weight that has an axle spacing distance that is less than 95 feet, measured from the center of the first axle to the center of the last axle, and does cross a bridge; or (C) an overdimension load that exceeds 254,300 pounds gross weight that does cross a bridge. (9) For a permit issued under paragraph (8) of this subsection, the permittee will pay the $30 single-trip permit fee, the $125 highway maintenance fee, and the vehicle supervision fee of $800. If the permittee has additional identical loads that are to be moved over the same route within five days of the movement date of the original permit, the total fee for each additional load will be $30 for the single-trip permit, $125 for the highway maintenance fee, and $35 for the vehicle supervision fee. (10) An applicant applying for a permit to move a load that is required for the fulfillment of a fixed price public works contract that was entered into prior to the effective date of this section, and administered by federal, state, or local governmental entities, will not be required to pay the vehicle supervision fee, provided the applicant presents proof of the contract to the CPO prior to permit issuance. (11) An applicant applying for a permit to move a concrete beam is not subject to the five day time limit specified in paragraphs (7) and (9) of this subsection provided that the beam is hauled on the same route on equipment with the same number of axles, axle spacings, and axle weights as the original permit request. (12) An applicant may elect to provide written certification from a registered professional engineer stating that the bridges and culverts on the proposed travel route are capable of sustaining the movement of an overdimension load exceeding 200,000 pounds gross weight; however, such certification must be approved by the department. (13) When the certification required under paragraph (10) of this subsection is approved, the applicant must pay the single-trip permit fee of $30, the highway maintenance fee of $125, and the vehicle supervision fee of $500. If the permittee has additional identical loads that are to be moved over the same route within five days of the movement date of the original permit, the total fee for each additional load will be $30 for the single-trip permit, $125 for the highway maintenance fee, and $35 for the vehicle supervision fee. (14) When the department has determined that a permit can be issued for an overdimension load exceeding 200,000 pounds gross weight, the applicant must pay the single-trip permit fee, the highway maintenance fee, and the vehicle supervision fee, by cashier's check, bank money order, or PAC, at the time the permit is issued. (15) The department will not charge an analysis fee for single and multiple box culverts. (16) An applicant requesting a permit to move an overdimension load that exceeds 254,300 pounds gross weight, or the weight limits in sec.28.11(d) of this title (relating to Permit Issuance Requirements and Procedures), must submit the following information to the CPO to determine if the permit can be issued: (A) a detailed loading diagram which indicates the number of axles, the number of tires on each axle, the tire size on each axle, the distance between each axle, the tare and gross weight on each axle, the transverse spacing of each set of dual wheels, the distance between each set of dual wheels, the load's center of gravity, the distance from the center of gravity to the center of the front bolster, the distance from the center of gravity to the center of the rear bolster, the distance from the center of the front bolster to the center of the fifth wheel of the truck, the distance from the center of the rear bolster to the center of the closest axle, and any other measurements as may be needed to verify that the weight of the overdimension load is adequately distributed among the various axle groups in the amounts indicated by the loading diagram; and (B) a map indicating the exact beginning and ending points relative to a state highway. (17) The CPO will select a tentative route based on the physical size of the overdimension load excluding the weight. The tentative route must be investigated by the applicant, and the CPO must be advised, in writing, that the route is capable of accommodating the overdimension load. (18) Upon receipt of the applicant's written notification, the department will conduct a detailed structural analysis of the bridges on the proposed route based on the applicant's proposed loading diagram, or the applicant may elect to provide written certification from a registered professional engineer stating that the bridges and culverts on the proposed travel route are capable of sustaining the movement of the overdimension load. The certification must be approved by the department before the permit will be issued. (19) A permit may be issued for the movement of oversize and overweight self- propelled earth moving equipment under the following guidelines. (A) The weight per inch of tire width must not exceed 650 pounds. (B) The rim diameter of each wheel must be a minimum of 25 inches. (C) The maximum weight per axle must not exceed 45,000 pounds. (D) The minimum spacing between axles, measured from center of axle to center of axle, must not be less than 12 feet. (E) The equipment must be moved empty. (F) The equipment must be licensed with a machinery license plate or a one trip registration. (G) The route will not include any controlled access highway, unless an exception is granted based on a route and traffic study conducted by the CPO. (h) Drill pipe and drill collars hauled in a pipe box. (1) A vehicle or combination of vehicles may be issued a permit under Texas Civil Statutes, Article 6701a, to haul drill pipe and drill collars in a pipe box. (2) The maximum