ADOPTED RULES An agency may take final action on a section 30 days after a proposal has been published in the Texas Register. The section becomes effective 20 days after the agency files the correct document with the Texas Register, unless a later date is specified or unless a federal statute or regulation requires implementation of the action on shorter notice. If an agency adopts the section without any changes to the proposed text, only the preamble of the notice and statement of legal authority will be published. If an agency adopts the section with changes to the proposed text, the proposal will be republished with the changes. TITLE 1. ADMINISTRATION Part XII. Advisory Commission on State Emergency Communications Chapter 251. Standards 1 TAC sec.251.7 The Advisory Commission on State Emergency Communications (ACSEC) adopts new sec.251.7, concerning guidelines for implementing integration of new technology and 9-1-1 functionality to facilitate the delivery of an emergency call, without changes to the proposed text as published in the October 10, 1995, issue of the Texas Register (20 TexReg 8263). The rule was adopted in order to provide guidelines for integrating typical 9- 1-1 features with a digital map display of location information into one work station at an emergency call answering position. This is important as technological changes are occurring, as well as the increasing volume of callers who cannot accurately identify their location (e.g. cellular callers). The following comments were received in favor of the new rule: The North Central Texas Council of Governments which is in a joint partnership arrangement to test' a Mapped ALI project. They assert that the rule should be adopted if it is necessary for the implementation of Mapped ALI, however, they feel this is an optional feature much the same as optional features now available for ALI level service. It encourages the ACSEC to allow for the inclusion of Mapped ALI as Level II service. The South East Texas Regional Planning Commission supports the proposed rule adding that in order to obtain the maximum benefit from the costly and time consuming project, Mapped ALI is the next logical and cost efficient step. The display of a map depicting geographic based coordinate locations is essential in facilitating delivery of emergency assistance for 9-1-1 wireless communications users and callers who cannot accurately identify their location. The Palo Pinto County Sheriff's Office, supports proposed rule stating that Mapped ALI should be an integral component of "All fully enhanced" 9-1-1 systems for rural areas. In a cooperative effort involving Sprint United, 9-1-1 Mapping Inc., and North Central Texas Council of Governments, they have developed and conducted a "beta site" at the Sheriff's Public Safety Answering Point for the use of mapped ALI. In many instances, 9-1-1 call takers were able to utilize the geographical display for more accurate location information rather than some sketchy information provided by another telephone company. The Palo Pinto County Judge's Office, offers the same reasoning as the Palo Pinto County Sheriff's Office, and fully supports the inclusion of any technology that provides the geographical display of E9-1-1. It is their position that Mapped ALI should be an integral component of fully enhanced 9-1-1 on an optional basis. The agency agrees that provisions for Mapped ALI will keep abreast with changing technology and provide enhancement of 9-1-1 systems for more accurate location information. The following comments was received against the new rule: West Central Texas Council of Governments does not support the proposed rule because Mapped ALI should not be a part of integrated services, that it is simply another means of displaying ALI information. It adds that the proposed rule, in essence, ties them to establish and adopt a plan before the ACSEC has made a decision as to its role in funding maintenance activity. The agency disagrees with the comments against adoption because the rule does not require implementation of integrated services or Mapped ALI. The new section is adopted in accordance with the Texas Health and Safety Code, Chapter 771, sec.sec.771.051, 771.056, and 771.057, which authorizes the ACSEC to develop and amend a regional plan for the establishment and operation of 9-1- 1 services throughout a 9-1-1 region that meets the standards established by the Commission according to procedures determined by the Commission. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on November 22, 1995. TRD-9515183 Mary A. Boyd Executive Director Advisory Commission on State Emergency Communications Effective date: December 13, 1995 Proposal publication date: October 10, 1995 For further information, please call: (512) 305-6911 Chapter 255. Finance 1 TAC sec.255.4 The Advisory Commission on State Emergency Communications adopts an amendment to sec.255.4, concerning the definition of equivalent local exchange access line, without changes to the proposed text as published in the October 10, 1995, issue of the Texas Register (20 TexReg 8264). The amendment is adopted in response to changes in the local telephone service environment since the definition was originally adopted. The amendment modifies the definition of "equivalent local exchange access line" to include wired and wireless local lines notwithstanding whether a federal subscriber line charge is assessed on a customer's bill by a service provider. The amendment would allow for the imposition of up to a $.50 emergency service fee on local telecommunications subscribers connected to the public switched telecommunications network with the ability to reach a public safety answering except those subscribers exempted by statute and sec.255.6. For clarification and uniformity of billing the 9-1-1 emergency service fee, the amendment redefines an equivalent local exchange access line. Comments in support of the amendment were received from Lubbock Emergency Communication District, Bexar Metro 9-1-1 Network District, and Cameron County 9-1-1 Communications District. Comments against the amendment were received from AT&T Wireless Services Inc. (AT&T Wireless), Houston Cellular Telephone Company (Houston Cellular), Galveston Cellular Telephone Company (Galveston Cellular), GTE Mobilnet of Houston Incorporated, GTE Mobilnet of Austin