PROPOSED RULES 
 
 Before an agency may permanently adopt a new or amended section or repeal an 
existing section, a proposal detailing the action must be published in the  
Texas Register at least 30 days before action is taken. The 30-day time period 
gives interested persons an opportunity to review and make oral or written 
comments on the section. Also, in the case of substantive action, a public 
hearing must be granted if requested by at least 25 persons, a governmental 
subdivision or agency, or an association having at least 25 members. 
  Symbology in proposed amendments. New language added to an existing section is 
indicated by the use of  bold text. [Brackets] indicate deletion of existing 
material within a section. 
 
   
  TITLE 1. ADMINISTRATION 
 Part I. Office of the Governor 
  Chapter 5. Budgeting and Planning 
  
  The Office of the Governor proposes the repeal of sec. s5.301-5.303, 5.401 and 
new sec.sec.5.301-5.303 and 5.401, concerning energy conservation design 
standards for new state buildings and for major renovations to state buildings 
(excepting historic buildings) and new sec.5.401, concerning the Texas LoanSTAR 
(Save Taxes and Resources) Program, a revolving loan program that provides for 
energy retrofits to publicly-owned buildings. The new sections reflect the 
inter-agency transfer of duties and responsibilities that were formerly assigned 
to the Energy Management Center of the Governor's Office of Budget and Planning 
(and later, to the Governor's Energy Office) to the General Services 
Commission/State Energy Conservation Office, revise references to model design 
standards for state-owned commercial and residential buildings and delete 
certain restrictions on eligibility for loans under the LoanSTAR program. New 
sec. s5.301-5.303 specifically adopt references to most recent commercial and 
residential design standards applicable to state buildings, i.e. , the Council 
of American Building Officials (CABO) and the 1993 Texas Energy Conservation 
Design Standard for New (non-residential) State Buildings, respectively. In 
addition, new sec.5.401 deletes provisions which limit loan eligibility for 
state and local government entities by geographical area, by the percentage of 
buildings owned and by loan amount based on the borrower's status as a state or 
local unit of government. The new sections are proposed to conform with Chapters 
447 and 2305 of the Texas Government Code, the interagency agreement between the 
Office of the Governor and the General Services Commission and the State Energy 
Conservation Plan (SECP) as approved by the United States Department of Energy 
on or about July 22, 1994. 
 David M. Talbot, General Counsel, Office of the Governor, has determined that 
for the first five-year period the rules are in effect there will be no new 
fiscal implications for state or local governments as a result of enforcing or 
administering the sections. 
 Mr. Talbot also has determined that for each year of the first five years the 
rules are in effect the public benefit anticipated as a result of enforcing 
these sections is increased installation of energy conservation measures by 
state and local government entities which will result in reduced energy 
consumption and expenditures of public funds for government utility costs. The 
anticipated costs to government entities required to comply with these sections 
as proposed are not new and are negligible because loans are granted from non-
tax dollars, specifically, federal oil overcharge restitution funds, and the 
loan amount is repaid from saved utility appropriations. 
 Comments on the proposals may be submitted to David A. Talbot, General Counsel, 
Office of the Governor, P.O. Box 12428, Sam Houston Building, Austin, TX 78711-
3047. Comments must be received no later than 30 days from the date of the 
publication of the proposal in the Texas Register. 
   
  Subchapter C. Energy Conservation Design Standards 
 
  1 TAC sec.sec.5.301-5.303 
 
  (Editor's note: The text of the following sections proposed for repeal will 
not be published. The sections may be examined in the offices of the Office of 
the Governor or in the Texas Register office, Room 245, James Earl Rudder 
Building, 1019 Brazos Street, Austin.) 
   
  The repeals are proposed under Texas Government Code, Chapter 447, sec.447. 
002, which provides that the energy management center may make rules relating to 
the adoption and implementation of energy conservation programs applicable to 
state buildings and facilities. The Government Code, sec.2305.011, further 
invests the Office of the Governor with authority to determine the supervising 
state agency for each competitive grant and direct grant program established by 
the governor. Except as expressly provided in Chapter 2305, the Governor has 
designated the General Services Commission/State Energy Conservation Office as 
the supervising state agency over the programs described in Chapters 447 and 
2305, including the programs previously assigned to the Energy Management Center 
of the Office of the Governor and/or the Governor's Energy Office. 
 The Government Code, sec.447.002 is affected by these repeals. 
 
 
  sec.5.301. Energy Conservation Design Standard for New State Buildings. 
 
   
  sec.5.302. Energy Conservation Design Standard for New Residential State 
Buildings. 
 
   
  sec.5.303. Energy Conservation Design Standard for Major Renovation Projects. 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on November 30, 1994. 
 TRD-9451884 
  David Talbot 
 General Counsel 
 Office of the Governor 
    Earliest possible date of adoption: January 9, 1995 
 For further information, please call: (512) 463-1788 
         
       
  The new sections are proposed under Texas Government Code, Chapter 447, 
sec.447.002, which provides that the energy management center may make rules 
relating to the adoption and implementation of energy conservation programs 
applicable to state buildings and facilities. Section 2305.011 of the Government 
Code further invests the Office of the Governor with authority to determine the 
supervising state agency for each competitive grant and direct grant program 
established by the governor. Except as expressly provided in Chapter 2305, the 
Governor has designated the General Services Commission/State Energy 
Conservation Office as the supervising state agency over the programs described 
in Chapters 447 and 2305, including the programs previously assigned to the 
Energy Management Center of the Office of the Governor and/or the Governor's 
Energy Office. 
 The Government Code, sec.447.002 is affected by these new rules. 
 
 
  sec.5.301. Energy Conservation Design Standard for New State Buildings. 
 
  (a) The State Energy Conservation Office/General Services Commission, acting 
as the designated successor to the Energy Management Center in the Governor's 
Office of Budget and Planning adopts by reference the energy conservation design 
standard entitled "Energy Conservation Design Standard for New State Buildings, 
Energy Efficient Design of New Buildings Except Low-Rise Residential Buildings," 
Version 93/1, published by the General Services Commission/State Energy 
Conservation Office in February 1993. The purposes of the standard are to set 
minimum requirements and provide guidance for the energy efficient design of 
buildings and major renovation projects in order to minimize their energy use 
without constraining the building function nor the comfort or productivity of 
the occupants, and provide criteria for energy efficient building design and 
methods for determining if a new building design complies with these criteria. 
All new state buildings, and major renovation projects including buildings of 
state-supported institutions of higher education, are required to meet the 
minimum requirements unless specifically exempted by the standard. 
   
  (b) Copies of the standard are on file with the General Services 
Commission/State Energy Conservation Office, Insurance Annex Building, 221 East 
11th Street, Austin, Texas 78711, and may be viewed during normal office hours. 
The final standard, including compliance software, may be obtained by contacting 
the State Energy Conservation Office at the cost of $16.20 per copy. 
 
     
  sec.5.302. Energy Conservation Design Standard for New Residential State 
Buildings.  The State Energy Conservation Office/General Services Commission, 
acting as the designated successor to the Energy Management Center in the 
Governor's Office of Budget and Planning adopts by reference the energy 
conservation design standard entitled "Model Energy Code, 1993 Edition" 
originally prepared and maintained by the Council of American Building 
Officials. Copies of the standard are on file with the General Services 
Commission/State Energy Conservation Office, Insurance Annex Building, 221 East 
11th Street, Austin, Texas 78711, and may be viewed during normal office hours. 
 
   
  sec.5.303. Energy Conservation Design Standard for Major Renovation Projects. 
 
  (a) All major renovation, with the exception of historic buildings, is subject 
to compliance with the Energy Conservation Design Standard for New State 
Buildings, dated February 1, 1993. The State Energy Conservation Office, acting 
as the designated successor to the Energy Management Center in the Governor's 
Office of Budget and Planning, adopts the following definition: major 
renovation: a building renovation or improvement valued in excess of $600,000. 
 
  (1) The extent of compliance with the Energy Conservation Design Standard is 
determined by the replacement value of the building (replacement value is 
determined by the latest available Markel Appraisal Chart published by the 
Markel Appraisal Company, Incorporated). 
 
  (A) If the cost of the building renovation is less than 50% of the replacement 
value of the building, compliance with the Energy Conservation Design Standard 
is required only in the affected area(s). 
   
  (B) If the cost of the building renovation is more than 50% of the replacement 
value of the building, the entire building is subject to compliance with the 
Energy Conservation Design Standard. 
     
  (2) In no case should compliance with the Energy Conservation Design Standard 
require that the aggregate renovation investment in energy conservation pay back 
in more than four years, or more than eight years for a central plant 
renovation. 
     
  (b) To save tax dollars and promote energy efficiency, the State Energy 
Conservation Office, acting as the designated successor to the Energy Management 
Center in the Governor's Office of Budget and Planning, strongly recommends that 
building renovation and improvement projects of less than $600, 000, and 
historic buildings comply, on a limited basis, with the Energy Conservation 
Design Standard. 
 
  (1) If a renovation project requires the functional replacement of a component 
of a system covered by the Energy Conservation Design Standard, then compliance 
with the Energy Conservation Design Standard is recommended only for the 
affected system(s). 
   
  (2) The State Energy Conservation Office, acting as the designated successor 
to the Energy Management Center in the Governor's Office of Budget and Planning, 
recommends a simple payback of four years or less on renovation investments in 
energy conservation, and eight years for a central plant renovation. 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on December 2, 1994. 
 TRD-9451670 
  David Talbot 
 General Counsel 
 Office of the Governor 
    Earliest possible date of adoption: January 9, 1995 
 For further information, please call: (512) 463-1788 
         
               
  Subchapter D. Loan Program for Energy Retrofits 
 
  1 TAC sec.5.401 
 
  (Editor's note: The text of the following section proposed for repeal will not 
be published. The section may be examined in the offices of the Office of the 
Governor or in the Texas Register office, Room 245, James Earl Rudder Building, 
1019 Brazos Street, Austin.) 
   
  The repeal is proposed under Texas Government Code, Chapter 447, sec.447. 002, 
which provides that the energy management center may make rules relating to the 
adoption and implementation of energy conservation programs applicable to state 
buildings and facilities. Section 2305.011 of the Government Code further 
invests the Office of the Governor with authority to determine the supervising 
state agency for each competitive grant and direct grant program established by 
the governor. Except as expressly provided in Chapter 2305, the Governor has 
designated the General Services Commission/State Energy Conservation Office as 
the supervising state agency over the programs described in Chapters 447 and 
2305, including the programs previously assigned to the Energy Management Center 
of the Office of the Governor and/or the Governor's Energy Office. 
 The Government Code, sec.447.002 is affected by this repeal. 
 
 
  sec.5.401. Texas LoanSTAR (Save Taxes and Resources) Program for Public Sector 
Institutions. 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on December 2, 1994. 
 TRD-9451797 
  David Talbot 
 General Counsel 
 Office of the Governor 
    Earliest possible date of adoption: January 9, 1995 
 For further information, please call: (512) 463-1788 
         
       
  The new rule is proposed under Texas Government Code, Chapter 447, 
sec.447.002, which provides that the energy management center may make rules 
relating to the adoption and implementation of energy conservation programs 
applicable to state buildings and facilities. Section 2305.011 of the Government 
Code further invests the Office of the Governor with authority to determine the 
supervising state agency for each competitive grant and direct grant program 
established by the governor. Except as expressly provided in Chapter 2305, the 
Governor has designated the General Services Commission/State Energy 
Conservation Office as the supervising state agency over the programs described 
in Chapters 447 and 2305, including the programs previously assigned to the 
Energy Management Center of the Office of the Governor and/or the Governor's 
Energy Office. 
 The Government Code, sec.447.002 is affected by the new rule. 
 
 
  sec.5.401. Texas LoanSTAR (Save Taxes and Resources) Program for Public Sector 
Institutions. 
 
  (a) Definitions. The following works and terms, when used in this subchapter, 
shall have the following meanings, unless the context clearly indicates 
otherwise. 
 
  (1) Application cycle-The period of time each year, as determined by the 
LoanSTAR program acting on behalf of the governor's office, that the LoanSTAR 
program shall accept and process applications from public sector institutions 
seeking loan funds for energy savings capital retrofits. 
   
  (2) Estimated simple payback-The total energy conservation retrofit costs 
(including audit, metering, installation, equipment, and engineering design) 
divided by the annual estimated utility cost savings. 
   
  (3) Interest fee-The prepaid interest charge at a rate to be determined by the 
governor's office, sufficient to cover the costs of administering the program. 
   
  (4) Loan agreement-The written agreement between an applicant and the 
governor's office that details all terms and requirements under which the loan 
is issued, including the intended use of the loan proceeds. 
   
  (5) Project cost-All costs determined by the governor's office to be directly 
related to the identification, design, implementation, metering, and monitoring 
of an energy conservation measure. 
   
  (6) Promissory note-A document issued by the governor's office and agreed to 
by the applicant that describes the principal amount, repayment terms, and 
interest charges under which the revolving loan shall be made. 
   
  (7) Retrofit Demonstration Program-The overall state energy conservation 
retrofit program. It is compromised of five elements: energy audits, efficiency 
retrofits, a revolving loan financing mechanism, program monitoring and 
evaluation, and information transfer. 
   
  (8) Retrofit measure-A commercially available energy efficient device, 
technique, or technology, designed to reduce energy consumption, peak demand, 
and/or utility costs at an existing facility owned by a public sector 
institution. 
   
  (9) Retrofit project-The identification, design, acquisition, installation, 
monitoring, and evaluation of one or more energy efficient measures which are 
designed to reduce energy consumption, peak demand, and/or utility cost. 
   
  (10) Public sector institution-Any state department, commission, board, 
office, institution, facility, or other agency, including a university system or 
an institution of higher education as defined in the Texas Education Code, 
sec.61.003, as amended. Also, units of local government including a county, 
city, town, or an independent school district. 
   
  (11) Building-A structure which consumes energy. 
   
  (12) Facility-Any major energy using group of buildings in geographic 
proximity and/or a major energy using system owned and occupied or operated by 
one or more public sector institutions. 
     
  (b) Eligibility. Projects proposed by loan candidates must fulfill the 
following program parameters and eligibility requirements. 
 
  (1) Experimental or research-related technologies are not eligible for 
funding. Retrofit measures which result from renewable energy resources shall 
not be considered experimental or research related if the measure is 
commercially available or has a demonstrated track record of its cost 
effectiveness. 
   
  (2) Eligible measures shall have a demonstrated track record of cost-
effectiveness. 
   
  (3) Eligible measures shall be commercially available. 
   
  (4) Each retrofit measure must be unique in its application, location, 
building characteristics, and/or target audience. 
   
  (5) Eligible retrofit projects are: 
 
  (A) indoor and outdoor lighting projects; 
   
  (B) heating, ventilation, and air conditioning equipment; 
   
  (C) electrical distribution equipment; 
   
  (D) building shell improvements; 
   
  (E) energy management systems; 
   
  (F) boiler efficiency improvements; 
   
  (G) energy recovery systems, including on-site generation of electricity; 
   
  (H) alternate/renewable energy systems; 
   
  (I) load management devices; 
   
  (J) water and waste water systems; and 
   
  (K) other cost-effective retrofit, demand, or rate-based measures approved by 
the LoanSTAR program. 
     
  (6) unless this requirement is specifically waived, all eligible measures must 
be recommended in an engineering audit by a licensed professional engineer in a 
format acceptable to the LoanSTAR program. 
     
  (c) Application/selection. 
 
  (1) Each applicant shall submit a copy of its engineering audit report with a 
completed loan application to the LoanSTAR program during an application cycle 
at such times as determined by the LoanSTAR program. 
   
  (2) Loan applications will be evaluated by the LoanSTAR program on the basis 
of the following criteria: 
 
  (A) estimated simple payback period; 
   
  (B) ability to repay the loan through energy, demand savings; 
   
  (C) engineering assessment of the viability of the technology; 
   
  (D) likelihood of effective project monitoring; and 
   
  (E) ability to meet all state and federal program eligibility requirements. 
     
  (3) Loans will be approved by the governor's office or legally designated 
successor based on the LoanSTAR program staff recommendations and engineering 
evaluations of estimated paybacks and reliability. 
   
  (4) A public sector institution receiving a loan from the governor's office or 
legally designated successor will receive a loan agreement and promissory note 
that identifies the buildings to be modified, approved measures, rate of 
interest, loan amount, and loan terms and conditions. 
   
  (5) Institutions denied funding shall receive written notification that states 
the reasons for denial and possible actions for qualifying the rejected 
projects. 
     
  (d)  Project funding and repayment. 
 
  (1) The term of the loan will be determined by the LoanSTAR program based upon 
anticipated energy savings and time needed to install the retrofit measure(s). 
   
  (2) An interest fee, sufficient to cover the cost of administering and 
operating the program, will be charged at a rate to be determined by the 
LoanSTAR program. 
   
  (3) All interest fees will be computed on an annual percentage rate basis. 
   
  (4) Loan proceeds may be used to pay for the entire cost of the retrofit 
project, including cost of the energy audit, engineering design, construction, 
equipment, acquisition and installation, maintenance, metering, and monitoring. 
   
  (5) Loan funds shall be disbursed to the borrower upon receipt of supporting 
documentation as required by the governor's office or legally designated 
successor. 
   
  (6) A state agency may use general revenue funds appropriated for utilities to 
make loan payments as stipulated in Chapter 2305, Texas Government Code. 
   
  (7) Loan repayment schedules shall be determined on the basis of expected 
payback and project installation time. 
   
  (8) Frequency of payments shall be no greater than quarterly. 
   
  (9) No loans will be forgiven. 
     
  (e) Loan recipient responsibilities (project monitoring and demonstration). 
 
  (1) Loan recipients shall provide the LoanSTAR program with the access and 
information necessary to monitor the performance of the retrofits, as stated in 
the loan agreement. 
   
  (2) Loan recipients shall be responsible for submitting all reports requested 
by LoanSTAR program as outlined in the loan agreement. 
   
  (3) Compliance with applicable local, state, and federal procurement 
guidelines and procedures is the responsibility of the loan recipient. 
     
  (f) Title to equipment. 
 
  (1) Title to all equipment acquired under this program will vest in the 
borrower, in accordance with applicable state statutes. 
   
  (2) Disposition and inventory of any equipment shall be done in accordance 
with state statutes and regulations. 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on December 2, 1994. 
 TRD-9451885 
  David Talbot 
 General Counsel 
 Office of the Governor 
    Earliest possible date of adoption: January 9, 1995 
 For further information, please call: (512) 463-1788 
         
                     
  TITLE 7. BANKING AND SECURITIES 
 Part VI. Credit Union Department 
  Chapter 91. Chartering, Operations, Mergers, Liquidations 
  
  Reserves and Dividends 
 
  7 TAC sec.91.901 
 
  The Credit Union Commission proposes an amendment to sec.91.901, concerning 
reserving requirements. The changes reflect consistency with the reserving 
requirements of the insurer of members' deposits in state chartered credit 
unions. 
 Robert W. Rogers, Commissioner, has determined that for the first five-year 
period the section is in effect there will be no fiscal implications for state 
or local government as a result of enforcing or administering the section. 
 Mr. Rogers also has determined that for each year of the first five years the 
section is in effect the public benefit anticipated as a result of enforcing the 
section will be that credit unions have one method for computing reserve 
transfers to satisfy the reserving requirements of the Department and the share 
insurer, the National Credit Union Share Insurance Fund. There will be no effect 
on small businesses. There is no anticipated economic cost to persons who are 
required to comply with the section as proposed. 
 Comments on the proposal will be submitted to Penny A. Black, Staff Services 
Officer, 914 East Anderson Lane, Austin, Texas 78752-1699. 
 The amendment is proposed under the provisions of Texas Civil Statutes, Article 
2461-11.07, which provide the Credit Union Commission with the authority to 
adopt reasonable rules necessary for the administration of the Texas Credit 
Union Act. 
 The specific statute affected by this proposed amendment is Texas Civil 
Statutes, Article 2461-9.01(a), regarding Reserve Allocations. 
 
 
  sec.91.901. Reserve Requirements. 
 
  (a)-(b) (No change.) 
   
  (c)  For the purpose of establishing the reserves, all assets except the 
following shall be considered risk assets: 
 
  (1)-(14) (No change.) 
   
  (15) assets included in paragraphs (2), (3), (4), (5), (6), and (7) of this 
subsection with maturities greater than <nl>five<ol> [three] years are exempt 
from risk assets if the asset is being carried on the credit union's records at 
the lower of cost or market, or are being marked to market value monthly; 
   
  (16) assets included in paragraphs (2), (3), (4), (5), (6), and (7) of this 
subsection with remaining maturities greater than<nl>five<ol> [three] years are 
exempt from risk assets provided they meet the following criteria, irrespective 
of whether or not the asset is being carried on the credit union's records at 
the lower of cost or market, or are being marked to market value monthly: 
 
  (A)-(C) (No change.) 
     
  (17)-(18)  (No change.) 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on November 30, 1994. 
 TRD-9451715 
  Robert A. Black 
 Commissioner 
 Credit Union Department 
    Earliest possible date of adoption: January 9, 1995 
 For further information, please call: (512) 837-9236 
         
                     
  TITLE 13. CULTURAL RESOURCES 
 Part II. Texas Historical Commission 
  Chapter 11. Administrative Department 
  
  13 TAC sec.11.10 
 
  (Editor's note: The text of the following section proposed for repeal will not 
be published. The section may be examined in the offices of the Texas Historical 
Commission or in the Texas Register office, Room 245, James Earl Rudder 
Building, 1019 Brazos Street, Austin.) 
   
  The Texas Historical Commission proposes the repeal of  s11.10, concerning 
charges for copies of public records. This section is being repealed in order to 
implement the provisions of House Bill 1009, Chapter 428, Acts, 73rd 
Legislature, Regular Session (1993), regarding the cost of providing public 
records and the charges that state agencies may set to recover the full cost of 
providing copies of, or access to, public records. 
 Comments may be submitted to Cindy Laguna Dally, Administrative Assistant, 
Texas Historical Commission, 1511 Colorado Street, or P.O. Box 12276, Austin, 
Texas 78711-2276. 
 The repeal is proposed under the Texas Government Code Chapter 442, Texas 
Government Code. 
 The Government Code, Chapter 442 is affected in this section. 
 
 
  sec.11.10. Copies of Documents and Mailing Labels. 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on December 1, 1994. 
 TRD-9451740 
  Curtis Tunnell 
 Executive Director 
 Texas Historical Commission 
    Earliest possible date of adoption: January 9, 1995 
 For further information, please call: (512) 463-5768 
         
       
  The Texas Historical Commission proposes new sec.11.10, concerning charges for 
copies of public records. This new section is being proposed to implement the 
provisions of House Bill 1009, Chapter 428, Acts, 73rd Legislature, Regular 
Session (1993), regarding the cost of providing public records and the charges 
that state agencies may set to recover the full cost of providing copies of, or 
access to, public records. The section is proposed to make Texas Historical 
Commission charges consistent with those of other state agencies. 
 Curtis Tunnell, executive director, has determined that for the first five-year 
period the rule is in effect there will not be fiscal implications to state or 
local government as a result of enforcing or administering the rule. 
 Mr. Tunnell also has determined that for each year of the first five years the 
rule is in effect the public benefit anticipated as a result of enforcing the 
rule will be the elimination of cost difference for copies of public records and 
will result in charges more consistent with those made by other state agencies. 
There will be no effect on small businesses. The anticipated economic cost to 
persons who are required to comply with the rule as proposed will be either the 
cost set forth for all agencies by the General Services Commission's rules or no 
cost. 
 Comments may be submitted to Cindy Laguna Dally, Administrative Assistant, 
Texas Historical Commission, 1511 Colorado Street, or P.O. Box 12276, Austin, 
Texas 78711-2276. 
 The new section is proposed under Texas Government Code, Chapter 442, 
sec.442.005(q), which provides the Texas Historical Commission the authority to 
promulgate rules it considers proper for the effective administration of Texas 
Government Code, Chapter 442. 
 The Government Code, Chapter 442 is affected by this new section. 
 
 
  sec.11.10. Charges for Public Records. 
 
  (a) The charge to any person requesting copies of public records of the Texas 
Historical Commission will be the charges established by the General Services 
Commission codified at 1 TAC sec.sec.111.61-111.70 (effective April 22, 1994). 
   
  (b) The Texas Historical Commission may waive these charges if there is a 
public benefit. The Executive Director is authorized to determine whether a 
public benefit exists on a case by case basis. 
   
  (c) The following is a summary of the charges for copies of public information 
on file in the Texas Historical Commission. 
 
  (1) Standard size paper copy-$.10 per page. 
   
  (2) Nonstandard-size copy: 
 
  (A) diskette-$1.00 each; 
   
  (B) magnetic tape-$10 each; 
   
  (C) VHS video cassette-$2.50 each; 
   
  (D) audio cassette-$1.00 each; 
   
  (E) paper copy-$.50 each; and 
   
  (F)Other-actual cost. 
     
  (3) Personnel charge-$15 per hour. 
   
  (4) Overhead charge-20% of personnel charge. 
   
  (5) Microfiche or microfilm charge: 
 
  (A) paper copy-$.10; 
   
  (B) fiche or film copy-actual cost. 
     
  (6) Remote document retrieval charge-actual cost. 
   
  (7) Computer resource charge: 
 
  (A) mainframe-$17.50 per minute; 
   
  (B) midsize-$3.00 per minute; 
   
  (C) client/Server-$1.00 per minute; 
   
  (D) PC or LAN-$.50 per minute. 
     
  (8) Programming time charge $26.00 per hour. 
   
  (9) Miscellaneous supplies-actual cost. 
   
  (10) Postage and shipping charge-actual cost. 
   
  (11) Fax charge: 
 
  (A) local-$.10 per page; 
   
  (B) long distance, same area code-$.50 per page; 
   
  (C) long distance, different area code-$1.00 per page. 
     
  (12) Other costs-actual cost. 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on December 1, 1994. 
 TRD-9451739 
  Curtis Tunnell 
 Executive Director 
 Texas Historical Commission 
    Earliest possible date of adoption: January 9, 1995 
 For further information, please call: (512) 463-6108 
         
                   
  TITLE 25. HEALTH SERVICES 
 Part I. Texas Department of Health 
  Chapter 97. Communicable Diseases 
  
  The Texas Department of Health (department) proposes amendments to sec.sec.97. 
61, 97.63, 97.66, 97.67, 97.71, 97.73, 97.75, 97.77; and the repeal of sec.97. 
64, concerning immunization requirements for all children and students in Texas 
enrolled in child-care facilities, elementary and secondary schools, and 
institutions of higher education; including children admitted, detained or 
committed in Texas Department of Criminal Justice, Texas Mental Health and 
Mental Retardation, and Texas Youth Commission facilities. Specifically the 
amended sections cover scope; exclusions from compliance; required 
immunizations; inactivated polio vaccine (IPV) and combined schedule of polio 
vaccines; verification of measles illness, rubella illness or mumps illness; 
provisional enrollment; acceptable documents of immunizations; assistance and 
review of records; and remarks and special recommendations. The amendments are 
being proposed to update and clarify or delete existing immunization 
requirements for vaccine-preventable diseases in Texas. For clarity, the 
requirements for boosters have been incorporated in the amended sections as 
appropriate; necessitating the repeal of sec.97.64. Many of the changes, 
including the addition of a fourth dose of diphtheria-tetanus-pertussis (DTP) 
vaccine, bring the minimum school immunization requirements into closer 
agreement with the recommended medical optimum as outlined in the General 
Recommendations on Immunization as recommended by the Advisory Committee on 
Immunization Practices (ACIP) dated January 28, 1994. 
 Robert D. Crider, Jr., M.S., M.P.A., Director, Immunization Division, has 
determined that for the first five-year period the sections as proposed will be 
in effect, that no substantial fiscal impact on state government will be noted. 
Local governments, specifically local health entities, currently immunize 
children in accordance with the optimum recommended immunization schedule. These 
rules establish minimum mandatory requirements, as such no fiscal impact is 
noted. Local school districts currently monitor immunization records. The 
amendments and repeal, as proposed, will have no fiscal impact on local school 
districts. 
 Mr. Crider has also determined that for each year of the first five years that 
the amendments will be in effect the public health benefit anticipated as a 
result of enforcing and administering the sections will be clarification of 
immunization requirements ensuring an enhanced understanding and compliance with 
the rules. The rules, coupled with other department initiatives, will continue 
to reduce the overall incidence of vaccine-preventable diseases in Texas. There 
will be no significant effect on small business. There are no anticipated 
economic costs to persons who are required to comply with the rules as proposed. 
There will be no impact on local employment. 
 Comments on the proposed amendments and repeal may be submitted to Robert D. 
Crider, Jr., M.S., M.P.A., Director, Immunization Division, Texas Department of 
Health, 1100 West 49th Street, Austin, Texas 78756-3180, (512) 458-7284. 
Comments will be accepted for 30 days from the date of publication of the 
proposed rules in the Texas Register. 
   
