ADOPTED RULES An agency may take final action on a section 30 days after a proposal has been published in the Texas Register. The section becomes effective 20 days after the agency files the correct document with the Texas Register, unless a later date is specified or unless a federal statute or regulation requires implementation of the action on shorter notice. If an agency adopts the section without any changes to the proposed text, only the preamble of the notice and statement of legal authority will be published. If an agency adopts the section with changes to the proposed text, the proposal will be republished with the changes. TITLE 1. ADMINISTRATION Part V. General Services Commission Chapter 121. Telecommunications Services Division 1 TAC sec.sec.121.1-121.9 The General Services Commission adopts new sec.sec.121.1-121.9, concerning the telecommunications services, without changes to the proposed text as published in the September 9, 1994, issue of the Texas Register (19 TexReg 7053). The General Services Commission adopts the new sections to provide updated streamlined definitions, guidelines and operating procedures regarding the Texas Agency Network (TEX-AN) and the Capitol Complex Telephone System (CCTS). The new sections will insure efficient operation of TEX-AN and the CCTS. No comments were received regarding adoption of the new sections. The new sections are adopted under Texas Revised Civil Statutes Annotated, Article 601b, Article 10, which provides the General Services Commission with the authority to promulgate rules necessary to accomplish the purpose of that article. 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 October 17, 1994. TRD-9449719 Judith Monaco Porras General Counsel General Services Commission Effective date: November 8, 1994 Proposal publication date: September 9, 1994 For further information, please call: (512) 463-3960 Part IX. State Aircraft Pooling Board Chapter 181. General Provisions Charges for Public Records 1 TAC sec.181.11 The State Aircraft Pooling Board adopts new sec.181.11, concerning charges for public records, without changes to the proposed text as published in the August 26, 1994, issue of the Texas Register (19 TexReg 6689). The new section is being adopted to establish the board's method of recovering costs associated with records requests and to implement the provisions of House Bill 1009, Chapter 428, Acts, 73rd Legislature, Regular Session (1993), requiring agencies to adopt rules specifying charges for copies of open records. The effect of the new section will be standardization of charges representing the full cost, as close as practicable, for providing copies of or access to the board's public records. No comments were received regarding adoption of the new section. The new section is adopted under the Texas Government Code, Title 10, Chapter 2205, sec.2205.010, which provides the board the authority to adopt rules for conducting business. 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 October 17, 1994. TRD-9449712 Jerald A. Daniels Fiscal Officer State Aircraft Pooling Board Effective date: November 8, 1994 Proposal publication date: August 26, 1994 For further information, please call: (512) 477-8900 TITLE 22. EXAMINING BOARDS Part XIV. Texas Optometry Board Chapter 272. Administration 22 TAC sec.272.1 The Texas Optometry Board adopts new sec.272.1, without changes to the proposed text as published in the July 5, 1994, issue of the Texas Register (19 TexReg 5143). Section 272.1 is necessary to implement the provisions of House Bill 1009, passed by the 73rd Legislature, which amended the Texas Open Records Act, and to establish procedures regarding charges for public records. No comments were received regarding adoption of the new section. The new section is adopted under the provisions of Texas Civil Statutes, Article 4552, sec.2.14, which provide the Texas Optometry Board with the authority to promulgate procedural and substantive rules. 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 October 14, 1994. TRD-9449764 Lois Ewald Executive Director Texas Optometry Board Effective date: November 8, 1994 Proposal publication date: July 5, 1994 For further information, please call: (512) 835-1938 TITLE 25. HEALTH SERVICES Part I. Texas Department of Health Chapter 29. Purchased Health Services Subchapter D. Medicaid Home Health Program 25 TAC sec.29.312 On behalf of the State Medicaid Director, the Texas Department of Health (department) adopts new sec.29.312, concerning home health services, without changes to the proposed text as published in the July 15, 1994, issue of the Texas Register (19 TexReg 5443). The new section expands Medicaid coverage to include insulin syringes and needles to eligible Medicaid recipients through participating pharmacies as approved and authorized by the department. One comment supporting the new section was received from Houston Welfare Rights Organization. The new section is adopted under the Human Resources Code, sec.32.021 and Texas Civil Statutes, Article 4413 (502), sec.16, which provides the Health and Human Services Commission with the authority to adopt rules to administer the state's medical assistance program and are submitted by the Texas Department of Health under its agreement with the Health and Human Services Commission to operate the purchased health services program and as authorized under Chapter 15, sec.1.07, Acts of the 72nd Legislature, First Called Session (1991). 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 October 18, 1994. TRD-9449754 Susan K. Steeg General Counsel Texas Department of Health Effective date: November 9, 1994 Proposal publication date: July 15, 1994 For further information, please call: (512) 458-7236 TITLE 30. ENVIRONMENTAL QUALITY Part I. Texas Natural Resource Conservation Commission Chapter 281. Application Processing 30 TAC sec.sec.281.1, 281.2, 281.22, 281.30-281.32 The Texas Natural Resource Conservation Commission (TNRCC) adopts amendments to sec.sec.281.1, 281.2, and 281.22, and new sec.sec.281.30-281.32, concerning the prioritization of commercial hazardous waste facility permit applications. Section 281.31 is adopted with changes to the proposed text as published in the June 7, 1994, issue of the Texas Register (19 TexReg 4376). Sections 281.1, 281.2, 281.22, 281.30, and 281.32 are adopted without changes and will not be republished. The rules implement new provisions of the Texas Solid Waste Disposal Act (the Act), Texas Health and Safety Code, sec.361.0232, enacted by Senate Bill 1099, 72nd Legislature (1991). The Act, sec.361.0871(c) specifies that rules adopted under sec.361.0232, pertaining to the need for commercial management of hazardous waste, shall provide for expediting the processing of applications for technologies that address the highest priority need as identified by the commission. The document "Needs Assessment for Hazardous Waste Commercial Management Capacity in Texas", prepared by the commission, has identified technologies needed for commercial management on a statewide basis. In addition, other factors to be considered in determining which applications to expedite include regional need and demonstrated innovative technology. The rules provide the framework for determining whether a permit application is for a commercial hazardous waste management technology that is needed on a statewide basis, or has been demonstrated as innovative, or is needed on a regional technology. The amendments and new sections delineate a procedure for determining if a permit application for new capacity at a commercial hazardous waste management facility shall be designated as expedited; and describe the information which will be prepared by the executive director for consideration by the commissioners in evaluating permit applications for commercial hazardous waste management facilities. As noted in sec.281.30(d), the rules do not limit the ability of the commission to prioritize the review of any permit application from a commercial, captive, captured or on-site facility, based on other factors not addressed by sec.sec.281.30-281.32. Examples of other factors for which permit applications might be designated as expedited include, but are not limited to, environmental significance, pollution prevention, or Resource Conservation and Recovery Act workplan commitments for funding of agency activities. Section 281.30 specifies three conditions that may apply to a commercial processing or disposal technology and under which said technologies covered by a permit application may be designated as expedited. The first condition would be that the technology is needed on a statewide basis, and thus is a technology that has been identified in the Needs Assessment conducted by the commission. Failing this, a technology may still be designated as expedited if it could be successfully demonstrated by the applicant that the technology was needed on a regional basis or that the technology was innovative. In the latter