Incorporated, Contel Cellular of the Southwest, Inc. (collectively GTE Mobilnet), Sprint Cellular Company (Sprint Cellular), and Southwestern Bell Mobile Systems (SWB Mobile). A comment requesting clarification to the amendment was also received from WorldCom, Inc., doing business as LDDS WorldCom (WorldCom). Lubbock Emergency Communication District (LECD) states that it fully supports the amendment. LECD notes that for 9-1-1 purposes, wireless access to the 9-1-1 system constitutes the functional equivalent of land line service: that is, just as land line telephone subscribers dial 9-1-1 to reach a PSAP, wireless subscribers dial 9-1-1 to reach a PSAP. LECD further notes that its Board of Managers has passed an order imposing the emergency service fee on cellular and wireless customers, and attached a copy of that order to its comments. LECD states that at the time the Texas 9-1-1 legislation was written, cellular and wireless telephones had no statistically significant impact on the provision of 9-1-1 service. LECD further states that now the impact of wireless customers on 9-1-1 centers is staggering, hovering around 30% total call volume and escalating rapidly. LECD also states that without a means of identifying the cellular caller's telephone number or location, those calls take three to four times longer to process than wireline 9-1-1 calls. LECD submits that it is critical that cellular customers begin to pay their share of the costs of improvements to their 9-1-1 service, and that those who argue double imposition of the fee will occur because wireless customers may have wireline service fail to recognize there are costs to provide 9-1-1 to each telephone. Bexar Metro 9-1-1 Network District (Bexar Metro) supports the amendment to refine the definition of an equivalent local exchange access line. Bexar Metro submits that it has watched the increase in 9-1-1 cellular activity for some time and that it is very important that the district be financially prepared to pay the costs it will soon incur in supporting technology and personnel requirements as the number of cellular calls continues to increase. Cameron County 9-1-1 Communications District also supports the amendment, noting that its Board of Managers adopted an order on October 24, 1995, which will impose the emergency service fee on cellular and wireless customers. Comments by the cellular and wireless carriers against the amendment 1) challenge the Commission's authority to adopt, or the propriety of adopting, the amendment because of legislative inaction on the issue during the 74th Legislative Session, 2) raise several policy objections to the amendment, and 3) challenge the Commission's authority to adopt or enforce the amendment in view of the definition of "local exchange service provider" in Health and Safety Code, sec.771.001(5). For the reasons listed, the Commission disagrees with all of these arguments and assertions against adoption of the amendment. GTE Mobilnet and Sprint Cellular assert that because the Texas Legislature did not pass two bills during the 74th Legislative Session that would have clarified the Commission's authority to impose an emergency service fee on cellular and wireless customers, imposing the emergency service fee is in excess of the Commission's authority. AT&T Wireless, Houston Cellular, and Galveston Cellular make the same assertion, arguing that such is an obvious circumvention of the legislature's failure to adopt those two bills. The Commission disagrees. The cellular and wireless carriers are correct that although a bill addressing the issue was reported favorably out of committee and placed on the local and consent calendar, the Texas Legislature ultimately did not pass a bill addressing the issue. The failure to report a bill from committee or inaction by the legislature, however, does not conclusively establish legislative intent. El Chico Corp. v. Poole, 732 S.W.2d 306, 314 (Tex. 1987). As the Texas Supreme Court noted, "[w]hile failure to enact a bill may arguably be some evidence of legislative intent, other reasons are equally inferable." Id. at 314. The Commission acknowledges that it certainly desired legislative clarification on the issue. The Commission's responsibilities, however, to administer the implementation of statewide 9-1-1 requires that the issue now be addressed in view of changes in the telecommunications market and environment since the original definition of "equivalent local exchange access line" was adopted. GTE Mobilnet and Sprint Cellular assert that the public interest weighs heavily toward rejection of the amendment. They urge the Commission to carefully review whether the impact on the wireless industry outweighs the benefits from the additional fees that will be collected. AT&T Wireless, Houston Cellular, Galveston Cellular, GTE Mobilnet, and Sprint Cellular note that cellular customers already pay the 9-1-1 equalization and poison control surcharges on intrastate long distance service pursuant to Health and Safety Code, sec.771.072, and that residential and business customers of wireline local service providers already pay the 9-1-1 emergency service fee at home and/or work. Therefore, they assert that double or triple charging will occur. The Commission rejects these policy arguments for the following reasons. The potential benefits and adverse impacts on the health and safety of cellular and wireless customers that may result from the Commission's failure to impose the emergency service fee on cellular and wireless customers is one of the major reasons, in addition to equity, for modifying the definition. Cellular carriers currently strongly promote safety as a major benefit of cellular and wireless telephone service. Cellular carriers, however, do not as strongly promote the potential adverse impact to their customers from the degradation of 9-1-1 service that accompanies cellular and wireless telephone service (i.e. no call- back, location identification, or selective routing). The problem has grown to such import to the public health and safety that the Federal Communications Commission has released a Notice of Proposed Rulemaking seeking comments on, among other things, whether it should require the following warning on certain cellular and wireless devices and on their packaging: You may use this transmitter to dial for help