  Immunization Requirements in Texas Elementary and Secondary Schools and 
Institutions of Higher Education 
 
  25 TAC sec.sec.97.61, 97.63, 97.66, 97.67, 97.71, 97.73, 97.75, 97.77 
 
  The amendments are proposed under the Education Code, sec.2.09(b) and (e), 
which requires the department to develop rules relating to the admission of 
persons to elementary or secondary schools, sec.2.091(c), which require the 
department to develop the form for a required annual report of the immunization 
status of students; Human Resources Code, sec.42.043(c), which requires the 
department to develop rules for the admission of children to child care 
facilities; Health and Safety Code, sec.161.005(b), which requires the board to 
develop rules for the admission of children to facilities of the Texas 
Department of Mental Health and Mental Retardation, Texas Department of Criminal 
Justice, and Texas Youth Commission, sec.81.023(a) and sec.161.004(a), which 
requires the board to develop immunization requirements for all children, 
sec.81.004(b), which allows the board to adopt rules necessary to protect the 
public from communicable disease; and sec.12.001, which provides the board with 
the authority to adopt rules for the performance of every duty imposed by law on 
the Texas Board of Health, the Texas Department of Health and the Commissioner 
of Health. 
 The statutes affected by this proposal are Education Code, sec.2.09 and sec.2. 
091; Human Resources Code, sec.42.043; Health and Safety Code, sec.sec.81.007, 
81. 009, 81.021, 81.023, 81.081, 81.082, 161.004, and 161.005; and Health and 
Safety Code, Chapter 81, Subchapter 12. 
 
 
  sec.97.61. Children and Students Included in Requirements. 
 
  <nl>(a) At a minimum, the immunizations required in this section are required 
for all children in the State of Texas, including children admitted, detained, 
or committed in Texas Department of Criminal Justice, Texas Mental Health and 
Mental Retardation, and Texas Youth Commission facilities. 
   
  <nl>(b)<ol>[(a)] The immunization requirements <nl>also<ol> [are specified 
elsewhere in this policy statement and] apply to all children and students 
entering, attending, and/or transferring to child-care facilities, public 
schools, private schools, nonpublic schools, or parochial schools, for example: 
 
  (1) preschool programs and kindergartens associated with elementary schools; 
   
  (2) elementary schools, junior high or middle schools <nl>,<ol> and high 
schools; 
   
  (3) academies; 
   
  (4)  colleges <nl>(for students pursing a course of study in an animal or 
human health profession)<ol>; 
   
  (5) universities <nl>(for students pursuing a course of study in an animal or 
human health profession)<ol>; and 
   
  (6) schools for the blind, deaf, mentally ill, and mentally retarded. 
     
  <nl>(c) The immunization requirements are adopted as a statewide control 
measure for communicable disease as defined in Health and Safety Code, 
sec.81.081 and sec.81.082. The requirements are adopted as an instruction of the 
department as that term is used in the Texas Health and Safety Code, sec.81.007. 
 
     
  sec.97.62. Exclusions from Compliance. Exclusions from compliance are 
allowable on an individual basis for medical contraindications, religious 
conflicts, and active duty with the armed forces of the United States. Children 
and students in these categories must submit evidence for exclusion from 
compliance as specified in Texas Education Code,  <nl>sec.2. 09<ol> [sec.209] 
and the Human Resources Code, Chapter 42. 
 
  (1) Medical contraindications. The child or student must present an affidavit 
or certificate signed by a physician, duly registered and licensed to practice 
medicine in the United States, in which it is stated that, in the physician's 
opinion, the immunization required would be injurious to the health and well-
being of the applicant or any member of his or her family or household. Unless a 
lifelong condition is specified, the affidavit or certificate is valid for only 
one year from the date signed by the physician[,] and must be renewed every year 
for the exclusion to remain in effect. 
   
  (2)  Religious conflicts. <nl>A signed affidavit must be presented by the 
child's parent or guardian stating that the immunization conflicts with the 
tenets and practices of a recognized religious organization of which the 
applicant is an adherent or member;<ol> [The child or student must present an 
affidavit signed by the applicant, or if a minor, by his or her parent or 
guardian stating that the immunization conflicts with the tenets and practices 
of a recognized church or religious denomination of which the applicant is an 
adherent or member; provided, however, that this] <nl>This<ol> exemption does 
not apply in times of emergency or outbreak declared by the commissioner of 
health or local health authority. 
   
  (3) (No change.) 
 
     
  sec.97.63. Required Immunizations. 
 
  (a) For further information see sec.97.71 of this title (relating to 
Provisional Enrollment)[;] and sec.97.77 of this title (relating to Remarks and 
Special Recommendations). 
   
  [(b)] The immunization of infants and young children often requires a larger 
number of doses of vaccine than does the immunization of older children and 
adults. This section establishes minimum requirements (three doses each) for 
immunization against diphtheria, tetanus, pertussis, and poliomyelitis for 
admission of specified students to schools and children to child-care 
facilities. These requirements should in no way be interpreted as contrary to 
standing recommendations by the Texas Department of Health (department) or by 
the Immunization Practices Advisory Committee and the American Academy of 
Pediatrics, which call for larger numbers of doses (four or five doses each of 
DTP and polio vaccines) to be employed in the immunization of infants and young 
children against these diseases. 
   
  <nl>(b)<ol>[(c)] Oral polio vaccine (OPV) is the usual vaccine of choice for 
preventing polio; however, enhanced-potency[,]inactivated vaccine  
<nl>(eIPV)<ol> [IPV] may be medically indicated for some children and students. 
[(Enhanced-potency IPV was first distributed in the United States in March 1988. 
Prior to this, conventional IPV was used.)] For further information see 
sec.97.66 of this title (relating to Inactivated Polio Vaccine  <nl>eIPV/IPV<ol> 
[(IPV)] and Combined Schedule of Polio Vaccines). 
   
  <nl>(c)<ol>[(d)] The following immunizations are required in the respective 
age groupings. 
 
  (1) Children less than five years of age<nl>: <ol>[-] polio vaccine, 
diphtheria-tetanus-pertussis <nl>(DTP, DTaP)<ol>[DTP] vaccine, and measles, 
mumps, and rubella vaccine (MMR). For further information see sec.97.66 of this 
title (relating to Inactivated Polio Vaccine <nl>(eIPV/IPV)<ol> [(IPV)] and 
Combined Schedule of Polio Vaccines). 
 
  (A) Children less than two months old: no immunizations are required. 
   
  (B) Children two months of age, but not yet four months of age: one dose each 
of <nl>OPV<ol> [oral polio vaccine] and diphtheria-tetanus-pertussis (DTP) 
vaccine are required. 
   
  (C) Children four months of age, but not yet six months of age: two doses each 
of <nl>OPV<ol> [oral polio vaccine] and DTP vaccine are required. 
   
  (D)  Children six months of age, but not yet 18 months of age: <nl>three<ol> 
[two] doses of <nl>OPV<ol> [oral polio vaccine] and three doses of DTP vaccine 
are required. <nl>Any combination of three doses of DTP/DTaP will meet the DTP 
portion of this requirement, provided that any DTaP doses were given as the 4th 
or 5th dose in the recommended series and on or after 15 months of age. 
   
  (E) Children 18 months of age, but not yet five years of age (18 months 
through four years of age)<nl>: <ol> [;] three doses of <nl>OPV<ol> [oral polio 
vaccine]; <nl>a combination of four<ol> [three] doses of DTP vaccine. <nl>Any 
combination of four doses of DTP/DTaP will meet this requirement, provided that 
the DTaP doses were given as the 4th or 5th dose in the recommended series and 
on or after 15 months of age. 
   
  (F)  Children 18 months of age, but not yet five years of age (18 months of 
age through four years of age): one dose of measles vaccine, one dose of mumps 
vaccine, and one dose of rubella vaccine are required. 
 
  (i)  Beginning September 1, 1990, a dose of measles vaccine, mumps vaccine, 
and rubella vaccine (MMR) must have been received on or after the first 
birthday. 
   
  (ii) A physician-validated history of measles illness or serologic 
confirmation of measles disease will substitute for the measles vaccine 
requirement. A physician-validated history of mumps illness or serologic 
confirmation of mumps disease will substitute for the mumps vaccine requirement. 
Serologic confirmation of rubella disease will substitute for the rubella 
vaccine requirement. A physician-validated history of rubella illness will not 
substitute for the rubella vaccine requirement. For further information see 
sec.97.67 of this title (relating to Verification of Measles Illness, Rubella 
Illness, or Mumps Illness). 
     
  <nl>(G)<ol>[(2)]  Children less than five years of age<nl>:<ol> [-] 
Haemophilus influenzae<ol> [Type] type b conjugate vaccine (HibCV). 
 
  <nl>(i)<ol>[(A) ] Beginning September 1, 1991, the following HibCV 
immunizations are required in addition to the immunization requirements in 
paragraph (1) of this subsection. 
 
  <nl>(I)<ol>[(i)] Children less than two months old: no immunizations required. 
   
  <nl>(II)<ol>[(ii)] Children two months of age, but not yet four months of age: 
one dose is required. 
   
  <nl>(III)<ol>[(iii)] Children four months of age, but not yet 15 months of 
age: two doses are required. 
   
  <nl>(IV)<ol>[(iv)] Children 15 months of age, but not yet five years of age: 
one dose on or after 15 months of age is required unless a schedule for a 
primary series and booster was <nl>completed prior to or at 15 months of age<ol> 
[met at 12 months of age]. 
     
  <nl>(ii)<ol>[(B)] A physician-validated history of invasive Haemophilus 
influenzae<ol> <nl>type b<ol> [Type] disease, on or after the second birthday 
will substitute for the vaccine requirement for children two years of age 
through four years of age. [One dose Haemophilus influenzae type b 
polysaccharide vaccine administered on or after 24 months of age will meet the 
requirement of this paragraph.] 
       
  <nl>(2)<ol>[(3)] Children [enrolled in child-care facilities] and students 
five years of age or older [enrolled in elementary or secondary schools]. 
 
  (A) Polio. At least three doses of oral polio vaccine (OPV) are required, 
provided at least one dose has been received on or after the fourth birthday. 
Polio vaccine is not required for persons 18 years of age or older. For further 
information see sec.97.65 of this title (relating to Pregnancy) and  s97.66 of 
this title (relating to Inactivated Polio Vaccine <nl>(eIPV/IPV)<ol> [(IPV)] and 
Combined Schedule of Polio Vaccines); and sec.97.77(c) and (d) of this title. 
[(relating to Remarks and Special Recommendations.)] 
   
  (B)  <nl>Tetanus/Diphtheria<ol> [Tetanus/diphtheria]. At least <nl>four<ol> 
[three] doses of DTP[,] <nl>or DTaP, <ol> DT<nl>,<ol> and/or Td vaccine are 
required, provided at least one dose has been received on or after the fourth 
birthday. Pertussis vaccine is not required for children/students who are five 
years of age and older. <nl>Any combination of four doses of DTP/DTaP will meet 
the DTP portion of this requirement, provided that any DTaP doses were given as 
the 4th or 5th dose in the recommended series and on or after 15 months of 
age.<ol> <nl>One dose of DTP, DTaP, DT or Td is required within the last 10 
years.<ol> For further information see [sec.97.64(b) of this title (relating to 
Boosters) and] sec.97.77(c) and (d) of this title [(relating to Remarks and 
Special Recommendations)]. 
   
  (C) Measles. 
 
  (i)  Beginning September 1, 1990: 
 
  (I) all children and students must have received measles vaccine on or after 
their first birthday [, and since January 1, 1968;] or provide a physician-
validated history of measles illness<nl>,et>>[;] or serologic confirmation of 
measles immunity; and 
   
  (II) the requirement for measles vaccine administered on or after the first 
birthday will apply if a child's/student's immunization record is updated; a 
child/student enters a child-care facility or school for the first time; or a 
child/student transfers from another state into a Texas school or child-care 
facility. 
     
  (ii) Beginning January 1, 1991, children and students <nl>born on or after 
September 1, 1978<ol> [whose 12th birthday is on or after September 1, 1990,] 
will be required to show proof of measles immunity or receipt of two doses of 
measles vaccine administered on or after the first birthday. This proof is not 
required until the child's 12th birthday. The two doses of measles vaccine must 
have been administered at least 30 days apart. Children and students may have 30 
days past their 12th birthday to be in compliance with this clause. For further 
information see sec.97.65 of this title [(relating to Pregnancy)] and sec.97.67 
of this title [(relating to Verification of Measles illness, Rubella Illness, or 
Mumps Illness)]. 
     
  (D)  Rubella. Beginning September 1, 1991: 
 
  (i) all children and students must have received rubella vaccine on or after 
their first birthday or provide serologic confirmation of rubella immunity; and 
   
  (ii)  the requirement for rubella vaccine administered on or after the first 
birthday will apply if a child's/student's immunization record is updated; a 
child/student enters a child-care facility or school for the first time; or a 
child/student transfers from another state into a Texas school or child-care 
facility. For further information see sec.97.65 of this title [(relating to 
Pregnancy)] and sec.97.67 of this title [(relating to Verification of Measles 
Illness, Rubella Illness, or Mumps Illness)]. 
     
  (E) Mumps. Beginning September 1, 1990: 
 
  (i) all children or students will be required to have received mumps vaccine 
administered on or after their first birthday[,] or provide a physician-
validated history of mumps illness or serologic confirmation of mumps immunity; 
and 
   
  (ii) the requirement for mumps vaccine administered on or after the first 
birthday will apply if a child's/student's immunization record is updated 
<nl>,<ol>[;] a child/student enters a child-care facility or school for the 
first time; or[,] a child/student transfers from another state into a Texas 
school or child-care facility. For further information see sec.97.65 of this 
title [(relating to Pregnancy)] and sec.97.67 of this title [(relating to 
Verification of Measles Illness, Rubella Illness, or Mumps Illness)]. 
       
  <nl>(3)<ol>[(4)]  Students in institutions of higher education (colleges, 
universities, and other teaching facilities above the high school level). 
 
  (A)  Applicability. This paragraph applies to all students enrolled in health-
related courses which will involve direct patient contact in medical or dental 
care facilities. This includes all medical interns; residents; fellows; and 
others who are being trained in medical schools<nl>, hospitals, <ol> and health 
science centers listed in the Texas Higher Education Coordinating Board's list 
of higher education in Texas; and students attending two-year and four-year 
colleges whose course work involves direct patient contact regardless of: number 
of courses taken; number of hours taken; and classification of student. 
Subparagraph (I) of this paragraph also applies to veterinary medical students 
whose course work involves direct contact with animals or animal remains 
regardless of number of courses taken; number of hours taken; and classification 
of student. The department will assist institutions of higher education to 
educate all students of the need for immunizations and will assist in the 
provision of vaccines as resources allow. 
   
  (B) Provisional enrollment. Students referenced in this paragraph may be 
provisionally enrolled for up to one semester or one quarter. The provisional 
enrollment will allow students to attend classes while obtaining the required 
immunizations and documentation (immunization records) of required 
immunizations. Student health care providers cannot be provisionally enrolled 
without receipt of at least one dose of MMR vaccine, if direct patient contact 
will occur during the provisional enrollment period. For further information see 
sec.97.62 of this title (relating to Exclusions from Compliance); sec.97.65 of 
this title [(relating to Pregnancy)]; sec.97.67 of this title [(relating to 
Verification of Measles Illness, Rubella Illness, or Mumps Illness)]; sec.97.73 
of this title (relating to Acceptable Documents of Immunizations); and sec.97.77 
of this title [(relating to Remarks and Special Recommendations)]. Other 
sections of this chapter regarding immunizations also affect college/university 
students and institutions of higher education. 
   
  (C) Polio. Polio vaccine is not required for any student. All students 
enrolled in health-related courses are encouraged to ascertain that they are 
immune to poliomyelitis. 
   
  (D) <nl>Tetanus/Diphtheria.<ol> [Tetanus/diphtheria]. Beginning January 1, 
1992, <nl>tetanus/diphtheria <ol> [Tetanus/Diphtheria] toxoid (Td) is required 
for medical interns, residents, fellows, and students enrolled in health-related 
courses as defined in subparagraph (A) of this paragraph. Students enrolled in 
health-related courses must have received one dose of Td within the past 10 
years. For recordkeeping, only one date (month, day, year) for Td must be 
recorded<nl>,<ol> [;] this dose is the Td dose administered within the past 10 
years. 
   
  (E) Measles. Beginning January 1, 1992: 
 
  (i) all students defined previously in subparagraph (A) of this paragraph who 
were born on or after January 1, 1957, must show proof of either: 
 
  (I) two doses of measles vaccine administered <nl>since January 1, 1968 
and<ol> on or after their first birthday and at least 30 days apart; or 
   
  (II) at least one dose of measles vaccine administered on or after their first 
birthday, which must be received by students enrolled in health-related courses 
prior to direct patient contact and completion of the measles requirement must 
be accomplished as rapidly as is medically feasible; or 
   
  (III) immunity to measles (physician-validated history or serologic 
confirmation); and 
     
  (ii) for further information see sec.97.65 of this title [(relating to 
Pregnancy)] and also sec.97.67 of this title [(relating to Verification of 
Measles Illness, Rubella Illness, or Mumps Illness)]. 
     
  (F) Rubella. Beginning January 1, 1992. 
 
  (i) all students enrolled in health-related courses defined previously in 
subparagraph (A) of this paragraph must show, prior to patient contact, proof of 
either: 
 
  (I)  one dose of rubella vaccine administered on or after their first 
birthday; or 
   
  (II) serologic confirmation of rubella immunity; and 
     
  (ii)  for further information see sec.97.65 of this title [(relating to 
Pregnancy)] and also sec.97.67 of this title [(relating to Verification of 
Measles Illness, Rubella Illness, or Mumps Illness)]. 
     
  (G) Mumps. Beginning January 1, 1992: 
 
  (i) all students defined previously in subparagraph (A) of this paragraph who 
were born on or after January 1, 1957, must show, prior to patient contact, 
proof of either: 
 
  (I) one dose of mumps vaccine administered on or after their first birthday; 
or 
   
  (II)  immunity to mumps (physician-validated history or serologic 
confirmation); and 
     
  (ii) for further information see sec.97.65 of this title [(referring to 
Pregnancy)] and also sec.97.67 of this title [(relating to Verification of 
Measles Illness, Rubella Illness, or Mumps Illness)]. 
     
  (H)  Hepatitis B. Beginning January 1, 1992: 
 
  (i) all medical and dental students, residents, and interns shall receive a 
complete series of hepatitis B vaccine prior to the start of direct patient 
care[;] or show serologic confirmation of immunity to hepatitis B virus. All 
other students enrolled in health related courses are encouraged to receive the 
complete series of hepatitis B vaccine; and 
   
  (ii) all medical and dental interns and residents who are incompletely 
immunized to hepatitis B virus prior to the start of direct patient care shall 
complete the series as rapidly as is medically feasible[;] or show serologic 
confirmation of immunity to hepatitis B virus. 
     
  (I) Rabies. Beginning January 1, 1992: 
 
  (i)  all students enrolled in schools of veterinary medicine shall receive a 
complete primary series of rabies vaccine prior to the start of contact with 
animals or their remains; and 
   
  (ii) a booster dose of rabies vaccine is to be obtained by the student every 
two years unless protective serum antibody levels are documented. 
 
           
  sec.97.66. Enhanced-Potency Inactivated Polio Vaccine (eIPV/IPV) [IPV] And 
Combined Schedule of Polio Vaccines.<ol> <nl> eIPV/IPV<ol> [IPV] is the 
injectable type which is usually recorded as "IPV" or <nl>eIPV <ol> or "Salk 
vaccine" on immunization records. A few children or students may need this type 
of polio vaccine instead of oral polio vaccine (OPV) because of medical 
considerations. A child or student may be provisionally enrolled with a history 
of one dose of <nl>eIPV/IPV<ol> [IPV], provided two more doses <nl>of eIPV<ol> 
are received as rapidly as is medically feasible. A child or student will be in 
full compliance with the polio vaccine requirements whenever he or she has 
received <nl>four <ol> [three] IPV <nl>or three eIPV<ol> doses, and any 
recommended boosters. <nl>Four<ol> [Three] doses of IPV <nl>or 3 doses of 
eIPV<ol> are required for children and students with one dose administered since 
the fourth birthday. A combination of three doses of <nl>eIPV <ol> [enhanced-
potency IPV] and OPV or four doses of conventional IPV and OPV constitute a 
primary series. In both cases, one dose must have been administered on or after 
the fourth birthday. For further information see sec.97.63 of this title 
(relating to Required Immunizations). 
 
   
  sec.97.67. Verification of Measles Illness, Rubella Illness <nl>,<ol> or Mumps 
Illness. Section 97.63 of this title (relating to Required Immunizations) states 
that physician-validated histories of measles or mumps illnesses are acceptable 
in lieu of vaccine. All histories of measles or mumps illnesses must be 
supported by a written statement from a physician licensed to practice medicine 
in the United States. The physician's statement should contain wording such as: 
"This is to verify that (name of child or student) had measles or mumps 
illnesses on or about (date) and does not need measles or mumps vaccine." A copy 
of the statement must be attached to the child's or student's immunization 
record, and the original should be returned to the student or the student's 
parent or guardian. If a child or student is unable to submit a physician's 
statement, then measles or mumps vaccine <nl>or serological proof of 
immunity<ol> is required. A physician's statement of rubella illness without 
serologic documentation will not substitute for rubella vaccine. All serologic 
evidence of measles, rubella <nl>,<ol> or mumps illnesses must consist of a 
written statement from a physician licensed to practice medicine in the United 
States or a laboratory report indicating confirmation of the disease (a 
confirmatory blood titer). 
 
   
  sec.97.71. Provisional Enrollment. <ol> The law requires that students be 
fully immunized against the specified diseases. [However a,] <nl>A<ol> student 
may<nl>, however, <ol> be <nl>admitted<ol> provisionally [admitted] if he or she 
has begun the required immunizations and if he or she continues to receive 
necessary immunizations as rapidly as is medically feasible. The school granting 
provisional enrollment must ensure that the required immunizations are received 
on schedule. If a student transfers from one school to another, a grace period 
of no more than 30 days may be allowed at the new school while awaiting the 
transfer of the immunization record, during which the student may be 
<nl>enrolled <ol> provisionally [enrolled]. 
 
   
  sec.97.73. Acceptable Documents of Immunizations. Any validated document of 
immunization presented by a student is acceptable, provided it shows the [day,] 
the month<nl>, day,<ol> and [the] year when each immunization was received. The 
[day,] month, <nl>day,<ol> and year <nl>that the<ol> [of] vaccine <nl>was 
administered <ol> [administration] or  <nl>history<ol> of disease must be 
recorded in all new school <nl>immunization <ol> records [was] <nl>created <ol> 
[initiated,] and in existing records updated after September 1, 1991. <nl>For 
the purposes of this section updating of a record will mean the creation of new 
immunization records or the entry onto an existing immunization record of doses 
administered on or after September 1, 1991.<ol> All new entries in immunization 
files must be based upon a certificate of immunization that [which] has been 
validated by, or for, a physician or public health personnel. <nl>All 
immunization records created on or after September 1, 1995, must be a complete 
and accurate record of all validated immunization histories available for each 
child. These records must include all doses administered to the child, including 
all doses that exceed the minimum mandated requirements. <ol> The validated 
record should be returned to the student or the student's parent or guardian 
after the immunization history has been entered in school records. The Texas 
Department of Health and local health departments/districts will provide record-
keeping cards free of charge for maintaining school immunization files. 
Commercially or locally produced immunization record cards may be used. 
 
   
  sec.97.75. Assistance and Review of Records. Representatives of the Texas 
Department of Health, and local health departments/districts will, upon request, 
advise and assist school administrators in meeting the requirements of the law. 
Representatives of the Texas Education Agency review immunization records when 
annual immunization reports are submitted[,] and again when schools are visited 
for accreditation purposes. <nl>Occasionally, periodic<ol> [Periodic] review of 
school immunization records is [occasionally] necessary in order to allow public 
health epidemiologists to obtain information required in preventing or 
controlling community outbreaks of vaccine-preventable diseases. 
 
   
  sec.97.77. Remarks and Special Recommendations. 
 
  (a)  Immunization recommendations vary from state-to-state[,] and from 
physician to physician. The immunization requirements specified in this section 
will assure protection against the vaccine-preventable diseases for the majority 
of students. Some physicians and local health departments/districts adhere to an 
immunization schedule which may require more doses than other physicians; 
therefore, many students will have received more doses of vaccine than those 
specified in this chapter. 
   
  (b) (No change.) 
   
  (c) If a dose of polio vaccine or <nl>DTP/DTaP/DT/Td <ol> [DTP/DT/Td] vaccine 
is administered within the calendar month prior to, or of, the fourth birthday, 
it will satisfy the requirement for a dose on or after the fourth birthday. 
   
  (d) When a validated immunization record contains only one vaccine date for 
OPV, IPV <nl>or eIPV <ol>, or <nl>DTP/DTaP/DT/Td <ol> [DTP/DT/Td], and a "B" or 
the word "booster," or the words "series completed" (or similar wording) appears 
by the immunization date, assume that three doses of OPV, <nl>four doses of IPV 
or three doses of eIPV<ol> [IPV (or four doses of conventional IPV)]<nl>,<ol> or  
<nl>four doses of DTP/DTaP,DT,Td <ol> [DTP,DT,Td] have been administered. If the 
date is within the month prior to, or of[,] the fourth birthday, then the 
requirement for a dose on or after the fourth birth date is met under these 
circumstances. For further information see sec.97.73 of this title (relating to 
Acceptable Documents of Immunizations.) 
   