two cases, it is proposed that sufficient information to demonstrate regional need or innovative technology be submitted by the applicant and approved in writing by the executive director. Following the publication of the rules in the June 7, 1994, Texas Register, comments were received from Browning-Ferris Industries (BFI). The commenter expressed concern that a needs assessment which considers only capacity in the State of Texas unduly interferes with interstate commerce. The commission respectfully disagrees. The commenter also stated that the needs assessment will be used to determine whether a permit will be granted; however, the rules do not address that ultimate determination. The needs assessment will be used to determine whether the processing of a permit application will be expedited. Moreover, the rules serve a legitimate local purpose by addressing the State's waste disposal needs. The change to sec.281.31 reflects the new location of the TNRCC library. The rules in identical form were originally published for public comment in the December 21, 1993, issue of the Texas Register (18 TexReg 9824), but were subsequently withdrawn. Comments concerning this prior proposal were received from Safety Kleen; Henry, Lowerre, Hess & Frederick; and Molten Metal Technology. However, no comments were received from those entities regarding the proposed text as published on June 7, 1994. To eliminate any possible confusion, TNRCC addresses those comments in this adoption preamble as follows, as a courtesy to the public and the regulated community. One commenter noted that since capacity is not actually available until a unit is constructed, the rules should be modified to reflect this fact. The commission respectfully disagrees. Since it typically takes several years to permit and construct hazardous waste processing or disposal units, to limit the Needs Assessment analysis to presently permitted or permit-exempt capacity would underestimate the capacity which can reasonably be assumed to be available in the future. In addition, this comment cannot be addressed through adoption of these rules, but rather, appears to be directed toward assumptions used in the Needs Assessment document, which is referenced in the rules. During development of the referenced document, there was ample opportunity to address comments to the TNRCC through Task Force 21, an advisory committee to TNRCC. Another commenter requested that additional language be added to proposed sec.281.32(e), pertaining to prioritization of innovative technologies. The language submitted by the applicant would have allowed a facility also to be prioritized under these rules solely on the basis of being listed as an "innovative technology" by the Innovative Technology Committee (ITC) of the TNRCC. The commission respectfully disagrees with this comment, noting that a separate permit prioritization process is being developed by the commission. That permit prioritization process, which will be implemented via future rulemaking, will address prioritization of technologies which are innovative under the TNRCC's Innovative Technology policy. Technologies which are designated as innovative by the ITC are not be required to meet the criteria specified in sec.281.32(e). Because need is not a component of the evaluation conducted by the TNRCC's ITC, a listing as an "innovative technology" by that program is not equivalent to meeting the criteria listed under sec.281.32(e)(1) or (2). An applicant for a commercial facility permit proposing an innovative technology will be able to pursue either option in order to demonstrate that their Resource Conservation and Reovery act permit application warrants an expedited review. Another commenter was concerned that the proposed rules would improperly interpret sec.361.0231 and sec.361.0232 of the Texas Health and Safety Code. The commenter states that sec.361.0231 and sec.361.0232 do not limit TNRCC's inquiries to the "capacity in Texas". The commenter points out that in sec.361. 0231 (a) and (b), the location of capacity is not specified. The commenter continued, by noting that these sections direct TNRCC to consider the capacity in the state, but notes that the word "demand" is always qualified with the term "in Texas", whereas the word "capacity" is not always so qualified. The commission respectfully disagrees. Notwithstanding the commenter's interpretation of sec.361.0231, these rules are adopted under sec.361.0232, which is quite specific as to the location of both the capacity and demand to be considered by the Needs Assessment and associated rules. Section 361.0231, cited by the commenter, states that "it is the state public policy that adequate capacity should exist for the proper management of industrial and hazardous waste generated in this state". Nothing in these rules is in contradiction to the public policy specified in sec.361.0231. However, the more specific direction of the statute found in sec.361.0232 applies in this case. Section 361.0232(b)(5) specifically notes that the "permitted commercial hazardous waste capacity in the state" is to be considered. The statute at sec.361.0232(c) also speaks to the need to "maintain an appropriate reserve capacity in the state". Thus, the statute is very clear regarding factors to be considered in evaluating need and drafting rules under sec.361.0232. The commenter is correct in that sec.361.0232(b)(13) allows the commission to consider "any other relevant information" in the development of the Needs Assessment and rules. As a practical matter, it must be noted that the inclusion of out-of-state capacity in a needs assessment would necessitate the inclusion of out-of-state demand, since an evaluation of one without the other is inappropriate. The commission does not have reliable knowledge on multi-state demand and capacity, since the commission does not collect information from out- of-state facilities and many states do not conduct in-depth capacity and demand studies on a regular basis. Furthermore, national information available from EPA's Capacity Assurance Planning program could not become the basis of an ongoing multi-state demand and capacity analysis for Texas because of its infrequent availability. One commenter further notes that although sec.361.0232(b) directs the TNRCC to consider certain factors in the Needs Assessment and associated rules, the TNRCC is not limited to these factors and the commission should consider other factors, such as the distance to out-of-state versus proposed in-state facilities. The issue of distance from a proposed facility to waste generators in Texas is outside the scope of these rules, except in the case of a facility proposing to show that it meets a regional need under sec.361.0232(f). Section 361.0232(f) is adopted to address the transportation risk factor specified in sec.361.0232(b)(11). The statute does not direct the commission to conduct individual needs assessment of Texas regions in order to determine the need within each region or to determine the best site in the state for a facility which is needed. However, Figures III-2 and III-3 in the Needs Assessment were developed in order to show the location of waste generation with respect to the location of commercial capacity in Texas. Background information on waste generation and management patterns is included in the Needs Assessment and would be a part of the information presented under sec.281.22(c). The amendments and new sections are adopted under the Texas Water Code, sec.sec.5.103, 5.105, and 26.011, which provides the Texas Natural Resource Conservation Commission with the authority to adopt any rules necessary to carry out its powers and duties under the Texas Water Code, the Texas Solid Waste Disposal Act, and other laws of the State of Texas, and to establish and approve all general policy of the commission. sec.281.31. Definitions. The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise. Commercial hazardous waste management facility-Any hazardous waste management facility that accepts hazardous waste or PCBs for a charge, except a captured facility or a facility that accepts waste only from other facilities owned or effectively controlled by the same person, where "captured facility" means a manufacturing or production facility that generates an industrial solid waste or hazardous waste that is routinely stored, processed, or disposed of on a shared basis in an integrated waste management unit owned, operated by, and located within a contiguous manufacturing complex. Current management practice(s)-The most commonly used technologies for processing or land disposing of targeted waste stream(s) generated in the State of Texas, as evidenced by the most recent computerized annual or monthly waste management reports submitted by waste handlers to the commission. Needed technology -A technology included in Table 2 of the Executive Summary of the most recent publication of the Needs Assessment. Technologies on Table 