through 911. The person answering may not know where you are, or how to call you back, unless you accurately provide your location and your full telephone number, including area and/or roaming codes. In the Matter of Revision on the Commission's rules to ensure compatibility with enhanced 911 emergency calling systems , CC Docket No. 94-102 (Released October 19, 1994) at p. 28. The Commission believes that it must also do its part to protect the health and safety of cellular and wireless customers by funding the sophisticated systems that regional planning commissions, as well as 9-1-1 districts, will need in the near future to provide call-back, location, and selective routing to cellular and wireless 9-1-1 callers. Currently, pilot projects for enhanced 9-1-1 service to cellular and wireless customers are occurring Tarrant County and Harris County. The Commission, concurrently with the adoption of this amendment is also adopting a new rule, sec.251.7 [the proposed text is published in the October 10, 1995, issue of the Texas Register (20 TexReg 8263)], of guidelines to address the ever increasing burden placed on public the volume of callers who cannot accurately identify their location (e.g. cellular callers). The cellular carriers opposing the amendment to sec.255.4 do not oppose or question the Commission's adoption of sec.251.7, which may ultimately increase by even more the amount that each wireline local exchange access line customer subsidizes 9- 1-1 service to cellular and wireless customers. The cellular carriers also do not oppose or question the Commission's current sec.251.1(e)(9), which provides that "[a]ll 9-1-1 service systems must accept emergency calls from mobile telephone systems operating within the 9-1-1 service area." Instead, they only question being treated like wireline customers for purposes of imposing the emergency service fee on cellular and wireless customers. The Commission concludes that protecting the health and safety of cellular and wireless customers, as well as equity to the wireline customers, compels rejection of the cellular and wireless carriers' public interest argument. The cellular and wireless carriers' double and/or triple charging assertions are also rejected for lack of merit. The equalization and poison control surcharges are not imposed to fund all, or even a major portion, of general 9-1- 1 service. The equalization surcharge supplements the emergency service fee to regional planning commissions and districts, regardless of whether the district is participating in the regional plan, and the poison control surcharge is to fund specific needs of poison control centers. The emergency service fee is imposed on a per local exchange access line or equivalent local exchange access line basis and no double or triple charging of the fee will occur as long as the emergency service fee is imposed only once per local exchange access line or equivalent local exchange access line. The Commission, as a matter of policy, concludes that absent a legal bar to imposing the emergency service fee on cellular and wireless customers, the public's health and safety, as well as equity, currently weighs overwhelmingly in favor of imposing the fee on those customers. GTE Mobilnet and Sprint Cellular assert that, as a matter of law, cellular and wireless carriers are not within the definition of "local exchange service provider" in Health and Safety Code, sec.771.001(5). AT&T Wireless, Houston Cellular, and Galveston Cellular make the same assertion, as does SWB Mobile. The Commission disagrees. A fundamental rule controlling the construction of a statute is to determine, if possible, the intent of the legislature as expressed in the language of the statute. However, legislative intent is the law itself, and must be enforced if determined, although it may not be consistent with the strict letter of the statute. In determining the meaning of a statute, a court must consider the entire act, its nature and object, and consequences that would follow from each construction. A court will not give one provision of a statute a meaning out of harmony or inconsistent with other provisions, although that provision might be susceptible to such a construction if standing alone. If application of a statute's plain language will lead to consequences the legislature could not have contemplated, then courts are bound to presume that such consequences were not intended and adopt a construction that will promote the purpose for which the legislation was passed. Health and Safety Code, sec.671.001(5) provides that "`[l]ocal exchange service provider' means a telecommunications carrier providing telecommunications service in a local exchange service area under a certificate of public convenience and necessity issued by the Public Utility Commission of Texas." The cellular and wireless carriers argue that they are not within this definition because they do not provide local telephone service "under a certificate of public convenience and necessity issued by the Public Utility Commission of Texas." The Commission would initially point out that although the definition can be read literally in the manner urged by the cellular carriers, it may also be read literally to mean "a telecommunications carrier providing telecommunications service in a local exchange area . . . ." (i.e., the "in a local exchange area . . ." language only signifies the type of telecommunications carrier for purposes of that definition--local carrier--as opposed to a telecommunications carrier providing intrastate long distance service that collects the surcharge). The Commission would also point out the comparable definition in Health and Safety Code, Chapter 772 provides that "`[s]ervice supplier' means an entity providing local exchange access lines to a service user in an emergency communication district." (emphasis added) Health and Safety Code, sec.772.001(15). These two chapters of the Health and Safety Code represent the legislature's comprehensive scheme for providing 9-1-1 emergency service. The Commission, therefore, concludes that it is most appropriate to consider both these chapters together in ascertaining the meaning of the Health and Safety Code, Chapter 771 definition of local exchange service provider. The Commission would further note that the interpretation of the definition of local