  (e) Authorities in child-care facilities, schools, and institutions of higher 
education are required by Health and Safety Code, Chapter 81, Subchapter C, to 
report, on the day of recognition, all suspected or known cases of vaccine-
preventable diseases <nl>that<ol> [which] occur among students/children or 
staff, to the local health authority, the city or county health 
department/district, the city or county health officer, the public health 
regional office, or the Texas Department of Health in Austin, thus alerting 
health officials to possible outbreaks of these diseases. 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on December 2, 1994. 
 TRD-9451802 
  Susan K. Steeg 
 General Counsel 
 Texas Department of Health 
    Earliest possible date of adoption: January 9, 1995 
 For further information, please call: (512) 458-7284 
         
           
  25 TAC sec.97.64 
 
  (Editor's note: The text of the following section proposed for repeal will not 
be published. The section may be examined in the offices of the Texas Department 
of Health or in the Texas Register office, Room 245, James Earl Rudder Building, 
1019 Brazos Street, Austin.) 
   
  The repeal is proposed under the Education Code, sec.2.09 (b) and (e) which 
require the department to develop rules relating to the admission of persons to 
elementary or secondary schools, sec.2.091(c) which require the department to 
develop the form for a required annual report of the immunization status of 
students; Human Resources Code, sec.42.043(c) which requires the department to 
develop rules for the admission of children to child care facilities; Health and 
Safety Code, sec.161.005(b) which requires the board to develop rules for the 
admission of children to facilities of the Texas Department of Mental Health and 
Mental Retardation, Texas Department of Criminal Justice, and Texas Youth 
Commission, sec.81.023(a) and sec.161.004(a) which requires the board to develop 
immunization requirements for all children, sec.81.004(b) which allows the board 
to adopt rules necessary to protect the public from communicable disease; and 
sec.12.001 which provides the board with the authority to adopt rules for the 
performance of every duty imposed by law on the Texas Board of Health, the Texas 
Department of Health and the Commissioner of Health. 
 The statutes affected by this proposal are Education Code, sec.2.09 and sec.2. 
091; Human Resources Code, sec.42.043; Health and Safety Code, sec.sec.81.007, 
81. 009, 81.021, 81.023, 81.081, 81.082, 161.004, and 161.005; and Health and 
Safety Code, Chapter 81, Subchapter 12. 
 
 
  sec.97.64. Boosters. 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on December 2, 1994. 
 TRD-9451803 
  Susan K. Steeg 
 General Counsel 
 Texas Department of Health 
    Earliest possible date of adoption: January 9, 1995 
 For further information, please call: (512) 458-7284 
         
           
  Statewide Immunization of Children by Hospitals and Physicians 
 
  25 TAC sec.97.101, sec.97.102 
 
  The Texas Department of Health (department) proposes new  s97.101 and 
sec.97.102, concerning the statewide immunization of children by hospitals and 
physicians. The new sections implement Health and Safety Code, Chapter 161, 
Public Health Provisions, Subchapter A, Immunizations. These sections require 
the department to establish rules by which hospitals and physicians will assess 
and review the immunization records of children and immunize or refer children 
as appropriate. The sections as proposed also require facility physicians with 
the Texas Department of Criminal Justice, Texas Department of Mental Health and 
Mental Retardation, and the Texas Youth Commission to review the immunization 
records and immunize as appropriate all children admitted, detained, or 
committed to those facilities. 
 Robert D. Crider, Jr., M.S., M.P.A., Director, Immunization Division, has 
determined that for the first five-year period these sections will be in effect 
there will be fiscal implications as a result of enforcing and administering the 
sections as proposed. The estimated costs to the state associated with the full 
implementation of these sections and Senate Bill 266 will be approximately $17 
million per year, primarily for the purchase and distribution of additional 
quantities of vaccines. Costs to the state and the public health care delivery 
system will be offset by saved costs resulting from an overall reduction in the 
incidence of vaccine-preventable diseases and an eventual decrease in the amount 
of vaccine required at school entry. Costs to local governments will be minimal. 
There will be no impact on local employment. 
 Mr. Crider has also determined that for each year of the first five years that 
the sections will be in effect, the public benefit anticipated as a result of 
enforcing the sections will be an expanded ability to age-appropriately immunize 
children, reduce the incidence of missed opportunities associated with age-
appropriate immunizations, and reduce total incidence of vaccine-preventable 
disease morbidity and mortality throughout the state. There will be minimal 
impact on small business as a result of implementation of these sections, 
currently estimated at less than $500 dollars per covered small business. The 
sections as proposed would place additional (minimal) recordkeeping requirements 
on most private physicians and hospitals throughout the state. 
 Comments on the proposal may be directed to Robert D. Crider, Jr., M.S., M. 
P.A., Division Director, Immunization Division, Texas Department of Health, 1100 
West 49th Street, 78756-3180, (512) 458-7284. Comments will be accepted for 30 
days from the date of publication of the proposed rules in the Texas Register. 
 The new sections are proposed under Health and Safety Code, sec.81.007, 
relating to "instructions of the department,"  s81.023(a) and sec.161.004(a) 
which require the board to develop immunization requirements for all children, 
sec.161.005(b) which requires the board to develop rules for the admission of 
children to facilities of the Texas Department of Mental Health and Mental 
Retardation, Texas Department of Criminal Justice, and the Texas Youth 
Commission; and sec.12.001 which provides the board with the authority to adopt 
rules for the performance of every duty imposed by law on the Texas Board of 
Health, the Texas Department of Health and the Commissioner of Health. 
 The statutes affected by this proposal are Education Code, sec.2.09 and sec.2. 
091; Human Resources Code, sec.42.043; Health and Safety Code, sec.sec.12.001, 
81. 007, 81.023, 161.004, and 161.005. 
 
 
  sec.97.101. Statewide Immunization of Children. 
 
  (a) Every person less than 18 years old shall be immunized against vaccine-
preventable diseases caused by infectious agents in accordance with the 
immunization schedule adopted by the Board of Health. The immunization 
requirements are also adopted as a statewide "control measure" for communicable 
diseases as that term is used in the Health and Safety Code, sec.81.081 and 
sec.81.082 and as an "instruction of the department" as that term is used in the 
Health and Safety Code sec.81.007. 
   
  (b) The required immunization schedule shall be based upon the immunization 
requirements for children and students as set out in sec.sec.97.61-97.77 of this 
title (relating to Immunization Requirements in Texas Elementary and Secondary 
Schools and Institutions of Higher Education). Additional copies may be obtained 
from Literature and Forms, Texas Department of Health, 1100 West 49th Street, 
Austin, Texas 78756-3180, (512) 458-7284. 
   
  (c) All private and public hospitals in Texas that provide health care to 
children shall: 
 
  (1) administer age-appropriate vaccines or refer newborns for immunizations to 
other health care providers at the time of the newborn screening test; 
   
  (2) review the immunization history of every child admitted to the hospital, 
examined in the hospital's emergency room, or outpatient clinic; and 
   
  (3) administer the needed vaccines or refer the child to another health care 
provider for immunizations. 
     
  (d) All physicians who provide health care to children in Texas shall: 
 
  (1)  review the immunization history of every child examined; and 
   
  (2)  administer vaccine(s) or refer every child who needs immunizations to 
another health care provider. 
     
  (e) Hospitals and all physicians who provide health care to children in Texas 
must document in a newborn's or other child's hospital or medical record that 
the newborn or child has either received age-appropriate immunizations or has 
been referred for immunizations at the time of the newborn screening or upon a 
child's admission to the hospital, examination in a hospital emergency room or 
visit to an outpatient clinic. Hospitals and all physicians who provide health 
care to children in Texas must document in a newborn's or other child's hospital 
or medical record that the: 
 
  (1) newborn's or other child's immunization history has been reviewed; and 
   
  (2) that the newborn or child has been age-appropriately immunized or that the 
newborn has been referred to another health care provider for immunizations. 
     
  (f) If requested by the local health unit, local health department, public 
health district, or the department, the provider shall furnish identifying 
information on those children who have been immunized or referred for 
immunizations. The information must include at least the child's name, child's 
date of birth, child's address, a parent's name, a parent's telephone number, 
and if applicable, the name or type of vaccine administered, and the month, day, 
and year that the vaccine was administered. 
   
  (g) Children are exempt from immunizations if: 
 
  (1) immunization conflicts with the tenets of an organized religion to which 
parent, managing conservator or guardian belongs; or 
   
  (2) the immunization is medically contraindicated based on an examination of 
the child by a physician licensed to practice by any state in the United States. 
 
       
  sec.97.102. Immunizations Required Upon Admission of a Child to the Texas 
Department of Criminal Justice, Texas Department of Mental Health and Mental 
Retardation, or the Texas Youth Commission. 
 
  (a) On admission of a child to a facility of the Texas Department of Mental 
Health and Mental Retardation, the Texas Department of Criminal Justice, or the 
Texas Youth Commission, the facility physician shall review the immunization 
history of the child and administer any needed immunization(s) or refer the 
child for immunization(s) to another health care provider. Required 
immunizations are those set out in sec.97.63 of this title (relating to Required 
Immunizations). Copies may be obtained from: Literature and Forms, Texas 
Department of Health, 1100 West 49th Street, Austin, Texas 78756-3180, (512) 
458-7284. 
   
  (b)  The provisions of sec.97.62 of this title (relating to Exclusions of 
Compliance) and sec.97.71 of this title (relating to Provisional Enrollment) 
apply to this section. 
   
  (c) The facility covered by this section shall keep an individual's 
immunization record during the child's period of admission, detention, or 
commitment in the facility. The records shall be open to inspection at all 
reasonable times by a representative of the local health unit, local health 
department, public health district or the department. The immunization record 
will record the name or type of vaccine administered; and the month, day and 
year that the vaccine was administered. 
   
  (d) This section does not affect the requirements of the Education Code, 
sec.2.09 and sec.2.091 or the Human Resources Code, sec.42.043, or sections of 
this chapter written under their authority. 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on December 2, 1994. 
 TRD-9451801 
  Susan K. Steeg 
 General Counsel 
 Texas Department of Health 
    Earliest possible date of adoption: January 9, 1995 
 For further information, please call: (512) 458-7284 
         
                   
  TITLE 30. ENVIRONMENTAL QUALITY 
 Part I. Texas Natural Resource Conservation Commission 
  Chapter 114. Control of Air Pollution From Motor Vehicles 
  
  30 TAC sec.114.7 
 
  The Texas Natural Resource Conservation Commission (TNRCC or Commission) 
proposes new sec.114.7, concerning fees for the Inspection and Maintenance (I/M) 
program. These fees are applicable in the following nonattainment areas: 
Houston/Galveston, Beaumont/Port Arthur, Dallas/Fort Worth, and El Paso. 
 On April 20, 1994, the Commission issued Resolution Number 94-07 establishing 
the amount of the vehicle emission inspection fees, and on November 30, 1994, 
the Commission issued Resolution Number 94-0748-RES establishing the amount of a 
waiver fee for I/M program waivers. The new rule sets forth these inspection and 
waiver fees, as well as the portion of the fees to be paid to the state's 
contractor for the I/M program, and sets forth certain procedures related to 
fees at inspection facilities. 
 Stephen Minick, Strategic Planning and Appropriations Division, has determined 
that for the first five-year period the rule is in effect there will be fiscal 
implications associated with the effect of enforcement and administration of the 
rule. The new rule establishes revenues to recover I/M program cost obligated in 
previous rulemaking and to compensate the state's contractors for the program. 
Section 114.3, Vehicle Emissions Inspection and Maintenance Program, was 
proposed in the July 27, 1993, issue of the Texas Register (18 TexReg 4939), and 
was adopted as published in the November 23, 1993, issue of the Texas Register 
(18 TexReg 8689). Revenues to the state will be an anticipated $7,674,426 in 
1995, increasing to an expected $11, 168,205 in 1999, based on the projected 
number of vehicles to be tested, retested, and applying for waivers. 
 No new costs are added as a result of this rule. The fiscal implications of 
anticipated cost for state and local government agencies owning exempt title 
fleets does not change. Inspecting these fleets will cost state and local 
agencies approximately $866,400 in 1995 and $619,800 in each of the years 1996-
1999. 
 The rule does not change the requirements of the I/M program for small 
businesses. The July 1993 proposal of sec.114.3 had estimated that the cost to 
small businesses and individuals for the biennial emissions inspection would be 
less than $25 per vehicle to register in each of the I/M program areas. The fees 
for businesses and individuals owning vehicles in the affected nonattainment 
areas will be less than previously anticipated, ranging from $15-$23, and will 
be directly proportional to the number of subject vehicles owned and operated. 
This fiscal effect will vary with the rate applicable to the program area and 
with the number of vehicles to be tested. In addition, the new rule includes 
fees established in previous rulemaking, as published in the October 14, 1994, 
issue of the Texas Register (19 TexReg 8117), regarding testing at fleet 
facilities and dealerships. The rules set forth fees under the current statute 
that allows fleet facilities and dealerships the option of vehicle emissions 
testing at their facilities at a fee equal to twice the standard test fee that 
is applicable to the program area. 
 Mr. Minick also has determined that for each year of the first five years the 
new rule is in effect the public benefit anticipated as a result of enforcement 
of and compliance with the new rule will be receipt of funds by the contractor 
sufficient to support the I/M program in the nonattainment areas under 
provisions of the I/M State Implementation Plan, compliance with the provisions 
of the Federal Clean Air Act, and improvement in air quality and protection of 
human health and safety. There is no anticipated economic cost to persons who 
are required to comply with the new rule as proposed, other than those costs 
previously identified. 
 A public hearing on the proposal will be held on December 29, 1994 at 10:00 
a.m. in Room 365 of TNRCC Building E, located at 12118 North IH-35, Park 35 
Technology Center, Austin. The hearing is structured for the receipt of oral or 
written comments by interested persons. Individuals may present oral statements 
when called upon in order of registration. Open discussion within the audience 
will not occur during the hearing; however, a TNRCC staff member will be 
available to discuss the proposal 30 minutes prior to the hearing and will 
answer questions before and after the hearing. 
 Written comments not presented at the hearing may be submitted to the TNRCC 
central office in Austin through December 29, 1994. Material received by the 
TNRCC Office of Policy and Regulatory Development by 4:00 p.m. on December 29, 
1994 will be considered by the Commission prior to any final action on the 
proposal. Please mail written comments to the attention of Lisa Martin, Office 
of Policy and Regulatory Development, P.O. Box 13087, Austin, Texas 78711-3087. 
Copies of the proposal are available at the central office of the TNRCC located 
at 12118 North IH-35, Park 35 Technology Center, Building E, Austin, and at all 
TNRCC regional offices. For further information, contact Sherry Bryan at (512) 
239-1994. 
 Persons with disabilities who have special communication or other accommodation 
needs who are planning to attend the hearing should contact the agency at (512) 
239-1457. Requests should be made as far in advance as possible. 
 The new rule is proposed under the Texas Health and Safety Code, the Texas 
Clean Air Act (TCAA), sec.382.017, which provides the TNRCC with the authority 
to adopt rules consistent with the policy and purposes of the TCAA. 
 The new rule implements TCAA, sec.382.037 and sec.382.038, authorizing the 
Commission to assess fees for vehicle emissions-related inspections, and Rider 
23 of the 1993 Appropriations Bill, authorizing the TNRCC to expend the fees 
necessary to recover the administrative cost of the I/M program. 
 
 
  sec.114.7. Inspection and Maintenance Fees. 
 
  (a) The following fees must be paid prior to the emissions inspection of a 
vehicle at an inspection station. This fee shall include one free retest should 
the vehicle fail the emissions inspection, provided that the motorist submits, 
prior to the retest, a properly completed Vehicle Emissions Repair Report 
showing that emission-related repairs were performed. 
 
  (1) For the Houston/Galveston Inspection and Maintenance (I/M) program area 
(Harris, Brazoria, Fort Bend, Waller, Liberty, Chambers, Galveston, and 
Montgomery Counties)-$23. The Managing Contractor shall retain $20.45 of this 
fee. 
   
  (2) For the Beaumont/Port Arthur I/M program area (Jefferson and Orange 
Counties)-$15. The Managing Contractor shall retain $13.57 of this fee. 
   
  (3) For the Dallas/Fort Worth I/M program area (Dallas, Tarrant, Denton, and 
Collin Counties)-$21. The Managing Contractor shall retain $18.02 of this fee. 
   
  (4) For the El Paso I/M program area (El Paso County) -$22. The Managing 
Contractor shall retain $19.38 of this fee. 
     
  (b)  The per-vehicle fee and the amount of the fee retained by the Managing 
Contractor for a challenge test at a referee inspection facility shall be the 
same as the amounts set forth in subsection (a) of this section. The challenge 
fee shall be refunded if the vehicle passes the challenge test. 
   
  (c)  The per-vehicle fee and the amount of the fee retained by the Managing 
Contractor for establishing an alternative schedule pursuant to sec.114.3(c)(2) 
(C) of this title (relating to Vehicle Emissions Inspection and Maintenance 
Program) shall be the same as the amounts set forth in subsection (a) of this 
section. This per-vehicle fee shall satisfy the fee requirement in subsection 
(a) of this section when the vehicle is submitted for an inspection at an 
inspection station pursuant to the alternative schedule. 
   
  (d) A $5.00 fee shall be assessed for establishing reciprocal compliance at a 
referee inspection facility pursuant to sec.114.3(c)(2)(B) of this title. 
   
  (e)  The processing fee for applications for Time-Extension, Minimum 
Expenditure, and Executive Director waivers, identified in sec.114.3(l) and (m) 
of this title, shall be $5.00. No fee shall be assessed for applications for 
Hardship Extension Waivers. 
   
  (f) The per-vehicle fee for the performance of testing at a fleet facility or 
dealership, identified in sec.114. 3(u) of this title, shall equal twice the 
test fee set forth in subsection (a) of this section. 
   
  (g) A $5.00 fee shall be assessed for the replacement of a Vehicle Emissions 
Certificate (VEC) that is lost, destroyed, or stolen. In addition to payment of 
the fee, the vehicle must pass a visual anti-tampering check of the catalytic 
converter before a replacement VEC will be issued. The Managing Contractor shall 
retain all of this $5.00 fee. 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on December 2, 1994. 
 TRD-9451844 
  Mary Ruth Holder 
 Director, Legal Division 
 Texas Natural Resource Conservation Commission 
    Proposed date of adoption: January 11, 1995 
 For further information, please call: (512) 239-1966 
         
                 
  TITLE 34. PUBLIC FINANCE 
 Part I. Comptroller of Public Accounts 
  Chapter 3. Tax Administration 
  
  Subchapter O. State Sales And Use Tax 
 
  34 TAC sec.3.323 
 
  The Comptroller of Public Accounts proposes an amendment to sec.3.323, 
concerning imports and exports. Changes to the Tax Code, sec.151.307, added the 
definitions of "air forwarder" and "ocean forwarder." The amendment adds these 
definitions to the rule. The amendment references an exemption for automotive 
audio equipment installed in Texas, according to new Texas Tax Code, sec.151. 
3071. The amendment deletes a restriction that required a retailer to receive 
proof of export documentation only from the original purchaser. The changes to 
the Tax Code became effective June 19, 1993. 
 Mike Reissig, chief revenue estimator, has determined that for the first five-
year period the rule will be in effect there will be no significant revenue 
impact on the state or local government. 
 Mr. Reissig also has determined that for each year of the first five years the 
rule is in effect the public benefit anticipated as a result of enforcing the 
rule will be in providing new information regarding tax responsibilities. This 
rule is adopted under the Tax Code, Title 2, and does not require a statement of 
fiscal implications for small businesses. There is no significant anticipated 
economic cost to individuals who are required to comply with the proposed rule. 
 Comments on the proposal may be submitted to Joe A. Galvan, Jr., Manager, Tax 
Administration Division, P.O. Box 13528, Austin, Texas 78711. 
 The amendment is proposed under the Tax Code, sec.111.002, which provides the 
comptroller with the authority to prescribe, adopt, and enforce rules relating 
to the administration and enforcement of the provisions of the Tax Code, Title 
2. 
 The amendment implements the Tax Code, sec.sec.151.157, 151.158, 151.160, 151. 
307, 151.3071, and 151.330. 
 
 
  sec.3.323. Imports and Exports. 
 
  (a) Definitions. The following words and terms, when used in this section, 
shall have the following meanings, unless the context clearly indicates 
otherwise. 
 
  <nl>(1) Air forwarder-A licensed International Air Transportation Association 
freight forwarder. 
   
  <nl>(2)<ol>[(1)]  Consignee -<nl>The person<ol> [Person] named in <nl>a<ol> 
bill of lading to whom or to whose order the bill promises delivery. 
   
  <nl>(3)<ol>[(2)] Consignor- <nl>The person<ol> [Person] named in <nl>a<ol> 
[the] bill of lading as the person from whom the goods have been received for 
shipment. 
   
  <nl>(4)<ol>[(3)] Licensed and certificated carrier-A person authorized by the 
appropriate United States agency or by the appropriate state agency within the 
United States to operate an aircraft, vessel, train, motor vehicle, or pipeline 
as a common or contract carrier. Certificates of inspection or airworthiness 
certificates are not the appropriate documents for authorizing a person to 
operate as a common or contract carrier. These documents relate to the carrier 
device itself rather than a person's right to operate a carrier business. 
   
  <nl>(5) <ol>[(4)] Licensed customs broker-A person  <nl>who is<ol> licensed by 
the United States Customs Service to act as a custom house broker and <nl>who 
holds a Texas Customs Broker's License issued by<ol> [registered with] the 
<nl>comptroller as provided in<ol> [Comptroller of Public Accounts according to 
the terms of]  s3.360 of this title (relating to Customs Brokers). 
   
  <nl>(6) Ocean forwarder-A licensed Federal Maritime Commission freight 
forwarder. 
     
  (b) (No change.) 
   
  (c) Exports. 
 
  (1) When an exemption is claimed because tangible personal property is 
exported beyond the territorial limits of the United States, proof of export may 
be shown only by: 
 
  (A) a copy of a bill of lading issued by a licensed and certificated carrier 
of persons or property <nl>that <ol> [as defined by subsection (a)(3) of this 
section which] shows the seller as consignor, the buyer as consignee, and a 
delivery point outside the territorial limits of the United States; 
   
  (B) documentation that is valid under [the terms of] sec.3.360 of this title 
(relating to Customs Brokers) provided by a licensed [United States] customs 
broker certifying that delivery was made to a point outside the territorial 
limits of the United States; 
   
  (C) (No change.) 
   
  (D) a copy of the original airway, ocean, or railroad bill of lading issued by 
a licensed and certificated carrier <nl>that<ol> [as defined in subsection 
(a)(3) of this section which] describes the <nl>property<ol> [items] being 
exported and a copy of the <nl>air forwarder's, ocean forwarder's, or rail<ol> 
freight forwarder's receipt if <nl>an air, ocean, or rail<ol> [the] freight 
forwarder takes possession of the property in Texas; or 
   
  (E) a maquiladora exemption certificate issued by an organization of the type 
defined in sec.3.358 of this title (relating to Maquiladoras). The maquiladora 
must also provide a copy of its maquiladora export permit issued by the 
<nl>comptroller <ol>[Comptroller of Public Accounts]. 
     
  (2) the retailer is responsible for obtaining proof of exportation. <nl>Only 
one type of proof relating to a particular piece of property is necessary. For 
example, a furniture store sells a table and collects sales tax. The purchaser 
returns to the store a week later with a valid pedimento de importaciones<ol> 
showing that the table was imported into Mexico. The retailer may accept the 
pedimento <ol>, alone, as proof of export and refund the tax. It is not 
necessary for the retailer to also obtain an export certification form issued by 
a licensed customs broker. Except as provided in sec.3.358 of this title 
(relating to Maquiladoras), exemption certificates, affidavits, or statements 
from the purchaser that the <nl>property<ol> [goods] will be or <nl>has <ol> 
[have] been exported are not sufficient to exempt the sale as an export. The 
Texas proof of export form is no longer acceptable as proof of export. A 
passport number taken by a seller from a passport issued by a foreign country is 
not acceptable as proof of export. 
   
  (3) Storing property in Texas by the owner prior to exportation is a use of 
that property in Texas. Property stored or otherwise used or consumed in Texas 
by the owner loses its exemption as an export. For example, clothing or jewelry 
actually worn by the purchaser in Texas is used in Texas; automotive parts  
<nl>(not including electronic audio equipment)<ol> installed on the purchaser's 
motor vehicle in Texas are used in Texas if the vehicle is subsequently driven 
in Texas; and food ready for immediate consumption that is purchased in Texas is 
presumed to be used in Texas. <nl>By law, electronic audio equipment retains the 
exemption even if installed in a motor vehicle that is driven in Texas prior to 
export. <ol> Sufficient time will be allowed to arrange for shipping. Property 
in Texas longer than 30 days from date of purchase will be presumed to have been 
stored. Any use of the property in Texas by the owner prior to export also 
causes the loss of the export exemption. Property in the hands of a freight 
forwarder is not covered by this provision. 
   
  (4) (No change.) 
   
  (5) If a seller delivers property to a purchaser in Texas, the seller must 
collect tax at the time of sale. The tax may not be refunded until the property 
has actually been exported from the territorial limits of the United States and 
the seller has received valid proof of export as described in this subsection. 
There is a rebuttable presumption that <nl>an export certification form<ol>[a 
certificate] issued by a <nl>licensed <ol> [registered] customs broker who 
complies with sec.3.360 of this title (relating to Customs Brokers) is valid. 
Tax not collected will be assessed against the seller. This paragraph does not 
apply when proof of export is provided to the seller at the time of sale by a 
maquiladora according to the terms of paragraph (1)(E) of this subsection. 
     
  (d) (No change.) 
   
  (e) Refunds. 
 
  (1) A retailer who collects sales tax on <nl>tangible personal property 
that<ol> [a taxable item which] qualifies for exemption under subsection (b) of 
this section may refund <nl>the tax<ol> to the original purchaser <nl>or the 
original purchaser's assignee<ol> [the sales tax collected] upon <nl>receipt<ol> 
[presentation by the original purchaser] of export documentation as required by 
subsection (c) of this section. [Documentation of exportation provided to the 
seller by a person other than the original purchaser listed on the seller's 
records is not acceptable proof of export, even if such documentation otherwise 
meets the requirements of this subsection. A refund issued to a person other 
than the original purchaser will be assessed against the seller.] 
   
  (2) The refund may be made by certified check, company check, money order, 
credit memo, or cash. If the refund is made in cash, the retailer must receive 
[from the purchaser of the exported item] at the time the refund is made a 
receipt showing a description of the <nl>property<ol>[item] purchased, the 
amount and date of the refund,  <nl>and<ol> the name, address, and signature of 
the purchaser <nl>and, if applicable, the purchaser's assignee. A retailer who 
issues a tax refund to the purchaser's assignee must also receive a copy of the 
purchaser's written assignment of the right to a refund. 
   
  (3) A copy of the certified check, company check, money order, credit memo, or 
signed cash receipt <nl>and a copy of the written assignment of the purchaser's 
right to a refund, if applicable,<ol> must be attached to the original export 
documents and maintained in the seller's files. 
   
  (4) (No change.) 
     
  (f) (No change.) 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on December 2, 1994. 
 TRD-9451779 
  Martin Cherry 
 Chief, General Law 
 Comptroller of Public Accounts 
    Earliest possible date of adoption: January 9, 1995 
 For further information, please call: (512) 463-1028 
         
           
  34 TAC sec.3.360 
 
  (Editor's note: The text of the following section proposed for repeal will not 
be published. The section may be examined in the offices of the Comptroller of 
Public Accounts or in the Texas Register office, Room 245, James Earl Rudder 
Building, 1019 Brazos Street, Austin.) 
   