2 of the Executive Summary of the Needs Assessment are demonstrated processing or disposal technologies which are needed on a statewide basis. Needs assessment -Texas Natural Resource Conservation Commission document entitled "Needs Assessment for Hazardous Waste Commercial Management Capacity in Texas," dated February 28, 1992, and its amendments or updates, a copy of which is available for inspection at the library of the Texas Natural Resource Conservation Commission, located at 12118 North Interstate Highway 35, Building A, Austin, Texas. New capacity-Unpermitted volume, quantity, or rate of throughput for the management of hazardous waste at a hazardous waste management facility provided by any of the following: proposed units or systems; interim status units or systems; or modifications to permit operating conditions, such that additional quantities or types of waste would be managed. Table 2-Table 2 of the Executive Summary of the most recent publication of the commission document entitled "Needs Assessment for Hazardous Waste Commercial Management Capacity in Texas" dated February 28, 1992, and its amendments or updates, a copy of which is available for inspection at the library of the Texas Natural Resource Conservation Commission, located at 12118 North Interstate Highway 35, Building A, Austin, Texas. Targeted waste stream(s)-A hazardous waste stream(s) generated in the State of Texas which will be managed by a specific technology at a specific facility. The applicant shall define targeted waste streams, by EPA hazardous waste numbers and the form of the waste, or by other identifiers approved in writing by the executive director. This agency hereby certifies that the rules as adopted have been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on October 17, 1994. TRD-9449707 Mary Ruth Holder Director, Legal Services Division Texas Natural Resource Conservation Commission Effective date: November 7, 1994 Proposal publication date: June 7, 1994 For further information, please call: (512) 239-6087 Chapter 305. Consolidated Permits The Texas Natural Resource Conservation Commission (TNRCC) adopts an amendment to sec.305.69, concerning Amendments, Renewals, Transfers, Corrections, Revocation, and Suspension of Permit, and new sec.305.149, concerning Additional Conditions for Solid Waste Storage, Processing, or Disposal Permits. Section 305.149 is adopted with changes to the proposed text as published in the June 7, 1994, issue of the Texas Register (19 TexReg 4381). Section 305.69 is adopted without changes and will not be republished. Section 305.149 is adopted pursuant to new provisions of the Texas Solid Waste Disposal Act (the Act), Texas Health and Safety Code, sec.361.0232, promulgated by the legislature in Senate Bill 1099, 72nd Legislature (1991). Section 361.0232 directed the TNRCC to conduct a needs assessment for commercial hazardous waste management. The information in the needs assessment was to be used to develop rules which allow for the prioritization of permit applications for commercial facilities. These rules will enable the TNRCC to make a reasonable estimate of when capacity will be available to the state's generators. By encouraging applicants to seek permits only for units they intend to construct within defined time limits, sec.305.149 is designed to facilitate an assessment of accurate hazardous waste capacity under the Act, sec.361.0232(b). Historically, there has been difficulty with the permitting of facilities which do not move forward with the construction of units once they receive authorization. This permitted yet unrealized capacity impedes commission staff from making an accurate assessment of hazardous waste capacity in the state. The Act, sec.361.0871(c), instructs the commission to develop a prioritization process that shall provide for priority consideration in permit processing for those applications that address the highest priority need. One of the reasons for developing a prioritization process is to ensure that the commission's limited staff resources are allocated to processing permit applications which address the highest priority need. Because commission staff is constrained by resource limitations and can process only a finite number of permits, it is important not only to encourage applicants to permit the types of units for which there is the highest need, but also to encourage applicants to permit only the capacity they intend to construct in the near future. As part of this process of efficient resource allocation, the commission has adopted sec.305.149, which sets construction-period time limits for permitted units at commercial facilities. The rule is intended to encourage applicants to permit only the capacity they intend to build in the near term. Section 305.149(b) sets out time limits for the construction of units subject to RCRA permitting which manage hazardous waste from off-site at a commercial hazardous waste management facility. Applicants subject only to Underground Injection Control requirements will not be subject to this rule at this time. Under the rules, unit construction schedules will be set in one of two ways: by rule or by permit. Section 305.149(b)(1)-(3) lays out an initial two-year timeframe for unit construction, with procedures for requesting six-month or greater than six-month extensions to the two-year period. As proposed in the June 7, 1994, Texas Register, sec.305.149(a)(1) applied to units permitted prior to the date of the rule's adoption and stated that the two-year deadline ran from the effective date of the rule. In response to comments expressing concern that the rule had an impermissible retroactive application to existing permittees and applicants, sec.305.149(a) has been revised to apply only to facilities for which applications, Class 3 modification requests or major amendment requests are filed after the effective date of the rule. Under sec.305.149(a), the two-year deadline for the construction of all permitted units runs from the date of final administrative and judicial disposition of the permit, modification, or amendment. A certification that construction had been completed would have to be submitted within 90 days of the end of the two-year period. Section 305.149(b)(2) allows for a one-time extension of six months or less to the initial two-year construction-period time limit. This extension would be requested as a Class 2 permit modification and must comply with applicable provisions of sec.305.69. The request must be submitted within the initial two- year construction-period time limit and, if granted, would begin to run at the end of the two-year period. Once a Class 2 modification request has been submitted within the initial two-year construction period, authorization for unit construction continues until the commission takes final action on the modification request. A certification that construction had been completed would be required within 90 days of the end of the extension. Section 305.149(b)(3) allows for two types of permit modification for extensions of unit construction schedules. The first type of modification is for any extension which is greater than six months. The second type of modification is for an extension of any length which is requested after an applicant has been previously granted an extension of six months or less under sec.305.149(b)(2). Extensions requested under sec.305.149(b)(3) are Class 3 permit modifications and must comply with all applicable provisions of sec.305. 69. In order to be considered, any requests made to extend the time period under proposed sec.305.149(b)(3) must be submitted before any previously authorized time periods have expired. Once a Class 3 modification request has been submitted within the authorized time period, authorization for unit construction continues under sec.305.149(b)(3)(A) until the commission takes final action on the modification request. Section 305.149(b)(4) allows for a longer construction time limit to be proposed by the applicant in its permit application, and if approved, would be included as a condition in a RCRA Subtitle C permit. Justification for the proposed extended schedule shall be submitted with the permit application. Extensions to a permitted construction period can be requested, if made during the time period stated in the permit. Extensions to the construction time limits stated in the permit can be requested only as permit modifications as provided in sec.305.149(b)(4). The extensions would be requested as Class 2 or Class 3 modifications, depending on the length of time requested for extension. Units that are not constructed within the construction-period time limit specified under sec.305.149(b)(1), (2), or (3), or as a permit condition pursuant to sec.305.149(b)(4), would lose authorization to construct the unit or manage hazardous waste in the unit. The permit remains valid and only the affected unit would cease to be authorized. This action would not constitute