exchange service provider urged by the cellular and wireless carriers would not only exclude them. During the 74th Legislative Session, the Public Utility Regulatory Act was amended to allow additional local telecommunications carriers, other than one with a "certificate of public convenience and necessity," to compete by obtaining a "certificate of operating authority" or a "service provider certificate of operating authority" from the Public Utility Commission of Texas. These additional new local service providers would unquestionably fall within the Health and Safety Code, Chapter 772 definition of "service supplier," but would not fall under the definition in Health and Saftey Code, Chapter 771 if the plain reading of the definition urged by the cellular carriers (i.e. "under a certificate of public convenience and necessity issued by the Public Utility Commission of Texas") were indeed the proper reading of the definition. This in and of itself should be sufficient to confirm legislative intent that the appropriate reading of the Health and Safety Code, Chapter 771 definition is "a telecommunications carrier providing local telephone service" (i.e. like in the Chapter 772 districts, "an entity providing local exchange access lines"). There is, however, further express support in the statute for including cellular and wireless carriers within the Health and Safety Code, Chapter 771 definition. House Bill 911 first authorized the Commission to fund the development of quality statewide 9-1-1 by imposing an emergency service fee on local telephone customers and an equalization surcharge on intrastate long distance customers. In House Bill 911, the legislature mandated ANI as a minimum performance standard for 9-1-1 service to be followed in developing regional plans. At the time of the enactment of House Bill 911, there was a close balance between the universe of potential 9-1-1 callers and the universe of customers receiving local telephone service from only the local exchange company with a "certificate of public convenience and necessity issued by the Public Utility Commission of Texas." As pointed out by LECD, at the time the Texas 9-1-1 legislation was written, cellular and wireless telephones had no statistically significant impact on 9-1-1 service. Technological, market, and statutory changes have now created an ever increasing gap between these two universes, especially because of cellular and wireless carriers. For example, the FCC in the NPRM, discussed earlier, noted that in major metropolitan areas, it is estimated that 10% of 9-1-1 calls originate from mobile radio service subscribers, and that it is estimated that by 1998 there will be 32 million cellular customers and 2.6 million Personal Communications Network customers. NPRM at pp. 6-7. Chapters 771 and 772, however, were intended to apply to "any person calling the telephone number 9-1- 1." See, Health and Safety Code, sec.sec.771.059, 772.102, 772.202, and 772. 302. The plain language and purpose of the statutes, as well as common sense, show that the legislature was not intending to specifically exclude certain customers receiving local telephone service from paying emergency service fees based on which local telephone carrier provided local telephone service. The other local telephone service carriers either did not exist or were a minuscule portion of the local telephone market at the time House Bill 911 was enacted. The legislative history and other parts of the statutes further support the conclusion that there was no intent to exclude customers from paying the emergency service fee based on the type of local telephone carrier: Senator Sarpalius: I assume the cost is assessed on an individual's phone bill? Representative Carter: Yes, it will be a user fee similar to what was in your bill. The numbers in this particular bill are up to 50 cents on the local access lines and up to one-half of one percent on long distance services . . . . 70th Legislature, Senate State Affairs Committee Hearing of May 13, 1987 (tape 1, side 1). The "user fee" concept that the legislature adopted for emergency service fees is inconsistent with requiring customers of the local telephone carrier with a "certificate of public convenience and necessity" or only wireline customers to pay significant costs to fund 9-1-1 service for customers provided local telephone service by another local service provider. The Commission concludes that the legislature intended for the emergency service fee to apply uniformly in an area to local lines that may potentially access 9-1-1, regardless of an entity's authorization for providing that local telephone service." See, e.g. Health and Saftey Code, sec.772.114(b) ("the fee must have uniform application"). The Commission further concludes that the legislature could not have contemplated that the definition of "local exchange service provider" would mean that 9-1-1 entities would be required to make significant investments to provide 9-1-1 service for cellular and wireless customers on the backs of local wireline customers. The reading of the definition urged by the cellular carriers is inconsistent with ascertainable legislative intent and would lead to results the legislature could not have contemplated. The Commission further notes that in 1995 it is not uncommon for cellular and wireless service to be considered a local exchange access line or an equivalent local exchange access line for 9-1-1 purposes. The South Dakota Legislature recently amended its 9-1-1 statute to define "local exchange access lines" to mean "any telephone line or cellular telephone that connects a telephone subscriber to the local switching office and has the capability of reaching local public safety service agencies." 1995 South Dakota House Bill Number 1128, South Dakota 70th Legislative Assembly. The Louisiana Legislature recently amended its 9-1-1 statute to provide that "`[e]xchange access facilities' means all lines or their equivalent wireless service provided by the service supplier for the provision of local exchange service." 