width must not exceed nine feet. (3) The axle weight limits must not exceed the maximum weight limits as specified in sec.28.11(d)(3) of this title (relating to Permit Issuance Requirements and Procedures). (4) The height and length must not exceed the legal limits as specified in Texas Civil Statutes, Article 6701d-11, sec.3. (5) The permit will be issued for a single-trip only, and the fee will be $30. (6) The permit is valid only for travel on any farm-to-market and ranch-to- market road, and such road will be specified on the permit; however, the permitted vehicle will not be allowed to cross any load restricted bridge. (7) Movement will be restricted to daylight hours only. (8) A surety bond is required prior to issuance of the permit. (i) Diagram for moving overweight houses. The following Appendix B indicates the type of diagram that is to be completed by the permit applicant for moving an overweight house. All measurements must be stated to the nearest inch. Figure 2: 43 TAC sec.28.12(i) sec.28.14. Manufactured Housing, and Industrialized Housing and Building Permits. (a) General information. (1) A manufactured home that exceeds size limits for motor vehicles as defined by Texas Civil Statutes, Article 6701d-11, sec.3 and sec.5, must obtain a permit from the department. (2) Pursuant to Texas Civil Statutes, Article 6701, a permit may be issued to persons registered as manufacturers or retailers with the Commissioner of Licensing and Regulation, or certified for the transportation of a manufactured home by either the Railroad Commission of Texas or the Interstate Commerce Commission. (3) The department may issue a permit to the owner of a manufactured home provided that the ownership of the manufactured home and of the towing vehicle is shown to be the same person by the title to the home and to the towing vehicle, or that the owner has duly filed a lease pursuant to Texas Civil Statutes, Article 6701c-1, showing the owner of the manufactured home to be the lessee of the towing vehicle; and to installers registered with the Commissioner of Licensing and Regulation for the transportation of a manufactured home over routes between points when such transportation would be excluded from regulation under Texas Civil Statutes, Article 911b. (4) The CPO is closed on Sunday, New Year's Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day, and Christmas Day. (5) A manufactured home that exceeds 20 feet overall width, or 16 feet overall height, or 110 feet overall length may not be permitted under Texas Civil Statutes, Article 6701; however, it may be permitted under Texas Civil Statutes, Article 6701a. (b) Application for permit. (1) The applicant must complete the application, and shall include the manufactured home's HUD label number, Texas seal number, or the complete serial number of the unit being moved. (2) An application can be submitted in person at a cash collection office, by facsimile to the CPO, or by telephone to the CPO. All applications made by telephone are recorded. (3) When a permit request is made by telephone, the permit officer will request all information in the application for entry into the department's computer for record keeping purposes and generation of the permit number. The information will be verified and a route will be selected. (4) A permit request made by mail or facsimile will be returned to the applicant by mail or facsimile. (c) Permit issuance. (1) Permit issuance is subject to the requirements of sec.28. 11(b)(1)(A) and (B), of this title (relating to Permit Issuance Requirements and Procedures). (2) The permit may be amended in the case of a breakdown of the towing vehicle. (d) Payment of permit fee. (1) The cost of the permit is $15.00. (2) A permit ordered by telephone must be purchased in accordance with sec.28.11(c)(1)(A), (B), and (C), of this title (relating to Permit Issuance Requirements and Procedures). (3) A permit ordered in person at a cash collection office, or by mail, or by facsimile must be purchased in accordance with sec.28.11(c)(1) and (2), of this title (relating to Permit Issuance Requirements and Procedures). (4) A permit fee will not be refunded after the permit number has been issued; however, a refund may be made after permit issuance if it is necessary to correct an error made by the permit officer. (e) Escrow accounts. A permit applicant may establish an escrow account with the department for the specific purpose of paying any fee that is related to the issuance of a permit for the transportation of a manufactured home. (1) A permit applicant that desires to establish an escrow account shall complete and sign an escrow account agreement, and shall return the completed and signed agreement to the department with a check in the minimum amount of $305, which shall be deposited to the appropriate fund by the department in the State Treasury. Five dollars will be charged as an escrow account administrative fee and shall be deposited in the state highway fund. (2) When the permit applicant's escrow account balance has been reduced to $150, the department will generate a balance sheet that will be furnished to the holder of the escrow account with instructions to submit a cashier's check or money order, payable to the department in the minimum amount of $305, which shall be used to replenish the escrow account. (3) Upon receipt of the replenishment check, the department will charge $5.00 as an escrow account administrative fee, and will credit the remainder of the check to the balance of the escrow account holder. (4) An escrow account holder must submit a written request to the department to terminate the escrow account agreement. Any remaining balance will be returned to the escrow account holder. (f) Permit provisions and conditions. (1) The overall combined length