  The Comptroller of Public Accounts proposes the repeal of sec.3.360, 
concerning customs brokers. Due to extensive changes and additions to Tax Code, 
Chapter 151, effective June 19, 1993, it has become necessary to repeal the rule 
now in effect and to propose a new rule. The changes to Chapter 151 set out the 
proper procedures for customs brokers certifying exports of tangible personal 
property to foreign countries and give the comptroller the authority to collect 
fees for customs brokers' licenses and export stamps, and to impose civil 
penalties for violations by customs brokers, retailers, and purchasers. The new 
rule will address all the Tax Code changes as well as prohibited acts by customs 
brokers. All this information is not covered in the current rule. 
 Mike Reissig, chief revenue estimator, has determined that repeal of the rule 
will not result in any fiscal implications to the state or to units of local 
government. 
 Mr. Reissig also has determined that repeal of the rule will benefit the public 
by providing them with new information regarding their tax responsibilities. 
This repeal is adopted under the Tax Code, Title 2, and does not require a 
statement of fiscal implications for small businesses. There are no additional 
costs to persons who are required to comply with the repeal. 
 Comments on the repeal may be submitted to Joe A. Galvan, Jr., Manager, Tax 
Administration Division, P.O. Box 13528, Austin, Texas 78711. 
 The repeal is proposed under the Tax Code, sec.111.002, which provides the 
comptroller with the authority to prescribe, adopt, and enforce rules relating 
to the administration and enforcement of the provisions of the Tax Code, Title 
2. 
 The repeal implements the Tax Code, sec.111.0043 and  s151.307. 
 
 
  sec.3.360. Customs Brokers. 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on December 2, 1994. 
 TRD-9451781 
  Martin Cherry 
 Chief, General Law 
 Comptroller of Public Accounts 
    Earliest possible date of adoption: January 9, 1995 
 For further information, please call: (512) 463-4028 
         
       
  The Comptroller of Public Accounts proposes new sec.3.360, concerning customs 
brokers. Due to changes and additions to Tax Code, Chapter 151, effective June 
19, 1993, it has become necessary to repeal the rule now in effect and to 
propose a new rule. The changes to Chapter 151 set out the procedures for 
licensing customs brokers certifying exports of tangible personal property to 
foreign countries. The new rule also addresses customs brokers' responsibilities 
and prohibited acts by customs brokers. 
 Mike Reissig, chief revenue estimator, has determined that for the first five-
year period the rule will be in effect there will be no significant revenue 
impact on the state or local government. 
 Mr. Reissig also has determined that for each year of the first five years the 
rule is in effect the public benefit anticipated as a result of enforcing the 
rule will be in providing new information regarding tax responsibilities. This 
rule is adopted under the Tax Code, Title 2, and does not require a statement of 
fiscal implications for small businesses. There is no significant anticipated 
economic cost to persons who are required to comply with the proposed rule. 
 Comments on the proposal may be submitted to Joe A. Galvan, Jr., Manager, Tax 
Administration Division, P.O. Box 13528, Austin, Texas 78711. 
 The new rule is proposed under the Tax Code, sec.111.002, which provides the 
comptroller with the authority to prescribe, adopt, and enforce rules relating 
to the administration and enforcement of the provisions of the Tax Code, Title 
2. 
 The new rule implements the Tax Code, sec.sec.151.157, 151.158, and 151.307. 
 
 
  sec.3.360. Customs Brokers. 
 
  (a) Definitions. The following words and terms, when used in this section, 
shall have the following meanings, unless the context clearly indicates 
otherwise. 
 
  (1) Employee-A person who is authorized by his employer to perform customs 
transactions or related services on behalf of the employer, is compensated by 
the employer with a regular salary or wages, is under the direct control and 
supervision of the employer, and from whose salary or wages the employer is 
required to and actually does deduct and withhold a tax under federal law. This 
definition applies to employees of customs brokers and employees of verification 
contractors. 
   
  (2) Licensed customs broker-A person who is licensed by the United States 
Customs Service to act as a custom house broker and who holds a Texas Customs 
Broker's License issued by the comptroller as provided for in this section. 
   
  (3) Verification contractor-An independent contractor who, for consideration 
and under a written contract with a licensed customs broker, facilitates the 
monitoring of exports to be certified by the broker. Unless the context clearly 
indicates otherwise, all references in this section to a verification contractor 
include an employee of a verification contractor. 
     
  (b) Certification of exports. Only a licensed customs broker or an employee of 
a licensed customs broker may fully or partially prepare, issue, and/or sign a 
valid export certification form as provided for in this section and in sec.3.323 
of this title (relating to Imports and Exports). 
   
  (c) Texas Customs Broker's License; prerequisites. A person may apply to the 
comptroller for a Texas Customs Broker's License, which is a license to issue 
export certification forms for the purpose of claiming exemption from Texas 
sales and use taxes. To obtain a license, a person must: 
 
  (1) be currently licensed by the United States Customs Service to act as a 
custom house broker; 
   
  (2) submit an application in the form prescribed by the comptroller; and 
   
  (3) be current in payment of all taxes and fees administered by the 
comptroller. 
     
  (d) Form of application. The comptroller will prescribe an application form 
for a Texas Customs Broker's License, which must include or be accompanied by 
the following: 
 
  (1) a copy of the applicant's license to act as a custom house broker issued 
by the United States Customs Service; 
   
  (2) the applicant's name, mailing address, primary business address, business 
telephone number, home address, and home telephone number, and the names, home 
addresses, and home telephone numbers of all the general partners (if the 
applicant is a partnership), the charter number, charter date, federal employers 
identification number, and the names, home addresses, and home telephone numbers 
of the officers and directors (if the applicant is a corporation), or the names, 
home addresses, and home telephone numbers of the members (if the applicant is 
an association other than a partnership or corporation); 
   
  (3) the names, mailing addresses, primary business addresses, business 
telephone numbers, home addresses, and home telephone numbers of all 
verification contractors and all authorized employees of verification 
contractors, and the names, home addresses, and home telephone numbers of all 
the general partners (if the verification contractor is a partnership), the 
charter number, charter date, federal employers identification number, and the 
names, home addresses, and home telephone numbers of the officers and directors 
(if the verification contractor is a corporation), or the names, home addresses, 
and home telephone numbers of the members (if the verification contractor is an 
association other than a partnership or corporation), and the date of contract 
of all verification contractors; 
   
  (4) the names, home addresses, and home telephone numbers of all employees who 
are authorized to certify exports in the name of the applicant and the date of 
hire of all such employees; 
   
  (5) a copy of each employee's power of attorney to certify exports in the name 
of the applicant; 
   
  (6) the trade name of the applicant's business and the address of each 
location where export certifications are to be fully or partially prepared; 
   
  (7) the original signature or signatures of the applicant (if he is a sole 
proprietor), an officer or director (if the applicant is a corporation), all 
general partners (if the applicant is a partnership), or an authorized member 
(if the applicant is an association other than a corporation or partnership), 
and the original signatures of all employees of the broker; 
   
  (8) the social security number of each employee, verification contractor, 
authorized employee of a verification contractor, and the social security number 
of the applicant (if he is a sole proprietor), each general partner (if the 
applicant is a partnership), each officer and director (if the applicant is a 
corporation), or each member (if the applicant is an association other than a 
partnership or corporation); and 
   
  (9) any other information the comptroller requires. 
     
  (e) Duration of license. A license issued under this section continues in 
effect until canceled by the broker or suspended or revoked by the comptroller. 
All canceled, suspended, or revoked licenses must be immediately returned to the 
comptroller or they will be subject to confiscation. 
   
  (f) Display of license. An original Texas Customs Broker's License must be 
prominently displayed at each place of business of the broker where export 
certification forms are fully or partially prepared. 
   
  (g) Locations outside the United States. No Texas Customs Broker's Licenses 
will be issued for locations beyond the territorial limits of the United States. 
   
  (h) Verification contractors. A licensed customs broker may enter into a 
written contract with a verification contractor to facilitate the monitoring of 
exports certified by the broker. A verification contractor may authorize by 
power of attorney his full- or part-time employee to perform verification 
services on his behalf. A verification contractor may not fully or partially 
prepare, issue, and/or sign export certification forms and may not affix export 
certification stamps to export certification forms. A verification contractor's 
contract must be submitted to and approved by the comptroller, prior to which 
the verification contractor may not perform valid export verification services 
described in this subsection. 
   
  (i) Export certification stamps. The comptroller will produce or have produced 
export certification stamps to be affixed to export certification forms. 
 
  (1) The comptroller may change the design as often as necessary for the 
enforcement of this section. The design will be changed at least once each 
calendar quarter. 
   
  (2) Only a licensed customs broker or his authorized employee may receive 
stamps. A person obtaining stamps in person must present photographic 
identification. 
   
  (3) There is no fee for the stamps. 
   
  (4) The stamps are non-transferable. A stamp is void if transferred to a 
person other than the broker to whom the comptroller originally issued the stamp 
or to that broker's employee in the ordinary course of business. This 
subdivision does not apply to a stamp that is actually affixed to an export 
certification form that is transferred in compliance with this section. 
   
  (5) All unused, expired stamps must be returned to the comptroller within ten 
working days of the end of each calendar quarter. All such stamps must be 
delivered to the comptroller on the same date, at the same time, and at the same 
location of the comptroller. Unused stamps must be immediately returned to the 
comptroller upon cancellation, suspension, or revocation of the broker's license 
or upon notification that the broker is out of business and may be confiscated 
if not returned. Unused, expired stamps may not be retained, destroyed, or 
disposed of except by the comptroller. 
   
  (6) As soon as practicable after discovery, a broker must report in writing to 
the comptroller the theft, destruction, or other loss of stamps issued to the 
broker, including the numbers assigned to the lost stamps (if the comptroller 
has numbered the stamps sequentially). 
   
  (7) A broker must notify the comptroller as soon as practicable in writing if 
the broker has no remaining inventory of stamps following use, theft, and/or 
other loss of the stamps. 
     
  (j) Records required. A licensed customs broker must maintain books and 
records that include, at a minimum, the following: 
 
  (1) an exact photographic image, including the exact photographic image of the 
export certification stamp, of each export certification form signed by the 
broker within the last two years (but not before January 1, 1993). Carbon copies 
and pages from multi-page forms are not acceptable because they do not contain 
an image of the export certification stamp; 
   
  (2) a ledger that: 
 
  (A) lists sequentially all export certification forms issued or voided within 
the last two years (but not before January 1, 1993); 
   
  (B) identifies the person or persons who fully or partially prepared, issued, 
and/or signed each form; and 
   
  (C) identifies the person's or persons' relationship to the licensed customs 
broker; 
     
  (3) an inventory of export certification stamps and records tracking transfers 
of stamps between the broker and his employees, identifying the recipients and 
showing the dates of transfer, quantities transferred, the sequential numbers of 
the transferred stamps (if the comptroller has numbered the stamps 
sequentially), and detailed records regarding stamps that have been lost, 
stolen, or are otherwise unaccounted for; 
   
  (4) a current list of all employees authorized to fully or partially prepare, 
issue, and/or sign export certification forms and information relating to the 
hiring and termination of employees; 
   
  (5) all contracts executed between the broker and verification contractors and 
information relating to the termination or cancellation of such contracts; 
   
  (6) exact copies of all invoices, receipts, or other documents relating to 
property whose export the broker has certified; 
   
  (7) a copy of a certified check, company check, or money order made payable to 
the purchaser, or a credit memo or cash receipt signed by the purchaser, and the 
purchaser's written assignment of the right to a Texas sales or use tax refund 
for each instance in which the broker obtained a refund assignment from the 
purchaser; and 
   
  (8) information of the exact same type as required to be submitted with the 
application for a license as described in subsection (d) of this section, 
updated and kept current since the date of application. 
     
  (k) Examination of records. A licensed customs broker must maintain all 
required records available for examination by the comptroller. The comptroller 
will issue written notice of routine examination of records at least 15 days 
prior to the date of examination. No advance notice will be issued if the 
comptroller determines that notice could jeopardize the proper enforcement of 
the tax laws and the comptroller's rules. The examination will take place at the 
broker's principal place of business unless the comptroller agrees to examine 
the records at another location. 
   
  (l) Retention of records. A licensed customs broker must retain records for a 
period of at least two years from the date of the document, the date of 
completion (if the required record is a contract), or the date of final entry 
(if the required record is a list or ledger). Copies of export certification 
forms must be retained for at least two years after the date the broker or the 
broker's employee signs the form, regardless of the date of export. For other 
documents with multiple dates, the two-year period for retention begins on the 
latest date reflected on the document. 
   
  (m) Export certification form and contents. The export certification forms 
issued by a licensed customs broker must be substantially in the form 
recommended by the comptroller. A separate form must be completed for each 
seller. Multiple invoices from a single seller may be listed on a single export 
certification form only if all the listed items were exported at the same place, 
on the same date, and at the same time. The required information must be 
completed in English on the face of the form, in addition to any other language 
in which the form is completed. The comptroller may immediately confiscate from 
any person an export certification form that is incomplete on its face, 
indecipherable, fraudulent, or otherwise in violation of this section. An export 
certification form must, at a minimum, reflect the following information: 
 
  (1) the name and address of the purchaser of the property, as shown on the 
invoice, receipt, or similar document; 
   
  (2) the name of the seller and the seller's location from which the property 
was sold; 
   
  (3) the name, address, and Texas Customs Broker's License number of the broker 
in whose name the export is being certified; 
   
  (4) the date of sale, date and time the property was exported, and exact 
location (e.g., the bridge or airport) where the property was exported; 
   
  (5) a description of the property, a list of Store Keeping Unit (SKU) or other 
product identification codes, or copies of invoices securely attached to the 
form and signed and dated individually by the broker, the broker's employee, or 
verification contractor; 
   
  (6) the invoice numbers (if any) and sales prices of the property; 
   
  (7) the original signature of the licensed customs broker or the broker's 
employee, together with a certification that the property has been exported; 
   
  (8) the name of the person who signed the form, typed or legibly printed near 
the signature; 
   
  (9) a valid export certification stamp whose expiration date falls within the 
same calendar quarter as the date of export (regardless of the date of sale); 
and 
   
  (10) a sequential export certification form number assigned by the licensed 
customs broker. 
     
  (n) License denial, suspension, and revocation. The comptroller may deny, 
suspend, or revoke a Texas Customs Broker's License for cause. 
 
  (1) Grounds for denying a person's application for a Texas Customs Broker's 
License include, but are not limited to: 
 
  (A) ineligibility for a license under subsection (c) of this section, 
including filing incomplete, false, or misleading information with the license 
application; 
   
  (B) disqualification for a license due to prior denial, suspension, or 
revocation, as provided in this subsection; or 
   
  (C) forfeiture of corporate privileges, certificate of authority, or charter, 
if the applicant is a corporation. 
     
  (2) A person whose application for a Texas Customs Broker's License has been 
denied may resubmit the application not sooner than 90 days after the date on 
which the comptroller's decision to deny the application becomes final. However, 
the comptroller may authorize re-application at an earlier date if he determines 
it is warranted under the circumstances. 
   
  (3) Acts or omissions of a licensed customs broker, his employee, his 
verification contractor, an officer or director, a general partner, or 
association member (as applicable) that constitute cause for suspension or 
revocation of a license under this section include, but are not limited to: 
 
  (A) cancellation, suspension, or revocation by the United States Customs 
Service of the broker's license to act as a custom house broker or cancellation 
of that license by the broker; 
   
  (B) violation of any provision of the Tax Code or the comptroller's rules; 
   
  (C) delivering to any person a signed and/or stamped export certification form 
if all or a portion of the property described thereon was not actually exported 
at the time and place and on the date reflected on the certification form; 
   
  (D) delivering to any person a signed and/or stamped export certification form 
based solely on: 
 
  (i) foreign import documents, bills of lading, freight forwarder's receipts, 
or other documents that constitute valid proof of export in and of themselves 
under sec.3.323 of this title (relating to Imports and Exports); or 
   
  (ii) proof of foreign citizenship; 
     
  (E) transferring an export certification stamp to a person other than the 
licensed customs broker or the broker's employee, except if, at the time of 
transfer, the stamp is affixed to an export certification form issued in 
compliance with this section; 
   
  (F) delivering to any person an export certification form with knowledge that 
the recipient intends to use the form to evade tax that is legally due or to 
assist another person in the evasion of tax that is legally due; 
   
  (G) soliciting, advertising, or promoting the unlawful evasion of tax through 
use of export certification forms; 
   
  (H) knowingly making a false verbal or written statement to the comptroller; 
   
  (I) fully or partially preparing export certification forms at a location for 
which no Texas Customs Broker's License has been issued; 
   
  (J) transferring signed and/or stamped export certification forms that are 
otherwise blank or incomplete at the time of transfer to a person other than the 
licensed customs broker or the broker's employee in the ordinary course of 
business; 
   
  (K) failing to exercise responsible supervision and control over the conduct 
of export certification business, including inadequate supervision of employees 
and verification contractors; 
   
  (L) failing to keep current in a correct, orderly, and itemized manner the 
records required under this section, failing to timely provide the comptroller 
with information required to be provided, or failing to account for all export 
certification stamps received from the comptroller; 
   
  (M) refusing the comptroller access to, concealing, removing, or destroying 
without the comptroller's prior, written consent, the whole or any part of a 
record required to be kept under this section, or refusing to cooperate with the 
comptroller's investigation; 
   
  (N) attempting to unduly influence the comptroller by the use of a threat, 
false accusation, duress, or the offer of any special inducement or promise of 
advantage, or by bestowing any gift, favor, or other thing of value; 
   
  (O) withholding information from or knowingly imparting false information to a 
client; 
   
  (P) failing to timely return to the comptroller unused, expired export 
certification stamps as required by this section, absent a showing and timely 
report to the comptroller of loss by theft or accident; 
   
  (Q) selling or buying export certification forms and/or export certification 
stamps except as consistent with this section; 
   
  (R) seeking and/or obtaining under false pretenses a tax refund from a seller, 
including giving a false refund assignment to the seller or otherwise 
representing that the broker has the authority to obtain a refund of tax paid by 
another person if the broker does not have such authority, in fact; or 
   
  (S) failing promptly to notify the seller, in writing, that an export 
certification form relating to that seller is for any reason incomplete, 
misleading, void, or otherwise invalid. 
     
  (4) After notice and hearing, the comptroller may suspend a license for no 
fewer than 60 days and no more than 120 days if the broker's license has not 
been previously suspended or revoked, for no fewer than 120 days and no more 
that 180 days if the broker's license has been previously suspended or revoked, 
or concurrently and for the same length of time as a suspension by the United 
States Customs Service of the broker's license to act as a custom house broker. 
The suspension becomes effective on the date the comptroller's decision to 
suspend the license becomes final. Suspension of a license applies to all 
locations of the broker. 
   
  (5) After notice and hearing, the comptroller may revoke a broker's license 
indefinitely if the broker's license has been suspended at least twice 
previously or has been previously revoked, or if the broker's license to act as 
a custom house broker has been revoked by the United States Customs Service. The 
revocation becomes effective on the date the comptroller's decision to revoke 
the license becomes final. Revocation of a license applies to all locations of 
the broker. 
   
  (6) A Texas Customs Broker's License that has been suspended is reinstated 
automatically upon the expiration of the period of suspension, unless the 
licensee notifies the comptroller in writing that the license should not be 
reinstated. Not sooner than one year after the effective date of revocation, a 
person whose Texas Customs Broker's License has been revoked may apply to the 
comptroller for reinstatement. The comptroller may reinstate the license if the 
person otherwise qualifies for a license as provided in this section and the 
comptroller is satisfied that the person has a good faith intent to comply with 
the tax laws and the comptroller's rules. 
   
  (7) For procedures relating to license denial, suspension, and revocation, see 
sec.3.361 of this title (relating to Practice and Procedure for Texas Customs 
Broker's License Denial, Suspension, and Revocation). 
     
  (o) Suggested form of certification. A suggested form for the Licensed Customs 
Broker's Export Certification is set out as follows. 
     
  <ol>Figure: 34 TAC  s3.360(o) 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on December 2, 1994. 
 TRD-9451781 
  Martin Cherry 
 Chief, General Law 
 Comptroller of Public Accounts 
    Earliest possible date of adoption: January 9, 1995 
 For further information, please call: (512) 463-4028 
         
         
  34 TAC sec.3.361 
 
  The Comptroller of Public Accounts proposes new sec.3.361, concerning 
administrative practice and procedure for denying, suspending, or revoking Texas 
Customs Broker's Licenses. Due to additions to Tax Code, Chapter 151, effective 
June 19, 1993, it has become necessary to promulgate rules of procedure specific 
to customs brokers. The rule discusses contested cases, notice, and appeals. 
 Mike Reissig, chief revenue estimator, has determined that for the first five-
year period the rule will be in effect there will be no significant revenue 
impact on the state or local government. 
 Mr. Reissig also has determined that for each year of the first five years the 
rule is in effect the public benefit anticipated as a result of enforcing the 
rule will be in providing new information regarding tax responsibilities. This 
rule is adopted under the Tax Code, Title 2, and does not require a statement of 
fiscal implications for small businesses. There is no significant anticipated 
economic cost to persons who are required to comply with the proposed rule. 
 Comments on the proposal may be submitted to Joe A. Galvan, Jr., Manager, Tax 
Administration Division, P.O. Box 13528, Austin, Texas 78711. 
 The new rule is proposed under the Tax Code, sec.111.002, which provides the 
comptroller with the authority to prescribe, adopt, and enforce rules relating 
to the administration and enforcement of the provisions of the Tax Code, Title 
2. 
 The new rule implements the Tax Code, sec.151.157. 
 
 
  sec.3.361. Practice and Procedure for Texas Customs Broker's License Denial, 
Suspension, and Revocation. 
 
  (a) Applicability of rules of practice and procedure. The following rules of 
practice and procedure contained in Part I, Chapter I, Subchapter A of this 
title (relating to Practice and Procedures) shall apply to hearings involving 
the denial, revocation, or suspension of a Texas Customs Broker's License: 
sec.sec.1.1, 1.2, 1.4, 1.8, 1.19, 1.21-1.27, 1.29-1.36, 1.38, 1.41, and 1. 42. 
For information about licensing procedures and requirements, see sec.3.360 of 
this title (relating to Customs Brokers). 
   
  (b) Special rules governing hearings on the denial, revocation, or suspension 
of a Texas Customs Broker's License. 
 
  (1) Contested cases. A contested case is a proceeding in which the legal 
rights, duties, or privileges of an applicant or licensee are to be determined 
by the agency after an opportunity for adjudicative hearing. It includes a 
request for relief from actions initiated by the agency to deny, suspend, or 
revoke a Texas Customs Broker's License. Contested cases are within the 
jurisdiction of the administrative law judges. 
   
  (2) Initiation of an oral hearing. 
 
  (A) If the comptroller determines that an applicant is not eligible for a 
Texas Customs Broker's License, the applicant will be notified, in writing, by 
personal service, or by registered or certified mail, return receipt requested, 
that the application has been denied. The notice will state the reasons for the 
denial. The applicant may, within 15 days of the date of the notice of denial, 
make a written request for an oral hearing to contest the denial. If the 
applicant does not request a hearing within 15 days of the date of the notice of 
denial, the hearing is waived and a final decision will be issued. 
   
  (B) If the comptroller determines that a Texas Customs Broker's License should 
be suspended or revoked, the comptroller will notify the licensee, in writing, 
by personal service or by registered or certified mail, return receipt 
requested, that the license will be suspended or revoked and will state the 
reasons for the action. The licensee may, within 15 days of the date of the 
notice of suspension or revocation, make a written request for an oral hearing 
to contest the action. If the licensee does not request a hearing within 15 days 
of the date of the notice of suspension or revocation, the hearing is waived and 
a final decision will be issued. 
     
  (3) Content of request for an oral hearing. 
 
  (A) A request for an oral hearing must contain the reasons the applicant or 
licensee disagrees with the action of the agency. The applicant or licensee must 
list and number the factual and legal grounds why the action of the agency 
should be reversed. Legal authority must be cited if the applicant or licensee 
disagrees with the agency's interpretation of the law. 
   
  (B) Evidence regarding issues raised in the request for hearing may be 
obtained through: 
 
  (i) a preliminary conference; and 
   
  (ii) discovery. 
     
  (C) Time limits on discovery or preliminary conferences will be set by the 
assigned administrative law judge if the parties cannot reach agreement. 
   
  (D) A request for hearing may be amended up to ten days prior to the time that 
the hearing date is set, and not later, unless by permission of the assigned 
administrative law judge, and unless all evidence upon which the applicant or 
licensee intends to rely and that was not previously filed is filed with the 
amended request for hearing. 
     
  (4) Extensions of time. 
 
  (A) A motion for extension of the due date for submitting a request for 
hearing on the denial of an application or on the proposed suspension or 
revocation of a license may be granted in case of emergency or extraordinary 
circumstances. A motion for extension will not be routinely granted and each 
request will be closely scrutinized to ensure that the applicant or licensee has 
made every effort to comply with the original deadline. A motion filed after the 
expiration of the original due date will not be considered. A motion must be 
directed to the chief administrative law judge or his designee, who will grant 
or deny the motion. 
   
  (B) A motion for an extension of any other deadline will not be granted unless 
good cause is established and the need for the extension is not due to the 
moving party's neglect, indifference, or lack of diligence. A motion must be 
made in writing at least seven days prior to the deadline. In the event of an 
emergency, a motion may be accepted if it is postmarked, sent by facsimile 
transmission, or deposited with a private mail or courier service, postage or 
delivery charges paid, not later than the date of the original deadline. 
     
  (5) Motion to dismiss; request for extended hearing. 
 
  (A) The agency may move to dismiss the hearing on the ground that the request 
for hearing was not timely filed or failed to state a claim upon which relief 
could be granted as required by subsection (b)(3) of this section. 
   
  (B) An applicant or licensee who believes it will require more than two hours 
for a hearing must file a written request for an extended hearing at the time 
the request for hearing is filed, and state the reasons why more time will be 
required; however, any party may later request an extended hearing for good 
cause shown. 
     
  (6) Notice of setting. Upon receipt of a timely and sufficient request for 
hearing, the assigned administrative law judge will send a notice to the parties 
giving: 
 
  (A) the date, time, place, and nature of the oral hearing; 
   
  (B) the legal authority and jurisdiction under which the hearing is to be 
held; 
   
  (C) a reference to the particular statutes and rules involved; and 
   
  (D) upon request, briefing and evidentiary prefiling dates, and other 
appropriate orders. 
     
  (7) Administrative law judge to hear case. Hearings will be conducted by an 
assigned administrative law judge who has authority to examine witnesses, to 
rule on motions, and to rule upon the admissibility of evidence. The 
administrative law judge has the authority to continue or recess any hearing, to 
control the record, and to propose decisions to the comptroller. If for any 
reason the assigned administrative law judge cannot continue on a contested 
case, another administrative law judge will become familiar with the record and 
perform any functions remaining to be performed without the necessity of 
repeating any previous proceedings in the case. 
   
  (8) Filing of documents. All documents submitted after the notice of setting 
has been issued must be filed with the assigned administrative law judge with a 
copy to each party. In addition to any other order by the assigned 
administrative law judge, the time limit for filing documents with the 
administrative law judge and an opposing party shall be not later than ten days 
prior to the hearing. 
   