1995 Louisiana Senate Bill Number 272, Louisiana Regular Session, 1995. The New Hampshire Legislature addressed the issue somewhat differently by indicating "lines serving cellular communication towers" were local exchange lines. See, New Hampshire Statutes Ann. Chapter 106, H-9 (1994). The Commission, like a court construing the statutory definition of "local exchange service provider," is to ascertain legislative intent from the statute as a whole and to presume that consequences that could not have been contemplated were unintended and to adopt an interpretation of the statute that will promote the purpose for which the legislation was passed. In that regard, for the reasons expressed in detail above, the Commission interprets that statutory definition of "local exchange service provider" to mean "a telecommunications carrier providing local telephone service." The Commission, therefore, rejects the cellular and wireless carriers' argument that the definition of "local exchange service provider" restricts the Commission's authority to include cellular and wireless lines within the definition of an "equivalent local exchange access line" or the Commission's authority to enforce its rule in the same manner as it can against other "local exchange service providers." WorldCom requests clarification on the intent of the amendment, and, in the alternative, clarification in the amendment if the Commission's intent was other than WorldCom's interpretation that no double imposition of the fee was intended on a single local exchange access line. WorldCom explains that in the new environment under the Public Utility Regulatory Act of 1995, local service providers will be providing not only retail service to end-users, as has been the situation in the past, but also wholesale service to other local service providers who in turn will provide retail service to the end-user customer. WorldCom seeks clarification that the intent of the amendment is not to result in double imposition of the emergency service fee on the same local exchange access line by having the wholesale local exchange service provider impose the fee on the retail local exchange service provider who in turn will impose another emergency service fee on the end-user customer. The Commission's intent, as stated earlier, is to ensure that changes in the local telecommunications environment will not result an emergency service fee failing to be imposed on a local line that connects the customer to the public switched telecommunications network and provides the customer with the ability to reach a public safety answering point by dialing the digits 9-1-1. A double imposition on a single local line is inconsistent with both the intent and purposes of our enabling statute and our intent in adopting the amendment. An emergency service fee should be imposed only once per local exchange access line or equivalent local exchange access line by the local service provider serving the end user customer. Having clarified our intent for WorldCom, the Commission adopts the amendment without changes. The amendment is adopted under the Health and Safety Code, Chapter 771, sec.sec.771.001, 771.071, 771.073, and 771.075, which provides the Advisory Commission on State Emergency Communications with the authority to administer the implementation of statewide 9-1-1 emergency telephone service and to determine what constitutes an equivalent local exchange access line for purposes of imposing the emergency service fee. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on November 22, 1995. TRD-9515184 Mary A. Boyd Executive Director Advisory Commission on State Emergency Communications Effective date: December 13, 1995 Proposal publication date: October 10, 1995 For further information, please call: (512) 305-6911 1 TAC sec.255.7 The Advisory Commission on State Emergency Communications adopts an amendment to sec.255.7, concerning the collection and remittance of 9-1-1 emergency service fees and equalization surcharges, without changes to the proposed text as published in the October 10, 1995, issue of the Texas Register (20 TexReg 8265). The rule is amended to include recent Texas legislative action that provides for the Commission to establish collection procedures to collect past due amounts and recover the costs of collection from a service provider or business service user that fails to timely deliver the fees and surcharges. The amendment provides clarification on collection and remittance of 9-1-1 emergency service fees and equalization surcharges and penalties for non- compliance. No comments were received regarding adoption of the amendment. The amendment is adopted under the authority of the Health and Safety Code, Chapter 771, sec.sec.771.071(e), 771.072(f), and 771.077, which provides the Commission with the authority to impose the 9-1-1 service fee and equalization surcharges on service providers to bill, collect, and remit the fees and surcharges as instructed. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on November 22, 1995. TRD-9515182 Mary A. Boyd Executive Director Advisory Commission on State Emergency Communications Effective date: December 13, 1995 Proposal publication date: October 10, 1995 For further information, please call: (512) 305-6911 TITLE 4. AGRICULTURE Part I. Texas Department of Agriculture Chapter 15. Consumer Services Division Texas Grain Warehouse 4 TAC sec.15.76 The Texas Department of Agriculture (the department) adopts the repeal of sec.15.76, concerning Texas grain warehouse forms, without changes to the proposed text as published in the July 25, 1995, issue of the Texas Register (20 TexReg 5457). This section is being repealed to eliminate the requirement for amending the rule in the event of changes to forms. The repeal will delete unnecessary rule language. No comments were received regarding the repeal of this section. The repeal is adopted under the Texas Agriculture Code, sec.14.003, which provides the Texas Department of Agriculture with the authority to enforce the provisions of the Texas Agriculture Code, Chapter 14, concerning the regulation of Public Grain Warehouses and authorizing the department to supervise all licensed Public Grain Warehouses in the state. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on November 27, 1995. TRD-9515216 Dolores Alavardo Hibbs Chief Administration Law Judge Texas Department of Agriculture Effective date: December 17, 1995 Proposal publication date: July 25, 1995 For further information, please call: (512) 463-7583 Grain Sampling 4 TAC sec.sec.15.91-15.97 The Texas Department of Agriculture (the department) adopts the repeal of sec.sec.15.91-15.97, concerning definitions, standards for sampling grain, qualifications for licensed samplers, application for license, surety bond, renewal of surety bond and surety bond subscribed by Texas resident agent, without changes to the proposed text as published in the July 25, 1995, issue of the Texas Register (20 TexReg 5458). These sections are being repealed because the enabling legislation adequately describes the requirements for this program and additional rules are unnecessary. Repeal of these sections will delete unnecessary rule language and reduce state regulations. No comments were received regarding the repeal of these sections. The repeals are adopted under the Texas Agriculture Code, sec.96.002, which provides the Texas Department of Agriculture with the authority to enforce the provisions of the Texas Agriculture Code, Chapter 96, concerning the sampling of grain for grading purposes. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on November 27, 1995. TRD-9515215 Dolores Alavardo Hibbs Chief Administration Law Judge Texas Department of Agriculture Effective date: December 17, 1995 Proposal publication date: July 25, 1995 For further information, please call: (512) 463-7583 TITLE 30. ENVIRONMENTAL QUALITY Part I. Texas Natural Resource Conservation Commission Chapter 116. Control of Air Pollution by Permits for New Construction or Modification Subchapter D. Permit Renewals 30 TAC sec.sec.116.310-116.314 The Texas Natural Resource Conservation Commission (TNRCC or commission) adopts amendments to sec.116.310, concerning Notification of Permit Holder, sec.116.311, concerning Permit Renewal Application, sec.116.312, concerning Public Notification and Comment Procedures, sec.116.313, concerning Renewal Application Fees, and sec.116.314, concerning Review Schedule. Sections 116.310, 116.311, and 116.313 are adopted with changes to the proposed text as published in the August 22, 1995, issue of the Texas Register (20 TexReg 6393). Section 116.312 and sec.116.314 are adopted without changes and will not be republished. The TNRCC permit renewal criteria and procedures have been modified pursuant to Senate Bill (SB) 1125 (74th Legislature). The main regulatory change is the adoption of new sec.116.311(b), which states that, at the time of permit renewal, the TNRCC may not impose requirements more stringent than the existing permit, unless the TNRCC determines that it is necessary to avoid a condition of air pollution or to ensure compliance with otherwise applicable federal or state air quality control requirements. Some minor administrative changes are adopted in other sections for consistency with new sec.116.311(b) or for editorial matters, such as the change of the Texas Air Control Board to the TNRCC. A public hearing was held in Austin on September 21, 1995. No oral testimony was presented at that time. Twelve commenters submitted written testimony on the proposal. Brown McCarrol and Oaks Hartline (Hartline), Amoco Corporation (Amoco), Southwest Public Service Company (SPS), the City of Dallas, Houston Lighting and Power (HP&P), the United States Environmental Protection Agency (EPA), Texas Mid-Continent Oil and Gas Association (TMOGA), El Paso Natural Gas Company (El Paso), Texas Utilities Services (TU), the Lone Star Chapter of the Sierra Club (Sierra), Eastman Chemical Company (Eastman), and one individual made objections or recommendations. In general, nine commenters supported the proposal or had no comment and three objected to the proposal. SPS desired changes to sec.116.310 (concerning Notification of Permit Holder) to clarify the deadlines for notice of permit expiration and subsequent permit applications. This section states that the TNRCC shall provide 180 days' notice that a permit must be renewed, and allows applicants 90 days to respond. In some cases, the TNRCC could send the 180-day notice well in advance of the actual permit expiration date. To address this concern, SPS suggested that the TNRCC permit notice be mailed no earlier than 190 days and no less than 180 days prior to expiration of the permit, and that the application be submitted to the TNRCC no later than 90 days before expiration of the existing permit. The TNRCC staff agrees to clarify the 90-day application period before permit expiration. However, the TNRCC staff disagrees with the suggested restrictive language regarding the period during which the TNRCC should mail the permit renewal notices. Such a ten-day window would penalize the TNRCC if the renewal notice is inadvertently mailed too early. Amoco, SPS, HL&P, TMOGA, and the EPA commented on the use of the term "emissions related" in sec.116.311(a)(1). Amoco, HL&P, and TMOGA desired to delete the words "emissions related" because it is ill-defined and potentially confusing. The EPA noted that in many cases, a change in production could be recognized as being a change in emissions. The words "emissions related" have been deleted. HL&P and TMOGA requested the addition of a clause to the end of new sec.116. 311(a)(1) to read "including ... representations in the application for permit to construct and subsequent amendments, and any previously granted renewal unless otherwise authorized for a qualified facility." (suggested new language is in bold) This addition would be consistent with sec.116.311(b)(2). The TNRCC has added the suggested language to recognize the possibility that a "qualified facility" may not have to comply with all representations in a permit application due to the change in the definition of modification by SB 1126. However, a facility must comply with the conditions of its existing permit until such time that an amendment, alteration, or other mechanism changes the permit conditions. This added language does not authorize or allow a facility to ignore the conditions in its permit. The TNRCC staff proposed to delete former sec.116.311(a)(1), which stipulated that the permit holder must demonstrate that "the emissions from the facility comply with all applicable specifications and requirements in the Texas Natural Resource Conservation Commission (TNRCC) rules and the Texas Clean Air Act (TCAA)." The EPA, Sierra, and one individual questioned the basis for removing this paragraph and how it would ensure compliance with more stringent requirements adopted subsequent to the issuance of a permit. The