of the manufactured home and the towing vehicle includes the length of the hitch or towing device. (2) The height is measured from the roadbed to the highest elevation of the manufactured home. (3) The width of a manufactured home includes any roof or eaves extension or overhang on either side. (4) A permit will be issued for a single continuous movement not to exceed five days. (5) Movement must be made during daylight hours only, and may be made on any day except New Year's Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day, and Christmas Day. (6) The department may limit the hours for travel on certain routes because of heavy traffic conditions. (7) The department will publish any limitations on movements during the national holidays listed in this subsection, or any limitations during certain hours of heavy traffic conditions, and will make such publications available to the public prior to the limitations becoming effective. (8) The permit will contain the route for the transportation of the manufactured home from the point of origin to the point of destination. (9) The route for the transportation must be the shortest distance, including divided and interstate systems, except where construction is in progress or bridge or overpass width or height would create a safety hazard. (10) The department will publish annually a map or list of all bridges or overpasses which, due to height or width, require an escort vehicle to stop oncoming traffic while the manufactured home crosses the bridge or overpass. (11) A permit is void when an applicant; (A) gives false or incorrect information; (B) does not comply with the restrictions or conditions stated in the permit; or (C) changes or alters the information on the applicant's copy of the permit. (12) A permittee may not transport a manufactured home with a void permit; a new permit must be obtained. (g) Escort requirements. (1) A manufactured home exceeding 12 feet in width must have a rotating amber beacon of not less than eight inches in diameter mounted somewhere on the roof at the rear of the manufactured home, and the towing vehicle must have one rotating amber beacon of not less than eight inches in diameter mounted on top of the cab. These beacons must be operational during any permitted move over the highways, roads, and streets of this state. (2) A manufactured home with a width exceeding 16 feet but not exceeding 18 feet must have a front escort vehicle on two-lane roadways and a rear escort vehicle on roadways of four or more lanes. (3) A manufactured home exceeding 18 feet in width must have a front and a rear escort on all roadways at all times. (4) The escort vehicle must have: (A) one red 16 inch square flag mounted on each of the four corners of the vehicle; (B) a sign mounted on the front and rear of the vehicle displaying the words "WIDE LOAD" in black letters at least eight inches high with a brush stroke at least 1.41 inches wide against a yellow background; and (C) an amber light or lights, visible from both front and rear, mounted on top of the vehicle in one of the following configurations: (i) two simultaneously flashing lights; or (ii) one rotating beacon of not less than eight inches in diameter. (5) Two transportable sections of a multi-section manufactured home, or two single section manufactured homes, when towed together in convoy may be considered one home for purposes of the escort vehicle requirements, provided the distance between the two units does not exceed 1,000 feet. 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 September 22, 1994. TRD-9448498 Diane L. Northam Legal Executive Assistant Texas Department of Transportation Effective date: October 13, 1994 Proposal publication date: May 13, 1994 For further information, please call: (512) 463-8630 Subchapter C. Permits for Over Axle and Over Gross Weight Tolerances 43 TAC sec.28.30 The Texas Department of Transportation adopts new sec.28.30, concerning Permits for Over Axle and Over Gross Weight Tolerances, without changes to the proposed text as published in the May 13, 1994, issue of the Texas Register (19 TexReg 3668). This new section replaces existing sec.25.81, which is being contemporaneously repealed. In order to provide greater safety to the general traveling public and the permit applicant through more uniform regulation and control of oversize and overweight permit loads, it is necessary to clarify the department's authority, policies, and procedures concerning the issuance of permits for the movement of oversize and overweight vehicles and loads. Section 28.30, concerning Permits for Over Axle and Over Gross Weight Tolerances, describes the Texas Transportation Commission's authority and procedures for issuing annual permits for the movement of vehicles, that exceed the legal axle weight limit by a tolerance of 10% and the legal gross weight limit by a tolerance of 5.0%. Section 28.30, incorporates the subject matter of the repealed section in an amended form to provide for minor wording changes and rephrasing for clarity, continuity, and style. On May 26, 1994, the department conducted a public hearing on the proposed adoption of sec.28.30. No written or oral comments were received concerning the proposed new section. The new section is adopted under Texas Civil Statutes, Article 6666, which provide the Texas Transportation Commission with the authority to establish rules for the conduct of the work of the Texas Department of Transportation, and more specifically Texas Civil Statutes, Article 6701d-11, sec.5B, which authorize the commission to issue annual permits for the movement of vehicles, that exceed the legal axle weight limit by a tolerance of 10% and the legal gross weight limit by a tolerance of 5.0%. 