revocation of the permit. Section 305.69 has been amended in order to cross-reference the type of permit modifications identified in proposed sec.305.149. Three types of modifications are adopted for addition to the list of permit modifications: a Class 2 permit modification for a first-time extension of six months or less pursuant to proposed sec.305.149(b)(2); a Class 3 permit modification for a greater than six-month extension pursuant to proposed sec.305.149(b)(3); and, pursuant to sec.305.149(b)(3), a Class 3 permit modification for an extension of any length requested after an extension of six months or less has previously been granted under proposed sec.305.149(b)(2). Comments on the proposed text were received from Ford & Ferraro, the Texas Association of Business, Safet-Kleen, and Akin, Gump, Strauss, Hauer & Feld, L. L.P. The following is a summary of the comments, along with the TNRCC's response to the comments. One commenter stated that the proposed rules are contrary to Texas Solid Waste Disposal Act, sec.361.0234(c), which provides that assessments and rules adopted under sec.361.0232 and sec.361.0234 shall not be applied retroactively to any application that was declared administratively and technically complete and for which public hearings had commenced before June 7, 1991. Another commenter stated that the proposed rules conflict with Government Code, sec.481. 143, which mandates that the approval, disapproval or conditional approval of an application for a permit shall be considered by each regulatory agency on the basis of orders, regulations, ordinances or other duly adopted requirements in effect at the time the original application is filed. The Commission should note that this section specifically does not apply to rules relating to RCRA facilities pursuant to sec.481.143(b)(3). The commission responds that sec.305.149(a) and (b)(1) have been changed in response to the comment so that the rule no longer applies to all existing permittees. The applicability of the rule has been narrowed so that only existing permittees who apply for Class 3 modifications or major amendments after the effective date of the rule will be subject to the unit construction schedule requirements, in addition to facilities filing new permit applications. Any Class 3 modification request or major amendment request will subject existing permittes to the rule and require construction of all permitted units within the designated timeframe. Several commenters additionally noted that proposed sec.305.149 effectively discriminated between those persons currently possessing valid permits and those seeking permits in the future. These commenters indicated that the proposed rule imposes construction schedules on existing permittees effective upon adoption of the rule while permit applicants' construction schedules do not begin to run until after all administrative and judicial proceedings related to the permit have been resolved. The TNRCC does not agree that the proposed rule would discriminate between existing permittees and permit applicants. The rule, as adopted, is clearly applicable to those seeking commercial hazardous waste permits on or after its effective date and to those existing permittees who seek Class 3 modifications or major amendments after the effective date of the rule. Existing permittees may avail themselves of all of the benefits of sec.305.149(b) when seeking either a Class 3 modification or major amendment, thus eliminating any concerns of discriminatory treatment of existing permittees. Existing permittees requesting Class 3 modifications or major amendments may seek an alternative schedule accompanied by a showing of good cause pursuant to sec.305.149(b)(1), if they do not want to be bound by the two- year construction schedule of sec.305.149(b)(1). An existing permittee's request for an alternate construction schedule under sec.305.149(b)(4) may be submitted and processed contemporaneously with the underlying Class 3 modification or major amendment request triggering application of the rule. Additionally, once a construction schedule is established, such existing permittees have the same right as new permittees to seek extensions of their schedules pursuant to the requirements of sec.305.149(b)(2) and (3). Several commenters stated that the Act, sec.361.0232, and its underlying legislative authority do not contemplate permit modification or construction schedules in TNRCC permits, and therefore the proposed rules are in excess of the authority granted by the Legislature. The TNRCC responds that the Act, sec.361.0232, authorizes the Commission to conduct a needs assessment. It is not possible to accurately assess the State's needs for commercial hazardous waste management capacity without addressing the problem of permitted capacity that has not been constructed. The proposed rules are intended to facilitate a more accurate assessment of capacity. The Act, sec.361.0232, grants broad authority to the Commission to adopt rules to facilitate an accurate assessment of the State's commercial hazardous waste management capacity. The rule as proposed is well within that authority. A commenter stated that as applied to existing permittees, the proposed new rules provide for a "de facto" permit revocation in violation of due process, the Administrative Procedure Act and the Act, sec.361.089. The TNRCC responds that, with respect to existing permittees, this concern has been addressed by the changes to the final rule, eliminating existing permittees from the rule's coverage. With respect to future permittees, new sec.305.149 is less restrictive than existing sec.305.66(2), which expressly authorizes the revocation of an entire permit for abandonment after an unspecified period of time lapses. The new rules do not authorize the revocation of a permit. Rather, authorization to construct a particular unit is lost if that unit has not been constructed in accordance with the applicable schedule as determined under the rule. Furthermore, unlike sec.305.66(2), the new rules provide specific timeframes for taking action and therefore provide more guidance as to when a unit may be considered "abandoned". A commenter stated that the two-year construction requirement is inadequate for many commercial hazardous waste management facilities and ignores a permittee's need to change construction plans as market conditions change. The TNRCC responds that in its experience the two-year construction schedule should be adequate for unit construction in most cases. To the extent additional time is needed, the appropriate procedures will be in place to request necessary extensions. Several commenters expressed concern that the rule ignores economic realties which require permittees to seek permit capacity based on long-term growth projections in particular waste management areas. If and when those projections are realized, capacity can then be built to adapt to rapidly changing market conditions. The TNRCC responds that the mechanisms provided in the rule for seeking extensions of construction schedules allows facilities the flexibility they need to respond to changing business conditions. Moreover, speculative permitting should be discouraged. The rules are intended to encourage applicants to permit only the capacity they intend to build in the near future. Otherwise, accurately assessing hazardous waste management capacity is made problematic because of excess permitted, yet unrealized, capacity. Furthermore, the TNRCC recognizes that staged-construction landfills are constructed differently than other commercial hazardous waste management units and that strict application of the construction requirements set forth in this rule is impracticable. For such staged-construction landfills which become subject to this rule, the construction timeframe requirements will be deemed satisfied upon certification that construction of the first landfill cell associated with staged landfilling activities has begun within the applicable timeframe. Several commenters stated that the permit modification procedures in the proposed rules are unnecessary and disregard existing regulations with respect to the classification and implementation of permit modification requests. The TNRCC responds that the new rules are necessary to enable the commission to accurately assess commercial hazardous waste management capacity. The commission recognizes that extension requests that would be classified as Class 2 or 3 permit modifications impose certain procedural requirements and will require applicants and Commission staff to devote resources to the processing of any such request. The classification scheme for extension requests is intended to impress upon the regulated community the importance of applying only for commercial hazardous waste management capacity which applicants intend to construct in the near future. Moreover, to the extent one commenter has stated that sec.305.69(e) requires that permit modifications