  (9) Continuances (postponement of hearing). A motion for continuance of a 
contested case set for oral hearing must be in writing and filed with the 
assigned administrative law judge at least seven days prior to the date that the 
matter is to be heard. If an emergency occurs less than seven days prior to the 
hearing date, a motion for continuance may be filed. The motion must show that 
there is good cause for the continuance and that the need is not caused by 
neglect, indifference, or lack of diligence. A copy of the motion must be served 
upon all other parties of record at the time of filing. 
   
  (10) Comptroller's decision. The proposed decision of the assigned 
administrative law judge must be approved by the Comptroller of Public Accounts 
before it is given effect. The comptroller's decision will be sent to the 
applicant or licensee and any authorized representative. The decision is final 
20 days from the date mailed, unless a motion for rehearing is filed at or 
before midnight of the 20th day. If the motion for rehearing is granted, the 
decision is vacated pending a subsequent decision upon rehearing. If the motion 
for rehearing is overruled, whether by order or operation of law, the decision 
is final on the date the motion is overruled. A final decision of the 
comptroller to deny, suspend, or revoke a Texas Customs Broker's License is 
subject to judicial review by trial de novo in the district courts of Travis 
County. 
   
  (11) Joint hearings. An applicant, licensee, or the agency may file a written 
motion to have two or more cases involving only that applicant or licensee 
joined for purposes of hearing; or the assigned administrative law judge, acting 
independently, may join two or more such cases. 
   
  (12) Dismissal of case. 
 
  (A) If a motion to dismiss is filed upon agreement between the applicant or 
licensee and the agency, or upon the applicant's or licensee's decision to 
abandon the case, a decision will be issued that conforms with such disposition. 
   
  (B) The agency may move to dismiss a case based upon agreement reached between 
the applicant or licensee and the agency, for failure to state a claim upon 
which relief can be granted as required by subsection (b)(3) of this section, or 
for want of prosecution. The motion must be served on the applicant or licensee 
and its authorized representative at its last address of record. If there is no 
reply from the applicant or licensee to the agency's motion to dismiss within 15 
days, a decision will be issued denying the relief sought by the applicant or 
licensee. 
   
  (C) All motions to dismiss that are based upon a representation that both 
parties have agreed to dismiss a contested case on the basis that all issues 
have been settled shall be in writing and signed by both parties or their 
authorized representatives. 
     
  (13) Burden of proof. In all contested cases the agency has the burden of 
proving a prima facie case; the burden of proof then shifts to the applicant or 
licensee, with the standard of proof being by a preponderance of the evidence. 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on December 2, 1994. 
 TRD-9451782 
  Martin Cherry 
 Chief, General Law 
 Comptroller of Public Accounts 
    Earliest possible date of adoption: January 9, 1995 
 For further information, please call: (512) 463-4028 
         
                     
  TITLE 37. PUBLIC SAFETY AND CORRECTIONS 
 Part XIII. Texas Commission on Fire Protection 
  Chapter 531. Fire Alarm Rules 
  
  37 TAC sec.sec.531.7, 531.10, 531.11, 531.13, 531.14, 531.16, 531. 18-531.23 
 
  (Editor's note: The text of the following sections proposed for repeal will 
not be published. The sections may be examined in the offices of the Texas 
Commission on Fire Protection or in the Texas Register office, Room 245, James 
Earl Rudder Building, 1019 Brazos Street, Austin.) 
   
  The Texas Commission on Fire Protection proposes the repeal of sec.sec.531.7, 
531.10, 531.11, 531.13, 531.14, 531.16, and 531.18-531.23, concerning regulation 
of the business of inspecting, planning, certifying, leasing, selling, 
servicing, testing, installing, monitoring, and maintaining fire alarm or fire 
detection devices and systems. 
 The repeals are necessary to enable the Commission to adopt a new sec.531.18 
and to renumber the previous sec.531.18 and successive rules accordingly, and to 
provide for more efficient regulation of businesses, with a resulting 
improvement in the quality of protection afforded property and lives by fire 
alarm equipment. 
 Ron Hyde, Chairman of the Fire Alarm Advisory Council, has determined that for 
the first five-year period the repeals are in effect there will be no fiscal 
implications for state or local government as a result of enforcing or 
administering the repeals. 
 Mr. Hyde also has determined that for each year of the first five years the 
repeals are in effect the public benefit anticipated as a result of enforcing 
the repeals will be more efficient regulation of these businesses, with a 
resulting improvement in the quality of protection afforded property and lives 
by fire alarm equipment. 
 Comments on the proposed repealed sections may be submitted to Michael E. 
Hines, Executive Director, Texas Commission on Fire Protection, P.O. Box 2286, 
Austin, Texas 78768-2286. 
 The repeals are proposed under Article 5.43-2, sec.sec.4, 4A, and 6, which 
provide the Texas Commission on Fire Protection with the authority to adopt 
rules necessary to its administration through the state fire marshal, for the 
protection and preservation of life and property. 
 
 
  sec.531.7. Adopted Standards. 
 
   
  sec.531.10. Certificate of Registration. 
 
   
  sec.531.11. Licenses. 
 
   
  sec.531.13. Applications. 
 
   
  sec.531.14. Fees. 
 
   
  sec.531.16. Sales, Installation, and Service. 
 
   
  sec.531.18. Fire Alarm and Detection System Plans. 
 
   
  sec.531.19. Installation and Service Labels. 
 
   
  sec.531.20. Yellow Labels. 
 
   
  sec.531.21. Red Labels. 
 
   
  sec.531.22. Enforcement. 
 
   
  sec.531.23. Severability. 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on November 29, 1994. 
 TRD-9451843 
  Jack Woods 
 General Counsel 
 Texas Commission on Fire Protection 
    Earliest possible date of adoption: January 9, 1995 
 For further information, please call: (512) 918-7184 
         
         
  37 TAC sec.sec.531.7, 531.10, 531.11, 531.13, 531.14, 531.16, 531.18-531.24 
 
  The Texas Commission on Fire Protection proposes new sec. s531.7, 531.10, 
531.11, 531.13, 531.14, 531.16, and 531.18-531.24, concerning regulation of the 
business of inspecting, planning, certifying, leasing, selling, servicing, 
testing, installing, monitoring, and maintaining fire alarm or fire detection 
devices and systems. The new sec.531.7 updates NFPA Standard 12A to 1992 and 
NFPA Standards 12, 70, 72, and 90A to 1993; and adopts UL 827 (1989), Standard 
for Central Stations for watchmen, fire alarm, and supervisory services; and 
deletes NFPA Standards 71, 72E, 72G, 72H, and 74; it also reflects the addition 
of the reference to NFPA 72, 1993, National Fire Alarm Code. The new sec.531.10 
adds subsection (h)(4) regarding the employment of a technician licensee at each 
central station location; subsection (h)(5) regarding a registered firm's 
subcontracting of monitoring services to another registered firm; and subsection 
(h)(6) regarding duties of a registered firm reporting alarm or supervisory 
signals to emergency services. The new sec.531.11 adds the word monitoring to 
paragraphs (1), (3), and (4). The new sec.531.13 changes the reference to NFPA 
71 to NFPA 72 in subsection (a)(5)(A). The new sec.531.14 makes the initial 
examination and reexamination fees non-refundable and non-transferable. The new 
sec.531.16 reflects the deletion, in subsection (b)(2) of the words inspection, 
or servicing; it also adds a new subsection (b)(3) regarding maintenance and 
servicing of fire detection and alarm devices to be performed by or under direct 
on-site supervision of a licensed fire alarm technician or a fire alarm planning 
superintendent. Section 531.18 is a new section requiring inspections to be 
performed and documented by a licensed fire alarm technician or planner at 
certain times; it also adds a new form, the Fire Alarm System Installation 
Inspection Form. The new sec.531.19 renumbers the previous sec.531.18 and also 
reflects a change to subsection (c) that states at least one plan copy must bear 
the name, original signature, and business phone number of the licensed fire 
alarm planning superintendent or a Texas registered professional engineer; it 
also reflects the deletion of the words "and the" after completion date; it also 
adds a new subsection (e) that states fire alarm plans, manuals, and documents 
shall not be stored inside fire alarm panels. The new sec.531.20 renumbers the 
previous  s531.19 and also reflects the deletion of reference to designation by 
the property owner; it also adds language that states on new installations, 
installation labels shall not be used in conjunction with yellow, green, or red 
labels, and further states if the installation is deficient in any respect that 
might otherwise require a yellow or red service tag, the installation is 
considered incomplete and no installation label should be affixed prior to 
correction of all deficiencies. Additionally, subsection (c) reflects the 
deletion of the words "designated by the property owner"; and a new subsection 
(e)(7) to provide for the last date of sensitivity testing, if known; subsection 
(f) is revised to reflect this additional language to the actual label. 
Subsection (g) is changed to reflect that if a system does not comply with 
standards adopted at the time the system was installed, or has a fault 
condition, or is impaired from normal operation, that the owner or his 
representative must be notified by the registered firm. This subsection is 
further changed to reflect that the registered firm must send a copy of the 
notice to the local authority having jurisdiction; it also changes the 
referenced rule numbers accordingly. The new sec.531.21 renumbers the previous 
sec.531.20 and reflects changes to subsection (a) that state if a system does 
not comply with standards adopted at the time the system was installed, a 
completed yellow label must be attached to the outside of the control panel or, 
if there is no panel, in a permanently visible location. The reference to a 
location designated by the property owner is deleted. Subsection (d)(1) is 
changed to delete AND/OR HAS A FAULT CONDITION; subsection (d)(6) is changed to 
delete and/or fault; subsection (f) reflects the change to the actual label 
deleting AND/OR HAS A FAULT CONDITION. A new subsection (g) is added that states 
a contractor is to comply with provisions of sec.531.20(g). The new sec.531.22 
renumbers the previous sec.531.21 and also reflects changes to subsection (a) 
that state if a system is inoperable, or has a fault condition, or is impaired 
from normal operation, a completed red label must be attached to the outside of 
the control panel or, if there is no panel, in a permanently visible location. 
The references to a location designated by the property owner and system 
replacement are deleted. Subsection (e)(1) is changed to reflect removal of the 
word INOPERABLE and the addition of HAS A FAULT CONDITION OR IS IMPAIRED FROM 
NORMAL OPERATION. Additionally, subsection (g) reflects the change to the actual 
label removing the word INOPERABLE and adding HAS A FAULT CONDITION OR IS 
IMPAIRED FROM NORMAL OPERATION. The new sec.531.23 renumbers the previous 
sec.531.22 and adopts the previous text without change. The new sec.531.24 
renumbers the previous sec.531.23 and adopts the previous text without change. 
 Ron Hyde, Chairman of the Fire Alarm Advisory Council, has determined that 
there will be no fiscal implications for local governments for the first five 
years as a result of enforcing or administering the new sec.sec.531.7, 531.10, 
531. 11, 531.13, 531.14, 531.16, and 531.18-531.24, and a cost to state 
government, for the expense of mailing new rules encompassing the proposed 
changes to registrants, in the approximate amount of $650 in the first year, and 
no fiscal implications to state government thereafter. 
 Mr. Hyde also has determined that for each year of the first five years the 
sections proposed are in effect that there will be an improvement in the quality 
of protection afforded property and lives by fire alarm equipment. The economic 
costs of compliance with the amended sections for individuals and firms will be 
approximately $300 to $600 per additional licensed employee for time and 
expenses incurred in obtaining licensing for additional technicians for 
monitoring and service work required by the amended sections. The costs of 
compliance per employee will be the same for small and large businesses. 
 Comments on the new sections may be submitted to Michael E. Hines, Executive 
Director, Texas Commission on Fire Protection, P.O. Box 2286, Austin, Texas 
78768-2286. 
 The new sections are adopted under Article 5.43-2, sec. s4, 4A, and 6, which 
provide the Texas Commission on Fire Protection with the authority to adopt 
rules necessary to its administration through the state fire marshal for the 
protection and preservation of life and property in controlling the requirements 
for planning, certifying, leasing, selling, servicing, installing, monitoring, 
or maintaining of fire alarms or fire detection devices or systems. 
 The Statute affected by these rules is Texas Insurance Code, Article 5.43-2. 
 
 
  sec.531.7. Adopted Standards. 
 
  (a) The commission adopts by reference those sections of the following 
copyrighted minimum standards, recommendations, and appendices concerning fire 
alarm, fire detection, or supervisory services or systems, except to the extent 
they are at variance to sections of this chapter, the Texas Insurance Code, 
Article 5.43-2, or other statutes. The standards are published by and are 
available from the National Fire Protection Association, Quincy, Massachusetts. 
 
  (1) NFPA 11-1988, Standard on Low Expansion Foam and Combined Agent Systems. 
   
  (2) NFPA 11A-1988, Standard for Medium- and High-Expansion Foam Systems. 
   
  (3) NFPA 12-1993, Standard for Carbon Dioxide Extinguishing Systems. 
   
  (4) NFPA 12A-1992, Standard on Halon 1301 Fire Extinguishing Systems. 
   
  (5) NFPA 12B-1990, Standard on Halon 1211 Fire Extinguishing Systems. 
   
  (6) NFPA 13-1991, Standard for the Installation of Sprinkler Systems. 
   
  (7) NFPA 13A-1987, Recommended Practice for the Inspection, Testing, and 
Maintenance of Sprinkler Systems. 
   
  (8) NFPA 13D-1991, Standard for the Installation of Sprinkler Systems in One- 
and Two-Family Dwellings and Mobile Homes. 
   
  (9) NFPA 13R-1991, Standard for the Installation of Sprinkler Systems in 
Residential Occupancies up to Four Stories in Height. 
   
  (10) NFPA 15-1990, Standard for Water Spray Fixed Systems for Fire Protection. 
   
  (11) NFPA 16-1991, Standard on Deluge Foam-Water Sprinkler and Foam-Water 
Spray Systems. 
   
  (12) NFPA 17-1990, Standard for Dry Chemical Extinguishing Systems. 
   
  (13) NFPA 17A-1990, Standard on Wet Chemical Extinguishing Systems. 
   
  (14) NFPA 25-1992, Standard for Inspection, Testing and Maintenance of Water 
Based Extinguishing Systems. 
   
  (15) NFPA 70-1993, National Electrical Code. 
   
  (16) NFPA 72-1993, National Fire Alarm Code. 
   
  (17) NFPA 90A-1993, Standard for the Installation of Air Conditioning and 
Ventilating Systems. 
   
  (18) NFPA 101-1985 and later editions, Code for Safety to Life from Fire in 
Buildings and Structures (Life Safety Code), or a local jurisdiction may adopt 
one set of the model codes listed in subsection (b) of this section in lieu of 
NFPA 101. 
   
  (19) UL 827 (1989), as amended through October 14, 1993, Standard for Central 
Stations for watchmen, fire alarm, and supervisory services. 
     
  (b) The acceptable alternative model code sets are: 
 
  (1) the Uniform Building Code-1985 and later editions, and the Uniform Fire 
Code-1985 and later editions; or 
   
  (2) the SBCCI Building Code-1985 and later editions, and the SBCCI Fire Code-
1985 and later editions; or 
   
  (3) the BOCA Building Code-1985 and later editions, and the BOCA Fire Code-
1985 and later editions. 
 
       
  sec.531.10. Certificate of Registration. 
 
  (a) Business location. A specific business location must be maintained by each 
registered firm. The location must be indicated on the certificate. 
   
  (b) Posting. Each certificate must be posted conspicuously for public view at 
the business location. 
   
  (c) Business vehicles. All vehicles regularly used in installation, service, 
maintenance, testing, or certification activities must prominently display the 
company name, telephone number, and certificate number. The numbers and letters 
must be at least one inch high and permanently affixed or magnetically attached 
to each side of the vehicle in a color contrasting with the background color of 
the vehicle. The certificate number must be designated in the following format: 
TX ACR-(number). 
   
  (d) Change of ownership. 
 
  (1) The total change of a firm's ownership invalidates the current 
certificate. To assure continuance of the business, a complete application for a 
new certificate must be submitted to the state fire marshal at least 14 days 
prior to such change. 
   
  (2) A partial change in a firm's ownership requires a revised certificate if 
it affects the firm's name, location, or mailing address. 
     
  (e) Change of corporate officers. Any change of corporate officers must be 
reported in writing to the state fire marshal within 14 days. This change does 
not require a revised certificate. 
   
  (f) Duplicate certificates. A duplicate certificate must be obtained from the 
state fire marshal to replace a lost or destroyed certificate. The certificate 
holder must submit written notification of the loss or destruction without 
delay, accompanied by the required fee. 
   
  (g) Revised certificates. The change of a firm's name, location, or mailing 
address requires a revised certificate. Within 14 days after the change 
requiring the revision, the certificate holder must submit written notification 
of the necessary change accompanied by the required fee. 
   
  (h) Monitoring requirements. 
 
  (1) A registered firm may not monitor a fire alarm system located in the State 
of Texas for an unregistered firm. 
   
  (2) A registered firm may not connect a fire alarm system to a monitoring 
service unless the monitoring service is registered under or is exempt from the 
licensing requirements of the Insurance Code, Article 5.43-2, so long as the 
monitoring equipment being used is in compliance with Article 5. 43-2, sec.9. 
   
  (3) A registered firm currently engaged in monitoring must submit a monitoring 
information form within 90 days of the effective date of this chapter, as 
amended. The information form must be accompanied by either: 
 
  (A) evidence of listing or certification as a central or remote station by a 
testing laboratory approved by the Texas Commission on Fire Protection; or 
   
  (B) evidence that such listing or certification has been applied for, provided 
that such listing or certification is obtained by December 31, 1994; however, if 
an applicant provides evidence of a lease for the central or remote station 
premises operated by the applicant that was signed before June 4, 1993, then 
such listing or certification requirement is extended to six months from the 
expiration of that lease, but in no event later than June 30, 1996. 
     
  (4) A registered firm must employ at least one technician licensee at each 
central station location. Each dispatcher at the central station is not required 
to be a fire alarm technician licensee. 
   
  (5) A registered firm subcontracting monitoring services to another registered 
firm must advise the monitoring services subscriber of the identity and location 
of the registered firm actually providing such services unless the registered 
firm's contract with the subscriber contains a clause giving the registered firm 
the right, at the registered firm's sole discretion, to subcontract any or all 
of the work or service. 
   
  (6) A registered firm reporting alarm or supervisory signals to emergency 
services shall provide their licensed company name and the following 
information: type of alarm, address of alarm, name of subscriber, dispatcher's 
identification, and call back phone number. 
 
       
  sec.531.11. Licenses. 
 
  (a) Types of licenses. 
 
  (1) Fire alarm technician license-For installing, inspecting, servicing, 
testing, maintaining, monitoring, and certifying fire alarm or fire detection 
devices and systems. 
   
  (2) Residential fire alarm superintendent single station license-For planning, 
installing, certifying, inspecting, testing, servicing, and maintaining to 
single station smoke or heat detectors which are not a part of or connected to 
any other detection device or system in single-family or two-family residences. 
   
  (3) Residential fire alarm superintendent license-For planning, installing, 
certifying, inspecting, testing, servicing, monitoring, and maintaining fire 
alarm or fire detection devices and systems in single-family or two-family 
residences. 
   
  (4) Fire alarm planning superintendent license-For planning, installing, 
certifying, inspecting, testing, servicing, monitoring, and maintaining fire 
alarm or fire detection devices. 
     
  (b) Posting. Wall licenses must be posted conspicuously for public view at the 
firm's business location. 
   
  (c) Pocket license. A licensee must carry a pocket license for identification 
while engaged in the activities of the business. 
   
  (d) Duplicate license. A duplicate license must be obtained from the state 
fire marshal to replace a lost or destroyed license. The license holder or 
registered firm must submit written notification of the loss or destruction 
without delay, accompanied by the required fee. 
   
  (e) Revised licenses. The change of a licensee's registered firm or mailing 
address requires a revised license. Within 14 days after the change requiring 
the revision, the license holder or registered firm must submit written 
notification of the necessary change accompanied by the required fee. 
   
  (f) Restrictions. 
 
  (1) A licensee must not engage in any act of the business unless employed by 
or as an agent of a registered firm. 
   
  (2) A registered firm must notify the state fire marshal within 14 days after 
termination of employment of a licensee. 
   
  (3) Each person who engages in the activities of the business must have the 
appropriate license issued by the state fire marshal unless excepted from the 
licensing provisions by the Insurance Code, Article 5.43-2, sec.3(b). 
 
       
  sec.531.13. Applications. 
 
  (a) Certificates of registration. 
 
  (1) Applications for certificates and branch office certificates must be 
submitted on forms provided by the state fire marshal and be accompanied by all 
fees, documents, and information required by the Insurance Code, Article 5. 43-
2, and the sections of this chapter. An application will not be deemed complete 
until all required forms, fees, and documents have been received in the State 
Fire Marshal's office. 
   
  (2) Applications must be signed by the sole proprietor, or by each partner of 
a partnership, or by an officer of a corporation. For applicants using an 
assumed name, the application must also be accompanied by evidence of compliance 
with the Assumed Business or Professional Name Act, Texas Business and Commerce 
Code, Chapter 36. The application must also include written authorization by the 
applicant permitting the state fire marshal or his representative to enter, 
examine, and inspect any premises, building, room, or establishment used by the 
applicant while engaged in the business to determine compliance with the 
provisions of the Insurance Code, Article 5.43-2, and the sections of this 
chapter. 
   
  (3) For corporations, the application must also include the name of each 
shareholder owning more than 25% of the shares issued by the corporation, the 
corporate taxpayer identification number, the charter number, a copy of the 
corporate charter of a Texas corporation, or, in the case of a foreign 
corporation, a copy of the Texas certificate of authority to do business, and a 
copy of the corporation's current franchise tax certificate of good standing 
issued by the State Comptroller's office. 
   
  (4) Insurance required. 
 
  (A) The state fire marshal will not issue a certificate of registration under 
these sections unless the applicant files with the State Fire Marshal's office 
evidence of an acceptable general liability insurance policy. 
   
  (B) Each registered firm must maintain in force and on file in the State Fire 
Marshal's office a certificate of insurance identifying the insured and the 
exact nature of the business insured. In identifying the named insured, the 
certificate of insurance must include either an assumed name or the name of the 
corporation, partners, if any, or sole proprietor, if applicable. 
     
  (5) Applicants for a certificate of registration who engage in monitoring must 
provide the specific business location(s) where monitoring will take place and 
the name and license number of the fire alarm licensee(s) at each business 
location. In addition the applicants must: 
 
  (A) for a central station: provide evidence of listing or certification as a 
central station by a testing laboratory approved by the Texas Commission on Fire 
Protection and a statement that the monitoring service is in compliance with 
adopted NFPA 72; or 
   
  (B) for a remote station: provide evidence of listing or certification as a 
remote station by a testing laboratory approved by the Texas Commission on Fire 
Protection, and a statement that the monitoring service is in compliance with 
adopted NFPA 72. 
       
  (b) Fire alarm licenses. 
 
  (1) In order to be complete, applications for a fire alarm technician, 
residential fire alarm superintendent (single station), residential fire alarm 
superintendent, or fire alarm planning superintendent license from an employee 
or agent of a registered firm must be submitted on forms provided by the state 
fire marshal and be accompanied by all fees, documents, and information required 
by the Insurance Code, Article 5.43-2, and the sections of this chapter. 
Applications must be signed by the applicant and by a person authorized to sign 
on behalf of the registered firm. All applicants for any type of license must 
successfully complete a qualifying examination regarding Insurance Code, Article 
5.43-2, and the Fire Alarm Rules to be conducted by the State Fire Marshal's 
office. 
   
  (2) Applicants for fire alarm technician licenses must: 
 
  (A) furnish notification from NICET confirming the applicant's successful 
completion of the examination requirements in work elements pertaining to fire 
alarm systems, as determined by the state fire marshal; or 
   
  (B) successfully complete a technical qualifying examination to be conducted 
by the State Fire Marshal's office. 
     
  (3) Applicants for a residential fire alarm superintendent (single station) 
license must successfully complete a technical qualifying examination to be 
conducted by the State Fire Marshal's office. 
   
  (4) Applicants for a residential fire alarm superintendent license must: 
 
  (A) furnish notification from NICET confirming the applicant's successful 
completion of the examination requirements in work elements pertaining to fire 
alarm systems, as determined by the state fire marshal; or 
   
  (B) successfully complete a technical qualifying examination to be conducted 
by the State Fire Marshal's office. 
     
  (5) Applications for a fire alarm planning superintendent license must be 
accompanied by one of the following documents as evidence of technical 
qualifications for a license: 
 
  (A) proof of registration in Texas as a professional engineer; or 
   
  (B) a copy of NICET's notification letter confirming the applicant's 
successful completion of the examination requirements for certification at Level 
II for fire alarm systems. 
     
  (6) Individuals applying for a fire alarm planning superintendent license on 
or before September 1, 1989, without completing the NICET examination 
requirements may be issued a license for one year. At the time of renewal of 
such license, the applicant must attach to the application a copy of NICET's 
notification letter confirming the applicant's successful completion of the 
examination requirements for certification at Level II for fire alarm systems. 
     
  (c) Renewal Applications. 
 
  (1) In order to be complete, renewal applications for certificates and 
licenses must be submitted on forms provided by the state fire marshal and be 
accompanied by all fees, documents, and information required by the Insurance 
Code, Article 5.43-2, and the sections of this chapter. A complete renewal 
application deposited with the United States Postal Service is deemed to be 
timely filed, regardless of actual date of delivery, when its envelope bears a 
postmark date which is before the expiration of the certificate or license being 
renewed. 
   
  (2) A license may not be renewed if the applicant is not currently an employee 
or an agent of a registered firm. 
 
       
  sec.531.14. Fees. 
 
  (a) Every fee required in accordance with the provisions of the Insurance 
Code, Article 5.43-2, and the sections of this chapter must be paid by cash, 
money order, or check. Money orders and checks must be made payable to the Texas 
Commission on Fire Protection. 
   
  (b) Fees must be paid at the Office of the State Fire Marshal in Austin, 
Texas, or mailed to an address specified by the State Fire Marshal. 
   
  (c) Fees are as follows. 
 
  (1) Fire Alarm Certificate of Registration: 
 
  (A) initial fee-$500; 
   
  (B) renewal fee (for two years)-$1,000; 
   
  (C) branch office initial fee-$150; and 
   
  (D) renewal fee (for two years)-$300. 
     
  (2) Fire alarm technician license: 
 
  (A) initial fee-$100; and 
   
  (B) renewal fee (for two years)-$200. 
     
  (3) Residential fire alarm superintendent (single station) license: 
 
  (A) initial fee-$100; and 
   
  (B) renewal fee (for two years)-$200. 
     
  (4) Residential fire alarm superintendent license: 
 
  (A) initial fee-$100; and 
   
  (B) renewal fee (for two years)-$200. 
     
  (5) Fire alarm planning superintendent license: 
 
  (A) initial fee-$100; and 
   
  (B) renewal fee (for two years)-$200. 
     
  (6) Duplicate or revised certificates or licenses or other requested changes 
to certificates or licenses-$20. 
   
  (7) Examination fee-$20 (non-refundable/non-transferable). The fee is 
forfeited if the applicant does not appear for the scheduled examination. 
   
  (8) Reexamination fee-$20 (non-refundable/non-transferable). The fee is 
forfeited if the applicant does not appear for the scheduled examination. 
     
  (d) Late fees are required of all certificates or license holders who fail to 
submit complete renewal applications before the expiration of the certificate or 
license except as provided in the Insurance Code, Article 5. 43-2, sec.5C(c). 
   
