ADOPTED RULES An agency may take final action on a section 30 days after a proposal has been published in the Texas Register. The section becomes effective 20 days after the agency files the correct document with the Texas Register, unless a later date is specified or unless a federal statute or regulation requires implementation of the action on shorter notice. If an agency adopts the section without any changes to the proposed text, only the preamble of the notice and statement of legal authority will be published. If an agency adopts the section with changes to the proposed text, the proposal will be republished with the changes. TITLE 4. AGRICULTURE PART I. Texas Department of Agriculture CHAPTER 24.Texas Agriculture Finance Authority: Farm and Ranch Finance Program 4 TAC sec.sec.24.3, 24.6, 24.8-24.12, 24.16 The Board of Directors of the Texas Agricultural Finance Authority (the Authority) of the Texas Department of Agriculture (the department) adopts amendments to sec.sec.24.3, 24.6, 24.8-24.12 and 24.16, concerning the Farm and Ranch Finance Program, without changes to the proposed text as published in the April 12, 1996, issue of the Texas Register (21 TexReg 3105). These amendments are required in order to comply with statutory changes enacted by the 74th Legislature, Senate Bill 1260. The statutory changes became effective January 1, 1996, due to the passage of the constitutional amendment proposed by the 74th Legislature, Senate Joint Resolution Number 51 The amendments to sec.sec.24.3, 24.6, 24.10, and 24.16 delete references to the Veterans Land Board, referring instead to the Authority. The amendment to sec.24.6 deletes a reference to the Farm and Ranch Administrative Expense Fund. The amendments to sec.sec.24.9, 24.10, and 24.16 delete references to the "board of directors" of the Authority, as that phrase is surplusage in light of the definition of "Authority" in sec.24.3. The amendment to sec.24.16 also changes a reference to "deputy assistant commissioner of agriculture" to "deputy commissioner of agriculture", to reflect the correct title. The amendment to sec.24.3 deletes the definition of gross income, reflecting an earlier statutory and rule change in which a requirement was deleted, but the corresponding definition was not. The amendment to sec.24.12 is a clerical change of case. The amendment to sec.24.3 also adds a definition for primary occupation, and the amendment to sec.24.8 alters the requirement that agricultural production be the applicant's primary occupation, replacing it with the requirement that agricultural production be a primary occupation (as defined in the amendment to sec.24.3). These amendments are adopted in order to allow applicants to maintain other means of support while establishing their farm or ranch operation. The amendment to sec.24.9(a) states that the applicant must use the application forms provided by the Authority, as opposed to the acceptance of lender- generated forms. The amendment to sec.24.9(d) requires that the staff make a recommendation of approval or denial for each application. The amendment to sec.24.10(b) provides that financial statements submitted to the Authority shall conform to generally accepted accounting principles. These amendments are adopted in order to increase the efficiency of the review process and take advantage of staff expertise. The amendment to sec.24.11 advises of the existence of the Authority's Credit Policy and Procedures documents, and states that copies may be obtained by contacting the department. This amendment is adopted in order to give notice to the public of the existence and availability of the additional criteria and guidelines contained in the Credit Policy and Procedures document. No comments were received regarding adoption of the amendments. The amendments are adopted under the authority of the Texas Agriculture Code (the Code), sec.59.022, which provides that the Authority may adopt rules governing various aspects of the program; the Code, sec.59.023, which states that the Authority has the power to adopt rules and procedures as necessary to carry out Chapter 59; and Texas Government Code, sec.2001.004, which requires that the Authority adopt rules of practice stating the nature and requirements of all available formal and informal procedures. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 10, 1996. TRD-9608250 Dolores Alvarado Hibbs Deputy General Counsel Texas Department of Agriculture Effective date: July 1, 1996 Proposal publication date: April 12, 1996 For further information, please call: (512) 463-7583 CHAPTER 28.Texas Agricultural Finance Authority: Loan Guaranty Program 4 TAC sec.sec.28.8, 28.10, 28.11 The Board of Directors of the Texas Agricultural Finance Authority (the Authority) of the Texas Department of Agriculture (the department) adopts amendments to sec.sec.28.8, 28.10, and 28.11, concerning the Loan Guaranty Program, without changes to the proposed text as published in the April 12, 1996, issue of the Texas Register (21 TexReg 3106). The amendments are required in order to comply with statutory changes enacted by the 74th Legislature, Senate Bill 372. The statutory changes became effective January 1, 1996 due to the passage of the constitutional amendment proposed by the 74th Legislature, Senate Joint Resolution Number 51. The amendment to sec.28.8 requires that the staff make a recommendation of approval or denial for each application submitted to the board. This amendment is adopted in order to increase the efficiency of the review process and take advantage of the expertise of staff. The amendment to sec.28.10 increases the maximum loan guaranty amount from $1 million to $2 million, and the maximum aggregate loan guaranty amount from $2 million to $5 million. The amendment to sec.28.11 advises of the existence of the Authority's Credit Policy and Procedures documents, and states that a copy may be obtained by contacting the department. This amendment is adopted in order to give notice to the public of the existence and availability of the additional criteria and guidelines contained in the Credit Policy and Procedures document. No comments were received regarding adoption of the amendments. The amendments are adopted under the Texas Agriculture Code, sec.58.022, which provides the Authority with the authority to adopt rules and procedures as necessary for the administration of its programs; sec.58.023, which provides the Authority with the authority to adopt rules to establish criteria for eligibility of applicants and lenders under the Loan Guaranty Program; and, Texas Government Code, sec.2001.004, which requires that the Authority adopt rules of practice stating the nature and requirements of all available formal and informal procedures. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 10, 1996. TRD-9608251 Dolores Alvarado Hibbs Deputy General Counsel Texas Department of Agriculture Effective date: July 1, 1996 Proposal publication date: April 12, 1996 For further information, please call: (512) 463-7583 CHAPTER 30.Young Farmer Loan Guarantee Program SUBCHAPTER A.General Procedures 4 TAC sec.sec.30.6, 30.7, 30.12 The Board of Directors of the Texas Agricultural Finance Authority (the Authority) of the Texas Department of Agriculture (the department) adopts amendments to sec.sec.30.6, 30.7, and 30.12, concerning the Young Farmer Loan Guarantee Program, without changes to the proposed text as published in the April 12, 1996 issue of the Texas Register (21 TexReg 3107). These amendments are adopted in order to clarify and improve the nature of the information required to be submitted, and to thereby increase the effectiveness of the loan application review process. The amendment to sec.30.6(d) requires that the staff make a recommendation of approval or denial for each application submitted to the board. This amendment is adopted in order to increase the efficiency of the review process and take advantage of the expertise of staff. The amendment to sec.30.6 also provides for approval of a loan guarantee by the vote of a majority of a quorum of the board, as opposed to a majority of those present and voting. This amendment is adopted in order to reflect current law and practice. The amendment to sec.30.7(1)(B) requires that the applicant submit his or her current valid driver's license number, as opposed to a copy of the actual license. The amendment to sec.30.7(1)(C) requires that the applicant's resume identify the agricultural experience of the applicant. The amendment to sec.30.7(1)(H) adds the lender to the list of those that may request additional information in the application. The amendment to sec.30.7(1)(I) adds a requirement that financial statements be submitted with the application. The amendment to sec.30.7(2) changes the requirements regarding the contents of the business plan to be submitted. The amendment to sec.30.12 advises of the existence of the Authority's Credit Policy and Procedures documents, and states that copies may be obtained by contacting the department. This amendment is adopted in order to give notice to the public of the existence and availability of the additional criteria and guidelines contained in the Credit Policy and Procedures document. No comments were received regarding adoption of the amendments. The amendments are adopted under the Texas Agriculture Code (the Code), sec.253.007(e), which provides the Board of Directors of the Texas Agricultural Finance Authority with the same authority in administering the Young Farmer Loan Guarantee Program as it has in administering programs established by the board under Chapter 58 of the Code; sec.58.023 of the Code, which provides the board with the authority to adopt rules to establish criteria for eligibility of applicants and criteria for lenders; sec.58.022 of the Code, which provides the board with the authority to adopt rules and procedures for administration of the loan guarantee program; and Texas Government Code, sec.2001.004, which requires that the Authority adopt rules of practice stating the nature and requirements of all available formal and informal procedures. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 10, 1996. TRD-9608249 Dolores Alvarado Hibbs Deputy General Counsel Texas Department of Agriculture Effective date: July 1, 1996 Proposal publication date: April 12, 1996 For further information, please call: (512) 463-7583 PART II. Texas Animal Health Commission CHAPTER 49. Equine 4 TAC sec.49.1, sec.49.3 The Texas Animal Health Commission adopts amendments to Chapter 49, Equine, sec.49.1, Equine Infectious Anemia Identification and Handling of Infected Equine, with changes to the proposed text as published in the December 12, 1995, issue of the Texas Register (20 TexReg 10460). A new section, sec.49.3, Requirements for Dealer Recordkeeping, was also adopted with changes . The adopted changes in sec.49.1(h) requires an "S" brand to identify exposed horses being moved rather than a 74-A brand as originally proposed. sec.49.1(l) which was not included, but intended, in the original proposal, adds a specific reference to include movement to slaughter plants under a required test for change of ownership. The amendments to sec.49.1(h) are necessary to provide a method whereby equine exposed to equine infectious anemia can be branded and moved directly to slaughter, to sale for slaughter, or to a diagnostic or research facility. sec.49.1(h) is also amended to prevent the movement of infected animals through markets. sec.49.1(j) requires all equine that are part of a herd in which EIA has been found to be tested, and requires testing of herds at high risk of having or developing EIA. sec.49.1(l) requires a negative EIA test within the last twelve months for all equine changing ownership in Texas, including those moving to slaughter. sec.49.3 is adopted with changes as a requirement for dealer recordkeeping. The word "vehicle" was added for clarification to subsection (c), so it now reads, "Records at auctions and commission firms shall show the delivery vehicle license number." Comments from "Concerned Texans", including a Texas State Representative, were received in favor of adopting the amendments. The Texas Animal Health Commission agrees with these comments because continued spread of EIA would be unaffected if additional test requirements were not placed to identify infected herds, and to prevent spread of the disease. Comments from the Texas Veterinary Medical Association, the Livestock Marketing Association of Texas, and other individuals were received against the adoption of the amendments: One comment was against a change of ownership test because it will not work and is too costly for the horse owners. The Texas Animal Health Commission disagrees because a change of ownership test requirement has been a part of other eradication programs, and has been deemed successful in locating infected herds as well as protecting the purchasor of a tested animal. Another comment was that a recent negative Coggins test does not guarantee or assure the EIA status of a horse. The Texas Animal Health Commission believes a test for EIA, like any test, determines the disease status of an animal at the time the blood is drawn, and at least with a required test, the buyer will know it was negative then and could act accordingly. Three more comments against the proposal stated: that this proposal will add unnecessary expense to the dealers' overhead, generating massive volumes of costly paperwork; it will invade into information most dealers prefer to keep private; and the ineffectiveness of requiring dealers to keep records for 2 years on animals bought or sold. The Texas Animal Health Commission believes since dealer recordkeeping requirements are an integral part of, and have benefited other programs, there is no reason to believe they will not be beneficial to the EIA program. Records required by dealers are not so onerous as to be a costly overhead. Another comment against the proposal was that it will have an adverse effect on the current level of compliance by horse owners. The Texas Animal Health Commission expects that compliance will be equal to or will surpass the present level. Another comment was to allow a positive EIA animal to live out its life under quarantine on their own property. The Texas Animal Health Commission believes when an animal is found to be infected and remains on the premise, a danger of spreading the disease is always evident. Removal of infected animals is an integral part of other diseases programs. One of their last comment was that it will not improve the current program. The Texas Animal Health Commission believes the proposed changes will improve the current program. The amendment implements the Texas Agriculture Code, Texas Civil Statutes, Chapter 161, which provides the Commission with the authority to adopt rules to act to eradicate or control diseases that affect livestock. The amendment implements the Agriculture Code, sec.sec.161.041 and 161.046 which authorizes the Commission to adopt necessary rules to protect livestock from disease, including equine infectious anemia. sec.49.1. Equine Infectious Anemia (EIA). Identification and Handling of Infected Equine. (a)-(g) (No change.) (h) Movement of Reactors and exposed Equine. (1) Reactor equine. Following official identification, a reactor must be accompanied by a VS Form 1-27 permit issued by an accredited veterinarian or other authorized state or federal personnel when moved from its home premises either: (A) Directly to a slaughter plant, slaughter-only market, or slaughter-only buying facility; or (B) Directly to an approved diagnostic or research facility. (2) Exposed equine. Exposed equine must be identified with an "S" brand placed on the left shoulder or left side of the neck, and be accompanied by a VS Form 1-27 permit issued by an accredited veterinarian or other authorized state or federal personnel when moved either: (A) Directly to a livestock market for sale directly to slaughter provided the exposed equine is quarantined at the market in isolation from other horses; or (B) Directly to a slaughter plant, slaughter-only market, or slaughter only buying facility; or (C) Directly to an approved diagnostic or research facility. (i) (No change.) (j) Requirements for Testing Exposed Equine and High Risk Herds. (1) Exposed equine. All equine epidemiologically determined to have been exposed to an EIA positive animal shall be quarantined and tested by an Accredited Veterinarian at owner's expense or by Commission personnel. Nursing foals are exempt from testing. (2) Whole herd testing. All equine except nursing foals that are part of a herd from which a reactor has been classified shall be tested by an Accredited Veterinarian at owner's expense or by Commission personnel. A herd is: (A) All equine under common ownership or supervision that are on one premise; or (B) All equine under common ownership or supervision on two or more premises that are geographically separated, but on which the equine have been interchanged or where there has been contact among the equine on the different premises. Contact between equine on the different premises will be assumed unless the owner establishes otherwise and the results of the epidemiologic investigation are consistent with the lack of contact between premises; or (C) All equine on common premises, such as community pastures or grazing association units, but owned by different persons. Other equine owned by the persons involved which are located on other premises are considered to be part of this herd unless the epidemiologic investigation establishes that equine from the affected herd have not had the opportunity for direct or indirect contact with equine from that specific premises. (3) High Risk Testing. Herds determined to be at high risk shall be tested by an accredited veterinarian at owner's expense or by commission personnel. High risk herds are those epidemiologically judged by a State-Federal veterinarian to have a high probability of having or developing equine infectious anemia. A high risk herd need not be located on the same premise as an infected or adjacent herd. (k) (No change.) (l) Requirements for Change of Ownership. A negative EIA test within the previous 12 months is required for all equine changing ownership in Texas including those horses moving to slaughter. These tests will be conducted at no expense to the State of Texas. The original copy of the official test document positively identifying the animal shall be offered by the seller as proof of a negative test. The change of ownership test requirement may be met by collection of samples at the public auction at the discretion of the sale operator. Equine tested at public auctions must be held in Texas under quarantine until results of the test are known. Exceptions to these test requirements are foals nursing a tested dam. sec.49.3. Requirements for Dealer Recordkeeping. (a) A dealer is defined as a person engaged in the business of buying or selling animals in commerce: (1) On the person's own account; (2) As an employee or agent of the vendor, the purchaser, or both; or (3) On a commission basis. (b) A dealer as defined in subsection (a) of this section does not include a person who buys or sells animals as part of the person's bona fide breeding, feeding or stocker operations, but does include livestock markets and commission merchants. (c) Any dealer must maintain records of equine purchased and sold. Such records shall show the buyer's and seller's name and address, county of origin, number of animals, and a description of each animal, including sex, age, color and color markings, registration number, if any, and any individual identification such as tattoo, brand, or microchip number. Records at auctions and commission firms shall show the delivery vehicle license number. All dealer records must be maintained for a minimum of two years after the date of the transaction. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on June 11, 1996. TRD-9608296 Terry Beals, DVM Executive Director Texas Animal Health Commission Effective date: January 1, 1997 Proposal publication date: December 12, 1996 For further information, please call: (512) 719-0714 CHAPTER 51. Interstate Shows and Fairs 4 TAC sec.51.2 The Texas Animal Health Commission adopts amendments to Chapter 51, Interstate Shows and Fairs, by amending sec.51.2, General Requirements, without changes to the proposed text as published in the December 5, 1995, issue of the Texas Register (20 TexReg 10247). The amendments are necessary to amend sec.51.2(d)(2)(A) to provide that equine must have a negative test for equine infectious anemia within twelve months of entering any show, fair or exhibition. Comments from "Concerned Texans" were received in favor of adopting the amendments. Comments from the Texas Agricultural Extension Service were received against the adoption of the amendments. Texas Agriculture Extension Service commented that the requirement does not need to apply to local recreational and competitive events. The Texas Animal Health Commission disagrees with their comments because horses can be exposed to the disease at any sized event. Texas Agricultural Extension Service also commented that equine infectious anemia is not a state- wide problem. Texas Animal Health Commission adopts the regulation as proposed because a state-wide requirement is the only way to assure that Texas origin horses are not infected, and to determine how wide-spread the disease is. The amendment is adopted under the Texas Agriculture Code, Texas Civil Statutes, Chapter 161, which provides the Commission with the authority to adopt rules to act to eradicate or control diseases that affect livestock. The amendment implements the Agriculture Code, sec.sec.161.041 and 161.046 which authorizes the Commission to adopt necessary rules to protect livestock from disease, including equine infectious anemia, and 161.043 which authorizes the Commission to regulate entry of livestock into exhibitions, shows and fairs. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on June 11, 1996. TRD-9607940 Terry Beals, DVM Executive Director Texas Animal Health Commission Effective date: January 1, 1997 Proposal publication date: December 5, 1996 For further information, please call: (512) 719-0714 TITLE 16. ECONOMIC REGULATION PART I. Railroad Commission of Texas CHAPTER 7.Gas Utilities Division Substantive Rules 16 TAC sec.7.84 The Railroad Commission of Texas adopts an amendment to sec.7.84, concerning required records and reporting, without changes to the proposed text as published in the April 5, 1996, issue of the Texas Register (21 TexReg 2869). New subsection (e) of sec.7.84 requires the filing of hazardous liquid spill response plans. Current subsection (e) is redesignated as subsection (f). The new section implements Texas Natural Resource Code, sec.117.012, which gives the commission the authority to adopt rules requiring operators of hazardous liquids pipeline facilities to prepare and submit for commission approval a facility response plan for those facilities located landward of the coast. Consistent with the provisions of Texas Natural Resources Code, sec.117.012(e), the new subsection requires that operators file at the commission a copy of any facility response plan prepared under the authority conferred on the United States Department of Transportation Office of Pipeline Safety by the federal Oil Pollution Act of 1990 (Pub. L. 101-380). The copy of the facility response plan must be filed at the commission within 60 days of the effective date of this amendment to sec.7.84 or simultaneously with filing the facility response plan with the United States Department of Transportation Office of Pipeline Safety, whichever is later. By having the oil spill response plans that affect the State of Texas filed at the commission, staff of agencies with discharge prevention and spill response oversight authority will be better able to coordinate with the United States Department of Transportation Office of Pipeline Safety in the event of a spill and thereby avoid duplicative or ineffective efforts. No groups or associations filed comments on the proposed amendment. The commission received two comments on the proposed amendment. One commenter did not object to filing a copy of its Core Plan and various Response Zone appendices covering both interstate and intrastate operations in Texas if the commission's review is to be for "informational" purposes, but observed that any other purpose would be redundant and burdensome. Another comment stated that the proposed rule is not necessary if the commission subscribes to the Integrated Response Plan concept of the Research and Special Programs Administration. According to this commenter, the integrated response plan would satisfy the stated goal of the commission to have a coordinated response to a spill to eliminate delays and inefficiencies. In response to both comments, the commission points out that requiring the spill response plans to be filed at the commission will allow staff to review the plans and use them during emergencies, both "mock" and real. The commission does intend to subscribe to the Integrated Response Plan, and recognizes that having a coordinated response to a spill eliminates delays and inefficiencies. By having the spill response plans available at all times, staff can be familiar with them and the actions that the operators intend to take, furthering the goal of a coordinated response. For additional information call Mary McDaniel at (512) 463-7166. The commission adopts the amendment pursuant to Texas Natural Resources Code, sec.117.012(d), which gives the commission authority to adopt rules that require a hazardous liquid pipeline facility to prepare and submit for commission approval a facility response plan for all or any part of a hazardous liquid pipeline facility located landward of the coast. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 11, 1996. TRD-9608324 Mary Ross McDonald Assistant Director, Office of General Counsel, Gas Services Section Railroad Commission of Texas Effective date: July 2, 1996 Proposal publication date: April 5, 1996 For further information, please call: (512) 463-7008 TITLE 19. EDUCATION PART II. Texas Education Agency CHAPTER 89. Adaptations for Special Populations The Texas Education Agency (TEA) adopts the repeal of sec.sec.89.1-89.16, 89.41- 89.43, 89.51, 89.52, 89.71- 89.84, 89.111-89.120, 89.201, 89.203, 89.211-89.229, 89.231-89.240, 89.242-89.246, 89.250, 89.252-89.254, 89.256, 89.258, 89.301, and 89.331, concerning adaptations for special populations, without changes to the proposed text as published in the March 12, 1996, issue of the Texas Register (21 TexReg 1967). The sections concern special programs provided by local education agencies for students whose educational needs are outside the regular school program. The sections establish definitions, requirements, and procedures related to: the state plan for educating limited English proficient students; remedial and compensatory instruction; educational programs for gifted and talented students; adult basic and secondary education; general educational development; special education; educational services for released offenders; and the migrant education program. The repeals are necessary to comply with the sunset review process mandated by Senate Bill 1, 74th Texas Legislature, 1995. A new Chapter 89 is adopted in a separate submission. No comments have been received regarding adoption of the repeals. SUBCHAPTER A. State Plan for Educating Limited English Proficient Students 19 TAC sec.sec.89.1-89.16 The repeals are adopted under the Texas Education Code, sec.7.102, which authorizes the State Board of Education to review specified TEA rules. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on June 10, 1996. TRD-9608174 Criss Cloudt Associate Commissioner, Policy Planning and Research Texas Education Agency Effective date: September 1, 1996 Proposal publication date: March 12, 1996 For further information, please call: (512) 463-9701 SUBCHAPTER A. Gifted/Talented Education 19 TAC sec.sec.89.1-89.5 The Texas Education Agency (TEA) adopts new sec.sec.89.1-89.5, 89.21-89.33, 89.41-89.48, 89.61-89.63, and 89.71, concerning adaptations for special populations. Sections 89.1, 89.4, 89.22, 89.23, 89.25, 89.27, 89.28, 89.30, 89.43, 89.45, and 89.63 are adopted with changes to the proposed text as published in the March 12, 1996, issue of the Texas Register (21 TexReg 1970). Sections 89.2, 89.3, 89.5, 89.21, 89.24, 89.26, 89.29, 89.31-89.33, 89.41, 89.42, 89.44, 89.46-89.48, 89.61, 89.62, and 89.71 are adopted without changes and will not be republished. The new sections concern special programs provided by local education agencies for students whose educational needs are outside the regular school program. The sections establish definitions, requirements, and procedures related to: gifted/talented education; adult basic and secondary education; general educational development; special education services; and the migrant education program. The new sections are adopted as part of the sunset review process mandated by Senate Bill 1, 74th Texas Legislature, 1995. The repeal of current Chapter 89 is adopted in a separate submission. The following changes are adopted in new Chapter 89. Based on public comment, sec.89.1(3) was modified to clarify what a school district must include in written policies concerning student identification. Section 89.4(2) was deleted because changes in the state accounting system make it impossible to track expenditures in the same way as in past years. Section 89.22 was modified to clarify the description of persons for whom adult education and literacy funds may be used. Section 89.23(4) was modified to clarify requirements concerning the essential components of an adult basic and secondary education program. Based on public comment, sec.89.25 has been modified to reflect current practice under the federal adult education program application guidelines. In addition, new sec.89.25(7) has been added to emphasize that volunteers who generate student contact time must meet the same qualifications as paid adult education staff. Section 89.27(d)(1) has been modified to clarify the responsibilities of a fiscal agent for a cooperative/consortium formed to coordinate the provision of adult education services. Section 89.28 has been modified to clarify the composition of a collaborative advisory committee for a funded adult education program. Section 89.30(b) has been modified to clarify the fiscal agent's role in setting tuition and fees for an adult secondary education program. Since the rules were proposed, the national General Educational Development (GED) Testing Service has mandated an increase in the minimum score an applicant must achieve to be awarded a GED certificate. Section 89.43(a)(4) and sec.89.45 have been modified to reflect the new requirement. Based on public comment, the following changes were made to sec.89.63. Subsection (c)(2) has been modified to require a physician's statement regarding a student's need for homebound or hospital bedside instruction. The new language also clarifies that, under certain circumstances, this instructional arrangement may be used for students with disabilities for disciplinary reasons and for infants and toddlers with disabilities. Subsection (c)(7) was modified to make the language more positive in tone. Subsection (c)(8) was modified to clarify that not all of the criteria must be met to use the "off home campus" instructional arrangement. Finally, subsection (d) was modified to replace the word "individual" with "individualized" in reference to an individualized family service plan. The following comments have been received regarding adoption of the new sections. The comments are organized in ascending numerical order by section number. Comment. At an administrator's workshop sponsored by the Texas Association for the Gifted and Talented (TAGT), several individuals asked for clarification about sec.89.1(3). Agency Response. The TEA modified the text to clarify what a school district must include in written policies concerning student identification. The following comments concern adoption of new Chapter 89, Subchapter B (relating to Adult Basic and Secondary Education). The review and comment process regarding the proposed adult education rules was sent to adult and community education directors, all independent school districts, all public colleges and universities, all education service centers and field service agents and approximately 1500 community-based organizations, literacy providers, and interested individuals. In addition, a notice announcing the review and comment process was published in the Texas Register. Because concern had been expressed about an open process, the review and comment form protected the anonymity of the reviewer unless he or she desired to submit his or her name and organization. The following comments were received regarding sec.89.21. Comment. Several reviewers commented about the definitions of adult basic education and adult secondary education, particularly in regard to their use for student assessment. Agency Response. Since there is not currently a state assessment system for adult education, definitions of program levels are presented broadly so local decisions regarding student assessment and program placement can be made. The TEA is developing a performance measures assessment system for adult education that will provide a common basis for assessment of student entry levels as well as progress. Until the system is fully developed, local programs may quantify student functional levels using existing standardized instruments or informal assessments, as appropriate. The use of grade level measures is not meaningful for adults. Comment. Several reviewers commented that the rules should reflect the link between adult education programs and employment. Agency Response. Several portions of the rules reflect the link between adult education programs and development of the workforce. The definitions of adult basic education and adult secondary education include "functional context." Functional context means that skills and knowledge are best learned when presented in a context meaningful to the individual, and that the more similar basic skills instruction is to actual job tasks, the greater the likelihood that education will result in improved performance of job tasks. Functional context has been repeatedly validated over the last 25 years. In addition, the essential program components of the rules include instructional services necessary to function effectively in adult life, including accessing employment-related training or employment. The rules specify that the composition of the adult education advisory committee will include workforce development representatives. Comment. A reviewer expressed concern that adults "who are at zero level of education and knowledge are not included" in the definition of adult basic education. Agency Response. The definition of adult basic education indicates that the program supports instruction for adults who are not sufficiently competent to meet the requirements of adult life in the United States. This definition includes adults who have never attended school or who do not have competence in reading, writing, or numeracy. The following comments were received regarding sec.89.22. Comment. A reviewer requested removal of the words "out-of-school," commenting that students in non-credit classes can benefit from adult education services. Agency Response. The language "out-of-school" refers to eligible adults, beyond the age of compulsory school attendance, who are not enrolled in secondary school. Comment. A reviewer commented that, by specifying that program funds are for persons who function at less than a secondary school completion level, persons who function at a higher level who lack a secondary school credential are excluded. Agency Response. Language clarifying that programs are for persons "who lack a secondary school credential" has been added. The following comments were received regarding sec.89.23. Comment. A reviewer suggested that provisions of the rules regarding essential components be broadened to reflect the intent of the State Board of Education Policy Statement on Adult Education and Literacy. Agency Response. Language that broadens the essential components provisions was added to the rules. The following comments were received regarding sec.89.25. Comment. One reviewer proposed that the waiver of qualifications of adult education staff be continued with TEA keeping records of those hired under the waiver. Agency Response. This provision of the rules was not intended as a TEA waiver; rather it was intended to provide flexibility to local programs in which requirements were too rigorous to permit adequate staffing. The rules have been modified to indicate that documentation justifying requests for exemption from staff qualification requirements are submitted to TEA during the application process. Record keeping in regard to staff qualifications is maintained locally. Comment. The same reviewer commented that the waiver of in-service requirements is ambiguous. Agency Response. The ambiguity in the proposed rule was eliminated. Requirements for professional development may be reduced by local programs where exceptional circumstances prevent employees from completing the required hours of inservice (for example, a teacher who has been hired late in the program year, such that inservice is not available). The fiscal agent must document all such circumstances. Comment. The same reviewer suggested that preservice requirements should be required of all new staff unless they can show that they have participated in an "approved" preservice program. Agency Response. Preservice is required of staff who are "new to adult education," not staff new to a sponsoring agency. The local adult education fiscal agent, who is responsible for the overall management of the consortium, including staff qualifications, determines if preservice is warranted before personnel begin work in an adult education program. Comment. The same reviewer questioned the maintenance of personnel records. Agency Response. The rules state that records of staff qualifications and professional development shall be maintained by each fiscal agent and be available for monitoring. "Maintained" means that records should be current and resident at the fiscal agent's office. Comment. The same reviewer suggested including language in the rules regarding penalties for being out of compliance with regard to staff qualifications and staff development requirements. Agency Response. If a program is found to be out of compliance during results- based monitoring (RBM) on-site visits, TEA will plan collaboratively with the program to correct the deficiencies according to individual program needs. Comment. The same reviewer suggested adding language to the rules concerning the length of time records regarding staff qualifications and staff development must be kept. Agency Response. This requirement is part of federal regulations and is not necessary in the rules. Comment. The same reviewer questioned the addition of counseling. Agency Response. The references to counseling in the rules in regard to contact time, qualifications and training of staff, and service requirements for staff have been in place for ten years and provide local flexibility. Positions of staff who do not meet minimum qualifications of the rules are designated locally. Comment. The same reviewer suggested different staff qualifications and inservice requirements for volunteers. Agency Response. To maintain the quality of the adult education program, standards for paid staff and for volunteers are the same. Volunteers may function in numerous categories -- as teachers, teacher aides, counselors, supervisors, administrative support or in ancillary services. Staff qualifications and professional development requirements in the rule apply to administrators, teachers, counselors, supervisors, and teacher aides. Teacher aides function under the supervision of teachers. Qualifications for support staff are determined locally. Comment. A reviewer expressed concern about the staff requirements in the rules and the accrual of contact time in regard to the several thousand volunteers who participate in the adult education program. Agency Response. The proposed rules establish minimum staff qualifications to maintain the academic quality of the instructional program. Contact time (for funding purposes) directly generated by volunteers may be accrued by the adult education program if the volunteers meet the qualifications and staff development