be classified only according to the criteria set forth in that subsection, the commenter is incorrect. This subsection is entitled "Other modifications" and expressly applies to "modifications not explicitly listed in Appendix I of this subchapter". If permit modification requests for extensions of time are classified in to sec.305.69, Appendix I, the criteria set forth in sec.305.69(e) do not apply. Several commenters stated that less restrictive alternatives exist for keeping track of constructed commercial hazardous waste management units. The TNRCC responds that the construction schedule requirement called for in the rule is preferred not only because it serves the purpose of facilitating an accurate assessment of capacity, but also because it furthers the Commission's goals of eliminating speculative permitting and ensuring that units are constructed in accordance with recent standards. Several commenters stated that staff has failed to substantiate its claim that a problem exists with permittees failing to timely construct units. The TNRCC responds that 14 permittees presently have permitted, but unconstructed, commercial hazardous waste management capacity. Several commenters stated that the rule provides no criteria for evaluating Class 2 or 3 permit modification requests and, therefore, gives the executive director too much discretion in making these determinations. The TNRCC responds that by classifying the modification requests as Class 2 or 3 modifications, these requests will be processed in accordance with the guidance found in sec.305.69. These requests will be evaluated in accordance with the same criteria as other Class 2 and Class 3 requests. No criteria is necessary in addition to the guidance already found in sec.305.69(c)(14) and (d) (1). Several Commenters stated that the five-year and ten-year timeframes in commercial hazardous waste management permits provide a sufficient mechanism for ensuring that units are constructed in accordance with current standards. The TNRCC responds that the five-year and ten-year timeframes apply to operation of the unit. The expiration date is developed under the assumption that the unit will be operating before the expiration of that time period. The length of the permit and the time period for construction address different concerns. Several commenters stated that existing permittees need more of an opportunity to submit an alternate schedule without having to go through a Class 2 or 3 modification procedure. The TNRCC responds that this is a moot point now that existing permittees have been eliminated from coverage in the final version of the rule. Several commenters stated that if one of the purposes of implementing construction schedules is to protect the environment, the rule should apply to non-commercial as well as commercial hazardous waste management units. The TNRCC responds that it has not experienced problems with generators seeking permits and then not moving forward with the construction of the permitted unit to manage wastes on-site. In the Commission's experience, such parties do not apply for a permit unless they intend to use it in the near future. Accordingly, there is no need to develop construction timeframes for such permittees. Additionally, the TNRCC responds that the needs assessment legislation only authorizes the promulgation of rules concerning commercial facilities. Subchapter D. Amendments, Renewals, Transfers, Corrections, Revocation, and Suspension of Permit 30 TAC sec.305.69 The amendment is adopted under the Texas Water Code, sec. sec.5.103, 5.105, and 26.011, which provides the Texas Natural Resource Conservation Commission with the authority to adopt any rules necessary to carry out its powers and duties under the Texas Water Code, the Texas Solid Waste Disposal Act, and other laws of the State of Texas, and to establish and approve all general policy of the commission. 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 October 17, 1994. TRD-9449708 Mary Ruth Holder Director, Legal Services Division Texas Natural Resource Conservation Commission Effective date: November 7, 1994 Proposal publication date: June 7, 1994 For further information, please call: (512) 239-6087 Subchapter G. Additional Conditions for Solid Waste Storage, Processing, or Disposal Permits 30 TAC sec.305.149 The new rule is adopted under the Texas Water Code, sec. sec.5.103, 5.105, and 26.011, which provides the Texas Natural Resource Conservation Commission with the authority to adopt any rules necessary to carry out its powers and duties under the Texas Water Code, the Texas Solid Waste Disposal Act, and other laws of the State of Texas, and to establish and approve all general policy of the commission. sec.305.149. Time Limitation for Construction of Commercial Hazardous Waste Management Units. (a) Applicability. This section applies to hazardous waste unit(s) which provide commercial capacity for the storage, processing or disposal of hazardous waste. (1) For hazardous waste management permits issued, amended or modified before the effective date of this section, the two-year unit construction schedule set forth in subsection (b) of this section begins on the effective date of this section. (2) For hazardous waste management permits issued, amended or modified on or after the effective date of this section, the two-year unit construction schedule as delineated in subsection (b) of this section applies. (b) Schedule for construction of commercial hazardous waste management units. (1) The facility owner or operator shall construct a unit within two years of final administrative and judicial disposition of the permit, modification or amendment authorizing the unit. Within 90 days after the end of the two-year construction period time limit, the facility owner or operator shall certify to the executive director that the unit has been constructed in accordance with applicable permit provisions. (2) A one-time six-month extension to the two-year construction period time limit may be requested as a Class 2 permit modification. All modification requests and subsequent procedures must comply with applicable provisions of sec.305.69 of this title (relating to Solid Waste Permit Modification at the Request of the Permittee) and must comply with any applicable statutory or regulatory requirements which take effect prior to final administrative disposition of the modification request. The request must be made within the initial two-year period and, if granted, the six-month extension shall begin at the end of the initial two-year construction period time limit specified under paragraph (1) of this subsection. Construction of the unit is authorized under this subsection until the commission takes final action on the modification request; however, in no event shall authorization continue under this subsection beyond six months following the end of the initial two-year construction period specified under paragraph (1) of this subsection. Within 90 days of the end of the authorized extension period, the facility owner or operator shall certify to the executive director that the unit has been constructed in accordance with applicable permit provisions. (3) Extensions for greater than six months, or any extension to the construction period time schedule authorized under an approved Class 2 permit modification pursuant to paragraph (2) of this subsection, shall be requested as a Class 3 permit modification. All requests and subsequent procedures must comply with applicable provisions of sec.305.69 and must comply with any applicable statutory or regulatory requirements which take effect prior to final administrative disposition of the modification request. (A) Extension requests made under this paragraph shall be submitted during the periods authorized under paragraph (1) or (2) of this subsection. Construction of the unit is authorized under this subsection until the commission takes final action on the modification request. (B) The commission shall not consider requests made under this paragraph which are submitted after the expiration of the time periods authorized under paragraph (1) or (2) of this subsection. (4) Under circumstances which require a delayed or staged-unit construction schedule longer than that specified under paragraph (1) of this subsection, justification for the proposed extended schedule shall be submitted with the permit application. The submitted schedule shall become part of the permit only upon the approval of the commission. Requests for changes to the approved schedule submitted during the period covered by the approved schedule shall comply with Class 2 or Class 3 permit modification rules, pursuant to sec.305.69. The class of the modification shall be determined by the length of the extension requested. An extension request of six months or less shall be a Class 2 modification and an extension request of greater than six months shall be a Class 3 modification request. All requests and