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 September 22, 1994. TRD-9448499 Diane L. Northam Legal Executive Assistant Texas Department of Transportation Effective date: October 13, 1994 Proposal publication date: May 13, 1994 For further information, please call: (512) 463-8630 Subchapter D. Permits for Oversize and Overweight Oil Well Related Vehicles 43 TAC sec.sec.28.40-28.47 The Texas Department of Transportation adopts new sec. sec.28.40-28.47, concerning Permits for Oversize and Overweight Oil Well Related Vehicles, without changes to the proposed text as published in the May 13, 1994, issue of the Texas Register (19 TexReg 3669). These new sections replace existing sec.sec.25.90-25.98, which are being contemporaneously repealed. In order to comply with the Government Code, Chapter 2106, which requires a state agency to set fees at amounts sufficient to recover the indirect costs of that agency, and to provide greater safety to the general traveling public and the permit applicant through more uniform regulation and control of oversize and overweight permit loads, it is necessary to clarify the department's authority, policies, and procedures concerning the issuance of permits for the movement of oversize and overweight vehicles and loads. Section 28.40, concerning Purpose, describes the Texas Transportation Commission's authority to issue permits for the movement of oversize and overweight oil well clean-out, drilling, servicing, or swabbing units, when such units exceed legal size and weight limits. Section 28.41, concerning Application for Permit, provides procedures for applying for single-trip, time, and annual permits for the movement of an oversize and overweight oil well unit; provides for permit issuance and renewal of time permits; and sets forth methods of payment of permit fees. Section 28.42, concerning Permit Qualifications and Requirements, establishes eligibility requirements for single-trip, time and annual permits; provides that permits cannot be transferred from one owner to another owner, or from one unit to another unit; and establishes conditions that cause a permit to be void. Section 28.43, concerning Registration Requirements, provides for specific types of registration for these units. Section 28.44, concerning Maximum Permit Weight Limits, provides specific formulas for determining: maximum weight limits for axles and groups of axles; eligibility for a single-trip or time permit; and the identity of specific bridges on the proposed route that must be analyzed prior to permit issuance. Section 28.45, concerning Permit Fee Calculations, provides specific formulas for calculating single-trip and time permit fees; describes the procedures for using hubometer mileage, highway use factor, and total rate per mile; establishes minimum fees for single-trip and time permits; establishes method of calculating permit fee for a unit with closely spaced axle groups; and establishes conditions for applying a registration reduction to the permit fee. Section 28.46, concerning Permit Movement Conditions, establishes: conditions regulating permit movement based on time of day and size of unit; escort requirements; and movement routes. Section 28.47, concerning Permits for Vehicles Transporting Liquid Products Related to Oil Well Production, establishes specific types of vehicle that can obtain permit; provides procedures for applying for permits; sets forth permit qualifications and requirements; establishes permit fees; and provides for permit movement conditions. On May 26, 1994, the department conducted a public hearing on the proposed adoption of sec.sec.28.40-28.47. No written or oral comments were received concerning the proposed new sections. The new sections are adopted under Texas Civil Statutes, Article 6666, which provide the Texas Transportation Commission with the authority to establish rules for the conduct of the work of the Texas Department of Transportation, and more specifically Texas Civil Statutes, Article 6701d-16, which authorize the commission to formulate and adopt rules and fees governing the issuance of oversize and overweight permits for the movement of certain oil well related vehicles. 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 September 22, 1994. TRD-9448500 Diane L. Northam Legal Executive Assistant Texas Department of Transportation Effective date: October 13, 1994 Proposal publication date: May 13, 1994 For further information, please call: (512) 463-8630 Subchapter E. Permits for Oversize and Overweight Unladen Lift Equipment 43 TAC sec.sec.28.60-28.66 The Texas Department of Transportation adopts new sec. sec.28.60-28.66, concerning Permits for Oversize and Overweight Unladen Lift Equipment Motor Vehicles, without changes to the proposed text as published in the May 13, 1994, issue of the Texas Register (19 TexReg 3677). These new sections replace existing sec.sec.25.200-25.207, which are being contemporaneously repealed. In order to comply with the Government Code, Chapter 2106, which requires a state agency to set fees at amounts sufficient to recover the indirect costs of that agency, and to provide greater safety to the general traveling public and the permit applicant through more uniform regulation and control of oversize and overweight permit loads, it is necessary to clarify the department's authority, policies, and procedures concerning the issuance of permits for the movement of oversize and overweight vehicles and loads. Section 28.60, concerning Purpose, describes the Texas Transportation Commission's authority to issue permits for the movement of oversize and overweight unladen lift equipment motor vehicles, when such vehicles exceed legal size and weight limits. Section 28.61, concerning Application for Permit, provides procedures for applying for single-trip, time, and annual permits for the