minimum requirements. Requests for exemptions from staff qualifications may be submitted to TEA in the annual funding application with justification (for example, volunteers who work under the direct supervision of a certified teacher). Comment. A reviewer suggested that the minimum number of clock hours of required inservice professional development be increased to 15 hours annually and that the required number of clock hours of preservice professional development be increased to nine hours. Agency response. Local fiscal agent board policy may increase the minimum staff qualifications and staff development from that currently required in the rules. In addition, local programs may offer more professional development than is currently required by the rules. However, there is no current database to provide an analysis of the impact of increasing the current requirements, especially in regard to available funding for professional development activities. The TEA considers professional development to be a major factor in improving student achievement and will begin to develop a database to analyze the impact of this suggestion. The following comments were received regarding sec.89.27. Comment. A reviewer desired the rules to indicate that consortium members shall be responsible to the fiscal agent and to TEA for their performance and use of funds. Agency Response. The rules state that the fiscal agent is responsible for the overall management of the consortium, including development of written agreements, expenditures of funds, and filing composite reports. The fiscal agent is responsible to TEA. However, the application for funds contains a schedule, to be signed by each consortium member, that acknowledges accountability for requirements contained in the application, including the use of funds. The following comments were received regarding sec.89.28. Comment. A reviewer suggested that the local advisory committee include workforce development representation. Agency Response. Workforce development representation was added to the rules. The following comments were received regarding sec.89.29. Comment. Several reviewers proposed that yearly applications be replaced by a more continuous funding cycle and performance-based funding. Agency Response. An annual competitive application process is part of the state plan approved by the U.S. Department of Education to meet the federal requirement of "direct and equitable access" to federal funds. Legislation currently being considered at the federal level may permit alternative funding cycles once it is finalized. No research base currently exists that would provide necessary data for development of a "performance-based" funding system. Comment. A reviewer questioned the funding formula, stating that the formula "implied a push for large numbers of students in big classes" and is a "hindrance to the implementation of innovative ideas that concentrate more money on smaller groups of people." Agency Response. The funding formula allocates 75% of the funds available based on student contact hours and 25% on the best available estimate of eligible adults in the geographic area. The current formula is contained in the state plan approved by the U.S. Department of Education. While not perfect, the funding formula models the formula used to distribute state funds to public schools. While large numbers of students in big classes is one strategy to control the amount of funding allocated to a geographic area, this strategy would predict large numbers of participants leaving the program before progress is made. Other strategies exist, such as controlling the size of classes; employing experienced, innovative staff; providing high-quality professional development; and employing techniques proven to increase student retention. The need to review the impact of the funding formula and research and pilot alternative formulas is acknowledged. However, a new allocation formula cannot be put in place without extensive research, development, and pilot testing. The following comments were received regarding sec.89.30. Comment. One reviewer suggested that language be added to the rules to allow reasonable fees to be charged to cover the cost of student assessment. Agency Response. The rules do not permit fees to be charged to adult basic education students. Tuition and fees for adult secondary education may be charged when established by local fiscal agent board policy. Charges for assessment are included in the statement. Comment. A reviewer suggested adding language to the rules regarding student purchase of supplementary instructional materials. Agency Response. Procedures regarding the purchase of materials, whether by the program or by students, is a local option, provided that fees paid by adult basic education students for materials are not a condition for participation in a class, which is forbidden by federal regulation. Comment. The same reviewer suggested that the rules should specify the relationship of board policy on this issue and local consortium members. Agency Response. Language was added to the rules so local fiscal agent board policy establishes and governs any tuition and fees to be charged to adult secondary education students. Procedures for accounting for funds generated by tuition and fees would be a part of that local policy. Comment. A reviewer suggested adding specific groups of students who should be excluded from tuition and fees. Agency Response. Federal regulations exclude all participants in adult basic education from being charged tuition or fees, including participants in the federal Job Opportunities and Basic Skills (JOBS) programs. The TEA has no authority to exclude other groups of students from being charged tuition or fees. The following comments were received regarding sec.89.31. Comment. A reviewer commented that the rules should state that allowable administrative costs vary from program to program. This reviewer also suggested that a definition of supervisory personnel be included in the rules. Agency Response. The rules pertain only to adult basic and secondary education programs. Definitions of common personnel classifications are included in the adult education funding application. The following comments were received regarding sec.89.33. Comment. One reviewer suggested that local adult education programs be able to adapt the TEA Results-Based Monitoring system in coordination with the TEA program director. Agency Response. The Results-Based Monitoring (RBM) system has been developed using the Indicators of Program Quality mandated by the National Literacy Act of 1991 to be used in program evaluation and is part of the state plan approved by the U.S. Department of Education. As a state system of accountability, the monitoring system must contain the same standards for programs statewide. However, the RBM system uses a process of local self-assessment and collaborative planning in order to customize the quality monitoring process in regard to program improvement. The following comments concern adoption of new Chapter 89, Subchapter D (relating to Special Education Services). Comment. The Learning Disabilities Association of Texas questioned why there is no mention of shared services arrangement units or the provision for day contracts in the rules related to special education services. Agency Response. The decision not to include the term "shared services arrangement units" was made early in the rule development process to increase the readability of the rules. All school districts must follow these rules, regardless of whether they are members of shared services arrangement units. Based on these reasons, it seemed unnecessary to repeat the term in the rule text. Under Senate Bill 1, the commissioner of education now has authority for rulemaking regarding day contracting. Districts will be required to follow the federal regulations and TEA procedures pertaining to day contracts. The TEA will provide written clarification to all school districts when the rules are adopted. Comment. Special education directors from Region 10 school districts raised questions about the reasons school districts, as required by sec.89.61(c)(7)(A), should be expected to know the minimum standards for health and safety if the residential facility is licensed by other agencies. These directors also feel the wording of sec.89.61(d)(2)(A) is unclear. Agency Response. Section 89.61(c)(7)(A) requires the district to verify that the facility "continues" to meet minimum standards for health and safety. The reason for this requirement is twofold. First, when a school district determines that a residential placement is required, the district remains responsible for the education of the student. Part of this responsibility includes an assurance that the student is served in a facility that continues to meet minimum health and safety standards. Second, because the minimum health and safety standard approval process is conducted by another state and/or local agency, facilities on the approved list could fall in and out of approval, so it is necessary to verify the facility's status during the annual admission, review, and dismissal (ARD) process to ensure the contract can be initiated and/or continued. The wording of sec.89.61(d)(2)(A) is essentially the same as in current rule, except the text references the state statute instead of a paragraph within the section. The TEA will provide written clarification to all school districts when the rules are adopted. Comment. The Coalition of Presidents (COPs), representing five organizations of the deaf in Dallas County, requested open enrollment across regional day schools for the deaf and the Texas School for the Deaf. Parents of a deaf child have every right to enroll the child in a school or regional program of their choice if they feel the child would benefit more than in the child's local school or program. Agency Response. The enrollment of a student who is deaf in a regional day program other than the student's home program is determined by the sending district's ARD committee and by the receiving district and regional day school program. The Texas School for the Deaf currently accepts parent placements. No changes were made as a result of this comment. Comment. The Texas School for the Deaf (TSD) questioned whether the proposed rules eliminate ambiguity regarding the local school districts' responsibility to share the cost of education of a student when the student is referred to TSD by the student's parent. Agency Response. When the rules are adopted, TEA will provide clarification to school districts to ensure the districts understand their responsibilities to support students who attend TSD. In addition, TEA will review proposed commissioner's rules to ensure consistency with State Board of Education (SBOE) rules. Comment. The parent advisory committee of Ft Worth ISD raised a question about how services and staff development are being coordinated as required in sec.89.63(c)(1). Agency Response. This question is specific to the "mainstream" instructional arrangement. The proposed rule establishes what the school district must provide. The implementation of the rule is determined by each local school district. Comment. The Texas Council of Administrators of Special Education (TCASE); 37 of 46 districts that responded to a fax poll from the Texas Association of School Administrators (TASA); special education directors from school districts in Regions 4, 8, 9, 10, and 11; special education personnel from El Paso ISD, Bryan ISD, Klein ISD, Humble ISD, Birdville ISD, Caprock Education Co-Op in Floydada, and Lubbock ISD; a representative of the Parent Advisory Committee of Katy ISD; the president of the Family to Family Network; and an individual expressed concern about eliminating in sec.89.63(c)(2) the medical certification requirement for homebound services. Omitting the requirement will increase the inappropriate use of homebound services to deal with students whose behavior is disruptive, but who may not otherwise qualify for an alternative education program (AEP) or expulsion, or students whose parents request homebound services for reasons that are not in the child's beat interest. These groups and individuals fear that students with emotional disturbances will incur homebound placement for behavioral infractions and will not be transitioned back into school without some limitations of homebound placement. Comment. Spearman ISD, Laredo ISD, and nine of 46 districts that responded to a fax poll from the Texas Association of School Administrators (TASA) recommended that the medical certification requirement for homebound services not be added to the proposed rules. They suggested that this issue should be addressed in local policies and procedures. Agency Response. Section 89.63(c)(2) has been modified to require a physician's statement regarding a student's need for homebound or hospital bedside instruction. The new language also clarifies that, under certain circumstances, this instructional arrangement may be used for students with disabilities for disciplinary reasons and for infants and toddlers with disabilities. Comment. A representative of the special education directors from Region 11 school districts requested that the word "approved" (as it relates to certain types of facilities) be included in the "hospital class" instructional arrangement. Comment. The Education Advisory Board of Charter Behavioral Health System of Dallas commented in favor of sec.89.63(c)(3). Agency Response. The term "approved" is not necessary for districts to provide services to students residing in these facilities. No changes were made as a result of these comments. Comment. Two individuals requested that SBOE reconsider including the term "content mastery" in the "resource room/services" instructional arrangement. Comment. One individual commented in favor of the "resource room/services" instructional arrangement and wants it to be continued. Comment. Several individuals and special education directors requested clarification of the relationship of a content mastery type of service/program and the "resource room/services" and "mainstream" instructional arrangements. Comment. The Texas Association of School Administrators (TASA) commented in favor of sec.89.63. Agency Response. The recommendation to remove the reference to "content mastery" from the "resource room/services" instructional arrangement was intended to give districts additional flexibility in the implementation of content mastery types of services. This change does not eliminate content mastery services, rather it will expand a district's ability to provide it. In addition, TEA will provide clarification to school districts when the rules are adopted. No changes were made as a result of these comments. Comment. A representative of the special education directors from Region 10 school districts commented that the word "capable" in the instructional arrangement specified in sec.89.63(c)(7) for "self-contained, severe, regular campus" is negative in tone. Agency Response. This sentence specifically relates to the number of regular education classes a student with disabilities is allowed to take and still be considered for the "self-contained, severe, regular campus" instructional arrangement and setting. The phrase "be capable of attending" was replaced with the word "attend" to make the rule text more positive in tone. Comment. Cuero ISD recommended an editorial change to clarify the instructional arrangement. Agency Response. The recommended change was made to the rule text in sec.89.63(c)(8). Comment. A representative of the special education directors from Region 9 school districts commented in favor of the provisions in sec.89.63(c)(10) relating to the "vocational adjustment class/program" instructional arrangement. Agency Response. The TEA agrees with the comment. Comment. The Texas Interagency Council on Early Childhood Intervention (ECI) recommended changes to sec.89.63(d). Agency Response. The TEA disagrees with two of the recommended changes. First, the proposed rule was developed to be consistent with terms and phrases from the agreement memorandum. The phrase "birth through the age of two" is consistent with the agreement memorandum and the Individuals with Disabilities Education Act (IDEA). Second, the attendance guidelines are more than a ledger to record attendance. These guidelines provide districts with clarification and direction relating to attendance accounting. The TEA agreed to replace the word "individual" with "individualized" in reference to an individualized family service plan. The new sections are adopted under the Texas Education Code, sec.29.122, which authorizes the State Board of Education (SBOE) to establish criteria under which each school district shall adopt a process for identifying and serving gifted and talented students in the district and shall establish a program for those students in each grade level; and the Texas Education Code, sec.42.156(b), which authorizes SBOE to establish rules under which each school district must account for the expenditure of state funds. sec.89.1. Student Assessment. School districts shall develop written policies on student identification that are approved by the local board of trustees and disseminated to parents. The policies must: (1) include provisions for ongoing screening and selection of students who perform or show potential for performing at remarkably high levels of accomplishment in the areas defined in the Texas Education Code, sec.29.121; (2) include assessment measures collected from multiple sources according to each area defined in the Texas State Plan for the Education of Gifted/Talented Students; (3) include data and procedures designed to ensure that students from all populations in the district have access to assessment and, if identified, services for the gifted/talented program; (4) provide for final selection of students to be made by a committee of at least three local district educators who have received training in the nature and needs of gifted students; and (5) include provisions regarding furloughs, reassessment, exiting of students from program services, transfer students, and appeals of district decisions regarding program placement. sec.89.4. Fiscal Responsibility. School districts shall ensure that: no more than 15% of state funds allocated for gifted/talented education are spent on indirect costs. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on June 10, 1996. TRD-9608164 Criss Cloudt Associate Commissioner, Policy Planning and Research Texas Education Agency Effective date: September 1, 1996 Proposal publication date: March 12, 1996 For further information, please call: (512) 463-9701 SUBCHAPTER B. Adult Basic and Secondary Education 19 TAC sec.sec.89.21-89.33 The new sections are adopted under the Texas Education Code, sec.7.102(b)(17), which directs the State Board of Education (SBOE) to adopt rules for approving adult education programs as required under the Texas Education Code, sec.29.253, and authorizes SBOE to establish an adult education advisory committee under the Texas Education Code, sec.29.254; and the Texas Education Code, sec.29.253, which provides that adult education programs shall be provided by public school districts, public junior colleges, public universities, public nonprofit agencies, and community-based organizations approved in accordance with state statutes and rules adopted by SBOE. sec.89.22. Use of Funds. Adult education and literacy funds are to be used for programs of adult education and literacy for out-of- school persons who are beyond compulsory school attendance age and who function at less than a secondary school completion level or who lack a secondary school credential. sec.89.23. Essential Program Components. The following essential program components shall be provided: (1) adult basic education; (2) programs for adults of limited English proficiency; (3) adult secondary education, including programs leading to the achievement of a high school equivalency certificate and/or a high school diploma; (4) instructional services to improve student proficiencies necessary to function effectively in adult life, including accessing further education, employment-related training, or employment; and (5) assessment and guidance services related to paragraphs (1)-(4) of this section. sec.89.25. Qualifications and Training of Staff. The requirements of this section shall apply to all adult education staff hired after September 1, 1996, excluding clerical and janitorial staff. (1) All staff shall receive at least 12 clock hours of professional development annually. (2) All staff new to adult education shall receive six clock hours of preservice professional development before they begin work in an adult education program. (3) Aides shall have at least a high school diploma or high school equivalency certificate. (4) The following apply to directors, teachers, counselors, and supervisors. (A) Persons must possess at least a bachelor's degree. (B) Persons without valid Texas teacher certification must attend 12 clock hours of inservice professional development annually in addition to that specified in paragraph (1) of this section until they have completed either six clock hours of adult education college credit or attained two years of adult education experience. (5) The requirements for inservice professional development may be reduced by local programs in individual cases where exceptional circumstances prevent employees from completing the required hours of inservice professional development. Documentation shall be kept justifying such circumstances. Requests for exemption from staff qualification requirements in individual cases may be submitted to the Texas Education Agency (TEA) for approval in the application for funding and must include justification and proposed qualifications. (6) Records of staff qualifications and professional development shall be maintained by each fiscal agent and must be available for monitoring. (7) The requirements in paragraphs (1)-(5) of this section also apply to volunteers who generate student contact time, as defined under sec.89.21 of this title (relating to Definitions), which is accrued by the adult education program and reported to TEA for funding purposes. sec. 89.27. Program Delivery System. (a) There shall be a statewide system of adult education cooperatives/consortia for the coordinated provision of adult education services. To the extent possible, service delivery areas shall be large enough to support a program meeting the requirements of sec.89.23 of this title (relating to Essential Program Components) and to ensure efficient and effective delivery of services. (b) Eligible grant recipients may apply directly to the Texas Education Agency (TEA) for adult education and literacy funding. Eligible grant recipients are encouraged to maximize the fiscal resources available for service to undereducated adults and avoid unproductive duplication of services and excessive administrative costs by forming consortia or cooperatives and using fiscal agents for the delivery of services. (c) Grant applicants who will serve as a fiscal agent for a cooperative/consortium must consult with other adult education and literacy providers in the cooperative/consortium in developing applications for funding to be submitted to TEA. (d) Each fiscal agent shall be responsible for: (1) the overall management of the cooperative/consortium, including technical assistance to consortium members, on-site visits, staff qualifications and professional development, and program implementation in accordance with the requirements of this subchapter; (2) the employment of an administrator for the cooperative/consortium; (3) development of written agreements with consortium members for the operation of the adult education program; and (4) expenditures of funds for the conduct of the project and making and filing composite reports for the consortium. (e) Nonconsortium applicants must also provide evidence of coordination of existing adult education and literacy services in the area proposed to be served and maintain an advisory committee. sec.89.28. Advisory Committee. At least one collaborative advisory committee shall be formed in each funded adult education program. That committee shall be composed of a broad spectrum of community representatives, including work force development representatives, to review the activities of, and make recommendations to, the fiscal agent in planning, developing, and evaluating the adult education program. The fiscal agent shall be responsible for convening the collaborative advisory committee at least twice each year. sec.89.30. Tuition and Fees. (a) No student tuition or fees shall be charged for adult basic education as a condition for membership and participation in a class. (b) Tuition and fees for adult secondary education may be charged and be established by local fiscal agent board policy. Funds generated by such tuition and fees shall be used for the adult education instructional program. (c) Funds, not exceeding 50% of student tuition, may be used to pay tuition charged to students enrolled in correspondence courses or high school credit courses. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on June 10, 1996. TRD-9608163 Criss Cloudt Associate Commissioner, Policy Planning and Research Texas Education Agency Effective date: September 1, 1996 Proposal publication date: March 12, 1996 For further information, please call: (512) 463-9701 SUBCHAPTER B. Remedial and Compensatory Instruction 19 TAC sec.sec.89.41-89.43 The repeals are adopted under the Texas Education Code, sec.7.102, which authorizes the State Board of Education to review specified TEA rules. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on June 10, 1996. TRD-9608173 Criss Cloudt Associate Commissioner, Policy Planning and Research Texas Education Agency Effective date: September 1, 1996 Proposal publication date: March 12, 1996 For further information, please call: (512) 463-9701 SUBCHAPTER C. General Educational Development 19 TAC sec.sec.89.41-89.48 The new sections are adopted under the Texas Education Code, sec.7.111, which directs the State Board of Education (SBOE) to provide for the administration of high school equivalency examinations. sec.89.43. Eligibility for a Texas Certificate of High School Equivalency. (a) An applicant for a certificate of high school equivalency shall meet the following requirements. (1) Residence. The applicant must be a resident of Texas or a member of the United States armed forces stationed at a Texas installation. (2) Age. The applicant must be 18 years old. An applicant who is 17 years of age is eligible with parental or guardian consent. An applicant who is 17 years of age must present written permission signed by the applicant's parent or guardian. An applicant who is 17 years of age and married, who has entered military service, who has been declared an adult by the court, or who has otherwise legally severed the child/parent relationship is not required to present parent or guardian permission to be tested. Any applicant who is at least 16 years of age may test if recommended by a public agency having supervision or custody under a court order. Recommendations must include the applicant's name and date of birth and must be signed by an official of the public agency having supervision or custody of the person under a court order. (3) Educational status. The applicant must not be enrolled in school and must not have received a high school diploma from an accredited high school in the United States. A student who is 17 years of age is eligible to test if the student has participated in an in-school program approved by the Texas Education Agency (TEA) to prepare for the General Educational Development (GED) Test. (4) Minimum test scores. The applicant must achieve a standard score of 40 or above on each of the five parts of the test or achieve an average standard score of 45 on all five parts of the test. Effective January 1, 1997, an applicant must achieve a standard score of 40 or above on each of the five parts of the test and achieve an average standard score of 45 on all five parts of the test. An applicant who achieved scores of 35 on each of the five tests prior to January 1, 1959, or who achieved 40 or above on each test or a 45 average on all five tests prior to January 1, 1997, may be issued a certificate. (b) Test centers shall verify that any person being tested meets the eligibility requirements in this section. sec.89.45. Retesting. An examinee who fails to achieve a minimum passing score on one or more of the tests may retest on the tests he or she failed. A person desiring to retest must wait six months to do so unless he or she presents a letter from an adult preparation program or a certified teacher verifying that the individual is prepared to retest. Each retest must be on a different form of the test. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on June 10, 1996. TRD-9608162 Criss Cloudt Associate Commissioner, Policy Planning and Research Texas Education Agency Effective date: September 1, 1996 Proposal publication date: March 12, 1996 For further information, please call: (512) 463-9701 SUBCHAPTER C. Educational Programs for Gifted and Talentd Students 19 TAC sec.89.51, sec.89.52 The repeals are adopted under the Texas Education Code, sec.7.102, which authorizes the State Board of Education to review specified TEA rules. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on June 10, 1996. TRD-9608172 Criss Cloudt Associate Commissioner, Policy Planning and Research Texas Education Agency Effective date: September 1, 1996 Proposal publication date: March 12, 1996 For further information, please call: (512) 463-9701 SUBCHAPTER D. Special Education Services 19 TAC sec.sec.89.61-89.63 The new sections are adopted under the Texas Education Code, sec.30.003(d) and (g), which authorizes the State Board of Education (SBOE) to adopt rules as necessary to implement the provisions of the Texas Education Code, sec.30.003, concerning support of students enrolled in the Texas School for the Blind and Visually Impaired or the Texas School for the Deaf; the Texas Education Code, sec.30.004(b), which directs SBOE to adopt rules prescribing the form and content of information required by the Texas Education Code, sec.30.004(a); the Texas Education Code, sec.30.057(a)(2)(B), which provides that the Texas School for the Deaf shall provide services in accordance with the Texas Education Code, sec.30.051, to any eligible student with a disability for whom the school is an appropriate placement if the student has been referred for admission by the student's parent or legal guardian according to rules adopted by SBOE with the advice of the school's governing board; and the Texas Education Code, sec.42.151(e) and (g), which directs SBOE to prescribe by rule the qualifications an instructional arrangement must meet in order to be funded as a particular instructional arrangement under the Texas Education Code, sec.42.151, and to adopt rules and procedures governing contracts for residential placement of special education students. sec.89.63. Instructional Arrangements and Settings. (a) Each local school district shall be able to provide services with special education personnel on the following bases to students with disabilities in order to meet the special needs of those students in accordance with 34 CFR, sec.300.551: itinerant, helping teacher, resource, partially self-contained, and self-contained. (b) For the purpose of determining the student's instructional arrangement/setting, the regular school day is defined as the period of time determined appropriate by the admission, review, and dismissal (ARD) committee for a student whose individual educational plan (IEP) specifies a shortened day. (c) Instructional arrangements/settings shall be based on the individual needs and IEPs of eligible students receiving special education services and shall include the following. (1) Mainstream. This instructional arrangement/setting is for providing special education instruction and related services according to IEPs to students whose instruction and related services are provided in regular education with special education support. This support is for teachers and students; examples include direct instruction, helping teacher, team teaching, co-teaching, interpreter, education aides, curricular or instructional modifications/accommodations, special materials/equipment, consultation, staff development, monitoring a student's progress in regular education classes, reduction of ratio of students to instructional staff, or other direct or indirect services needed to implement the IEPs of students receiving special education services in this instructional arrangement. This support shall be designed to enrich education in order to enable success of all students. (2) Homebound. This instructional arrangement/setting is for providing special education instruction to students who are served at home or hospital bedside. Students served on a homebound or hospital bedside basis are expected to be confined for a minimum of four consecutive weeks as documented by a physician licensed to practice in the United States. Homebound or hospital bedside instruction may, as provided by local district policy, also be provided to chronically ill students who are expected to be confined for any period of time totaling at least four weeks throughout the school year as documented by a physician licensed to practice in the United States. Home instruction may be provided as an option for students with disabilities as a result of disciplinary action pursuant to the Texas Education Code, Chapter 37, Subchapter A (relating to Alternative Settings for Behavior Management). Home instruction may also be used for services to infants and toddlers when determined appropriate by the individualized family services plan (IFSP) committee. This arrangement/setting also applies to students who receive services from a school district that provides education solely to students confined to or educated in hospitals. (3) Hospital class. This instructional arrangement/setting is for providing special education instruction in a classroom in a hospital facility or a residential care and treatment facility not operated by the school district. If the students residing in the facility are provided special education services outside the facility, they are considered to be served in the instructional arrangement in which they are placed and are not to be considered as in a hospital class. (4) Speech therapy. This instructional arrangement/setting is for providing speech therapy services. Students who are provided speech therapy services only are not eligible to be counted for any other instructional arrangement. (5) Resource room/services. This instructional arrangement/setting is for providing special education instruction and related services in a setting other than regular education for less than 50% of the regular school day. (6) Self-contained, mild and moderate, regular campus. This instructional arrangement/setting is for providing special education instruction and related services to students with mild or moderate disabilities who are in a self- contained program for 50% or more of the regular school day on a regular school campus. (7) Self-contained, severe, regular campus. This instructional arrangement/setting is for providing special education instruction and related services to students with severe disabilities who are in a self-contained program for most of the regular school day on a regular school campus. Students may attend no more than two regular education classes (such as music, physical education, or art). (8) Off home campus. This instructional arrangement/setting is for providing special education instruction and related services to students from more than one school district served in a single location when special education instruction and related services are not otherwise available in the respective sending district, to students whose instruction is provided in a facility not operated by a school district, or to students in a self-contained program at a separate campus operated by the school district that provides only special education instruction. This instructional arrangement/setting also applies to students at South Texas Independent School District and Windham Independent School District. (9) Nonpublic day school. This instructional arrangement/setting is for providing special education instruction to students through a contractual agreement with a nonpublic school for special education. (10) Vocational adjustment class/program. This instructional arrangement/setting is for providing special education, academic, or job-related instruction to students who are placed on a job with regularly scheduled supervision by special education teachers. (11) Residential care and treatment facility (not school district resident). This instructional arrangement/setting is for providing special education instruction and related services to students who reside in care and treatment facilities and whose parents do not reside within the boundaries of the school district providing educational services to the students. In order to be considered in this arrangement, the services must be provided on a school district campus. If the instruction is provided at the facility, rather than on a school district campus, the instructional arrangement is considered to be the hospital class arrangement/setting rather than this instructional arrangement. Students with disabilities who reside in these facilities may be included in the average daily attendance of the district in the same way as all other students receiving special education. (12) State school for persons with mental retardation. This instructional arrangement/setting is for providing special education instruction to students who reside at a state school. The services are provided at a state school or on a school district campus. (d) The appropriate instructional arrangement for students from birth through the age of two with visual and/or auditory impairments shall be determined in accordance with the individualized family service plan (IFSP), current attendance guidelines, and the agreement memorandum between the Texas Education Agency and the Texas Interagency Council on Early Childhood Intervention. (e) For nonpublic day school placements, the school district or shared service arrangement unit shall submit information to the Texas Education Agency indicating the students' identification numbers, initial dates of placement, and the names of the facilities with which the school district or shared service arrangement unit is contracting. The school district or shared service arrangement unit shall not count contract students' average daily attendance as eligible. The Texas Education Agency shall determine the number of contract students reported in full-time equivalents and pay state funds to the district according to the formula prescribed in law. (f) Other program options which may be considered for the delivery of special education services to eligible students may include the following: (1) contracts with other school districts; and (2) other program options as approved by the Texas Education Agency. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on June 10, 1996. TRD-9608161 Criss Cloudt Associate Commissioner, Policy Planning and Research Texas Education Agency Effective date: September 1, 1996 Proposal publication date: March 12, 1996 For further information, please call: (512) 463-9701 SUBCHAPTER D. Adult Basic and Secondary Education 19 TAC sec.sec.89.71-89.84 The repeals are adopted under the Texas Education Code, sec.7.102, which authorizes the State Board of Education to review specified TEA rules. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on June 10, 1996. TRD-9608171 Criss Cloudt Associate Commissioner, Policy Planning and Research Texas Education Agency Effective date: September 1, 1996 Proposal publication date: March 12, 1996 For further information, please call: (512) 463-9701 SUBCHAPTER E. Migrant Education Program 19 TAC sec.89.71 The new section is adopted under the Elementary and Secondary Education Act of 1965, as amended by the Improving America's Schools Act of 1994, Public Law 103- 382, Part c, sec.1304(c)(3), which requires assurances that, in the planning and operation of programs and projects at both the state and local operating agency level, there is appropriate consultation with parent advisory councils. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on June 10, 1996. TRD-9608160 Criss Cloudt Associate Commissioner, Policy Planning and Research Texas Education Agency Effective date: September 1, 1996 Proposal publication date: March 12, 1996 For further information, please call: (512) 463-9701 SUBCHAPTER E. General Education Development 19 TACsec.sec.89.111-89.120 The repeals are adopted under the Texas Education Code, sec.7.102, which authorizes the State Board of Education to review specified TEA rules. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on June 10, 1996. TRD-9608170 Criss Cloudt Associate Commissioner, Policy Planning and Research Texas Education Agency Effective date: September 1, 1996 Proposal publication date: March 12, 1996 For further information, please call: (512) 463-9701 SUBCHAPTER G. Special Education General Provisions 19 TAC sec.89.201, sec.89.203 The repeals are adopted under the Texas Education Code, sec.7.102, which authorizes the State Board of Education to review specified TEA rules. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on June 10, 1996. TRD-9608169 Criss Cloudt Associate Commissioner, Policy Planning and Research Texas Education Agency Effective date: September 1, 1996 Proposal publication date: March 12, 1996 For further information, please call: (512) 463-9701 Clarification of Provisions in Federal Regulations and State Law 19 TAC sec.sec.89.211-89.229, sec.sec.89.231-89.240, sec.sec.89.242-89.246 The repeals are adopted under the Texas Education Code, sec.7.102, which authorizes the State Board of Education to review specified TEA rules. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on June 10, 1996. TRD-9608168 Criss Cloudt Associate Commissioner, Policy Planning and Research Texas Education Agency Effective date: September 1, 1996 Proposal publication date: March 12, 1996 For further information, please call: (512) 463-9701 Special Education Funding 19 TAC sec.sec.89.250, 89.252-89.254, 89.256, 89.258 The repeals are adopted under the Texas Education Code, sec.7.102, which authorizes the State Board of Education to review specified TEA rules. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on June 10, 1996. TRD-9608167 Criss Cloudt Associate Commissioner, Policy Planning and Research Texas Education Agency Effective date: September 1, 1996 Proposal publication date: March 12, 1996 For further information, please call: (512) 463-9701 SUBCHAPTER H. Other Provisions 19 TAC sec.9.301 The repeal is adopted under the Texas Education Code, sec.7.102, which authorizes the State Board of Education to review specified TEA rules. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on June 10, 1996. TRD-9608166 Criss Cloudt Associate Commissioner, Policy Planning and Research Texas Education Agency Effective date: September 1, 1996 Proposal publication date: March 12, 1996 For further information, please call: (512) 463-9701 SUBCHAPTER J. Migrant Education Program 19 TAC sec.89.331 The repeal is adopted under the Texas Education Code, sec.7.102, which authorizes the State Board of Education to review specified TEA rules. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on June 10, 1996. TRD-9608165 Criss Cloudt Associate Commissioner, Policy Planning and Research Texas Education Agency Effective date: September 1, 1996 Proposal publication date: March 12, 1996 For further information, please call: (512) 463-9701 SUBCHAPTER BB. Commissioner's Rules Concerning State Plan for Educating Limited English Proficient Students 19 TAC sec.sec.89.1201, 89.1205, 89.1210, 89.1215, 89.1220, 89.1225, 89.1230, 89.1235, 89.1240, 89.1245, 89.1250, 89.1255, 89.1260, 89.1265 The Texas Education Agency (TEA) adopts new sec.sec.89.1201, 89.1205, 89.1210, 89.1215, 89.1220, 89.1225, 89.1230, 89.1235, 89.1240, 89.1245, 89.1250, 89.1255, 89.1260, and 89.1265, concerning the state plan for educating limited English proficient students. Sections 1201, 1205, 1220, 1225, 1230, 1240, 1250, 1255, 1260, and 1265 are adopted with changes to the proposed text as published in the February 27, 1996, issue of the Texas Register (21 TexReg 1466). Sections 1210, 1215, 1235, and 1245 are adopted without changes and will not be republished. The new sections establish definitions, requirements, and procedures related to: bilingual education and special language programs; program content and design; a home language survey; language proficiency assessment committees; testing and classification of students; eligible students with handicaps; participation of English proficient students; facilities; parental authority and responsibility; staffing and staff development; required summer school programs; local plans; monitoring for compliance with statute and TEA rules; and evaluation. The sections are necessary to ensure that students of limited English proficiency will have access to the foundation and enrichment curricula and the requirements for high school graduation. The sections are adopted as part of the sunset review process mandated by Senate Bill 1, 74th Texas Legislature, 1995. The following changes are adopted in the new sections. In sec.89.1201, subsection (a) was modified to correct a cross-reference to the Texas Education Code. Subsections (a)(4) and (b) were modified to clarify the responsibilities of school districts with regard to bilingual education, as well as the goals of bilingual education programs. In sec.89.1205, subsections (b)(2) and (e)(2) were modified to correct cross- references. Subsection (g)(3) was modified to correct an editorial error by replacing the word "lower" with the word "beginning." Subsection (h) was modified to clarify conditions for English as a second language waivers. In sec.89.1220, subsection (c) was modified to clarify the requirements regarding the membership of a language proficiency assessment committee (LPAC) for school districts and grade levels not required to provide bilingual education programs. Subsection (h) was modified to clarify the responsibilities of an LPAC with regard to time lines for the state criterion-referenced test. Subsection (i) was modified to clarify the criteria an LPAC must consider in determining exemptions from the state criterion-referenced test. Subsection (l) was modified to clarify the type of allotment for which a school district may count limited English proficient students. In sec.89.1225, subsection (a)(2) was modified to clarify the types of tests a school district must administer to identify limited English proficient students. Subsection (d) and subsection (e) were modified to clarify time lines with regard to oral language proficiency testing. Subsection (f) was modified to clarify the criteria used to identify a student as limited English proficient for purposes of entry into, or placement within, a bilingual education or English as a second language program. Subsection (g) was modified to correct an editorial error by replacing the word "entered" with the word "enrolled." Subsection (h) was modified to clarify the criteria for exit from a bilingual education or English as a second language program. In sec.89.1230, the title of the section, as well as subsection (a), were modified to replace the term "handicap" with the term "disability." Subsection (a) was also modified to clarify requirements concerning placement of students with disabilities. The last sentence in subsection (b) was reorganized as new subsection (c). In sec.89.1240, subsection (c) was modified to delete a reference to the rules of the State Board of Education (SBOE). Under Senate Bill 1, authority for promulgating rules regarding the education of limited English proficient students was transferred to the commissioner of education. In sec.89.1250, paragraph (1) was modified to clarify the purpose of summer school programs for children of limited English proficiency. Paragraph (3) was modified to clarify requirements and provide school districts more flexibility with regards to the operation of such programs. In sec.89.1255, subsection (d) was modified to clarify the criteria under which a locally developed plan to meet the needs of limited English proficient students may be approved. Subsection (e) was deleted, which eliminates requirements concerning reporting to SBOE. In sec.89.1260, the title of the section was modified to replace a reference to SBOE rules with a reference to the rules of the commissioner of education. Under Senate Bill 1, authority for promulgating rules regarding the education of limited English proficient students was transferred to the commissioner of education. Subsection (a) was modified to add a cross-reference to the Texas Education Code. In sec.89.1265, subsection (b) was modified in the same way as sec.89.1260 to replace a reference to SBOE rules with a reference to the rules of the commissioner of education. Subsection (b) and subsection (d) were modified to correct cross-references to the Texas Administrative Code The following comments have been received regarding adoption of the new sections. The following comments were received from Midland ISD. Comment. Concerning sec.89.1205(b), consider excluding sixth grade from the required bilingual education program, even when clustered with elementary grades, since bilingual materials are not available for this grade level; and require instead, English as a second language (ESL). Agency Response. Statute requires bilingual instruction through the elementary grades. Comment. Concerning sec.89.1225(e), include reading and writing assessment within the four-week period after enrollment in Grades 2-12. Agency Response. Reading and writing assessment may be conducted within the four-week time frame, depending on the assessment instrument used. Comment. Concerning sec.89.1215, consider a new heading for the reclassification of students who have been denied program participation. Students with parental denials who have met exit criteria shall be reclassified by the language proficiency assessment committee (LPAC) as not limited English proficient (LEP). Agency Response. There is no provision in statute to require this. The following comments were received from Ysleta ISD, El Paso ISD, Socorro ISD, Clint ISD, San Elizario ISD, Canutillo ISD, and Tornillo ISD. Comment. Concerning sec.89.1220 (h), delete the phrase "no earlier than 90 days." Language proficiency assessment committees in our districts make the assessment/instruction determination in September. Agency Response. Language has been deleted to allow districts flexibility in making this determination. The following comments were received from Weslaco ISD. Comment. Concerning sec.89.1201(a)-(d), consider including a statement or statements emphasizing the importance of academic development in both English and Spanish. The development of basic interpersonal communication skills (BICS) and cognitive academic language proficiency (CALP) in both languages should be stressed. Section 89.1210 should remain as is because of its emphasis on the development of cognition in both English and Spanish. The development of BICS and CALP should be mentioned. Agency Response. The importance of academic development as well as language development is included in the rules. Comment. Concerning sec.89.1220(h), delete the 90-day requirement. Allow the LPAC to make the decision. Agency Response. The requirement has been deleted to allow districts flexibility. Comment. Consider modifying sec.89.1225(a)(2), to require a TEA-approved norm- referenced measure only if needed. Agency Response. The rules specify when the written tests are to be administered. Comment. Concerning sec.89.1225(b), consider adding reading and writing tests in the home language of the students in addition to oral language tests for students in Grades 2-12 whose home language is Spanish. Agency Response. Such a requirement would not fall within the intent of the law. Comment. Concerning sec.89.1225(d), consider requiring the commissioner of education to review the approved list of tests on a yearly basis rather than every two years. Agency Response. The list of approved tests will be reviewed annually as in the past. Comment. Concerning sec.89.1225(e), consider requiring administration of the reading and writing proficiency tests within the first four weeks of enrollment rather than the first eight weeks. Agency Response. Reading and writing assessment may be conducted within the four-week time frame, depending on the assessment instrument used. Comment. Concerning sec.89.1225(h)(1)(B), consider adding the phrase "in the bilingual program" after the word "student" and deleting the phrase "specific language skills in both the student's primary language and." Agency Response. The section is based on statutory language that addresses exit requirements for both bilingual and ESL programs. Change is not needed, but additional clarification will be provided in program guides. Comment. Concerning sec.89.1225(h)(1), consider adding subparagraph (C) to read as follows: "tests administered at the end of each school year to determine the extent to which the student in the English as a second language (ESL) program has developed oral and written language proficiency and specific language skills in English." Agency Response. The section is based on statutory language that addresses exit requirements for both bilingual and ESL programs. Change is not needed. Comment. Consider modifying sec.89.1225(i), to read as follows: "In making the determination described in subsection (h) of this section, districts shall also consider other indications of a student's overall academic progress in English and if appropriate in Spanish, including criterion-referenced test scores, district developed tests, student portfolios, subjective teacher evaluation, and parental evaluation." Agency Response. The section already allows for all of these assessments without listing them. Comment. What criteria is to be used for parental evaluation? If a parent elects to keep the student in the bilingual/ESL program after she/he has met exit criteria, will the district continue to receive state funds for this student? Agency Response. Statute requires parental approval for exit. A student is eligible for funding until the LPAC determines that the student is no longer LEP. Program guides will address criteria for parental evaluation. Comment. Concerning sec.89.1230, the provision that districts may enroll students who are not limited English proficient in bilingual education programs should not be grouped with provisions concerning "handicapped" students. Consider creating a new section titled "Participation of Non-limited English Proficient Students." Also, replace the term "handicapped" with the term "exceptional students" or the term "students with disabilities." Agency Response. The provision concerning participation of non-limited English proficient students is reorganized as new subsection (c). The term "handicapped" has been replaced by the term "students with disabilities" throughout the rules. Comment. Consider adding new sec.89.1250(1)(C) to read as follows: "The program shall address the affective, linguistic, and cognitive needs of the limited English proficient students in accordance with sec.89.1210(c)(1)-(3) of this title (relating to Program Content and Design)." Agency Response. This language from the previous State Board of Education (SBOE) rules has been restored. Comment. Consider adding the phrase "and must have parental approval" at the end of sec.89.1250(2)(B). Agency Response. The phrase is not necessary in this section. Parental approval is required for participation in bilingual education. Comment. Consider adding the phrase "or the equivalent of 120 hours of instruction." at the end of the first sentence of sec.89.1250(3)(B). Agency Response. Language providing flexibility on the scheduling of summer school has been incorporated into the rules. Comment. Correct the cross-reference in sec.89.1250(3)(E), by citing sec.89.1245 instead of sec.89.1250. Agency Response. The correction has been made. The following comments were received from Alice ISD. Comment. Concerning sec.89.1250(a)(3)(B), consider adding the phrase "or the equivalent of 120 hours of instruction." This will allow for coordination among other summer programs and improve attendance throughout the summer session. Agency Response. Language providing flexibility on the scheduling of summer school has been incorporated into the rules. Comment. Consider modifying sec.89.1225(h)(1)(B) to read as follows: "tests administered at the end of each school year to determine the extent to which the student has developed oral and written English language proficiency skills." Agency Response. The section is based on statutory language which addresses exit requirements for both bilingual and ESL programs. Change is not needed. The following comments were received from El Paso ISD. Comment. Concerning sec.89.1201(b), consider replacing the phrase "through the integrated use of the primary language and English" with the phrase "through the development of literacy and academic skills in the primary language and English." Agency Response. This language has been included in the rules. Comment. Concerning sec.89.1250(3)(B), consider requiring only 120 hours of instruction during the summer and not specifying the number of weeks or the program ending date so school districts can implement the program to fit the district calendar and other summer activities. Agency Response. Language providing flexibility on the scheduling of summer school has been incorporated into the rules. Comment. Concerning sec.89.1225, staffing requirements for middle/high school content teachers should be addressed in Chapter 89. Stress staff development for middle school and high school content teachers. Agency Response. Staffing and staff development are addressed in the rules. Specific requirements for middle and high school will be addressed in program guides. The following comments were received from Ft. Worth ISD. Comment. Consider deleting sec.89.1205(h)(6). The provisions of paragraph (6) conflict with the provisions of subsection (h) that allow the commissioner of education to grant waivers to required ESL certifications by requiring schools to submit names and dates of certification completion for the teachers for whom waivers are requested. Agency Response. Revisions were made to eliminate the apparent conflict. Comment. Concerning sec.89.1225(h), separate exit criteria for ESL from the exit criteria for bilingual education by repeating subsection (h)(1), (2), and (3) as exit criteria for ESL, but deleting the reference to "primary language" from subsection (h)(1)(B). Agency Response. The section is based on statutory language that addresses exit requirements for both bilingual and ESL programs. Change is not needed. The following comments were received from the Texas Association for Bilingual Education (TABE). Comment. Concerning sec.89.1210(a), consider adding the following language. "Each school district required to offer a bilingual education and English as a second language program shall provide each limited English proficient student the opportunity to be enrolled in the required program at his or her grade level. The district shall modify the instruction, pacing, grading, and materials." Agency Response. Additional language is not necessary. School districts must provide the required program at the student's grade level, as well as provide the necessary modifications to insure that limited English proficient students have full opportunity to master the essential knowledge and skills. Comment. Consider adding sec.89.1215(e) to read as follows: "Districts shall not solicit parents to report "English" when this is not the case." Agency Response. This concern is handled through compliance monitoring. Comment. Concerning sec.89.1220(c), consider adding the phrase "participating in the program" after the phrase "limited English proficient student" and before the phrase "designated by the district." Agency Response. Language has been added to the section. Comment. Concerning sec.89.1240(a), consider adding the phrase "Districts shall not solicit denials to programs from parents of limited English proficient students." Agency Response. Language addressing excessive parental denials has been added to the section. Comment. Concerning former sec.89.12 (relating to Bilingual Education Allotment), restore previous subsections (a), (b), (c), and (d), or provide a cross-reference to the location of the information. Agency Response. Reference to the Texas