TNRCC believes that compliance with an existing permit should be the principal focus of the review performed for the renewal of a permit. In addition, the TNRCC does not believe that a reevaluation of the original permit application is necessary or a prudent application of agency resources. These are the bases of the proposed deletion of existing sec.116.311(a)(1). An applicant for a permit to construct must demonstrate that a proposed facility will comply with all rules and regulations of the TNRCC and with the intent of the Texas Clean Air Act. It is not necessary to perform this evaluation a second time at permit renewal. After construction, a source or facility is subject to all applicable rules of this agency and a significant portion of the TNRCC's resources are focused on compliance and enforcement. These efforts do not need to be duplicated during permit renewal. Further, the TNRCC believes that a primary intent of SB 1125 was to refocus the renewal process on the existing permit, unless there was a demonstrated problem. In such a case, the permit renewal could be appropriately expanded as provided in sec.116.311(b). The TNRCC has a well-developed program to ensure compliance with agency rules and permits on an on-going basis. This compliance effort is more than adequate to ensure compliance with TNRCC rules, whether they are long-standing or newly adopted rules. The EPA also questioned the basis for removing former sec.116.311(a)(3), which requires facilities to have "appropriate means to measure the emission of significant air contaminants...," because owner/operators could conceivably remove sampling ports and platforms. Existing sec.116.311(a)(3) also duplicates a requirement applicable to the original permit application. An applicant for a permit to construct must demonstrate that a facility will have provisions for measuring the emissions of significant air contaminants, including the installation of sampling ports and sampling platforms. When necessary, such requirements are written as conditions of the permit. The renewal review will determine whether a facility is in compliance with any sampling requirements in its permit. Contrary to the commenter's suggestion, an owner/operator could not remove sampling ports or platforms in violation of permit conditions. Further, 30 TAC sec.101.9 provides independent authority for the TNRCC to require sampling ports and platforms when necessary. The existing sec.116.311(a) (3) was redundant and unnecessary. Eastman commented that the words "the emissions from" be deleted from the opening of new sec.116.311(a)(2) and (3) because federal New Source Performance Standards and National Emission Standards for Hazardous Air Pollutants programs relate to facility performance instead of solely to emission levels. The TNRCC staff agrees with this change. Hartline and SPS supported the proposal, but requested a clarification in sec.116.311(b)(2) that additional information or permit stringency may be required only under certain circumstances. The commenter stated that the word "only" should be added to the appropriate sentences to limit the TNRCC's review of economic reasonableness and technical practicability. In response, the TNRCC staff has agreed to add the word "only" to sec.116. 311(b)(2). El Paso objected to proposed sec.116.311(b)(1) and (2) on the basis that these provisions are more stringent than either the original permits or the spirit of SB 1125. Specifically, the commenter felt that sec.116.311(b)(1) appears to require permit modeling and sec.116.311(b)(2) may require Reasonable Available Control Technology (RACT), when the intent was to prevent such an economic burden and technological review. El Paso suggested restricting the discussion of RACT to nonattainment area applications. The TNRCC staff disagrees that sec.116.311(b) was intended to require impacts modeling and RACT determinations for all permit renewal applications. The only need for additional data is contingent upon the TNRCC documenting a condition of air pollution or a rule violation, and paragraphs (1) and (2) are only required if such a condition of air pollution or rule violation is found to exist. Nonattainment area review regulations are located in Subchapter B, sec.116.150 and sec.116.151. Sierra disagreed with the language in sec.116.311(b)(1) and (2) on the basis that additional permit information should always be a requirement and that the age of a facility should not be considered in renewal determinations. Sierra also raised the possibility that amendments under this rulemaking may inadvertently cause racial discrimination. While the mandate of SB 1125 clearly restricts the TNRCC's ability to require additional information without documenting a condition of air pollution or rule violation, the first obligation of the TNRCC to citizens in Texas is the protection of the health, welfare, and safety of their communities. In addressing air pollution concerns, the age of a facility is an important determinant in the consideration of the reasonableness of a particular emission control technology. The TNRCC is prohibited from discriminating on the basis of race, color, religion, sex, national origin, age, or disability. One individual commented that the proposed revision which prohibits requirements for more stringent permits generally violates the TCAA. In addition, this individual questioned whether the proposed changes in sec.116. 