movement of an oversize and overweight unladen lift equipment motor vehicles; provides for permit issuance and renewal of time permits; and sets forth methods of payment of permit fees. Section 28.62, concerning Permit Qualifications and Requirements, establishes eligibility requirements for single-trip, time and annual permits; provides that permits cannot be transferred from one owner to another owner, or from one unit to another unit; and establishes conditions that cause a permit to be void. Section 28.63, concerning Registration Requirements, provides for specific types of registration for these vehicles. Section 28.64, concerning Maximum Permit Weight Limits, provides specific formulas for determining: maximum weight limits for axles and groups of axles; eligibility for a single-trip or time permit; and the identity of specific bridges on a proposed route that must be analyzed prior to permit issuance. Section 28.65, concerning Permit Fee Calculations, provides specific formulas for calculating single-trip and time permit fees; describes the procedures for using hubometer mileage, highway use factor, and total rate per mile; establishes minimum fees for single-trip and time permits; establishes the method of calculating permit fee for a unit with closely spaced axle groups; and establishes conditions for applying a registration reduction to the permit fee. Section 28.66, concerning Permit Movement Conditions, establishes: conditions regulating permit movement based on time of day and size of unit; escorts requirements; and movement routes. On May 26, 1994, the department conducted a public hearing on the proposed adoption of sec.sec.28.60-28.66. No written or oral comments were received concerning the proposed new sections. The new sections are adopted under Texas Civil Statutes, Article 6666, which provide the Texas Transportation Commission with the authority to establish rules for the conduct of the work of the Texas Department of Transportation, and more specifically Texas Civil Statutes, Article 6701d-18, which authorize the commission to issue annual permits for the movement of unladen lift equipment motor vehicles which because of their design for use as lift equipment exceed the maximum weight and width limitations prescribed by statute; and Texas Civil Statutes, Article 6701d-19b, which authorize the commission to formulate and adopt rules and fees governing the issuance of oversize and overweight permits for the movement of unladen lift equipment motor vehicles. 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 September 22, 1994. TRD-9448501 Diane L. Northam Legal Executive Assistant Texas Department of Transportation Effective date: October 13, 1994 Proposal publication date: May 13, 1994 For further information, please call: (512) 463-8630 Subchapter F. Highway Crossings by Oversize and Overweight Vehicles and Loads 43 TAC sec.sec.28.80-28.82 The Texas Department of Transportation adopts new sec. sec.28.80-28.82, concerning Highway Crossing by Oversize/Overweight Vehicles and Loads, without changes to the proposed text as published in the May 13, 1994, issue of the Texas Register (19 TexReg 3683). These new sections replace existing sec.25.7, which is being contemporaneously repealed. It is necessary to clarify the department's authority, policies, and procedures concerning the execution of contracts, between the department and a requestor, authorizing the requestor to move oversize and overweight vehicles across highways from private property to other private property right. Section 28.80, concerning Purpose, specifies the Texas Transportation Commission's authority to execute contracts to indemnify the department for the cost of providing repairs and maintenance to highway crossing locations when the requestor desires to move oversize and overweight vehicles across highways from private property to other private property. Section 28.81, concerning Surety bond, provides that the requestor shall execute a surety bond, with a company authorized to do business in the state, in an amount determined by the commission to compensate for the cost repairing and maintaining the highway crossing location. Section 28.82, concerning Preparation of contract, provides for periodic maintenance and repairs to the crossing; provides that the crossing shall be kept free of debris, objectionable dust, lights, or noise; and provides that all traffic control devices and flaggers, if required, shall be in accordance with the Texas Manual of Uniform Traffic Control devices. These new sections, sec.sec.28.80-28.82, incorporate the subject matter of the repealed section in an amended form to provide for minor wording changes, and rephrasing for clarity, continuity, and style. On May 26, 1994, the department conducted a public hearing on the proposed adoption of sec.sec.28.80-28.82. No written or oral comments were received concerning the proposed new sections. The new sections are adopted under Texas Civil Statutes, Article 6666, which provide the Texas Transportation Commission with the authority to establish rules for the conduct of the work of the Texas Department of Transportation, and more specifically by Texas Civil Statutes, Article 6701d-11, sec.5-2/3, which authorize the Commission to execute contracts to indemnify the department for the cost of providing repairs and maintenance to highway crossing locations when the requestor desires to move oversize and overweight vehicles across highways from private property to other private property. 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 September 22, 1994. TRD-9448502 Diane L. Northam Legal Executive Assistant Texas Department of Transportation Effective date: October 13, 1994 Proposal publication date: May 13, 1994 For further information, please call: (512) 463-8630