Education Code, sec.42.153, has been included in sec.89.1260(a). Comment. Concerning sec.89.1250(2)(C), delete the phrase "or other appropriate instruments" and add the word "or" between the phrases "language inventories" and "oral proficiency instruments." Agency Response. The word "or" has been added. Comment. Concerning sec.89.1250(3)(B), consider adding the phrase "in accordance with the Texas Education Code, sec.29.060(a)," after the phrase "the program shall be operated." Concerning sec.89.1250(3)(E), consider adding the phrase "Texas Education Code, sec.29.061," as a reference after the phrase "Teachers shall possess certification or endorsement as required in ..." Agency Response. References have been included. Comment. Consider adding new sec.89.1250(3)(B) to read as follows: "Optional summer programs for grades other than the required prekindergarten and kindergarten may also be provided in accordance with sec.89.1250(3) of this rule." Agency Response. The additional language is not required. Comment. Concerning sec.89.1250(3), consider adding the following language. "Bilingual prekindergarten programs for students of limited English proficiency as described in the Texas Education Code, sec.29.153, must be provided during the regular school year if 15 or more eligible students are identified." Agency Response. The language is not necessary. Comment. Concerning sec.89.1255(b)(3), consider adding the following language. "The described program must have standards higher than the minimum required program." Agency Response. The language is not necessary. The following comments were received from an individual. Comment. Concerning sec.89.1250(3)(B), provide school districts the opportunity to use flexible scheduling for the summer school program. Eight weeks is too long. Agency Response. Language providing flexibility on the scheduling of summer school has been incorporated into the rules. The following comments were received from an individual. Comment. Concerning sec.89.1220(h), consider deleting the requirement of 90 days. If we allow LPACs to make a decision only 90 days before the Texas Assessment of Academic Skills (TAAS) test, it would only hinder students and instruction. Agency Response. Language has been deleted to allow districts flexibility in making this determination. The following comments were received from an individual. Comment. Concern was expressed about the language relating to exit criteria in sec.89.1225(h)(1)(B). Does this mean that students in ESL are also to be tested in their native languages? Agency Response. The section is based on statutory language that addresses exit requirements for both bilingual and ESL programs. Change is not needed. Comment. The provisions of sec.89.1250(3)(B) are too rigid and detrimental to the school district. Consider allowing districts flexibility to provide a program for 120 hours. Agency Response. Language providing flexibility on the scheduling of summer school has been incorporated into the rules. Comment. Concern was expressed that, under sec.89.1255(c), the districts can only apply for a district-wide local plan. Can a local plan be applied to only one campus in the district? What about Title VII dual language programs operating only in one campus? Agency Response. A local plan may apply to one or more campuses within a district. The following comments were received from Cypress-Fairbanks ISD. Comment. Concerning sec.89.1205(g), consider separating the requirements for "other" language groups from the requirements of Spanish bilingual education exceptions. Bilingually certified teachers for these other language groups are not available, materials are not available for a dual language program, and personnel who speak the native language and English are difficult to find. If the groups were dealt with as separate entities, districts could address their plans and intents for educating the students through the ESL programs. Agency Response. Statutory language addresses all language groups; however, individual needs can be addressed by each district's request. Comment. Concerning sec.89.1250(3)(B), provide more flexibility in the summer school program. Providing a requirement of 120 hours of instruction is a good way of doing this. Agency Response. Language providing flexibility on the scheduling of summer school has been incorporated into the rules. The following comments were received from Spring Branch ISD. Comment. Concerning sec.89.1225(h), continue the requirement for districts that elect to assess using an achievement test or using the TAAS reading test. Agency Response. Entry/exit criteria were revised to reflect changes in state assessment instruments. Comment. For meeting the requirements of sec.89.1225(f)(2)(B), prior test data should be used or, if not available, tests would be administered as the rules state. Agency Response. The rules allow for prior test data to be used. Comment. All information pertaining to the instruction of LEP students should be communicated in writing to all school districts. Agency Response. Information will be provided in writing. The new sections are adopted under the Texas Education Code, sec.sec.29.051- 29.064, which authorizes the commissioner of education to adopt rules related to educating limited English proficient students. sec.89.1201. Policy. (a) It is the policy of the state that every student in the state who has a home language other than English and who is identified as limited English proficient shall be provided a full opportunity to participate in a bilingual education or English as a second language program, as required in the Texas Education Code, Chapter 29, Subchapter B. To ensure equal educational opportunity, as required in the Texas Education Code, sec.1.002(a), each school district shall: (1) identify limited English proficient students based on criteria established by the state; (2) provide bilingual education and English as a second language programs, as integral parts of the regular program as described in the Texas Education Code, sec.4.002; (3) seek certified teaching personnel to ensure that limited English proficient students are afforded full opportunity to master the essential skills and knowledge required by the state; and (4) assess achievement for essential skills and knowledge in accordance with the Texas Education Code, Chapter 39, to ensure accountability for limited English proficient students and the schools that serve them. (b) The goal of bilingual education programs shall be to enable limited English proficient students to become competent in the comprehension, speaking, reading, and composition of the English language through the development of literacy and academic skills in the primary language and English. Such programs shall emphasize the mastery of English language skills, as well as mathematics, science and social studies, as integral parts of the academic goals for all students to enable limited English proficient students to participate equitably in school. (c) The goal of English as a second language programs shall be to enable limited English proficient students to become competent in the comprehension, speaking, reading, and composition of the English language through the integrated use of second language methods. The English as a second language program shall emphasize the mastery of English language skills, as well as mathematics, science and social studies, as integral parts of the academic goals for all students to enable limited English proficient students to participate equitably in school. (d) Bilingual education and English as a second language programs shall be integral parts of the total school program. Such programs shall use instructional approaches designed to meet the special needs of limited English proficient students. The basic curriculum content of the programs shall be based on the essential skills and knowledge required by the state. sec.89.1205. Required Bilingual Education and English as a Second Language Programs. (a) Each school district which has an enrollment of 20 or more limited English proficient students in any language classification in the same grade level district-wide shall offer a bilingual education program as described in subsection (b) of this section for the limited English proficient students in prekindergarten through the elementary grades who speak that language. "Elementary grades" shall include at least prekindergarten through Grade 5; sixth grade shall be included when clustered with elementary grades. (b) A district shall provide a bilingual education program by offering: (1) a dual language program in prekindergarten through the elementary grades, as described in sec.89.1210 of this title (relating to Program Content and Design); or (2) an approved dual language program which addresses the affective, linguistic, and cognitive needs of the limited English proficient students, and which meets the requirements of the Texas Education Code, sec.29.055(a), as described in sec.89.1255 of this title (relating to Local Plan). (c) Districts are authorized to establish a bilingual education program at grade levels in which the bilingual education program is not required under subsection (a) of this section. (d) All limited English proficient students for whom a district is not required to offer a bilingual education program shall be provided an English as a second language program as described in subsection (e) of this section, regardless of the students' grade levels and home language, and regardless of the number of such students. (e) A district shall provide an English as a second language program by offering: (1) an English as a second language program as described in sec.89.1210 of this title (relating to Program Content and Design); or (2) an approved English as a second language program which addresses the affective, linguistic, and cognitive needs of the limited English proficient students and meets the requirements of sec.89.1255 of this title (relating to Local Plan). (f) Districts may join with other districts to provide bilingual education or English as a second language programs. (g) Districts which are unable to provide a bilingual education program as required by subsection (a) of this section shall request from the commissioner of education an exception to the bilingual education program and approval to offer an alternative program. Approval of exceptions to the bilingual education program shall be negotiated on an individual basis and shall be valid for only the school year for which it was negotiated. This request will be submitted by a date determined by the commissioner of education and shall include: (1) a statement of the reasons the district is unable to offer the bilingual education program with supporting documentation; (2) a description of the proposed alternative modified bilingual education or intensive English as a second language programs to meet the affective, linguistic, and cognitive needs of the limited English proficient students, including the manner in which the students will be given opportunity to master the essential knowledge and skills required by Chapter 75 of this title (relating to Curriculum); (3) an assurance that certified personnel available in the district will be assigned to grade levels beginning at prekindergarten followed successively by subsequent grade levels to ensure that the linguistic and academic needs of the limited English proficient students with beginning levels of English proficiency are served on a priority basis; (4) a description of the training program which the district will provide to improve the skills of the staff which is assigned to implement the proposed alternative program, and an assurance that at least 10% of the bilingual education allotment shall be used to carry out this training program; and (5) a description of the actions the district will take to ensure that the program required under subsection (a) of this section will be provided the subsequent year, including its plans for recruiting and training an adequate number of teachers to eliminate the need for subsequent exceptions. (h) Districts which, because of an insufficient number of certified teachers, are unable to provide an English as a second language program as required by subsection (d) of this section shall request from the commissioner of education a waiver of the certification requirements for the teachers who will provide the instruction in English as a second language for the limited English proficient students. Approval of waivers of certification requirements shall be negotiated on an individual basis and shall be valid for only the school year for which they were negotiated. This request will be submitted by a date determined by the commissioner of education and shall include: (1) a statement of the reasons the district is unable to provide a sufficient number of certified teachers to offer the English as a second language program; (2) a description of the manner in which the teachers in the English as a second language program will meet the affective, linguistic, and cognitive needs of the limited English proficient student, including the manner by which the students will be given opportunity to master the essential knowledge and skills required by Chapter 75 of this title (relating to Curriculum); (3) an assurance that certified personnel available in the district will be assigned to grade levels beginning at prekindergarten followed successively by subsequent grade levels in the elementary school campus, and on the basis of need for secondary campuses, to ensure that the linguistic and academic needs of the limited English proficient students with the lower levels of English proficiency are served on a priority basis; (4) the names of the teachers not on permit who are assigned to implement the English as a second language program and estimated date for the completion of the English as a second language endorsement for each teacher under a waiver; (5) a description of the training program which the district will provide to improve the skills of the staff which is assigned to implement the proposed English as a second language program, and an assurance that at least 10% of the bilingual education allotment shall be used to carry out this training; and (6) a description of the actions the district will take to ensure that the program required under subsection (d) of this section will be provided the subsequent year, including its plans for recruiting and training an adequate number of teachers to eliminate the need for subsequent waivers. sec.89.1220. Language Proficiency Assessment Committee. (a) Districts shall by local board policy establish and operate a language proficiency assessment committee. The district shall have on file policy and procedures for the selection, appointment, and training of members of the language proficiency assessment committee(s). (b) In districts required to provide a bilingual education program, the language proficiency assessment committee shall be composed of the membership described in the Texas Education Code, sec.29.063. If the district does not have an individual in one or more of the school job classifications required, the district shall designate another professional staff member to serve on the language proficiency assessment committee. The district may add other members to the committee in any of the required categories. (c) In districts and grade levels not required to provide a bilingual education program, the language proficiency assessment committee shall be composed of one or more professional personnel and a parent of a limited English proficient student participating in the program designated by the district. (d) No parent serving on the language proficiency assessment committee shall be an employee of the school district. (e) A district shall establish and operate a sufficient number of language proficiency assessment committees to enable them to discharge their duties within four weeks of the enrollment of limited English proficient students. (f) All members of the language proficiency assessment committee, including parents, shall be acting for the school district and shall observe all laws and rules governing confidentiality of information concerning individual students. The district shall be responsible for the orientation and training of all members, including the parents, of the language proficiency assessment committee. (g) Upon their initial enrollment and at the end of each school year, the language proficiency assessment committee shall review all pertinent information on all limited English proficient students identified in accordance with sec.89.1225(f) of this title (relating to Testing and Classification of Students), and shall: (1) designate the language proficiency level of each limited English proficient student in accordance with the guidelines issued pursuant to sec.89.1210(b) and (d) of this title (relating to Program Content and Design); (2) designate the level of academic achievement of each limited English proficient student; (3) designate, subject to parental approval, the initial instructional placement of each limited English proficient student in the required program; (4) facilitate the participation of limited English proficient students in other special programs for which they are eligible provided by the district with either state or federal funds; and (5) classify students as English proficient in accordance with the criteria described in sec.89.1225(h) of this title (relating to Testing and Classification of Students), and recommend their exit from the bilingual education or English as a second language program. (h) Before the administration of the state criterion-referenced test each year, the language proficiency assessment committee shall determine the eligibility of limited English proficient students in Grades 3-8 for one of the following options in accordance with sec.101.3 of this title (relating to Testing Accommodations and Exceptions): (1) exemption from the criterion-referenced test; (2) administration of the Spanish version criterion-referenced test; or (3) administration of the English version criterion-referenced test. (i) In making this determination, the Language Proficiency Assessment Committee (LPAC) shall consider the following criteria for each student: (1) literacy in English and/or Spanish; (2) oral language proficiency in English and/or Spanish; (3) academic program participation (bilingual education or English as a second language), language of instruction and planned language of assessment; (4) number of years continuously enrolled in school; (5) previous testing history; and (6) level of academic achievement. (j) For each limited English proficient student determined eligible for the option listed in subsection (h)(1)of this section, the LPAC shall determine the appropriate alternative assessment which shall be administered using the criteria under subsection (i) of this section. (k) The language proficiency assessment committee shall give written notice to the student's parent advising that the student has been classified as limited English proficient and requesting approval to place the student in the required bilingual education or English as a second language program. The notice shall include information about the benefits of the bilingual education or English as a second language program for which the student has been recommended and that it is an integral part of the school program. (l) Pending parent approval of a limited English proficient student's entry into the bilingual education or English as a second language program recommended by the language proficiency assessment committee, the district shall place the student in the recommended program, but may count only limited English proficient students with parental approval for bilingual education allotment. (m) The language proficiency assessment committee shall monitor the academic progress of each student who has exited from a bilingual or English as a second language program within the past two years to determine whether the student is academically successful as defined in sec.89.1225(k) of this title (relating to Testing and Classification of Students). Those students who are not academically successful shall be classified as limited English proficient, and shall be recommended for participation in a bilingual education, English as a second