  (e) Fees for certificates and licenses which have been expired for less than 
two years include both renewal and late fees and must be determined in 
accordance with the following schedule. 
     
  <ol>Figure 1: 37 TAC sec.531.14(e) 
 
   
  sec.531.16. Sales, Installation, and Service. 
 
  (a) Residential alarms (single station). 
 
  (1) Registered firms may employ persons exempt from the licensing provisions 
of the Insurance Code, Article 5.43-2,  s3(b)(10) to sell, install, and service 
residential, single station alarms. Exempted persons must be under the 
supervision of a residential fire alarm superintendent (single station), 
residential fire alarm superintendent, or fire alarm planning superintendent. 
   
  (2) Each registered firm that employs persons exempt from licensing provisions 
of the Insurance Code, Article 5.43-2, sec.3(b)(10) is required to maintain 
documentation to include lesson plans and annual test results demonstrating 
competency of said employees regarding the provisions of Article 5.43-2, adopted 
standards, and this chapter applicable to single station devices. 
     
  (b) Fire detection and fire alarm devices or systems other than residential 
single station. 
 
  (1) The sale or lease of fire alarm devices or systems must be performed under 
the direct supervision of a licensed residential fire alarm superintendent or 
fire alarm planning superintendent. 
   
  (2) The installation of all fire detection and fire alarm devices or systems, 
including monitoring equipment, subject to the Insurance Code, Article 5.43-2 
must be performed by or under the direct supervision of a licensed fire alarm 
technician, residential fire alarm superintendent, or a fire alarm planning 
superintendent. The certifying licensee must be present for the final test prior 
to certification. 
   
  (3) The maintenance or servicing of all fire detection and fire alarm devices 
or systems must be performed by or under the direct on-site supervision of a 
licensed fire alarm technician or a fire alarm planning superintendent. 
   
  (4) If the installation or servicing of a fire alarm system also includes 
installation or servicing of any part of a fire protection sprinkler system 
and/or a fire extinguisher system other than inspection and testing of detection 
or supervisory devices, the licensing requirements of the appropriate Insurance 
Code, Article 5.43-1 or 5.43-3 must be satisfied. 
   
  (5) Installation of fire detection or fire alarm devices or systems, including 
monitoring equipment, must be in accordance with standards adopted in sec.531.7 
of this title (relating to Adopted Standards) except: 
 
  (A) that a fire alarm system installed in compliance with NFPA 74 may be 
utilize a single non-dedicated telephone line to transmit the system signals to 
a registered monitoring firm; or 
   
  (B) when the installation complies with a more recent edition of an adopted 
standard or a Tentative Interim Amendment published as effective by the NFPA. 
 
         
  sec.531.18. Installation Inspections. <ol> The following inspections shall be 
performed by the licensed firm in order to assure proper installation techniques 
are followed: 
 
  (1) At the completion of the device back-box installation but prior to the 
start of cable installation; 
   
  (2) At the completion of cable installation but prior to the start of device 
installation; and 
   
  (3) At the completion of device installation but prior to activating the fire 
alarm system. The above-referenced inspections shall be performed by a licensed 
fire alarm technician or planner and be documented on the inspection form. The 
registered firm shall notify the authority having jurisdiction if initiation of 
corrective action does not take place within ten calendar days. The completed 
form shall be kept on file at the licensed firm's office for a period of five 
years from the date of system certification. (See the following Fire Alarm 
System Installation Inspection Form.) 
     
  <ol>Figure 2: 37 TAC sec.531.18(3) 
 
   
  sec.531.19. Fire Alarm and Detection System Plans. 
 
  (a) Each fire alarm system or modification to an existing system must be 
planned by a person holding a fire alarm planning superintendent license or a 
Texas registered professional engineer. 
   
  (b) Plans showing details of system wiring, control panel terminal 
identification, and device location, with functional information and 
instructions on system operation, must be provided to the building owner or his 
representative. Subsequent modifications, additions, or alterations must be 
legibly noted on updated plans and provided to the owner or his representative. 
   
  (c) At least one plan copy must bear the name, original signature, business 
phone number, and license number of the licensed fire alarm planning 
superintendent or a Texas registered professional engineer, the completion date, 
name, address, and certificate number of the registered firm. 
   
  (d) A rubber stamp may be used by a licensed fire alarm planning 
superintendent to supply the information required by subsection (c) of this 
section, except that a stamped signature is prohibited. If a rubber stamp is 
used, it must produce an imprint at least two inches wide by one inch high, all 
in bold type and capital letters, and in the following format: 
     
  <ol>Figure 3: 37 TAC sec.531.19(d) 
 
  (e) Fire alarm plans, manuals, and documents shall not be stored inside fire 
alarm panels. 
 
     
  sec.531.20. Installation and Service Labels. 
 
  (a) After an installation or modification has been completed, an installation 
label must be affixed to the inside of the control panel cover or, if the system 
has no panel, in a permanently visible location. On new installations, 
installation labels shall not be used in conjunction with yellow, green, or red 
labels. Green labels are intended to denote subsequent inspection or service. If 
the installation is deficient in any respect that might otherwise require a 
yellow or red service tag, the installation shall be deemed incomplete and no 
installation label shall be affixed until all deficiencies are corrected. 
Installation labels must be four inches in height and four inches in width and 
must be of the gummed label type. Installation labels must be white with black 
lettering. Installation labels must contain the following information in the 
format of the label shown in subsection (b) of this section: 
 
  (1) the inscription "DO NOT REMOVE BY ORDER OF THE STATE FIRE MARSHAL-FIRE 
ALARM INSTALLATION RECORD" (all in capital letters, at least 10-point bold face 
type); 
   
  (2) the firm's name, address, and telephone number (either main office or 
branch office); 
   
  (3) the firm's certificate-of-registration number; 
   
  (4) the signature and license number of the certifying licensee (a stamped 
signature is prohibited); 
   
  (5) if required, the name and license number of the planning superintendent or 
Texas registered professional engineer; and 
   
  (6) the date of installation. 
     
  (b) Installation label: 
     
  <ol>Figure 4: 37 TAC sec.531.20(b) 
 
  (c) After any service, including testing in connection with initial 
installation, a fire alarm service label must be completed in detail and affixed 
to the inside of the control panel cover or, if the system has no panel, in a 
permanently visible location. The signature of the licensee on the service label 
certifies that the service performed complies with requirements of law. 
   
  (d) A new service label must be affixed each time service is performed and 
must be green in color with black lettering. 
   
  (e) The label must be at least three inches in height and three inches in 
width and must be of the gummed label type that allows for label removal. 
Service labels must contain the following information in the format of the 
service label shown in subsection (f) of this section: 
 
  (1) the inscription "DO NOT REMOVE BY ORDER OF THE STATE FIRE MARSHAL-SERVICE 
RECORD" (all in capital letters, at least 10-point bold face type); 
   
  (2) the firm's name, address, and telephone number (either main office or 
branch office); 
   
  (3) the firm's certificate-of-registration number; 
   
  (4) the signature and license number of the certifying licensee (a stamped 
signature is prohibited); 
   
  (5) the date of service performed; 
   
  (6) the type of service performed; and 
   
  (7) last date of sensitivity testing, if known. 
     
  (f) Service label: 
     
  <ol>Figure 5: 37 TAC sec.531.20(f) 
 
  (g) If a system does not comply with applicable standards adopted at the time 
the system was installed, has a fault condition, or is impaired from normal 
operation, the owner or his representative must be notified in writing by the 
registered firm. The registered firm must send a copy of this notice to the 
local authority having jurisdiction and must comply with the requirements of 
sec.531.21 (relating to Yellow Labels) or sec.531.22 (relating to Red Labels) of 
this title. 
 
     
  sec.531.21. Yellow Labels. 
 
  (a) If a system does not comply with applicable standards adopted at the time 
the system was installed, a completed yellow label must be attached to the 
outside of the control panel cover or, if the system has no panel, in a 
permanently visible location to indicate that corrective action is necessary. 
   
  (b) The signature of the licensee on a yellow label certifies that the 
conditions listed on the label cause the system to be out of compliance with 
applicable standards. 
   
  (c) Yellow labels must be at least three inches in height and three inches in 
width and be of a gummed label type that allows for label removal. Labels must 
be printed with black lettering. 
   
  (d) Yellow labels must bear the following information in the format of the 
label shown in subsection (f) of this section: 
 
  (1) the inscription "DO NOT REMOVE BY ORDER OF THE STATE FIRE MARSHAL-SYSTEM 
DOES NOT COMPLY WITH APPLICABLE STANDARDS" (all in capital letters, at least 10-
point bold face type); 
   
  (2) the firm's name, address, and telephone number (either main office or 
branch office); 
   
  (3) the firm's certificate-of-registration number; 
   
  (4) the signature and license number of the certifying licensee (a stamped 
signature is prohibited); 
   
  (5) the date the label is affixed; and 
   
  (6) a list of the non-complying conditions. 
     
  (e) A yellow label may be removed only by a licensed employee or agent of a 
registered firm that has corrected the conditions and certified the service. 
   
  (f) Yellow label: 
     
  <ol>Figure 6: 37 TAC sec.531.21(f) 
 
  (g) A contractor shall comply with the provisions specified in sec.531. 20(g). 
 
     
  sec.531.22. Red Labels. 
 
  (a) If a system or any part thereof is inoperable, has a fault condition, or 
is impaired from normal operation, a completed red label must be attached to the 
outside of the control panel cover or, if the system has no panel, in a 
permanently visible location to indicate that corrective action is necessary. 
   
  (b) The signature of the licensee on a red label certifies that the conditions 
listed on the label have caused the system to be inoperable. 
   
  (c) A completed service label must not be attached to the system by the 
licensee until the conditions are corrected and the fire alarm system: 
 
  (1) is reinspected; 
   
  (2) is in compliance with applicable standards adopted at the time of 
installation; and 
   
  (3) is in good operating condition. 
     
  (d) Red labels must be at least three inches in height and three inches in 
width and be of a gummed label type that allows for label removal. Labels must 
be printed with black lettering. 
   
  (e) Red labels must bear the following information in the format of the label 
shown in subsection (g) of this section: 
 
  (1) the inscription "DO NOT REMOVE BY ORDER OF THE STATE FIRE MARSHAL-SYSTEM 
HAS A FAULT CONDITION OR IS IMPAIRED FROM NORMAL OPERATION" (all in capital 
letters, at least 10-point bold face type); 
   
  (2) the firm's name, address, and telephone number (either main office or 
branch office); 
   
  (3) the firm's certificate-of-registration number; 
   
  (4) the signature and license number of the certifying licensee (a stamped 
signature is prohibited); 
   
  (5) the date the label is affixed; and 
   
  (6) the list of conditions. 
     
  (f) A red label may be removed only by a licensed employee or agent of a 
registered firm who has corrected the conditions and certified the service. 
   
  (g) Red label: 
     
  <ol>Figure 7: 37 TAC sec.531.22(g) 
 
   
  sec.531.23. Enforcement. 
 
  (a) The State Fire Marshal, or his representative, may conduct investigations 
of registered firms to determine compliance with the Insurance Code, Article 
5.43-2 and this chapter. An investigation may be initiated on the written 
complaint of any party or by the Texas Commission on Fire Protection on its own 
motion. 
   
  (b) When an investigation reveals non-compliance, the firm and any licensee 
responsible for the work shall be notified in writing of the non-compliance upon 
completion of the investigation report. 
   
  (c) The Texas Commission on Fire Protection, in its discretion, may require 
correction of the violations found, or it may initiate agency proceedings 
seeking appropriate sanctions pursuant to the Insurance Code, Article 1.10, 
sec.7(a) and Article 5.43-2, sec.10(b). 
 
     
  sec.531.24. Severability.  If any provision of this chapter or the application 
thereof to any person or circumstance is held invalid for any reason, the 
invalidity shall not affect the other provisions or any other application of 
this chapter which can be given effect without the invalid provisions or 
application. To this end all provisions of the sections of this chapter are 
declared to be severable. 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on November 29, 1994. 
 TRD-9451842 
  Jack Woods 
 General Counsel 
 Texas Commission on Fire Protection 
    Earliest possible date of adoption: January 9, 1995 
 For further information, please call: (512) 918-7184 
         
               
  TITLE 43. TRANSPORTATION 
 Part I. Texas Department of Transportation 
  Chapter 2. Environmental Policy 
  
  Subchapter A. Comprehensive Policy on the Environment 
 
  43 TAC sec.sec.2.1-2.4 
 
  The Texas Department of Transportation proposes new sec. s2.1-2.4, concerning 
comprehensive policy on the environment. 
 The sections are proposed to extend the principles of the department's 
environmental policy to all transportation modes and the department's commitment 
to environmental protection to all phases of its operations. 
 The legislature, by Chapter 492, Acts of the 72nd Legislature, 1991, stated 
that it was its intent that the department balance social, environmental, and 
economic concerns consistent with proper engineering principles, mitigate any 
adverse impact on the environment directly resulting from the construction or 
improvement of the state highway system to the extent feasible and to enhance 
the environment when practicable. 
 Section 2.1 sets forth the comprehensive environmental policy. Section 2.2 
provides that the department protect, preserve, and when practicable, enhance 
the environment. Section 2.3 defines terms used in these sections. Section 2.4 
provides policy direction and guidelines concerning communication, systems 
planning, project development, protection and enhancement, and administration. 
 Dianna Noble, Director of Environmental Affairs, has determined that for the 
first five years the sections are in effect, there will not be fiscal 
implications for state or local government as a result of enforcing or 
administering the sections. 
 Ms. Noble has certified that there will be no significant impact on local 
economies or overall employment as a result of enforcing or administering the 
proposed sections. 
 Ms. Noble also has determined that for each year of the first five years the 
sections are in effect the public benefits anticipated as a result of enforcing 
the sections will be the protection of the state's physical, natural and 
cultural resources. There will be no effect on small businesses. There is no 
anticipated economic cost to persons who are required to comply with the 
sections as proposed. 
 Comments on the proposal may be submitted to Dianna Noble, Director of 
Environmental Affairs, Texas Department of Transportation, 125 East 11th Street, 
Austin, Texas 78701. The deadline for receipt of written comments will be at 
5:00 p.m. on January 9, 1995. 
 Pursuant to the Administrative Procedure Act, the Government Code, Chapter 
2001, the Texas Department of Transportation will conduct a public hearing to 
receive comments concerning the proposed sections. The public hearing will be 
held at 9:00 a.m., on Monday, December 19, 1994, in Room 221, Anson Jones 
Building, 410 East Fifth Street, Austin, Texas, and will be conducted in 
accordance with the procedures specified in 43 TAC sec.1.5. Those desiring to 
make comments or presentations may register starting at 8:30 a.m. Any interested 
person may appear and offer comments, either orally or in writing, however, 
questioning of those making presentations will be reserved exclusively to the 
presiding officer as may be necessary to ensure a complete record. While any 
person with pertinent comments will be granted an opportunity to present them 
during the course of the hearing, the presiding officer reserves the right to 
restrict testimony in terms of time and repetitive content. Organizations, 
associations, or groups are encouraged to present their commonly held views, and 
same or similar comments, through a representative member where possible. 
Presentations must remain pertinent to the issue being discussed. A person may 
not assign a portion of his or her time to another speaker. A person who 
disrupts a public hearing must leave the hearing room if ordered to do so by the 
presiding officer. Persons with disabilities who plan to attend this meeting and 
who may need auxiliary aids or services such as interpreters for persons who are 
deaf or hearing impaired, readers, large print or braille, are requested to 
contact Eloise Lundgren, Director of the Public Information Office, at 125 East 
11th Street, Austin, Texas 78701-2383, (512) 463-8588 at least two work days 
prior to the meeting so that appropriate arrangement can be made. 
 The new sections are proposed 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. 
 No statutes or rules will be affected by the new sections. 
 
 
  sec.2.1. Purpose.  This subchapter sets forth the comprehensive environmental 
policy established by the Texas Transportation Commission and the Texas 
Department of Transportation and identifies specific areas of policy direction 
with implementation guidelines applicable to all department operations, roles, 
and missions. 
 
   
  sec.2.2. Environmental Policy Statement. The commission and the department 
will protect, preserve and, when practicable, enhance the environment. 
Particular emphasis will be placed on avoidance, minimization, and compensation 
for adverse environmental impacts while balancing social and environmental 
concerns with economic growth. Environmental considerations will be fully 
integrated into department policies, procedures, and decision-making practices 
in a systematic, interdisciplinary manner. In implementing this policy, the 
department recognizes the need for effective communication and encourages 
coordination with the public, environmental or transportation interest groups, 
environmental agencies, resource agencies, businesses, communities, and similar 
entities in the transportation policy setting, planning, and development 
processes. 
 
   
  sec.2.3. Definitions.  The following words and terms, when used in this 
subchapter, shall have the following meanings unless the context clearly 
indicates otherwise. 
   
   Commission-The Texas Transportation Commission. Corridor preservation The 
protection of a corridor utilizing the coordinated efforts of the involved 
governmental entities to obtain jurisdiction of or otherwise protect the right-
of-way for a planned transportation facility identified through an established 
planning process. 
   
   Department-The Texas Department of Transportation. Department's activities 
Planning, designing, constructing, maintaining, and operating transportation 
systems as defined by federal and state statutes, and the administration and 
support required to ensure that systems are safe, environmentally sound, 
economical, efficient, aesthetic, user friendly and, where appropriate, 
multimodal. 
   
   Documentation-The information contained in the environmental assessment or 
environmental impact statement. 
   
   Environment-The human environment that includes the earth's system, which 
consists of water, air, land, plants, people, and animals and the 
interrelationships that exist among these, including ecological, socio-economic, 
and archaeological/cultural resources. 
   
   Environmental assessment -A concise public disclosure document that briefly 
provides sufficient evidence and analysis for determining whether to prepare an 
environmental impact statement or a finding of no significant impact, and that 
answers such questions as the need for the project, any alternatives considered, 
and the extent of environmental impact. 
   
   Environmental consideration -Investigation, evaluation, and disposition of 
environmental issues. 
   
   Environmental impact statement-A detailed public disclosure document prepared 
for projects having significant impacts on the environment and that answers such 
questions as the environmental impact of the project, any unavoidable adverse 
environmental impacts and associated measures to minimize harm, alternatives to 
the project, any irreversible and irretrievable commitments of resources 
involved if the project is implemented, and a listing of agencies and resource 
persons contacted. 
   
   Interdisciplinary approach -An approach which will ensure the integrated use 
of the natural and social sciences in planning and decision-making which may 
have an impact on the environment, with the end result being that environmental 
amenities and values are given consideration in decision-making along with 
social, economic, and technical considerations. 
   
   Multimodal-The integration of two or more transportation modes to provide for 
optimization of resources and adequate consumer alternatives. 
   
   Traffic operations -A diverse set of activities used singularly or in concert 
to improve traffic flow, navigation, and safety on transportation corridors. 
Examples include high occupancy vehicle lanes, metered freeway ramp entrances, 
changeable message signs, rural navigational aids, collision avoidance, altered 
traffic peak demand, and integration or improvement of public transportation 
services. 
   
   Transportation planning -A continuing comprehensive plan to guide the 
development of transportation facilities that will meet the needs of the 
traveling public. 
 
   
  sec.2.4. Policy Direction and Guidelines. Implementation of policies specified 
in sec.2.2 of this title (relating to Environmental Policy Statement) will be 
consistent with the following guidelines. 
 
  (1)  Communication. The department will: 
 
  (A) provide an interdisciplinary approach to the department's work through 
communication, which includes public information and education; early notice to 
the public; memorandum of understanding; and consultation and coordination with 
environmental and transportation interest groups, environmental agencies, 
resource agencies, businesses, communities, and other similar entities; 
   
  (B) coordinate with a broad range of federal and state environmental, natural 
resource, and transportation agencies and organizations to accurately assess the 
current environment and potential environmental issues; and 
   
  (C) heighten the awareness of all employees toward environmental issues, 
policy, preservation, and enhancement of the environment through training and 
similar means. 
     
  (2) Systems planning. The department will encourage: 
 
  (A) use of transportation management systems, multimodal systems, interagency 
activities, and public/private partnerships to achieve innovative, 
environmentally sensitive solutions to transportation problems; 
   
  (B) the metropolitan planning organizations and local government to: 
 
  (i) promote the integration of land use, transportation, and environmental 
planning; and 
   
  (ii) take a leadership role in the identification and consideration of 
environmental concerns during the development of regional transportation plans; 
     
  (C) the input of environmental/resource agencies, groups, and the public 
throughout the systems planning stage to ensure full consideration of 
environmental issues in the development of transportation plans and improvement 
programs and to allow for environmental enhancement, when practicable; and 
   
  (D) transportation corridor preservation in order to avoid or minimize future 
negative social, economic, and environmental impacts. 
     
  (3) Project development. The department will: 
 
  (A) take into account all applicable environmental requirements of law and 
policy in reaching conclusions that reflect the public interest; 
   
  (B) ensure that a systematic, interdisciplinary, and public approach is used 
to evaluate social, economic, and environmental impacts, both direct and 
indirect, associated with the department's transportation projects in accordance 
with all applicable laws, rules and regulations, including Texas Civil Statutes, 
Article 6673g, as added by Acts 1991, 72nd Legislature, Chapter 551, sec.17; 
   
  (C) develop comprehensive environmental documents which address balancing 
social and other environmental concerns with economic issues; 
   
  (D) develop comprehensive environmental documents that address measures and 
techniques to avoid, minimize, or mitigate for adverse environmental impacts 
and, when practicable, measures and techniques to enhance the environment; 
   
  (E) objectively evaluate the full range of reasonable transportation 
alternatives that address existing and projected transportation needs including, 
but not limited to, the no-build option, traffic operations options, 
improvements to the existing system, and new construction; 
   
  (F) individually customize each environmental assessment or environmental 
impact statement to appropriately address the nature, scope, and complexity of 
the transportation project; and 
   
  (G)  consolidate environmental considerations into the department's work and 
improve procedures for thorough and expeditious environmental review and timely 
decisions on transportation projects. 
     
  (4) Protection and enhancement. In the planning, design, construction, 
maintenance, and operation of transportation facilities, the department will: 
 
  (A) proactively address environmental issues; 
   
  (B) develop plans, to the extent possible, that consider the transportation 
system as a whole from an aesthetic perspective; 
   
  (C) be a leader in identifying and implementing measures to avoid, minimize, 
or compensate for adverse environmental impacts with emphasis placed on 
environmental preservation and enhancement; 
   
  (D)  strive to preserve significant historic, archaeological, and natural 
resources and implement all practicable measures to minimize unavoidable adverse 
effects; and 
   
  (E) ensure the use of all reasonable and feasible mitigation measures, state-
of-the-art analysis, and technology to minimize noise impacts in accordance with 
established noise abatement requirements and technology. 
     
  (5) Administration. The department will: 
 
  (A) implement a construction phase field study of projects to evaluate the 
accuracy of the environmental documentation and to address any newly discovered 
impacts; 
   
  (B) ensure that environmental commitments made during the planning, location, 
design, and environmental and public involvement phases of project development 
are implemented during project construction, maintenance, and operation; 
   
  (C) support coordinated environmental research and conduct a program of 
related environmental information dissemination; 
   
  (D) ensure that all necessary actions are taken to avoid, minimize, or 
mitigate the adverse effects that may result when the department handles, 
maintains, uses, stores, safeguards, or transports dangerous chemicals or 
hazardous materials; and 
   
  (E) support, when practicable, the implementation of federal and state 
environmental programs, such as the recycling programs applicable to all 
department operations, roles, and missions. 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on December 2, 1994. 
 TRD-9451831 
  Diane L. Northam 
 Legal Executive Assistant 
 Texas Department of Transportation 
    Earliest possible date of adoption: January 9, 1995 
 For further information, please call: (512) 463-8630 
         
               
  Subchapter C. Environmental Review and Public Involvement for Transportation 
Projects 
 
  43 TAC sec.sec.2.40-2.50 
 
  The Texas Department of Transportation proposes new sec. s2.40-2.50, 
concerning environmental review and public involvement for transportation 
projects. 
 Currently, sec.sec.11.80-11.90, which are being contemporaneously proposed for 
repeal, provide for environmental and public involvement for highway improvement 
projects. Texas Civil Statutes, Article 6673g, as added by sec.17, Chapter 551, 
Acts of the 72nd Legislature, 1991, require the commission to adopt rules to 
provide for the environmental review and public involvement of transportation 
projects not covered under the National Environmental Policy Act. Adoption of 
sec.sec.2.40-2.50 is necessary to comply with this legislation and to provide 
environmental review and public involvement for projects concerning aviation, 
public transportation, the Gulf Intracoastal Waterway, and maintenance of state 
highways. 
 Section 2.40 prescribes the environmental review and public involvement 
procedures of the Texas Department of Transportation for federal, state, local 
and privately funded projects in all transportation modes regulated by the 
department, and for departmental programs and operations as well. It is the goal 
of the department to develop and construct projects which fulfill the public 
transportation needs while being environmentally sound. 
 Section 2.41 defines terms used in these sections. 
 Section 2.42 provides that environmental studies for highway construction 
projects which utilize federal aid highway funds will be in accordance with 
applicable state and federal requirements; and establishes that public 
involvement for highway construction projects which utilize federal aid highway 
funds will be consistent with sec.2.43. 
 Section 2.43 provides that environmental studies for highway construction 
projects which utilize state highway funds will be in accordance with applicable 
state and federal law; establishes early coordination with resource agencies, 
local government, and the public in project planning and environmental 
development; provides that public involvement will be encouraged as a part of 
project planning by the districts maintaining a list of individuals and groups 
interested in project development, and establishing a procedure for public 
involvement, including informal meetings to formal presentations; provides that 
environmental documents prepared for highway projects will range from 
categorical exclusions, in which no significant environmental impacts are 
anticipated, to environmental impact statements, where significant impacts are 
anticipated and that each project developed will receive the appropriate level 
of social, economic and environmental analysis. 
 Section 2.44 provides that public transportation projects will be developed in 
accordance with applicable state and federal law and sec.2.42 and sec.2.43 and 
that local transit operators will be responsible for the development of 
environmental documents and public involvement. 
 Section 2.45 outlines the department's roles as the nonfederal sponsor of the 
Gulf Intracoastal Waterway and the developer of proposals for disposal plans to 
include substantial interagency coordination through the Gulf Intracoastal 
Waterway Advisory Committee; and provides that the U. S. Army Corps of Engineers 
will be responsible for the development of environmental documents. 
 Section 2.46 provides that for federal aid aviation projects, the department 
will provide for environmental reviews in accordance with Federal Aviation 
Administration (FAA) procedures, and with other applicable state and federal 
laws; and for state funded aviation projects, the department will provide for 
environmental review. 
 Section 2.47 concerns routine maintenance programs, bridge maintenance, 
customer service, debris and spills, ferry maintenance, maintenance enhancement, 
pavement maintenance, roadside appurtenances, traffic pavement markings, and 
vegetation management which are not covered under the National Environmental 
Policy Act; establishes environmental reviews for each maintenance program, 
including a description of the maintenance program and the activities in each, 
the department's evaluation of direct and indirect effects of each maintenance 
program, the department's analysis of program alternatives, and a description of 
the department's best management practices and mitigation plans for each 
maintenance program; and provides for evaluation of the environmental reviews at 
least every five years and for interagency coordination and public hearings. 
 Section 2.48 provides for projects which occur because of emergency 
circumstances such as flooding, hurricanes, earthquakes, or other catastrophic 
failures. 
 Section 2.49 provides for the special consideration of public parks, recreation 
areas, wildlife refuge, historic, or scientific site, pursuant to the Texas 
Parks and Wildlife Code. 
 Section 2.50 establishes the effective date of this new subchapter. 
 Ms. Dianna Noble, Director of Environmental Affairs, has determined that there 
will be fiscal implications as a result of enforcing or administering the 
section. The effect on state government for the first five year the sections 
will be in effect will be an estimated additional cost of $30,00 for fiscal year 
1996 and no additional cost for each of the four following fiscal years. There 
will be no effect on local government as a result of enforcing or administering 
the sections. 
 Ms. Noble has certified that there will be no significant impact on local 
economies or overall employment as a result of enforcing or administering the 
proposed sections. 
 Ms. Noble also has determined that for each year of the first five years the 
sections are in effect the public benefits anticipated as a result of enforcing 
the sections will be a clearer understanding of the department's environmental 
review and public involvement process for projects concerning aviation, public 
transportation, the Gulf Intracoastal Waterway, and maintenance of state 
highways; and enhanced protection of the state's physical natural, and cultural 
resources. There will be no effect on small businesses. There is no anticipated 
economic cost to persons who are required to comply with the sections as 
proposed. 
 Comments on the proposal may be submitted to Dianna Noble, Director of 
Environmental Affairs, Texas Department of Transportation, 125 East 11th Street, 
Austin, Texas 78701. The deadline for receipt of written comments will be at 
5:00 p.m. on January 9, 1995. 
 Pursuant to the Administrative Procedure Act, the Government Code, Chapter 
2001, the Texas Department of Transportation will conduct a public hearing to 
receive comments concerning the proposed sections. The public hearing will be 
held at 9:00 a.m., on Monday, December 19, 1994, in Room 221, Anson Jones 
Building, 410 East Fifth Street, Austin, Texas, and will be conducted in 
accordance with the procedures specified in 43 TAC sec.1.5. Those desiring to 
make comments or presentations may register starting at 8:30 a.m. Any interested 
person may appear and offer comments, either orally or in writing, however, 
questioning of those making presentations will be reserved exclusively to the 
presiding officer as may be necessary to ensure a complete record. While any 
person with pertinent comments will be granted an opportunity to present them 
during the course of the hearing, the presiding officer reserves the right to 
restrict testimony in terms of time and repetitive content. Organizations, 
associations, or groups are encouraged to present their commonly held views, and 
same or similar comments, through a representative member where possible. 
Presentations must remain pertinent to the issue being discussed. A person may 
not assign a portion of his or her time to another speaker. A person who 
disrupts a public hearing must leave the hearing room if ordered to do so by the 
presiding officer. Persons with disabilities who plan to attend this meeting and 
who may need auxiliary aids or services such as interpreters for persons who are 
deaf or hearing impaired, readers, large print or braille, are requested to 
contact Eloise Lundgren, Director of the Public Information Office, at 125 East 
11th Street, Austin, Texas 78701-2383, (512) 463-8588 at least two work days 
prior to the meeting so that appropriate arrangement can be made. 
 The new sections are proposed 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 6673g, which require the 
commission to adopt rules to provide for the environmental review and public 
involvement of transportation projects not covered under the National 
Environmental Policy Act. 
 Texas Civil Statutes, Article 6673g is affected by the proposed new sections. 
 
 
  sec.2.40. Purpose.  The sections under this subchapter prescribe the 
environmental review and public involvement procedures of the department for 
federal, state, local, and privately funded projects in all transportation modes 
for which the department has funding, construction, or maintenance 
responsibilities. They are provided in order to comply with the spirit of the 
National Environmental Policy Act, 42 United States Code, sec.sec.4321 et seq, 
23 United States Code, sec.109(h), and Texas Civil Statutes, Article 6673g. 
These procedures are intended to ensure the adequate consideration of 
environmental impacts related to transportation systems development, and to 
ensure that environmental impacts are mitigated where feasible. It is the goal 
of the department to develop and construct projects which fulfill the 
transportation needs of the public while being environmentally sound. 
 
   
  sec.2.41. Definitions.  The following words and terms, when used in this 
subchapter shall have the following meanings, unless the context clearly 
indicates otherwise. 
   