subsequent procedures must comply with applicable provisions of sec.305.69 and must comply with any applicable statutory or regulatory requirements which take effect prior to final administrative disposition of the modification request. (c) Authorization status. Unit construction or management of hazardous waste in a unit is not authorized under any of the following conditions: (1) the permittee has not constructed the unit within the time period specified under subsection (b)(1) of this section and: (A) the permittee does not submit a modification request as specified in subsection (b)(2) or (3) of this section; or (B) the commission has denied a request for an extension under subsection (b)(2) or (3) of this section and the construction-period time limit specified in subsection (b)(1) or (2) of this section has expired; (2) the unit has not been constructed within the time period specified in the permit as per subsection (b)(4) of this section and: (A) the permittee does not submit a modification request as specified in subsection (b)(4) of this section; or (B) the commission has denied a request for an extension under subsection (b)(4) of this section and the construction period time limit specified in the permit has expired. This agency hereby certifies that the 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 October 17, 1994. TRD-9449709 Mary Ruth Holder Director, Legal Services Division Texas Natural Resource Conservation Commission Effective date: November 7, 1994 Proposal publication date: June 7, 1994 For further information, please call: (512) 239-6087 TITLE 40. SOCIAL SERVICE AND ASSISTANCE Part IX. Texas Department on Aging Chapter 254. Operation of the Texas Department on Aging 40 TAC sec.254.5, sec.254.7 The Texas Department on Aging adopts new sec.254.5 and sec.254.7, concerning the operation of the Board of the Texas Department on Aging and of the State Advisory Council of the Department and other committees appropriate to the operational needs of the Department, with changes to the proposed text as published in the August 30, 1994, issue of the Texas Register (19 TexReg 6829). These sections revise previous rules regarding the operation of the Department, and incorporate materials contained in previous rules pertaining to the Department's Board, Advisory Council and special committees. These rules reduce, refine and clarify Department requirements necessary to provide Older Americans Act Programs in Texas. Comments were received from the Texas Association of Regional Councils, the Committee on Human Services, members of citizens advisory councils of area agencies on aging, the Board on Aging, the State Advisory Council on Aging and the staff of the Department. In sec.254.5(9)(A)(iii), relating to geographic areas, it was noted that the Harris County planning and service area is often referred to as "Houston-Harris County" to differentiate it from Houston-Galveston Area Agency on Aging. The implication is this would change the sequence of rotation of membership on the State Advisory Council. The Department notes that the official name of this planning and service area, from its original designation, is Harris County Area Agency on Aging. In sec.254.5(9)(B), relating to group representation, it was noted that this paragraph duplicated, to some extent, sec.254.7(1)(d). As a result, it was rewritten and a reference to sec.254.7(1)(d) was added. Other commenters objected to the proposed membership rotation on the basis that it would undermine the performance, interest, and representation of the absent area agency representatives; opposed sending three nominees to the Board for selection; suggested that a date should be established for sending the nominations to the Board; and felt that yearly rather than three year intervals for terms was more efficacious. After considerable discussion of alternatives the Department feels that, given the shortcomings of alternative membership proposals, the one published for adoption is the better of other alternatives discussed. In sec.254.5(9)(C), relating to nomination of representatives, it was suggested that the words "from each group" be inserted so that the sentence would read "Six sets of three nominees from each group will..." The Department concurs with this suggested wording and has amended the text. In sec.254.5(9)(D), relating to selection criteria of members, a change in structure to this paragraph was suggested to provide greater readability. The Department concurs and has made this change to the text. In sec.254.5(10), relating to the title of this entity, a suggestion was made to change the title to read "Options For Independent Living Committee" and to change all references to "council" in referring to this entity to "committee." The Department concurs and has amended the text to reflect this comment. In sec.254.7(1)(D), referring to selection of members, it was suggested that the phrase "a Citizen's Advisory Council Member selected by the Board shall serve a maximum of three years. Initial terms shall expire on August 31, 1995 and thereafter on August 31 of each year." The Department concurs and has amended the language according. In sec.254.7(H)(i), relating to scheduling, a commenter recommended that the Texas Civil Statues citation be changed to Chapter 51 of the Texas Government Code. In sec.254.7(I), the recommendation to cite Article 6252, revised Statutes, as added by Senate Bill 383, 73rd legislature, Regular Session, 1993, instead of Senate Bill 383 was made. The Department concurs with both recommendations and has amended the language accordingly. The new sections are adopted under Human Resources Code, Chapter 101, which provides the Texas Department on Aging with the authority to promulgate rules governing the operation of the Department. The new rules affect the Human Resources Code, Chapter 101. sec.254.5. The Texas Board on Aging. The Texas Board on Aging, hereinafter referred to as the Board, carries out the functions prescribed by Senate Bill 2, Chapter 599, sec.1 (Human Resources Code, Chapter 101), as herein described and detailed. (1) Composition. The Board shall be composed of nine members appointed by the governor, with the advice and consent of the senate. Each member must have demonstrated an interest in and knowledge of the problems of aging. Eligibility and restrictions of the appointees are described in Human Resources Code, sec.101.001 and sec.101.0031. (2) Terms. Members are appointed to serve for terms of six years. Such terms will be staggered so that the terms of three members expire every two years. A member may be reappointed to the Board. (3) Chairman of the Board. The governor shall appoint a chairman who will direct the work of the Board. The chairman shall serve at the pleasure of the governor. (4) Compensation. Members of the Board may receive the compensatory per diem authorized by the General Appropriations Act for each day spent engaged in the performance of their official duties. Board members are entitled to reimbursement for actual travel expenses incurred in the performance of their duties. (5) Entitlements. The chairman and Board members may be entitled, during their tenure, to participate in the Uniform Group Insurance Program of Texas and such other programs that may be provided by law. (6) Meetings. The Board will conduct meetings in accordance with the following instructions. (A) Scheduling. The Board shall hold quarterly meetings and may hold any additional meetings as deemed necessary by the chairman. The chairman shall set the dates and locations of all meetings; however, at least one meeting shall be held annually in Austin, Texas. The chairman shall give notice to the executive director so that the members may have notice no less than three weeks in advance of the regular meeting. Special and emergency meetings may be held in response to a call of the chairman or a majority of the members at any time by giving one week's notice to all members. All meetings will be governed by Robert's Rules of Order, open to the public and conducted in accordance with Texas Civil Statutes, Article 6252-17. (B) Agenda. The chairman, with the assistance of the executive director, shall prepare and submit to each member prior to each meeting a listing of subjects to be considered by the Board. The agenda shall provide an opportunity for citizens to address the Board on any item of business included on the agenda. Notice of date, time, place, and the agenda shall be posted publicly and published in the Texas Register as required by law. (C) Quorum. Five of the members of the Board shall constitute a quorum, and when a majority vote is required, this is deemed to mean a majority of those members present at a meeting having a quorum. The chairman shall vote only to break a tie. (D) Attendance. It is a ground for removal from the Board if a member is absent for more than half of the regularly scheduled Board meetings that the member is eligible to attend during each