311(b) would prevent tightening of permits in nonattainment areas. SB 1125 is meant to protect against conditions of air pollution or violations of state of federal rules, as discussed previously. Nonattainment issues are addressed in Subchapter B, sec.116.150 and sec.116.151. This rulemaking does not prohibit implementation of rules regarding nonattainment areas, since these are defined as "state or federal air quality regulations." The City of Dallas desired that the actual deadline for the close of public comments be plainly stated in the rule proposal. The TNRCC staff has recently incorporated more generalized language in air- related rule proposals to indicate the close of comment date. This change provides consistency among all TNRCC rule proposals and also ensures that all rule proposals are open for comment 30 days after publication in the Texas Register. The amendments are adopted under the Texas Health and Safety Code, TCAA, sec.382.017, which provides the TNRCC with the authority to adopt rules consistent with the policy and purposes of the TCAA. sec.116.310. Notification of Permit Holder. The Texas Natural Resource Conservation Commission (TNRCC) shall provide written notice to the holder of a permit that the permit is scheduled for review. Such notice will be provided by certified or registered United States mail no less than 180 days prior to the expiration of the permit. The notice shall specify the procedure for filing an application for review and the information to be included in the application. The application shall be completed by the holder of the permit and returned to the TNRCC no later than 90 days before expiration of the permit. Pursuant to Texas Civil Statutes, Article 9027, the TNRCC shall exempt a holder of a permit from any increased fee or other penalty for failure to renew the permit if the individual establishes, to the satisfaction of the TNRCC, that the failure to renew in a timely manner occurred because the individual was on active duty in the United States Armed Forces serving outside the State of Texas. sec.116.311. Permit Renewal Application. (a) In order to be granted a permit renewal, the owner or operator of the facility shall submit information in support of the application which demonstrates that: (1) the facility is being operated in accordance with all requirements and conditions of the existing permit, including representations in the application for permit to construct and subsequent amendments, and any previously granted renewal, unless otherwise authorized for a qualified facility; (2) the facility meets at least the requirements of any applicable New Source Performance Standards promulgated by the United States Environmental Protection Agency (EPA) under the authority of the Federal Clean Air Act (FCAA) , sec.111, as amended; and (3) the facility meets at least the requirements of any applicable emission standard for hazardous air pollutants promulgated by EPA under the authority of the FCAA, sec.112, as amended. (b) In addition to the requirements in subsection (a) of this section, if the TNRCC determines it necessary to avoid a condition of air pollution or to ensure compliance with otherwise applicable federal or state air quality control requirements, then: (1) the applicant may be required to submit additional information regarding the emissions from the facility and their impacts on the surrounding area; and (2) the TNRCC shall impose as a condition for renewal only those requirements the executive director determines to be economically reasonable and technically practicable considering the age of the facility and the impact of its emissions on the surrounding area. (c) The TNRCC shall review the compliance history of the facility in consideration of granting a permit renewal. The compliance history review shall be conducted in accordance with sec.sec.116.120-116.126 of this title (relating to Compliance History). In order for the permit to be renewed, the application shall include information demonstrating that the facility is or has been in substantial compliance with the provisions of the TCAA and the terms of the existing permit. If the facility has a history which demonstrates failure to maintain substantial compliance with the provisions of the TCAA or the terms of the existing permit, the renewal shall not be granted. If it is found that violations in the compliance history constitute a recurring pattern of egregious conduct which demonstrates a consistent disregard for the regulatory process, including failure to make a timely and substantial attempt to correct the violations, the renewal shall be denied. If a contested case hearing has not been called, then the staff must notify the applicant of the intent to recommend denial and state the basis of the findings. The applicant will be given an opportunity to respond to the notice. If the findings reflect a pattern of disregard for applicable regulations which do not warrant denial, additional conditions may be placed in the permit. (d) A permit holder that fails to submit an application for review and renewal within 90 days prior to expiration of the permit, pursuant to sec.116. 310 of this title (relating to Notification of Permit Holder), will cause the subject permit to expire, unless the time period for the submission of the application is extended by the executive director. Permits are subject to the following renewal schedule: (1) any permit issued before December 1, 1991, is subject for review 15 years after the date of issuance; or (2) any permit issued on or after December 1, 1991, is subject for review every ten years after the date of issuance; (3) for cause, a permit issued on or after December 1, 1991, for a facility at a nonfederal source may contain a provision requiring the permit to be renewed at a period of between five and ten years. sec.116.313. Renewal Application Fees. (a) The holder of a permit to be reviewed for renewal by the Texas Natural Resource Conservation Commission (TNRCC) shall remit a fee with each renewal application, pursuant to the Texas Clean Air Act, sec.382.062(a)(1)(B), based on the total annual allowable emissions from the permitted facility for which the renewal is being sought, as applied to the following table. Figure 1: 30 TAC sec.116.313(a) (b) This fee shall be due and payable at the time application for review and renewal is filed with the TNRCC in response to written notice from the TNRCC consistent with sec.116.310 of this title (relating to Notification of Permit Holder). No fee will be accepted before the permit holder has been notified by the TNRCC that the permit is scheduled for review. The basis for fees is the schedule in effect at the time the application is filed. All permit review fees shall be remitted by check or money order payable to the TNRCC and mailed to the TNRCC, P.O. Box 13088, MC 214, Austin, Texas 78711-3088. Required fees must be received before the agency will consider an application to be complete. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on November 1, 1995. TRD-9515074 Kevin McCalla Director, Legal Services Division Texas Natural Resource Conservation Commission Effective date: December 11, 1995 Proposal publication date: August 22, 1995 For further information, please call: (512) 239-1966