   Action-A state project which may be regulated by another state or federal 
agency by law, rules, or regulations. 
   
   Affected local government-The governing body of a county or municipality in 
which a project is located. 
   
   Affected public official-An elected official of a county or municipality in 
which a project is located, or a member of the United States Congress or the 
Texas Legislature in whose district a project is located. 
   
   Agency-A state or federal governmental body having jurisdiction over 
environmental issues related to transportation facility development. 
   
   Aviation project -The construction, enlargement, repair or planning of an 
airport or air navigational facility as part of the aviation facilities 
development program. 
   
   Best management practices-A practice or combination of practices that are 
determined to be the most effective and practicable (including technological, 
economic, and institutional considerations) means of controlling point and 
nonpoint pollutants at levels compatible with environmental quality goals. 
   
   Commission-The Texas Transportation Commission. 
   
   Department-The Texas Department of Transportation. 
   
   Disposal plan-An operationally suitable method for the placement of dredged 
material which avoids or minimizes adverse environmental impacts. 
   
   District office -One of the 25 geographical districts into which the 
department is divided. 
   
   Division-The Environmental Affairs Division of the department. 
   
   Environmental document -A decision-making document which incorporates 
environmental studies, coordination, and consultation efforts, and engineering 
elements. Documents may include categorical exclusion assessments, environmental 
assessments, and environmental impact statements. 
   
   Environmental studies -The investigation of potential environmental impacts. 
   
   Gulf Intracoastal Waterway (GIWW)-The main channel, not including tributaries 
or branches, of the shallow draft navigation channel running from the Sabine 
River southward along the Texas coast to the Brownsville Ship Channel near Port 
Isabel. 
   
   Gulf Intracoastal Waterway Advisory Committee (GIWAC) -An interagency 
committee, made of members appointed by the department to represent state 
agencies having jurisdiction in the protection of the state's natural, historic, 
and economic resources. The GIWAC is created for the purpose of advising and 
assisting the department: 
 
  (A) in developing a unified method to address problems and recommend solutions 
for the needs of the GIWW, for the protection of the environment and the state's 
natural and historic resources affected by the waterway, and for the promotion 
of the economic welfare of the state's interest in the GIWW; 
   
  (B) in developing proposals for an optimum disposal plan that will address 
dredged material disposal in an identified area of need; and 
   
  (C) on the acquisition of disposal sites in an environmentally sensitive and 
operationally suitable manner. 
     
   Highway construction project-A highway improvement project involving the 
construction or reconstruction of a segment of the state highway system, 
pursuant to Texas Civil Statutes, Article 6674a et. seq. 
   
   Human environment -Interpreted comprehensively to include the natural and 
physical environment, and the relationship of people with that environment. 
   
   Local transit operator-A public or private nonprofit entity providing public 
transportation within a given region. 
   
   Maintenance activity -A singular activity, performed by state or contract 
forces, to repair or perform work on a segment of the state highway system. 
   
   Maintenance program -A collection of maintenance activities performed 
singularly or collectively on the state highway system. The following categories 
have been established as maintenance programs: 
 
  (A) Bridge maintenance-All activities to repair or perform preventive 
maintenance work on bridges, culverts, retaining walls, and barrier walls. 
   
  (B) Customer service-All activities relating to providing the traveling public 
with services including, but not limited to, maintaining rest areas, picnic 
areas, and litter barrels. 
   
  (C) Debris and spills-All activities related to removing debris from the 
right-of-way including, but not limited to, litter, roadway debris, spills, and 
sweeping. 
   
  (D) Drainage-All activities related to maintaining the drainage systems, and 
slopes on the right-of-way including roadside ditches, slopes, channels, creeks, 
streams, and rivers. Such activities are also included in drainage easements 
outside the right-of-way. 
   
  (E) Ferry maintenance-The maintenance and operation of ferries pursuant to 
Texas Civil Statutes, Article 6812a. 
   
  (F) Maintenance enhancement-All small maintenance projects that involve 
disturbance of soil beyond the original construction. This term includes, but is 
not limited to, the installation of cross overs, turn lanes, driveways, 
shoulders, and channels. 
   
  (G)  Pavement maintenance-All activities to repair or perform preventive 
maintenance work on asphalt and portland cement concrete pavements including, 
but not limited to, work performed on the pavement surface, base, sub-base, sub-
grade, and embankment. 
   
  (H) Roadside appurtenances-All activities related to fixtures along the 
roadways including, but not limited to, signs, delineators, mailboxes, guard 
rails, attenuators, illumination, and signals. 
   
  (I) Traffic pavement markings-All activities on the pavement relating to 
directing the traveling public including, but not limited to, installing, and 
removing striping, specialty marking, and pavement markings. 
   
  (J) Vegetation management-All activities performed to maintain the vegetative 
cover on state highway right-of-way including, but not limited to, mowing, 
pesticide applications, tree and brush trimming, and removal, and preservation 
of existing or installed vegetative features. 
     
   Mitigation-Includes avoiding the impact altogether by not taking a certain 
action or parts of an action; minimizing impacts by limiting the degree or 
magnitude of the action and its implementation; rectifying the impact by 
repairing, rehabilitating, or restoring the affected environment; reducing or 
eliminating the impact over time by preservation and maintenance operations 
during the life of the action; or compensating for the impact by replacing or 
providing substitute resources or environments. 
   
   Public hearing -Held after public notice to solicit public input in 
determining a preferred alternative for or with respect to any changes to a 
state project. (All testimony given at a public hearing will be made a part of 
the public hearing record.) 
   
   Public involvement -An ongoing phase of the project planning process which 
encourages and solicits public input, and provides the public the opportunity to 
become fully informed regarding project development. 
   
   Public meeting -Informal discussions, which may assist in the preparation of 
environmental documents, may be held with local public officials, interested 
citizens or the general public, and local, neighborhood, or special interest 
groups for the purpose of exchanging ideas, and collecting input on the need 
for, and possible alternatives to a given state project. (Notice of a public 
meeting will depend upon anticipated audience attendance.) 
   
   Public transportation project-A project which may involve either capital or 
operational funding for the purchase of rolling stock, capital improvements and 
facility renovations, and provision for general or specialized transit services 
in a defined geographic area, pursuant to Texas Civil Statutes, Articles 6663b 
and 6663c. 
   
   Significantly-Shall have the same meaning as the term is used, and has been 
interpreted under 42 United States Code, sec.4332 of the National Environmental 
Policy Act. 
   
   State project-A nonfederal aid transportation project sponsored and 
administered by the department, which will be completely funded with state, 
local, or private funds. 
 
   
  sec.2.42. Highway Construction Projects-Federal-Aid. 
 
  (a)  Environmental studies for highway construction projects which utilize 
federal aid highway funds will be accomplished in accordance with applicable 
state and federal requirements and, in particular, 23 Code of Federal 
Regulations Part 771. 
   
  (b) Public involvement for highway improvement projects which utilize federal 
aid highway funds will be consistent with applicable state and federal law and 
sec.2.43(a) of this title (relating to Highway Construction Projects-State 
Funds). 
 
     
  sec.2.43. Highway Construction Projects-State Funds. 
 
  (a)  Environmental studies. Environmental studies for highway improvement 
projects which utilize state highway funds will be accomplished in accordance 
with applicable state and federal law including, but not limited to, the 
Endangered Species Act of 1973 as amended, 16 United States Code, sec.sec.1531 
et seq, the Rivers and Harbors Act of 1899 as amended, 42 United States Code, 
sec.sec.401 et seq, the Federal Water Pollution Act as amended, 33 United States 
Code, sec.sec.1251 et seq (commonly known as the Clean Water Act), 33 Code of 
Federal Regulations, Parts 114 through 115, the Safe Drinking Water Act as 
amended, 42 United States Code, has determined that for the first five-year 
period the sections are in effect there will be no fiscal implications for state 
or local government as a result of enforcing or administering the sections 
sec.sec.300f et seq, and the provisions under this subchapter. 
   
  (b)  Early coordination and public involvement. 
 
  (1) Early coordination. Early coordination with appropriate agencies, local 
governmental entities, and the public shall play a vital role in project 
planning and environmental development of state projects. District offices and 
the division shall be responsible for initiating early coordination, and the 
continuation of coordination with local governmental entities and applicable 
agencies throughout project planning. 
 
  (A) Early coordination shall be achieved through rules codified at 1 TAC 
Chapter 5, Subchapter B, concerning state and local review of federal and state 
assistance applications, also known as TRACS, which are intended, among other 
things, to foster intergovernmental cooperation and coordination. 
   
  (B) Coordination under TRACS shall be initiated with appropriate regional 
review agencies (RRA). 
   
  (C) Types of state projects which are exempt from RRA review include those 
which do not: 
 
  (i) require additional right-of-way; 
   
  (ii) change the layout or function of connecting roads or streets or of the 
facility being improved; 
   
  (iii) adversely affect abutting real property; or 
   
  (iv) otherwise have a substantial social, economic, or environmental impact. 
     
  (D) The TRACS procedures shall supplement the department's traditional policy 
of direct coordination with other agencies and local governmental entities. 
   
  (E) During early coordination, district offices will be responsible for: 
 
  (i) initiating a cooperative development process with local governmental 
entities in order to assist in the planning of state projects; and 
   
  (ii) maintaining open lines of communication with local or area offices of 
applicable agencies. 
     
  (F)  During early coordination the division will be responsible for: 
 
  (i)  the environmental processing of the state project, including interagency 
contacts, coordination, consultation, and approvals; and 
   
  (ii)  providing state project data and analyses to applicable agencies, which 
shall include coordination of environmental reviews and mitigation proposals 
with the Texas Natural Resources Conservation Commission and the Texas Parks and 
Wildlife Department, prior to the written report explaining the department's 
decision regarding a project, thereby assisting in the determination of state 
project impacts and mitigation plans. 
       
  (2)  Public involvement. Public involvement shall be encouraged as an 
important element of project planning. It shall be initiated by the pertinent 
district office and will depend on and be consistent with the type and 
complexity of each state project. Districts shall also maintain a list of 
individuals and groups interested in state project development, and shall 
provide notification of public hearing activities to these individuals and 
groups. 
 
  (A)  Meetings, as one form of public involvement, with affected property 
owners and residents will be held when state projects require: 
 
  (i)  detours and/or a minimal amount of right-of-way acquisition, or temporary 
construction easements; and 
   
  (ii) a minor location or design revision after the environmental document has 
been approved and the public involvement requirements have been completed (if 
revisions are determined to be significant, the environmental document will be 
revised and an opportunity for public hearing shall be afforded to the public to 
address these revisions). 
     
  (B) Public meetings, as another form of public involvement will be held: 
 
  (i) at any time during project planning and development in order to keep the 
public informed; 
   
  (ii) during the drafting of the draft environmental impact statement, as 
discussed in sec.2. 43(e) of this title (relating to Highway Construction 
Projects-State Funds); 
   
  (iii) to provide a free exchange of state project views and concerns; 
   
  (iv) as early as the department determines feasible to assure public input 
into project planning; and 
   
  (v) at a time and place convenient to the public in the vicinity of the state 
project. 
     
  (C)  An opportunity for public hearing, as another form of public involvement, 
shall be afforded for state projects in order to determine local interest for 
holding a public hearing, when required under Texas Civil Statutes, Article 
6674w-1, or when the state project requires the acquisition of significant 
amounts of right-of-way; there is a substantial change in the layout or function 
of the connecting roadways or of the facility being improved; there is 
measurable adverse impact on abutting real property; or there is otherwise a 
substantial social, economic or environmental effect. 
 
  (i) An opportunity for public hearing will also be afforded for finding of no 
significant impact (FONSI) type state projects, as discussed in subsection (d) 
of this section, after the environmental assessment is considered technically 
complete and initially approved, by the division, to proceed with public 
involvement. (However, if deemed appropriate, the district office may decide to 
hold a public hearing and bypass affording a public hearing opportunity.) 
   
  (ii) Two notices of the opportunity for public hearing shall be published in 
local newspapers having general circulation. The first notice shall be published 
approximately 30 days in advance of the deadline date set by the district office 
for submission of written requests for holding a public hearing, and the second 
notice shall be published approximately ten days prior to the deadline date. 
(Where the population in the immediate vicinity of the state project is 
predominantly spanish speaking, the notices must also be published in Spanish.) 
   
  (iii) Notices of the opportunity for public hearing shall also be mailed to 
landowners abutting the roadway as identified by tax rolls, and affected local 
governments and public officials. 
   
  (iv) No further action will be taken to hold a public hearing if at the end of 
the time set for affording an opportunity for a public hearing no requests are 
received. (However, the district office will be responsible for submitting a 
certified statement to this effect to the division.) 
     
  (D)  A public hearing, as another form of public involvement, will be held: to 
present project alternatives; to encourage and solicit public comment; after 
location and design studies are developed, to the extent that the public can be 
given a feasible proposal with appropriate environmental studies; after the 
environmental document is considered technically complete; for projects with 
substantial public interest such as environmental impact statement (EIS) state 
projects or high-profile FONSI state projects, or when a request for hearing is 
received as discussed in subparagraph (C) of this paragraph; or when a state 
project requires the taking of public land designated as a park, recreation 
area, wildlife refuge, historic site or scientific area, as covered in the Parks 
and Wildlife Code, sec.sec.26.001 et seq. The hearing notice should contain at a 
minimum the following information: 
 
  (i) time, date, and location of the hearing; 
   
  (ii) description of the project termini, improvements, and right-of-way needs; 
   
  (iii) reference to maps, drawings, and environmental studies and/or documents, 
and any other information available about the state project that are available 
for public inspection at the designated departmental or other location; 
   
  (iv)  reference to the potential for relocation or residences and businesses 
and the availability of relocation assistance for displacees; 
   
  (v)  a statement that verbal and written comments may be presented for a 
period of ten days after the hearing; 
   
  (vi) the address where written comments may be submitted; and 
   
  (vii) the existence of any floodplain, wetland encroachment, or encroachment 
on a sole-source aquifer recharge zone by a state project. 
     
  (E) Except for state projects requiring the taking of public land designated 
as a park, recreation area, wildlife refuge, historic site, or scientific area, 
notice of the public hearing must be given by the publication of two notices in 
local newspapers having general circulation, with the first notice published 
approximately 30 days before the hearing, and the second notice, approximately 
ten days before the hearing. (Where the population in the immediate vicinity of 
the state project is predominantly Spanish speaking, the notices must also be 
published in Spanish.) 
   
  (F) Notices of the public hearing shall also be mailed to landowners abutting 
the roadway as identified by tax rolls, and affected local governments and 
public officials. 
 
  (i) For state projects requiring the taking of public land designated as a 
park, recreation area, wildlife refuge, historic site, or scientific area, 
notice of the public hearing shall be given in accordance with the Texas Parks 
and Wildlife Code, sec.26.002. 
   
  (ii) The hearing notices must also be published in Spanish, for state projects 
requiring the taking of public land designated as a park, recreation area, 
wildlife refuge, historic site, or scientific area, where the population in the 
immediate vicinity of the state project is predominately Spanish speaking. 
     
  (G) The public shall have ten days after the close of a public hearing to 
submit written comments to the district office regarding a proposed state 
project. 
   
  (H) Public hearings shall be considered complete on the submission by the 
district office of a verbatim transcript and its certification to the division 
for review and approval. 
   
  (I) As another method of public involvement, there shall be published in local 
newspapers a notice of the availability of the environmental assessment in order 
to inform the public of its availability and advising where to obtain 
information concerning the state project, and that any written comments should 
be furnished within a 30 day period. (This notice shall be published only after 
the approval of the environmental assessment and only under very limited 
circumstances to take the place of affording an opportunity for a public 
hearing, and only with prior concurrence from the division.) 
     
  (3) Media releases. Following completion of the public involvement process, 
project specific planning and development decisions shall be publicized through 
press releases in order to keep the public informed of any new or public 
continuing issues. (Any changes to the state project may require additional 
public involvement.) 
   
  (4) Public involvement on projects where a public hearing is not required by 
law. For projects for which a public hearing is not required by law, the 
department will hold a public hearing in accordance with paragraph (2) of this 
subsection if at least ten individuals request a hearing. 
   
  (5) Public involvement following project approval. The department shall offer 
an additional opportunity for public hearing for projects which have already 
undergone public review and comment, and which involve either the addition of at 
least one travel lane or construction of a project on new location, and in which 
conditions relating to land use, traffic volumes, and traffic patterns have 
changed significantly from the time the project originally underwent public 
review and comment. The opportunity for public hearing will be afforded in 
accordance with paragraph (2) of this subsection. 
   
  (6) Notice of construction. The department will send notice of impending 
construction of a project which involves either the addition of at least one 
travel lane or construction of a project on new location to landowners abutting 
the roadway as identified by tax rolls, and affected local governments and 
public officials. 
     
  (c) Categorical exclusions (CE). 
 
  (1) A state project will be classified as a categorical exclusion (CE) if it 
does not: 
 
  (A) involve significant environmental impacts; 
   
  (B) induce significant impacts to planned growth or land use of the state 
project area; 
   
  (C) require the relocation of significant numbers of people; 
   
  (D) have a significant impact on any natural, cultural, recreational, 
historic, or other resource; 
   
  (E) involve significant air, noise, or water quality impacts; 
   
  (F)  significantly impact travel patterns; or 
   
  (G) either individually or cumulatively, have any significant environmental 
impacts. 
     
  (2) If a state project involves any of the following the department will 
conduct appropriate environmental studies to determine if the CE classification 
is proper: 
 
  (A) substantial environmental impacts; and/or 
   
  (B)  substantial controversy on environmental grounds. 
     
  (3) The following actions are examples of state projects which meet the 
criteria of a CE as found in paragraph (1) of this subsection and will not in 
most cases require review or approval by the division: 
 
  (A) do not involve or lead directly to construction, such as planning and 
technical studies, grants or training and research programs, engineering 
feasibility studies that either define the elements of a proposed state project 
or identify alternatives so that social, economic, and environmental effects can 
be assessed for potential impact; 
   
  (B) approval of utility installations along or across a transportation 
facility; 
   
  (C) construction of bicycle and pedestrian lanes, paths, and facilities; 
   
  (D) landscaping; 
   
  (E)  installation of fencing, signs, pavement markings, small passenger 
shelters, traffic signals, and railroad warning devices when no substantial land 
acquisition or traffic disruption will occur; 
   
  (F) emergency repairs as defined in 23 United States Code, sec.125; 
   
  (G) acquisition of scenic easement; 
   
  (H) improvements to existing rest areas and truck weigh stations; 
   
  (I) ridesharing activities; and 
   
  (J)  alterations to facilities or vehicles in order to make them accessible 
for elderly and handicapped persons. 
     
  (4) Any other actions meeting the criteria for a CE as found in paragraph (1) 
of this subsection will require division review and approval. 
 
  (A) Departmental approval will be based on the appropriate office submitting 
documentation in the form of a descriptive letter or brief environmental 
assessment which demonstrates that the specific conditions or criteria for 
classification of a CE as found in paragraph (1) of this subsection is satisfied 
and that significant environmental impacts will not result, including the 
results of any coordination effected with resource agencies. 
   
  (B) Examples may include, but are not limited to, the following: 
 
  (i) modernization of a highway by resurfacing, restoration, rehabilitation, 
reconstruction, adding shoulders, or adding auxiliary lanes such as parking, 
weaving, turning, climbing, and correcting substandard curves and intersections 
with only minor amounts of additional right-of-way required; 
   
  (ii) highway safety or traffic operation improvement projects including the 
installation of ramp metering control devices and lighting; 
   
  (iii) bridge rehabilitation, reconstruction, or replacement, or the 
construction of grade separation to replace existing at-grade railroad crossings 
(CE classification may not be applicable when the proposed project requires 
acquisition of more than minor amounts of right-of-way, since in such cases the 
preparation of an environmental assessment may be appropriate); 
   
  (iv) addition of travel lanes to rural roadways within existing right-of-way 
or with minimal right-of-way required; 
   
  (v) transportation corridor fringe parking facilities; 
   
  (vi) construction of new truck weigh stations or rest areas; 
   
  (vii) approvals for changes in access control; 
   
  (viii)  approvals for disposal of excess right-of-way or for joint or limited 
use of right-of-way, where the proposed use does not have significant adverse 
impacts; and 
   
  (ix) acquisition of land for hardship or protective purposes (hardship and 
protective buying will be permitted only for a particular parcel or a limited 
number of parcels; this type of right-of-way acquisition will qualify for a CE 
classification only when the acquisition will not limit the evaluation of 
alternatives, including shifts in alignment for planned construction projects; 
no project development on such land may proceed until the environmental review 
process has been completed). 
       
  (5)  The department may classify other state projects as a CE if, from the 
documentation required to be submitted, a determination is made that the state 
project meets the CE classification. 
     
  (d) Environmental assessments (EA). 
 
  (1) Preparation. For state projects in which the extent of impacts is not 
readily discerned, an EA will be prepared to determine the nature and extent of 
environmental impacts, with either a finding of no significant impact 
anticipated or an environmental impact statement required. 
   
  (2) Coordination and consultation. For state projects that require an EA, the 
department will, at the earliest appropriate time, begin coordination and 
consultation with interested agencies, local political subdivisions and others 
to achieve the following objectives: 
 
  (A) definition of the scope of the project; 
   
  (B) identification of any alternatives to the proposed actions; 
   
  (C) determination as to which aspects of the proposed actions have potential 
for environmental impact; 
   
  (D)  identification of measures and alternatives which might mitigate adverse 
environmental impacts; and 
   
  (E) identification of other environmental review and consultation requirements 
which should be prepared concurrently (districts will be responsible for 
accomplishing this through an early coordination process; a summary of the 
contacts and comments received will be included in the EA). 
     
  (3) Notice. As required in subsection (b)(2)(D) of this section, the notice of 
the public hearing will announce the availability of the EA and where it may be 
obtained or reviewed. 
   
  (4)  Division determination. If, at any point in the EA process, the division 
determines that the state project may have a significant impact on the 
environment, the preparation of an Environmental Impact Statement (EIS) as 
discussed in subsection (e) of this section, will be required. 
   
  (5)  Finding of no significant impact. The department, after its review of the 
EA, proposed mitigation measures, and any public hearing statement or comments 
received regarding the EA, and if in agreement with the district office 
recommendations, will make a separate written finding of no significant impact 
(FONSI), incorporating the EA and any other appropriate environmental documents 
and agency consultations and coordinations. The FONSI completes the 
environmental and public involvement process for a state project as found in 
subsection (b) of this section. 
   
  (6) Notification of FONSI. After issuance of the FONSI, a notice of the 
availability of the FONSI shall be furnished by the department to state 
clearinghouses. Notification will also be given to the local media through a 
press release. 
     
  (e) Environmental impact statements (EIS). 
 
  (1) Required. An EIS will be required for state projects in which there are 
likely to be significant environmental impacts. The preparation of the EIS will 
occur in two stages: 
 
  (A) the draft EIS or DEIS; and 
   
  (B) the final EIS or FEIS. (A supplemental EIS may be required in some cases.) 
     
  (2) Not required. If the analyses or agency review comments indicate that 
significant impacts to the human environment will not occur, an EIS should not 
be prepared. 
   
  (3) Notice of intent. As a preliminary to the preparation of an EIS there 
shall be prepared a notice of intent (NOI) to prepare an EIS. The initiation of 
the NOI will begin during the early coordination process with agencies, as 
described in subsection (b)(1) of this section, prior to the preparation of an 
EIS. 
 