calendar year, except when the absence is excused by majority vote of the Board, and then the matter shall be reported by the chairman to the governor. (E) Proxies. No proxies shall be permitted at any meeting of the Board. (F) Minutes. The proceedings of all meetings shall be duly recorded. Copies of the minutes shall be forwarded to each member for review and comments or corrections prior to approval at a subsequent meeting. The approved minutes shall be the "official" minutes and will be kept at the Department on Aging's offices and shall be open for inspection by the public. (7) Executive director. The Board shall appoint an executive director on aging who shall discharge all executive and administrative functions of the Department. The executive director shall serve at the pleasure of the Board. Unless otherwise specified in these rules, or by order of the Board, all rights, powers, and duties of the Board may be delegated to the executive director. (8) Composition of advisory committees. The Board shall appoint members to the Citizens Advisory Council and other advisory councils as may be required. All advisory committees appointed by the Board shall be composed of a reasonable number of members and shall not exceed 24 members. (9) Citizens Advisory Council appointments. The following criteria for appointment to the Citizens Advisory Council shall be as follows. (A) Geographic area representation. The State of Texas shall be divided into four groups of designated area agencies on aging. Composition of these groups shall be as follows. (i) Group 1-West Texas: Panhandle, South Plains, North Texas, West Central Texas, Concho Valley, Permian Basin and Rio Grande Area Agencies on Aging. (ii) Group 2-North Texas: Texoma, Tarrant County, North Central Texas, Dallas County, Ark-Tex, East Texas and Deep East Texas Area Agencies on Aging. (iii) Group 3-Central Texas: Heart of Texas, Central Texas, Brazos Valley, Capital, Harris County, Houston-Galveston, and South East Texas Area Agencies on Aging. (iv) Group 4-South Texas: Bexar County, Alamo Area, Golden Crescent, Middle Rio Grande, Coastal Bend, Lower Rio Grande, and South Texas Area Agencies on Aging. (B) Nomination of representatives. Six sets of three nominees from each group will be submitted to the Board for consideration and appointment. Final determination of advisory council membership will conform to the specifics prescribed in sec.254.7(1)(D) of this title (relating to Selection of Members). (C) Selection of representatives. The board shall review the six sets of three nominees from each group and use the following criteria for selecting the 24 members. Each nominee shall be a member of a local advisory council, and. (i) At least one half of the members shall be age 60 or over. (ii) There shall be representation on the council of minorities. (iii) There shall be representation on the council of women. (iv) There shall be representation of veterans on the council. (v) There shall be representation of local elected officials on the council. (vi) There shall be representatives of the general public. (vii) Each nominee shall meet the Board's criteria for assurance of effective cooperation of the Citizens Advisory Council. This will be reviewed on an individual basis by the Board annually. (10) Options For Independent Living Committee. This committee shall be appointed by the Board and include, but not be limited to, consumers, family caregivers, social workers, case managers, area agency on aging representatives, hospital discharge planners, hospital administrators, home health agency representatives, nurses and physicians. Membership shall be appointed by the Board on Aging at its first meeting of the calendar year 1994. The Board shall appoint as many members as the Board considers necessary, up to a maximum number of 24 members, with balanced representation of each membership category. A complete description of the duties and responsibilities of this committee is contained in sec.254.7(2) of this title (relating to Options for Independent Living Advisory Committee). (11) Amendments. These rules may be amended by the Board at any regular or special meeting, provided a copy of the proposed amendments are furnished each Board member 21 days prior to the date of the meeting at which the amendments are to be considered. (12) Reimbursement of Advisory Council members' expenses. The Texas Board on Aging shall request authority to reimburse the expenses of its advisory council members through the appropriations or budget execution process. (13) Evaluation of councils. The Board shall evaluate the effectiveness and cost efficiency of the advisory councils at the end of the second year of each biennium and act on their continuance or abolishment. sec.254.7. Advisory Councils. The Board of the councils and/or committees as required by law or needed to accomplish a specific task for the Department. All members of advisory councils and committees shall serve at the pleasure of the Board. (1) Citizens Advisory Council. (A) Duration. The Council shall function from February 10, 1994, to February 10, 1998. The Citizens Advisory Council shall continue after this date by an affirmative vote of the Texas Board on Aging. The Citizens Advisory Council (CAC) shall be evaluated at the end of the second year of each biennium. The CAC may be abolished prior to February 10, 1998, if the Board's evaluation determines it has not performed in an efficient and effective manner. (B) Purpose. It shall be the purpose of the Citizens Advisory Council to advise the Texas Board on Aging of the following: (i) advise the Board of the local needs and concerns on behalf of the elderly of their communities; (ii) identify rural issues relating to their areas of the State; (iii) identify urban issues relating to their areas of the State; (iv) participate in advocacy on behalf of the elderly of the State; and (v) review area plans of the 28 area agencies on aging for a statewide plan development. (C) Composition. The Citizens Advisory Council is a body of members, not to exceed 24, representing the elderly of the 28 planning and service areas of the State. The membership of the advisory council shall conform to the specifics detailed in sec.254.5(9) of this title (relating to Citizens Advisory Council Appointments). (D) Selection of members. (i) There shall be six representatives from each of the four groups as specified in sec.254.5(9)(A) of this title (relating to Geographic Area Representation). One area agency from each group shall not be represented each term The six represented agencies will be selected by alphabetical order from within their group of seven area agencies and will rotate representation. The area agency not represented shall be selected the next term. No area agency shall go more than one term without representation in the group every seven years. (ii) Each area agency advisory council shall elect a set of three nominees from its local advisory council to be submitted to the Board on Aging for consideration. The Board shall select one of the three nominees from each of the six sets submitted from the four major groups. A citizens advisory council member selected by the Board shall serve a maximum of three years. Initial terms shall expire on August 31, 1995 and thereafter on August 31 of each year. (E) Termination of membership. Termination of membership of the Citizens Advisory Council shall be due to: (i) term of membership expires on the local advisory council membership; (ii) failure to attend regularly scheduled meetings without an excused absence; or (iii) failure to meet the Board's annual review of membership criteria for assurance of effective cooperation of an advisory council member. (F) Compensation. Citizen's Advisory Council members shall serve without compensation but are entitled to compensatory per diem for each day spent in the performance of their duties as directed by the Board on Aging and are authorized the same travel allowance authorized for State employees. (G) Presiding officer of the council. The Board on Aging shall appoint a chair and a vice-chair of the Citizens Advisory Council, who shall serve in their respective capacities at the pleasure of the Board. The chair of the advisory council shall preside at all meetings. In the event the chair of the advisory council is unable to preside at a scheduled meeting, the vice-chair will preside. (H) Meetings. Meetings of the advisory council will be governed by the following. (i) Scheduling. The council shall hold meetings quarterly and may hold any additional meetings as deemed necessary by the chair in coordination with the executive director. The chair shall set the dates and locations of all meetings; however, at least one meeting shall be held annually in Austin, Texas. The chair shall give notice to the executive director so that the members may have notice no less than three weeks in advance of the regular meeting. Special and emergency meetings may be held