  (A) The NOI should: 
 
  (i) briefly detail the state project; 
   
  (ii) identify significant impacts on the human environment; and 
   
  (iii) identify any preliminary alternatives under consideration by the 
department. 
     
  (B) After review and approval of the NOI by the division, it shall be sent to 
applicable agencies for their early review and comment. Any comments received 
will be used as the basis for the DEIS, as described in paragraph 4 of this 
subsection. 
   
  (C) A summary of the NOI shall also be published in the Texas Register<ol>, 
and in local newspapers. 
     
  (4) Draft environmental impact statement. The draft environmental impact 
statement (DEIS) shall identify and evaluate all reasonable alternatives to the 
state project; discuss the elimination of other alternatives, if applicable; 
summarize the studies, reviews, consultations, and coordination required by law 
to the extent appropriate; and designate a preferred alternative if appropriate. 
 
  (A) When the division determines that the DEIS complies with these and other 
requirements, the DEIS will be approved for circulation by signing and dating 
the cover sheet, and shall be printed in sufficient number to provide review 
copies. 
   
  (B)  The DEIS will be circulated for comment after a notice is published in 
the Texas Register <ol> and in local newspapers which describes a circulation 
and comment period of no less than 45 days, and identifies where comments are to 
be sent. 
   
  (C) The DEIS shall be transmitted at no charge to state agencies through the 
TRACS system, and directly to applicable federal agencies. 
   
  (D) The DEIS will be made available to interested public officials, interest 
groups, and members of the public at the request of any such group or 
individuals. 
   
  (E) A fee which is not more than the actual cost of reproduction of the DEIS 
may be charged for any written request received for a copy of the DEIS. 
   
  (F) The DEIS may also be reviewed at designated public locations. 
   
  (G) Either an opportunity for public hearing shall be afforded or a public 
hearing shall be held for a DEIS state project. (Notice of such public hearing 
shall be in accordance with subsection (b) of this section.) 
   
  (H) The DEIS will be made available at the district for the general public at 
a minimum of 15 days in advance of the public hearing for state projects. 
     
  (5) Final Environmental Impact Statement. After the DEIS is circulated and 
comments reviewed, a final environmental impact statement (FEIS) shall be 
prepared by the department. 
 
  (A) The FEIS shall: 
 
  (i) identify the preferred alternative and evaluate all reasonable 
alternatives considered; 
   
  (ii) discuss substantive comments received on the DEIS and responses to those 
comments; 
   
  (iii)  summarize public involvement and describe the mitigation measures that 
are to be incorporated into the state project; 
   
  (iv) document compliance, to the extent possible, with all applicable 
environmental laws, or provide reasonable assurance that requirements can be 
met; and 
   
  (v)  identify those issues and the consultations and other efforts made to 
resolve interagency disagreements. (Every reasonable effort shall be made to 
resolve interagency disagreements.) 
     
  (B) The division will indicate approval of the FEIS by signing and dating the 
cover page. 
   
  (C) The initial printing of the FEIS shall be in sufficient quantities to meet 
the request for copies which can be reasonably expected from agencies, 
organizations, and individuals. 
   
  (D) A fee which is not more than the actual cost of reproduction of the FEIS 
may be charged for purchase of the document. 
   
  (E) Copies of the FEIS may also be placed in appropriate designated public 
locations, such as local governmental offices, libraries, or other public 
institutions. 
   
  (F) Notice detailing the availability of the FEIS shall be published in the 
Texas Register <ol> and in local newspapers. 
 
  (i) The notice shall include information on obtaining copies. 
   
  (ii) The public and interested organizations will have 30 days following 
publication of the notice in the Texas Register<ol> to submit comments. 
     
  (G) Following the approval of the FEIS, it will be made available to agencies 
which made substantive comments on the DEIS; however, in the event the FEIS is 
voluminous, the department may provide for alternative circulation such as 
notifying agencies of the availability of the FEIS, and by providing a method 
for these agencies to request a copy. 
   
  (H)  The department will complete and sign a record of decision (ROD) no 
sooner than 30 days after publication of the availability of the FEIS notice in 
the Texas Register<ol>. Until any required ROD has been signed, no further 
approvals may be taken except for administrative activities taken to secure 
further project funding. The ROD will: 
 
  (i) present the basis for the decision and summarize any mitigation measures; 
and 
   
  (ii) be published in the Texas Register <ol>. 
       
  (6) Re-evaluations. An evaluation to determine whether a supplement to the 
DEIS or a new DEIS is needed shall be prepared by the department if an 
acceptable FEIS is not submitted within three years from the date of circulation 
of the DEIS. The re-evaluation will: 
 
  (A) not be circulated for agency review, although resource agency coordination 
may be required; 
   
  (B) be required before further approvals may be granted if major steps to 
advance the action such as authority to undertake final design or acquire 
significant portions of right-of-way, or approval of the plans, specifications, 
and estimates have not occurred within three years after the approval of the 
FEIS, supplemental FEIS, or the last major departmental approval. 
     
  (7) Supplemental environmental impact statements. A DEIS or FEIS may be 
supplemented at any time. 
 
  (A) An EIS will be supplemented whenever the department determines that: 
 
  (i) changes to the state project would result in significant environmental 
impacts that were not evaluated in the EIS; or 
   
  (ii) new information or circumstances relevant to environmental concerns 
bearing on the proposed action or its impacts would result in significant 
environmental impacts not evaluated in the EIS. 
     
  (B) A supplemental EIS will not be necessary when: 
 
  (i) changes to the state project, new information, or new circumstances result 
in a lessening of adverse impacts evaluated in the EIS without causing other 
environmental impacts that are significant and were not evaluated in the EIS; or 
   
  (ii)  the department decides to approve an alternative fully evaluated in the 
approved FEIS but not identified as the preferred alternative (in such cases, a 
revised ROD shall be prepared and published in the Texas Register <ol>). 
     
  (C) When there is an uncertainty of the significance of new impacts, the 
department will develop appropriate environmental studies, or if deemed 
appropriate, an EA to assess the impacts of the changes, new information, or new 
circumstances. 
   
  (D) If the department determines, based on studies, that a supplemental EIS is 
not necessary, it shall so indicate in the project record. 
   
  (E) A supplemental EIS shall be developed using the same process and format as 
an original EIS, except that early coordination shall not be required. 
   
  (F) A supplemental EIS may be required to address issues of limited scope, 
such as the extent of proposed mitigation, or the evaluation of location or 
design variations for a limited portion of an overall state project. In this 
situation the preparation of the supplemental EIS shall not necessarily: 
 
  (i) prevent the granting of new approvals; 
   
  (ii) require the withdrawal of previous approvals; or 
   
  (iii) require the suspension of project activities for any activity not 
directly affected by the supplement. (If changes at issue are of such magnitude 
as to require a reassessment of the entire action, or more than a limited 
portion of the overall action, the department shall suspend any activities which 
would have an adverse environmental impact or limit the choice of reasonable 
alternatives, until the supplemental EIS is completed.) 
 
           
  sec.2.44. Public Transportation Projects. 
 
  (a) Environmental studies. Environmental studies for public transportation 
projects will be accomplished in accordance with applicable state and federal 
law as listed in sec.2.42 of this title (relating to Highway Construction 
Projects-Federal-Aid) and sec.2.43 of this title (relating to Highway 
Construction Projects-State Funds). 
   
  (b) Early coordination and public involvement. Early coordination and public 
involvement for public transportation projects will be in accordance with 
sec.2.43(b) of this title (relating to Highway Construction Projects-State 
Funds), with the following exceptions. 
 
  (1) Local transit operators are responsible for early coordination and public 
involvement activities, including media releases, with assistance from the 
department as necessary. 
   
  (2) The provisions of sec.2.43(b)(5) of this title (relating to Highway 
Construction Projects-State Funds) do not apply to public transportation 
projects. 
     
  (c) Categorical exclusions. Environmental studies for public transportation 
projects will be completed in accordance with sec.2.43(c) of this title 
(relating to Highway Construction Projects-State Funds), with the following 
exceptions: 
 
  (1) the local transit operator is responsible for conducting any studies to 
document CE status, with assistance from the department as necessary; and 
   
  (2)  public transportation projects shall be submitted to the department by 
the local transit operator. 
     
  (d) Environmental assessments. Environmental assessments (EA) submitted to 
districts for public transportation projects shall conform to the requirements 
of sec.2.43(d) of this title, (relating to Highway Construction Projects-State 
Funds) with the exception that local transit operators are responsible for the 
preparation of environmental studies and documents. 
   
  (e) Environmental impact statements. 
 
  (1)  Environmental impact statements (EIS) submitted to districts for public 
transportation projects shall conform to the requirements of sec.2.43(e) of this 
title, (relating to Highway Construction Projects-State Funds), with the 
exception that local transit operators are responsible for the preparation of 
the EIS, including draft, final, or supplemental versions. 
   
  (2) The local transit operator is responsible for publishing the notice of 
intent pursuant to sec.2.43(e)(3) of this title (relating to Highway 
Construction Projects-State Funds), in local newspapers. 
   
  (3) The local transit operator is responsible for soliciting and responding to 
comments received on a DEIS and an FEIS, including notices in local newspapers. 
The department will assist the local transit operator as necessary. 
 
       
  sec.2.45. Gulf Intracoastal Waterway Projects. 
 
  (a)  Non-federal sponsorship. The commission, pursuant to Texas Civil 
Statutes, Article 5415e-2, is charged with the responsibility of administering 
the state's nonfederal sponsorship of the Gulf Intracoastal Waterway (GIWW), 
including coordination with the U. S. Army Corps of Engineers, all other 
appropriate federal and state agencies, navigation districts and port 
authorities, counties, and other appropriate persons to determine specifically 
what must be done by the state to satisfy requirements relating to the 
nonfederal sponsorship of the GIWW in a manner consistent with the policy of the 
state, as described in Texas Civil Statutes, Article 5415e-2. 
   
  (b)  Early coordination. Early coordination with appropriate state and federal 
agencies will be conducted by the department to develop a proposal for an 
optimum disposal plan in an identified area of need. Any proposed plan shall 
address the dredged material disposal needs of maintaining the GIWW in Texas. 
The department is responsible for initiating and overseeing early coordination. 
   
  (c) Investigation of disposal alternatives. 
 
  (1) The department will appoint a task force of the GIWAC to investigate 
disposal alternatives in the identified area of need and ascertain the 
environmental and operational suitability of each. The task force will include 
representatives from state and federal agencies having jurisdiction in the 
protection of the state's natural, historic, and economic resources. 
   
  (2)  The department will lead any field investigations. The task force 
agencies will be requested to participate in field investigations and to provide 
to the department written evaluations of the disposal alternatives investigated. 
   
  (3) The GIWAC will review the investigations and discuss any proposed optimum 
disposal plans for the identified area of need with the department. 
     
  (d) Federal coordination. 
 
  (1) After review by the GIWAC, the department will request the U. S. Army 
Corps of Engineers to coordinate the environmental analysis pursuant to 42 
United States Code, sec.sec.4321 et seq. 
   
  (2) If the U. S. Army Corps of Engineers' environmental analysis determines a 
finding of no significant impact for the proposed disposal plan, the division 
will then review the environmental document and findings. If the division 
determines that the proposed disposal plan can be accomplished in an 
environmentally acceptable manner, the department will then proceed with public 
involvement. 
     
  (e) Public involvement. 
 
  (1) Public involvement will be accomplished primarily through the U. S. Army 
Corps of Engineers' environmental and public involvement procedures; however, 
the department will conduct its own public involvement process. 
 
  (A) The department will notify a landowner of a parcel's environmental and 
operational suitability for the proposed disposal plan, and offer to meet with 
the landowner to answer any questions about the proposed disposal plan. 
   
  (B)  The department will also notify the landowner of any public meeting or 
public hearing on the proposed disposal plan. 
   
  (C) Meetings, as one form of public involvement, with affected property owners 
and residents will be held under the following conditions, and pursuant to 
sec.2.43(b)(2)(A) of this title (relating to Highway Construction Projects-State 
Funds): 
 
  (i)  when the proposed disposal plan does not involve any adjacent landowners; 
and 
   
  (ii) when the landowner requests a meeting. 
     
  (D) Public meetings, as another form of public involvement may be held 
pursuant to sec.2.43(b)(2)(B) of this title (relating to Highway Construction 
Projects-State Funds). Public meetings will be advertised through legal notices 
published once a week for three successive weeks in a newspaper of general 
circulation, published in the county seat of each county in which any such 
proposed dredge material disposal plan is located. 
   
  (E) A public hearing will be conducted by the commission as required by Texas 
Civil Statutes, Article 5415e-2. 
 
  (i) Prior to the hearing, the commission shall publish notice of a public 
hearing, indicating date, time, and place of such hearing, at least once a week 
for three successive weeks in a newspaper of general circulation published in 
the county seat of each county in which any such proposed dredged material 
disposal plan is located. 
   
  (ii) The commission shall also publish notice of such hearing in at least one 
edition of the  Texas Register<ol>. 
   
  (iii) The U. S. Army Corps of Engineers' environmental documents and findings 
will be on display at the public hearing. 
   
  (iv) Comments, testimony, or evidence shall be given in person or in writing 
during the public hearing or may be submitted in writing to the commission 
during the prescribed public comment period. 
         
  (f) Commission action. 
 
  (1) After the public hearing and receipt of all evidence and testimony, the 
commission will determine whether such proposed dredged material disposal plan 
can be accomplished without unjustifiable waste of publicly or privately owned 
natural resources and without permanent substantial adverse impact on the 
environment, wildlife, or fisheries. 
   
  (2) If the commission determines that the proposed plan meets the criteria 
described in paragraph (1) of this subsection, it will authorize the department 
to proceed with the necessary actions to accomplish the disposal plan. 
 
       
  sec.2.46. Aviation Projects. 
 
  (a) Federal-Aid projects. The department will provide for environmental 
reviews of aviation projects in accordance with Federal Aviation Administration 
(FAA) procedures established to comply with 42 United States Code, sec.sec.4321 
et seq. 
   
  (b) State projects. For state aviation projects, the department will provide 
for the following. 
 
  (1) Early coordination and public involvement. 
 
  (A)  Early coordination. The department will conduct early coordination with 
appropriate agencies, pursuant to  s2.43(b)(1) of this title (relating to 
Highway Construction Projects-State Funds). 
   
  (B) Public involvement. Public involvement for state aviation projects shall 
be conducted pursuant to sec.2.43(b)(2) of this title (relating to Highway 
Construction Projects-State Funds), with the exception that a public hearing 
will be held for any aviation project requiring a residential or commercial 
relocation. 
     
  (2)  Categorical exclusions (no further action). The following actions are 
examples of state projects which meet the criteria of a categorical exclusions 
(CEs) as found in sec.2.43(c)(1) of this title (relating to Highway Construction 
Projects-State Funds): 
 
  (A) renovation or rehabilitation of runways where no additional right-of-way 
is required, and where existing rights-of-way have been previously disturbed; 
   
  (B) renovation or rehabilitation of airport facilities where no additional 
right-of-way is required, and where existing rights-of-way have been previously 
disturbed; 
   
  (C) installation or upgrading of airfield lighting systems, including runway 
end identification lights, visual approach aids, beacons and electrical 
distribution systems; 
   
  (D) installation of miscellaneous items including segmented circles, wind or 
landing direction indicators or measuring devices, or fencing; 
   
  (E) grading or removal of obstructions on airport property and erosion control 
actions with no off-airport impacts; or 
   
  (F) noise compatibility programs. 
     
  (3) Categorical exclusions (CE) (further action). The following actions are 
examples of state projects which may require the development of environmental 
studies and interagency consultations to make a CE designation: 
 
  (A) runway extensions requiring minor amounts of additional rights-of-way; 
   
  (B) expansion of airport facilities requiring minor amounts of additional 
rights-of-way; or 
   
  (C) any state projects listed in paragraph (2) of this subsection which, 
following interagency coordination, further analysis is warranted. 
     
  (4) For projects listed in paragraphs (2) and (3) of this subsection the 
department will provide a written CE designation following any interagency 
coordination, pursuant to sec.2.43(b)(1)(E) of this title (relating to Highway 
Construction Projects-State Funds). 
   
  (5) Environmental assessments (EA) . For aviation projects in which the extent 
of impacts is not readily discerned, an EA will be prepared to determine the 
nature and extent of environmental impacts, with either a FONSI anticipated or 
an EIS required. The department will utilize the format and content requirements 
of FAA procedures established to comply with 42 United States Code, sec.sec.4321 
et seq. The department will prepare an EA, including any reasonable and feasible 
mitigation. For aviation projects involving any residential or commercial 
relocations, an EA will be prepared. 
   
  (6) Finding of no significant impact (FONSI). The department, after its review 
of the EA, proposed mitigation measures, and any public hearing statement or 
concerns, will make a separate written FONSI, incorporating the EA and any other 
appropriate environmental documents and agency consultations and coordinations. 
The FONSI completes the environmental and public involvement process for an 
aviation project. Notice of the FONSI shall be furnished by the department to 
state clearinghouses. Notification will also be given to the local media through 
a press release. 
   
  (7) Environmental impact statements (EIS). An EIS will be required for state 
projects in which there are likely to be significant environmental impacts. The 
department will utilize the format and content requirements of FAA procedures 
established to comply with 42 United States Code, sec.sec.4321 et seq. The 
department will comply with the requirements of sec.2.43(e) of this title 
(relating to Highway Construction Projects-State Funds) for the preparation and 
approval of an EIS prepared for an aviation project. 
 
       
  sec.2.47. Maintenance Programs. 
 
  (a) Procedures. Maintenance programs are a part of the department's mandate to 
develop and maintain a safe and efficient transportation system for Texas. The 
following procedures provide for the environmental review and public comment on 
department maintenance programs. 
   
  (b) Environmental review. 
 
  (1) The department shall conduct an environmental review of the following 
maintenance programs: 
 
  (A) bridge maintenance; 
   
  (B) customer service; 
   
  (C) debris and spills; 
   
  (D) drainage; 
   
  (E) ferry maintenance; 
   
  (F) maintenance enhancement; 
   
  (G) pavement maintenance; 
   
  (H) roadside appurtenances; 
   
  (I) traffic pavement markings; and 
   
  (J) vegetation management. 
     
  (2) The environmental review shall consist of: 
 
  (A) a description of the maintenance program and the activities in each; 
   
  (B) the department's evaluation of direct and indirect effects of each 
maintenance program; 
   
  (C) the department's analysis of program alternatives; and 
   
  (D)  a description of the department's best management practices and 
mitigation plans for each maintenance program. 
     
  (3) The division will analyze and coordinate each review with state and 
federal environmental resource agencies and work with them to develop effective 
environmental protection measures. 
   
  (4) The department will review the environmental reviews at least every five 
years, making appropriate revisions and re-coordinating the reviews with 
resource agencies. The updated environmental reviews will serve as the basis for 
public hearings. 
     
  (c) Early coordination and public involvement. 
 
  (1) The department, pursuant to sec.2.43(b)(1) of this title (relating to 
Highway Construction Projects-State Funds), shall coordinate and consult with 
state and federal resource agencies on its maintenance programs. The department 
will work with resource agencies to ensure that natural, cultural, and physical 
resources are protected. 
   
  (2)  Following the preparation and coordination of environmental reviews for 
each maintenance program, the department shall conduct one or more public 
hearing, to solicit comments from the public on maintenance programs. Such 
hearing will be conducted within six months of the approval of the environmental 
reviews prepared for each maintenance program. 
 
  (A)  Public hearing notices will be published in at least one edition of the 
Texas Register <ol> and the hearings will be held pursuant to sec.1.5 of this 
title (relating to Public Hearings). 
   
  (B) The department will report to the commission the findings of both the 
environmental review and the public hearings for each maintenance program. 
   
  (C) Public hearings for all maintenance programs will be held once every five 
years, in order to determine that maintenance programs are current and 
environmentally sound. The department may elect to have one public hearings, or 
separate public hearings for one or more maintenance programs. 
 
         
  sec.2.48. Emergency Action Procedures and Compliance with Other Regulations. 
 
  (a) Any request for deviations from the procedures in this subchapter because 
of emergency circumstances shall be handled on a state project by state project 
basis. Emergency circumstances shall include natural disasters, such as floods, 
hurricanes, tidal waves, earthquakes, severe storms, or landslides; or 
catastrophic failures of any cause. 
   
  (b) The final environmental documentation should detail compliance with 
requirements of state law and regulations, and applicable federal law and 
regulations. If compliance cannot be completed within the environmental 
documentation, such documentation should indicate the coordination to date. 
 
     
  sec.2.49. Special Right-of-Way Takings. 
 
  (a) Approval by the department of the use of public land from a significant 
publicly owned park, recreation area, or wildlife refuge, historic site, or 
scientific area, or any significant historic site shall be given only when: 
 
  (1) there is no feasible or prudent alternative to the use of land from the 
property; 
   
  (2)  the state project includes all possible planning to minimize harm to the 
property resulting from such use, including mitigation measures; 
   
  (3)  supporting information demonstrates that there are unique problems or 
unusual factors involved in the use of alternatives that avoid these properties 
or that the cost, social, economic, and environmental impacts, or community 
disruption resulting from such alternatives reach extraordinary magnitudes; and 
   
  (4) supporting information documents that officials having jurisdiction over a 
taking have no jurisdictional opposition to the taking and that the proposed 
mitigation is acceptable to such jurisdictions. 
     
  (b) State projects which fall under subsection (a) of this section, will 
comply with all necessary environmental analysis, documentation, and interagency 
coordination as described in this subchapter. 
   
  (c) A public hearing should be held as described in  s2.43(b)(2)(D) of this 
title (relating to Highway Construction Projects-State Funds) with appropriate 
notification. 
 
     
  sec.2.50. Effective Date. 
 
  (a) This subchapter shall not apply to, or alter, any approvals made by the 
department prior to the effective date of this subchapter. A state project, 
having completed environmental review, public involvement, and interagency 
coordination, and having received required approvals with an approved 
environmental document before the effective date of this subchapter shall be 
considered outside the scope of this subchapter. 
   
  (b) Environmental documents and public involvement processes accepted or 
prepared by the department after the effective date of this subchapter shall be 
subject to the provisions of this subchapter. 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on December 2, 1994. 
 TRD-9451832 
  Diane L. Northam 
 Legal Executive Assistant 
 Texas Department of Transportation 
    Earliest possible date of adoption: January 9, 1995 
 For further information, please call: (512) 463-8630 
         
               Chapter 11. Design 
  
  Environmental and Public Involvement for Highway Improvement Projects 
 
  43 TAC sec.sec.11.80-11.90 
 
  (Editor's note: The text of the following sections proposed for repeal will 
not be published. The sections may be examined in the offices of the Texas 
Department of Transportation or in the Texas Register office, Room 245, James 
Earl Rudder Building, 1019 Brazos Street, Austin.) 
   
  The Texas Department of Transportation proposes the repeal of sec.sec.11. 80-
11.90, concerning environmental and public involvement for highway improvement 
projects. 
 The sections are proposed for repeal to provide ease of access to all rules 
relating to environmental policy. Repeal of these sections is necessary because 
the subject matter of these sections falls within Chapter 2, Environmental 
Policy. The subject matter will be reenacted in an amended form in new 
sec.sec.2.40-2.50, concerning environmental review and public involvement for 
transportation projects, which are being contemporaneously proposed for 
adoption. 
 Texas Civil Statutes, Article 6673g, as added by sec.17, Chapter 551, Acts of 
the 72nd Legislature, 1991, require the commission to adopt rules to provide for 
the environmental review and public involvement of transportation projects not 
covered under the National Environmental Policy Act. 
 Dianna Noble, Director of Environmental Affairs, has determined that for the 
first five years the repeals are in effect, there will not be fiscal 
implications for state or local government as a result of enforcing or 
administering the repeals. 
 Ms. Noble has certified that there will be no significant impact on local 
economies or overall employment as a result of enforcing or administering the 
proposed repeals. 
 Ms. Noble also has determined that for each year of the first five years the 
repeals are in effect the public benefits anticipated as a result of enforcing 
the repeals will be a clearer understanding of the department's environmental 
review and public involvement process for projects concerning aviation, public 
transportation, the Gulf Intracoastal Waterway, and maintenance of state 
highways; and enhanced protection of the state's physical natural, and cultural 
resources. There will be no effect on small businesses. There is no anticipated 
economic cost to persons who are required to comply with the sections proposed 
for repeal. 
 Comments on the proposal may be submitted to Dianna Noble, Director of 
Environmental Affairs, Texas Department of Transportation, 125 East 11th Street, 
Austin, Texas 78701. The deadline for receipt of written comments will be at 
5:00 p.m. on January 9, 1994. 
 Pursuant to the Administrative Procedure Act, the Government Code, Chapter 
2001, the Texas Department of Transportation will conduct a public hearing to 
receive comments concerning the proposed repeals. The public hearing will be 
held at 9:00 a.m., on Monday, December 19, 1994, in Room 221, Anson Jones 
Building, 410 East Fifth Street, Austin, Texas, and will be conducted in 
accordance with the procedures specified in 43 TAC sec.1.5. Those desiring to 
make comments or presentations may register starting at 8:30 a.m. Any interested 
person may appear and offer comments, either orally or in writing, however, 
questioning of those making presentations will be reserved exclusively to the 
presiding officer as may be necessary to ensure a complete record. While any 
person with pertinent comments will be granted an opportunity to present them 
during the course of the hearing, the presiding officer reserves the right to 
restrict testimony in terms of time and repetitive content. Organizations, 
associations, or groups are encouraged to present their commonly held views, and 
same or similar comments, through a representative member where possible. 
Presentations must remain pertinent to the issue being discussed. A person may 
not assign a portion of his or her time to another speaker. A person who 
disrupts a public hearing must leave the hearing room if ordered to do so by the 
presiding officer. Persons with disabilities who plan to attend this meeting and 
who may need auxiliary aids or services such as interpreters for persons who are 
deaf or hearing impaired, readers, large print or braille, are requested to 
contact Eloise Lundgren, Director of the Public Information Office, at 125 East 
11th Street, Austin, Texas 78701-2383, (512) 463-8588 at least two work days 
prior to the meeting so that appropriate arrangement can be made. 
 The repeals are proposed under Texas Civil Statutes, Articles 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 6673g which require the 
commission to adopt rules to provide for the environmental review and public 
involvement of transportation projects not covered under the National 
Environmental Policy Act. 
 Texas Civil Statutes, Article 6673g are affected by the proposed repeals. 
 
 
  sec.11.80. Policy. 
 
   
  sec.11.81. Purpose. 
 
   
  sec.11.82. Definitions. 
 
   
  sec.11.83. Federally Funded Projects. 
 
   
  sec.11.84. State Funded Projects. 
 
   
  sec.11.85. Early Coordination and Public Involvement. 
 
   
  sec.11.86. Categorical Exclusions (CE). 
 
   
  sec.11.87. Environmental Assessments (EA). 
 
   
  sec.11.88. Environmental Impact Statements (EIS). 
 
   
  sec.11.89. Emergency Action Procedures and Compliance with Other Regulations. 
 
   
  sec.11.90. Special Right-of-Way Takings. 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on December 2, 1994. 
 TRD-9451833 
  Diane L. Northam 
 Legal Executive Assistant 
 Texas Department of Transportation 
    Earliest possible date of adoption: January 9, 1995 
 For further information, please call: (512) 463-8630