in response to a call of the chair or a majority of the members at any time by giving one week's notice to all members. All meetings will be governed by Roberts Rules of Order, open to the public and conducted in accordance with the Texas Government Code, Chapter 551. (ii) Agenda. The chair, with the assistance of the executive director, shall prepare and submit to each member prior to each meeting a listing of subjects to be considered by the council. The agenda shall provide an opportunity for citizens to address the council on any item of business included on the agenda. Notice of date, time, place, and the agenda of the meeting shall be posted publicly and published in the Texas Register as required by law. (iii) Quorum. One-half of the members of the council shall constitute a quorum, and when a majority vote is required, this is deemed to mean a majority of those members present at a meeting having a quorum. The chair shall vote only to break a tie. (iv) Minutes. The proceedings of all meetings shall be duly recorded. Copies of the minutes shall be forwarded to each member for review and comments or corrections prior to approval at a subsequent meeting. The approved minutes shall be the official minutes and will be kept at the Department offices and shall be open for inspection by the public. (v) Attendance. In the event a member shall fail to attend scheduled meetings of the Citizens Advisory Council over the period of four quarters, such member shall be deemed to have resigned de facto, and after due inquiry by the chairperson of the council as to reasons for such absences, the matter shall be reported by the chair of the advisory council to the Board. (vi) Proxies. No proxies shall be permitted at any meeting of the advisory council. (I) Evaluation. The council shall be evaluated for its effectiveness and cost efficiency at the end of the second year of each biennium. A report shall be made to the Board to justify the continuation of the Council for the next two- year period as required by Texas Civil Statutes, Article 6252, as added by Senate Bill 383, 73rd Legislature, Regular Session, 1993. (J) Amendments. The council may propose amendments to the Board on these rules at any regular or special meeting. A copy of the proposed amendments shall be furnished each Board member 21 days prior to the date of the meeting at which the amendments are to be considered. (2) Options for Independent Living Advisory Committee. (A) Establishment of an advisory committee. An advisory committee shall be established, to be known as the Options for Independent Living Advisory Committee. (B) Purpose. The Options for Independent Living Advisory Committee shall advise and make recommendations to the staff, executive director, and Board of the Department on matters pertaining to the implementation and administration of the Options for Independent Living Program established by the Human Resources Code, Chapter 101, Subchapter C, as a result of the Acts of the 71st Legislature. The matters upon which the committee shall advise and make recommendations include funding allocations for the Options program, reviewing proposals for Options grant awards, evaluation of Options projects, or other matters that may need to have Board approval, on an as-needed basis as determined by the Department staff, executive director, or the Board. Written recommendations and reports will be provided by the committee to the Department staff and executive director. The committee will function from February 10, 1994, to February 10, 1998. The committee shall continue after this date by an affirmative vote of the Texas Board on Aging. (C) Membership and structure. The committee members shall be appointed by the Board on Aging and shall conform to the specifics detailed in sec.254.5(10) of this title (relating to Selection Criteria). Members terms of service shall be no more than two consecutive two-year terms. (i) Subcommittees: The committee may create any ad hoc subcommittees it deems necessary to fulfill its duties. by the chair with the advice and consent of the Department/committee membership. These subcommittees may include persons who are not members of the committee. chairs. The committee chair of these subcommittees. Subcommittee chairs must be committee members. (D) Meeting and voting. (i) Meetings. The advisory committee shall hold meetings on an as-needed basis, as determined by the Department staff and executive director, with the advice of the chairman. All members shall be advised of all meetings in writing at least ten days prior to meeting dates. (ii) Special meetings. Special and emergency meetings may be held in response to a call of their chair or a majority of the members, at any time by giving seven days' notice to all members. (iii) Agenda. The chair, with the assistance of the Department, shall prepare and submit to each member prior to each meeting a listing of subjects to be considered by the committee. (iv) Quorum. One-half of the members of the committee shall constitute a quorum, and when a majority vote is required, this is deemed to mean a majority of those members present at the meeting having a quorum. The chair, or the vice- chair when presiding for the chair, shall vote only to break a tie. (v) Minutes. The proceedings of all meetings shall be duly recorded. Copies of the minutes shall be forwarded to each member for review and comments or corrections prior to approval at a subsequent meeting. The approved minutes shall be the official minutes and will be kept at the offices of the Texas Department on Aging and shall be open for inspection by the public. (vi) Attendance. In the event a member, other than a legislator, shall fail to attend three consecutive, regularly scheduled meetings of the committee, such member shall be deemed to have resigned from the committee. (vii) Proxies. No proxies shall be permitted at any meeting of the committee. A legislative member of the committee may be represented by a member of his or her staff, at any meeting, and is exempted from the attendance requirement. (viii) Rules of order. Rules contained in Roberts Rules of Order, Revised, shall govern the committee in all cases to which they are applicable and in which they are not inconsistent with these rules. (E) Officers. The officers of the committee shall consist of a chair and a vice-chair and shall be selected from and by the members of the committee at the first regular meeting. Thereafter, the chair and vice-chair shall be selected by the committee as terms expire or vacancies are otherwise created. (i) Duties. Each officer shall be expected to fulfill the assigned duties and other appropriate duties requested by the committee, as follows: (I) Chair: (-a-) preside at meetings; (-b-) coordinate the agenda of committee meetings; (-c-) act as spokesperson for the committee; (-d-) appoint subcommittee members as needed; (-e-) appoint subcommittee chairs; and (-f-) perform other duties as requested by the committee. (II) Vice-chair: (-a-) preside at meetings in absence of chair; (-b-) cooperate with the chair in the administration of the committee; (-c-) assume all duties and responsibilities of the chair in the event that the chair is unable to serve; and (-d-) assume additional duties as requested by the committee. (ii) Terms. The committee chair and vice-chair shall both serve two-year terms which expire on February 10, 1996. If one of these positions becomes vacant before the end of the term, the committee shall select another member to complete the unexpired term. (F) Amendments. The bylaws of the committee may be amended by the affirmative vote of at least two-thirds of the members present at any regular or special meeting of the committee, subject to written notice to all members, setting forth the amendments to be considered, at least 30 days prior to said meeting. The proposed amendments must then go through the rule making process as required by the Administrative Procedure Act. (G) Compensation. Committee members shall serve without compensation but are entitled to reimbursement for transportation and the per diem allowance for state employees in accordance with the General Appropriations Act. (H) Public participation. In accordance with state statutes, each regular meeting will be posted in the Texas Register no later than eight days before the scheduled meeting. (I) Annual evaluation. The committee shall conduct an annual evaluation of its work, its usefulness, and the costs related to the committee's existence, including the cost of agency staff time spent in support of the committee's activities. Department staff shall provide the cost information to the committee for its consideration in the self-evaluation. 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 October 13, 1994. TRD-9449725 Mary Sapp Executive Director Texas Department on Aging Effective date: November 8, 1994 Proposal publication date: August 30, 1994 For further information, please call: (512) 444-2727