language, compensatory and accelerated instruction, or other special language program which addresses their needs. (n) The student's permanent record shall contain documentation of all actions impacting the limited English proficient student. This documentation shall include: (1) the identification of the student as limited English proficient; (2) the designation of the student's level of language proficiency; (3) the recommendation of program placement; (4) parental approval of entry or placement into the program; (5) the dates of entry into, and placement within, the program; (6) the dates of exemptions from the criterion-referenced test, criteria used for this determination, type of alternative assessment, and results in accordance with sec.101.3 of this title (relating to Testing Accommodations and Exceptions); (7) the date of exit from the program and parent notification; and (8) the results of monitoring for academic success, including students formerly classified as limited English proficient, as required under the Texas Education Code, sec.29.063(c)(4). sec.89.1225. Testing and Classification of Students. (a) For identifying limited English proficient students, districts shall administer to each student who has a language other than English as identified on the home language survey: (1) in prekindergarten through Grade 1, an oral language proficiency test approved by the Texas Education Agency (TEA); and (2) in Grades 2-12, a TEA-approved oral language proficiency test and the English reading and English language arts sections from a TEA-approved norm- referenced measure, or another test approved by TEA. (b) Districts which provide a bilingual education program shall administer an oral language proficiency test in the home language of the students who are eligible for being served in the bilingual education program. If the home language of the students is Spanish, the district shall administer the Spanish version of the TEA- approved oral language proficiency test which was administered in English. If the home language of the students is other than Spanish, the district shall determine the students' level of proficiency using informal oral language assessment measures. (c) All the oral language proficiency testing shall be administered by professionals or paraprofessionals who are proficient in the language of the test and trained in language proficiency testing. (d) The grade levels and the scores on each test which shall identify a student as limited English proficient shall be established by TEA. The commissioner of education shall review the approved list of tests, grade levels, and scores annually and update the list. (e) Students with a language other than English shall be administered the required oral language proficiency test within four weeks of their enrollment. Norm-referenced assessment instruments, however, may be administered within the established norming period. (f) For entry into, or placement within, a bilingual education or English as a second language program, a student shall be identified as limited English proficient using the following criteria. (1) At prekindergarten through Grade 1, the score on the English oral language proficiency test is below the level designated for indicating limited English proficiency under subsection (d) of this section. (2) At Grades 2-12: (A) the student's score on the English oral language proficiency test is below the level designated for indicating limited English proficiency under subsection (d) of this section; (B) the student's score on the reading and language arts sections of the TEA- approved norm- referenced measure at his or her grade level is below the 40th percentile; or (C) the student's ability in English is so limited that the administration, at his or her grade level, of the reading and language arts sections of a TEA- approved norm-referenced assessment instrument or other test approved by TEA is not valid. (3) In the absence of data required in paragraph (2)(B) of this subsection, evidence that the student is not academically successful as defined in subsection (k) of this section is required. (g) Within the four weeks of their initial enrollment in the district, students shall be identified as limited English proficient and enrolled into the required bilingual education or English as a second language program. (h) For exit from a bilingual education or English as a second language program, a student: (1) may be classified as English proficient at the end of the school year in which a student would be able to participate equally in a regular, all-English, instructional program as determined by: (A) meeting state performance standards for the English language criterion- referenced assessment instrument for reading and writing (when available) required in the Texas Education Code, sec.39.023, at grade level; and (B) tests administered at the end of each school year to determine the extent to which the student has developed oral and written language proficiency and specific language skills in both the student's primary language and English; or (2) may be classified as English proficient when he or she scores at or above the 40th percentile on both the English reading and the English language arts sections of a TEA-approved norm- referenced assessment instrument; or (3) may be classified as English proficient as determined by criteria which meet the requirements outlined in the Texas Education Code, sec.29.055, and sec.89.1255 of this title (relating to Local Plan). (i) In making the determination described in subsection (h) of this section, districts shall also consider other indications of a student's overall progress, including criterion-referenced test scores, subjective teacher evaluation, and parental evaluation. (j) A student may not be exited from the bilingual education or English as a second language program in prekindergarten through Grade 1. (k) For determining whether a student who has been exited from a bilingual education or English as a second language program is academically successful, the following criteria shall be used at the end of the school year. (1) The student meets state performance standards in English of the criterion- referenced assessment instrument required in the Texas Education Code, sec.39.023, for the grade level as applicable. (2) The student has passing grades in all subjects and courses taken. sec.89.1230. Eligible Students with Disabilities. (a) Districts shall implement assessment procedures which differentiate between language proficiency and handicapping conditions in accordance with Subchapter AA of this chapter (relating to Special Education Services), and shall establish placement procedures which ensure that placement in a bilingual education or English as a second language program is not refused solely because the student has a disability. (b) A professional member of the language proficiency assessment committee shall serve on the admission, review, and dismissal (ARD) committee of each limited English proficient student who qualifies for services in the special education program. (c) Districts may enroll students who are not limited English proficient in the bilingual education program in accordance with the Texas Education Code, sec.29.058. sec.89.1240. Parental Authority and Responsibility. (a) The parents shall be notified that their child has been classified as limited English proficient and recommended for placement in the required bilingual education or English as a second language program. They shall be provided information describing the bilingual education or English as a second language program recommended, its benefits to the student, and its being an integral part of the school program to ensure that the parents understand the purposes and content of the program. The entry or placement of a student in the bilingual education or English as a second language program must be approved in writing by the student's parent. The parent's approval shall be considered valid for the student's continued participation in the required bilingual education or English as a second language program until the student meets the exit criteria described in sec.89.1225(h) of this title (relating to Testing and Classification of Students), graduates from high school, or the parent requests a change in program placement. (b) The district shall notify the student's parent of the student's reclassification as English proficient and his or her exit from the bilingual education or English as a second language program and acquire approval as required under Texas Education Code, sec.29.056(a). (c) The parent of a student enrolled in a district which is required to offer bilingual education or English as a second language programs may appeal to the commissioner of education if the district fails to comply with the law or the rules. Appeals shall be filed in accordance with Chapter 157 of this title (relating to Hearings and Appeals). sec.89.1250. Required Summer School Programs. Summer school programs that are provided under the Texas Education Code, sec.29.060, for children of limited English proficiency who will be eligible for admission to kindergarten or first grade at the beginning of the next school year shall be implemented in accordance with this section. (1) Purpose of summer school programs. (A) Limited English proficient students shall have an opportunity to receive special instruction designed to prepare them to be successful in kindergarten and first grade. (B) Instruction shall focus on language development and essential knowledge and skills appropriate to the level of the student. (C) The program shall address the affective, linguistic, and cognitive needs of the limited English proficient students in accordance with sec.89.1210(c) of this title (relating to Program Content and Design). (2) Establishment of, and eligibility for, the program. (A) Each district required to offer a bilingual or special language program in accordance with the Texas Education Code, sec.29.053, shall offer the summer program. Programs under this subsection for students who will be in bilingual education kindergarten and first grade programs shall be bilingual education. (B) To be eligible for enrollment, a student must be eligible for admission to kindergarten or to the first grade at the beginning of the next school year and must be limited English proficient. (C) Limited English proficiency shall be determined by screening students using informal oral language inventories or oral proficiency instruments approved by the commissioner of education, or other appropriate instruments. (3) Operation of the program. (A) Enrollment in the program is optional with the parents of the student. (B) The program shall be operated on a one-half day basis, a minimum of three hours each day, for eight weeks or the equivalent of 120 hours of instruction. (C) The student/teacher ratio for the program district-wide shall not exceed 18 to one. (D) A district is not required to provide transportation for the summer program. (E) Teachers shall possess certification or endorsement as required in the Texas Education Code, sec.29.061, and sec.89.1245 of this title (relating to Staffing and Staff Development). (F) Reporting of student progress shall be determined by the board of trustees. A summary of student progress shall be provided to parents at the conclusion of the program. This summary shall be provided to the student's teacher at the beginning of the next regular school term. (G) A district may join with other districts in cooperative efforts to plan and implement programs. (H) The summer school program shall not substitute for any other program required to be provided during the regular school term, including those required in the Texas Education Code, sec.29.153. (4) Funding and records for programs. (A) A district shall use state and local funds for program purposes. The Improving America's Schools Act, Title VII bilingual, Title I migrant, or Title I regular or other available federal funds may be used to supplement the program. (i) Available funds appropriated by the legislature from the Foundation School Program for the support of summer school programs provided under the Texas Education Code, sec.29.060, shall be allocated to school districts in accordance with this subsection. (ii) Funding for the summer school program shall be on a unit basis in such an allocation system to ensure a pupil/teacher ratio of not more than 18 to one. The numbers of students required to earn units shall be established by the commissioner of education. The allotment per unit shall be determined by the commissioner based on funds available. (iii) Any district required to offer the program under paragraph (2)(A) of this subsection that has less than ten students district-wide desiring to participate is not required to operate the program. However, those districts must demonstrate that they have aggressively attempted to encourage student participation. (iv) Payment to districts for summer school programs shall be based on units employed and shall be made through the regular foundation program payment. (v) Districts shall apply to the commissioner of education for funding of summer school programs operated under this subsection. Applications for funding shall contain the number of students who will participate in the program and other information necessary to assure the commissioner that programs will be operated in accordance with this subsection. (B) A district shall maintain records of eligibility, attendance, and progress of students. sec.89.1255. Local Plan. (a) The commissioner of education shall be authorized to approve locally developed plans to meet the needs of limited English proficient students. (b) A local plan submitted by a district shall demonstrate: (1) that the local program submitted under sec.89.1205(b)(2) of this title (relating to Required Bilingual Education and English as a Second Language Programs) is a dual language program which meets the affective, linguistic, and cognitive needs of the limited English proficient students; (2) that the local program submitted under sec.89.1205(e)(2) of this title (relating to Required Bilingual Education and English as a Second Language Programs) is an intensive program of English language development and provides appropriate instruction in all subjects or courses to be taken by the limited English proficient students; (3) that the program submitted demonstrates innovative approaches for the provision of educational programs for limited English proficient students, such as coordination of fiscal and instructional resources, alternative exit criteria, implementation of effective schools research, site-based management, performance and outcome-based education, continuing education, and bilingual education technology; (4) that the program submitted provides for intensive staff development to ensure that the staff is prepared to implement the program as designed; (5) that the program submitted is based on valid research and includes a comprehensive evaluation plan to determine that the program meets the affective, linguistic, and cognitive needs of the limited English proficient students; and (6) that the program submitted provides regular, systematic, and ongoing parental involvement and training. (c) Districts which intend to implement a local program shall submit a description of the proposed district- wide program to the commissioner of education on or before the first day of June preceding its proposed implementation the following school year. The description shall address all of the requirements of subsection (b) of this section which are applicable to the program being proposed. Approval shall be negotiated based on the quality and comprehensiveness of the proposed program. (d) Local plans may be approved for one to three years, provided they meet the requirements of the Texas Education Code, sec.29.055 and sec.29.056. The Texas Education Agency (TEA) shall monitor the local program prior to the expiration of its approval. Districts which do not implement the approved local program shall be required to implement the required program described in this subchapter. Approval may also be withdrawn if the evaluation of the program does not demonstrate that the affective, linguistic, and cognitive needs of the limited English proficient students participating in the local program are met; in this case, the district shall implement the required program described in this subchapter. sec.89.1260. Monitoring of Programs and Enforcing Law and Commissioner's Rules. (a) Texas Education Agency (TEA) staff who are trained in assessing bilingual education and English as a second language programs shall monitor each school district in the state and enforce this subchapter in accordance with the Texas Education Code, sec.29.062 and sec.42.153. (b) To ensure a comprehensive monitoring and assessment effort of each district at least every three years, data reported by the district in the Public Education Information Management System (PEIMS), data required by the commissioner of education, and data gathered through on-site monitoring will be used. sec.89.1265. Evaluation. (a) All districts required to conduct a bilingual education or English as a second language program shall conduct periodic assessment and continuous diagnosis in the languages of instruction to determine program impact and student outcomes in all subject areas. (b) Annual reports of educational performance shall reflect the academic progress in either language of the limited English proficient students, the extent to which they are becoming proficient in English, the number of students who have been exited from the bilingual education and English as a second language programs, and the number of teachers and aides trained and the frequency, scope, and results of the training. These reports shall be retained at the district level to be made available to monitoring teams according to sec.89.1260 of this title (relating to Monitoring of Programs and Enforcing Law and Commissioner's Rules). (c) Districts shall report to parents the progress of their child as a result of participation in the program offered to limited English proficient students in English and the home language at least annually. (d) Local programs approved under sec.89.1255 of this title (relating to Local Plan) shall develop a comprehensive evaluation design which utilizes formative and summative evaluative processes and specifically details performance measures for the limited English proficient students proposed to be served each year. (e) Each school year, the principal of each school campus, with the assistance of the campus level committee, shall develop, review, and revise the campus improvement plan described in the Texas Education Code, sec.11.253, for the purpose of improving student performance for limited English proficient students. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on June 10, 1996. TRD-9608159 Criss Cloudt Associate Commissioner, Policy Planning and Research Texas Education Agency Effective date: September 1, 1996 Proposal publication date: February 27, 1996 For further information, please call: (512) 463-9701 CHAPTER 105. Foundation School Program SUBCHAPTER B. Maximum Indirect Cost Allowable on Certain Foundation School Program Allotments 19 TAC sec.105.11 The Texas Education Agency (TEA) adopts new sec.105.11, concerning special Foundation School Program allotments, without changes to the proposed text as published in the March 12, 1996, issue of the Texas Register (21 TexReg 1979). The new section provides a limit on the maximum amount of indirect cost that can be claimed against these allotments, providing assurance that at least 85% of the allotments will be expended for direct instructional and instructional- related purposes. The section is necessary to consolidate and replace portions of Chapter 78 (repealed effective February 7, 1996) and Chapter 89 (adopted for repeal in a separate submission) as part of the sunset review process mandated by Senate Bill 1, 74th Texas Legislature, 1995. No comments have been received regarding adoption of the new section. The new section is adopted under the Texas Education Code, sec.sec.42.151(h), 42.152(c), 42.153(b), 42.154(c), and 42.156(b), which authorizes the State Board of Education to establish indirect Foundation School Program allotments for certain programs, including compensatory education, gifted and talented education, bilingual education and special language programs, career and technology education, and special education. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on June 10, 1996. TRD-9608158 Criss Cloudt Associate Commissioner, Policy Planning and Research Texas Education Agency Effective date: September 1, 1996 Proposal publication date: March 12, 1996 For further information, please call: (512) 463-9701 TITLE 22. EXAMINING BOARDS PART IV. Texas Cosmetology Commission CHAPTER 83. Sanitary Rulings 22 TAC sec.sec.83.1, 83.2, 83.28, 83.29 The Texas Cosmetology Commission adopts amendments to sec.83.1, concerning enforcement; sec.83.2, concerning posting sanitary rules; sec.83.28, concerning violation; and, sec.83.29, concerning shirts and shoes required. The amendments to sections are being adopted as a result of a formal petition brought by the Texas Association of Cosmetology Schools to the Texas Cosmetology Commission as provided for in sec.2001.021, Government Code. Dick Strader, Executive Director, Texas Cosmetology Commission, has determined that for the first five-year period the rules are in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the rules. Mr. Strader 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 the rules will be to ensure that all certificate holders and licensees comply with the requirements of the rules of the commission. There will be no effect on small businesses. There are anticipated economic costs to persons who are required to comply with the rules as proposed. The amendments and new section are adopted under Section 4(a), Article 8451a, Vernon's Texas Civil Statutes, which provides the Texas Cosmetology Commission with the authority to "issue rules consistent with this Act after a public hearing", to protect the public's health and safety. This agency hereby certifies that the rules as adopted have been reviewed by legal counsel and are found to be a valid exercise of the agency's authority. Issued in Austin, Texas, on June 10, 1996. TRD-9607932 Dick Strader Executive Director Texas Cosmetology Commission Effective date: June 26, 1996 Proposal publication date: April 23, 1996 For further information, please call: (512) 454-4674 TITLE 30. ENVIRONMENTAL QUALITY PART I. Texas Natural Resource Conservation Commission CHAPTER 330.Municipal Solid Waste The Texas Natural Resource Conservation Commission (commission or TNRCC) adopts the repeal of sec.sec.330.821-330.828, 330.836, 330.837, 330.839, 330.851- 330.858, 330.874, 330.877, and 330.879 in Subchapter R; and sec.sec.330.900- 330.917 and sec.sec.330.920-330.939 in Subchapter X, Management of Whole Used or Scrap Tires or Shredded Tire Pieces, concerning the Waste Tire Recycling Fund Program; amendments to sec.sec.330.802, 330.803, 330.805-330.813, 330.815, 330.818, 330.831-330.833, 330.835, 330.838, 330.841-330.846, 330.848, 330.849, 330.861-330.873, 330.875, 330.876, 330.878, 330.880-330.883, 330.885, 330.886, and new sec.sec.330.820-330.830, 330.836, 330.850-330.859, 330.874, 330.877, 330.879 and 330.884 in Subchapter R, Management of Whole Used or Scrap Tires, concerning the Waste Tire Recycling Fund Program. Amended sec.sec.330.802-330.803, 330.805, 330.807, 330.811, 330.835, 330.841, 330.843, 330.845, 330.861, 330.871-330.873, 330.877, and 330.885; and new sec.sec.330.851-330.855, 330.877, 330.879 are adopted with changes; and the repeal of sec.sec.330.821-330.828, 330.836, 330.837, 330.839, 330.851-330.858, 330.874, 330.877, and 330.879; and sec.sec.330.900-330.917 and sec.sec.330.920- 330.939; amendments to sec.sec.330.806, 330.808-330.810, 330.812-330.813, 330.815, 330.818, 330.831-330.833, 330.838, 330.842, 330.846, 330.848-330.849, 330.862-330.870, 330.875-330.876, 330.878, 330.880-330.883, 330.886, and 330.889, and new sec.sec.330.820-330.830, 330.836, 330-850, 330.856-330.859, 330.874, and 330.884 are adopted without changes to the proposed text as published in the December 12, 1995, issue of the Texas Register (20 TexReg 10508) and will not be republished. Senate Bill (SB) 1340, 72nd Legislature (1991), created the Waste Tire Recycling Fund (WTRF) and established its scope which was subsequently modified by SB 1051, 73rd Legislature (1993). The intent of the fund is to clean up existing illegal waste tire dumps throughout the state, to ensure that no new illegal dumps are created by collecting new waste tires free of charge at the point of generation, to divert the disposal of tires in landfills, and to promote the development of end use markets in the state. The issue and concerns associated with the elimination of illegal tire dumps across the state has existed for many years because tire dumps pose an imminent peril to the public health, safety, and welfare of citizens and the environment in the State of Texas. The commission has prepared a Takings Impact Assessment for these rules under Texas Government Code Annotated, sec.2007.043. The following is a summary of that Assessment. The specific purpose of the rules is to implement the programmatic changes contained in SB 776, 74th Legislature, that will ensure the agency's ability to adequately administer the Waste Tire Recycling Program and facilitate cleanup of illegal waste tire dumps. The rules substantially advance the stated purpose by: providing for improved management and oversight of the regulated community operating under the fund and seeking reimbursement from the fund by requiring biennial fiscal audits; clarifying existing program guidance and incorporating extensive modifications that have been made in program operation since the implementation of the program on April 1, 1992, and as reflected in SB 776; and containing financial assurance requirements and guidance for calculating financial responsibility to ensure that funds exist to cleanup a registered processing or storage site should the owner/operator be financially incapable of performing site cleanup and closure. The rules will not adversely affect private real estate property and cannot result in a "taking" because the rules only incorporate the extensive modifications that have been made in operation of the program since its implementation and the other provisions contained in SB 776 for the improvement of the management of the existing program. These changes do not burden private real property. The commission accepted public comments on the proposed rules for 45 days following publication on December 12, 1995. A public hearing to accept oral and written comments on the proposed rule was held at commission offices in Austin, Texas, on December 21, 1995. Six individuals presented oral comments and later submitted them in writing. Written comments were received from the following: Gibson Recycling; Brown, McCarroll & Oaks Hartline (Brown McCarroll); Akin, Gump, Strauss, Hauer & Feld, L.L.P., on behalf of Waste Recovery, Inc (WRI); Safe Tire Disposal Corp. of Texas (Safe Tire); The Lone Star Chapter of the Sierra Club (The Sierra Club); Aluminum Company of America (Alcoa); North Texas Cement Company (North Texas Cement); Buda and Kyle Residents for Responsible Industry (Buda and Kyle Residents); Texas Disposal Systems (TDS); Sue Pope, on behalf of Downwinders at Risk (The Downwinders at Risk); Quality Rubber Products, Inc.; Susan Pitman, on behalf of Wimberley S.A.F.E. (Wimberley S.A.F.E.); John Fisher, on behalf of Texas Tire Dealers and Retreaders Association (TTDRA); Dennis York, on behalf of Tiregator, Inc. (Tiregator); Environmental Recovery & Recycling, Inc.(ERRI): and six private individuals. Comments were received from the Downwinders at Risk, Wimberley S.A.F.E., Buda and Kyle Residents, the Sierra Club, and five individuals in objection to the authorization of existing energy recovery facilities to utilize tires as fuel without a public hearing. They argued that there was a lack of community participation and input in the air permitting process and that the (air) permitting process was lax. These commenters stated that the tires would simply be shifted from the ground to the air, since those facilities were not designed to use scrap tires as fuel. They also argued that the rules should require cement kilns to have the same (air) emission standards as hazardous waste (incinerator) facilities, and that air pollution from tire burning is toxic. Further, they expressed concern regarding the apparent shift in agency enforcement and inspection activities, and the need for better testing standards and reporting (of plant) upsets. (Words in parenthesis are added for specificity.) The commission observes that these rules only implement the WTRF program modifications concerning use of tires as fuel mandated by SB 776. Other rules of the commission pertain to air emission requirements for incinerators and address the air permitting requirements or conditions of concern to the commenters. Therefore, no change to this set of tire rules is being made in response to the comments. The Downwinders at Risk, Wimberley S.A.F.E., and the Sierra Club expressed concern that existing energy recovery facilities, like cement kilns, were not designed to utilize tires as fuel and that, therefore, these facilities should be upgraded with pollution control equipment which would prevent them from polluting the air. They stated that the costs for those emission upgrades should come from the fund itself. The commission agrees that should pollution control equipment be required as a condition of the air permit amendment, those purchase and installation costs would be expenses for which grants would be eligible. However, as these rules do not address the air permit requirements or the eligible costs in WTRF grants, no change to the rules is being made in response to the comments. The WTRF grant rules adopted by the commission on March 6, 1996, reflect the inclusion of emission equipment costs in the grant application package. See 30 TAC sec.330.984. The Downwinders at Risk commented that crumb rubber, rather than shredded rubber, should be utilized to ensure optimum combustion efficiency and less air pollution, that the opacity monitoring level should not exceed five percent on all stacks, that baghouses should be installed on all the stacks to catch fine particulates, and that air testing for dioxins, furans, and polychlorinated biphenyls (PCBs) be required due to the increased chlorine content of the tires. Again, these rules do not address or supersede the requirements and conditions for the issuance of air permits. Therefore, no change to the rules is being made in response to the comments. The Downwinders at Risk, the Sierra Club and Wimberly S.A.F.E., referencing sec.330.852(b)(3), argued that chemical sprays and insecticides should not be used on tires to control vectors. The rules do not specifically require or authorize the use of chlorine or other chemical-based sprays or insecticides to control vectors. The rules merely state that appropriate vector controls shall be used when necessary and in accordance with other applicable ordinances and regulations. Therefore, no changes to this section have been made. Four individuals commented that a portion of the two-dollar fee assessed on the sale of new tires should be used to hire a qualified air sampling firm to monitor the air on a regular basis in the affected community. Further, one commenter recommended that the results of the testing be published in the Austin American-Statesman. The legislation specifically directs the commission in its expenditures from the WTRF. As a result, the commission may only reimburse individuals or companies for the shredding of tires and for the burning of whole or shredded tires from this fund. In addition, under the WTRF grant program authorized by the Legislature, grants may be awarded to individuals or companies that retrofit their energy recovery facility to burn whole or shredded tires, and/or to individuals or companies that construct recycling facilities. Since the commission is prohibited from utilizing the fee for purposes other than those specifically stated in SB 776, no changes to the rule have been made. The Sierra Club expressed concern that some Texas cement kilns seeking authorization to burn tires, may not be required to upgrade existing air pollution control equipment or add new air pollution control equipment. Again, the rules, do not address or regulate the conditions and requirements for air permit issuance or amendment. Therefore, no changes to the rule have been made. The TTDRA requested that the commission, by rule, develop an emergency program to provide relief for tire collection across the state. Based on information received from the regulated community at large, the commenter believed at least a 25% and possibly as much as a 60% statewide reduction in tire collection would develop shortly after the new year. The commission is fully aware that the January 1, 1996, recycling legislative mandate has placed an added burden on processors, which, in turn, has impacted generator collection, statewide. However, some regions in Texas have already realized an easing of the problem, or it has resolved itself completely without agency intervention. Therefore, the commission does not want to react too quickly with overly-drastic measures which are not necessary. But should a problem persist, or reach crisis level, the commission will take whatever measures are necessary and which are within its authority to ensure scrap tire collection occurs around the state as the need arises. The Sierra Club, referring to sec.330.855(b), described the desire that communities have greater participation in the review and approval process for facility fire plans. Currently, the rules do not prohibit a local fire marshal from seeking comments and input from community leaders and other interested parties. However, in an effort to allow greater flexibility at the local level, the commission has chosen not to require public participation. Also, because local fire ordinances are often times more stringent due to a variety of local factors, the commission identified only the minimum requirements for fire safety assuming that modifications and upgrades to a facility's plans would be imposed by local fire officials under the commission's general program rule that requires all registered facilities to comply with local ordinances should they be more stringent than requirements contained in the rules. Accordingly, the commission believes no change to the rules is necessary. Wimberley S.A.F.E. and the Downwinders at Risk commented that the minimum fire requirements for waste tire energy recovery facilities contained in sec.330.855(b) need to be strengthened and that no facility operating under the WTRF program should be allowed to commence operation without having access to at least a six-inch water main. The commission agrees that the potential for fire at waste tire storage facility exists and that rules are needed to reflect consideration of and appropriate preventative measures for fire in the event that it occurs at a facility. However, due to the location of storage facilities and the potential inaccessibility of water, the commission believes it appropriate to allow a variety of water supply mechanisms. Therefore, while the rules have been modified to include specific fire plan requirements, the commission has not included the specific requirement for a six-inch fire main. The Downwinders at Risk, the Sierra Club and Wimberley S.A.F.E. recommended that the proposed rules should encourage real recycling mechanisms such as molding or extruding products, and not promote (through reimbursement) energy recovery facilities to utilize tires as tire-derived fuel (TDF). Staff has researched tire recycling mechanisms in other states. That research revealed that, overwhelmingly, states have turned to energy recovery as the mechanism to utilize the massive number waste tires generated annually. However, the commission promotes all legally-authorized forms of end use, specifically higher forms of recycling like those mentioned previously. During the recent legislative session, legislators provided an additional incentive to aggressively promote recycling in the state. In addition, they directed the commission to set up a market development group that would be available to assist processors in encouraging the growth of recycling markets in the state, to assist recycling businesses that wanted to relocate to Texas and provide a clearinghouse for technology transfer as it related to tire recycling and end use. The legislature also dedicated a significant portion of the annual fees collected on the sale of tires to a grants program that would fund the construction of recycling facilities and the retrofitting of energy recovery facilities interested in burning whole or shredded tires. The commission believes the rules have already been modified to enable implementation of these legislative initiatives. Wimberley S.A.F.E. recommended that the certification requirements relating to imminent and substantial endangerment to public health and welfare be strengthened. These requirements described by the commenter are contained in the Clean Air Act; therefore, implementation of the requirements would be associated with the issuance of air permits under other commission rules. As stated previously, the amendments contained in these rules, relate to modifications of the WTRF program as adopted by the legislature through SB 776. These rules do not address requirements contained in the federal or state air rules. Accordingly, the commission has left the rules unchanged. Wimberley S.A.F.E. argued that the registration period for facilities registered under the WTRF program should be shorter. The five-year effective period for registrations issued under this program is consistent with other registration and permitting programs within the agency. Although there is no requirement for a public comment period, the rules do require public notice for a minimum of ten days to ensure that citizens in the community are aware that a recycling, energy recovery, processing or storage facility intends to operate in their area. Under sec.330.802(k) of this title (relating to Applicability), a person affected by the final approval of an application for a registration under this subchapter can file a motion for reconsideration within 20 days with the commission. One individual recommended that the executive director's annual report list all entities receiving funds from the WTRF program. The staff does prepare a monthly report documenting the reimbursement amounts requested by individuals or companies operating under the WTRF program. That report can be obtained by request through the WTRF program. The TTDRA commented that the rules regulating transporters should be strengthened because they are contributing to the creation of PEL sites. The commenter indicated this occurrence is particularly prevalent with oversized tires. Staff has not recorded an increase in the number of PEL sites being created in the state for oversized tires. The legislature recently prohibited program-eligible tires from landfill disposal. However, non-program-eligible tires, such as off-the-road tires, earth-moving and other heavy-equipment tires are not considered program eligible, therefore, those tires can still be disposed of in landfills which accept tires. Safe Tire suggested that a variance system be developed for process wire accumulating at a storage facility. The purpose of the system would be to eliminate the fire hazard resulting from the accumulation of wire housed at a facility site as it awaits the development of recycling markets. From the legislation, the commission determined in mid-1995 that material other than rubber resulting from the shredding process must be recycled in order for the facility to receive reimbursement for its weight. Thus, the commission has not prohibited the landfill disposal of waste material, only prohibited payments for material that is not recycled. To be consistent with the January 1, 1996, legislatively-mandated recycling requirement, the commission did not implement the requirement for recycling the metal bead, scrap wire and fluff until January 1, 1996. The commission believes that the recycling requirement for scrap material is justified, as a major goal of the WTRF program when created by the legislature was to develop end use markets for tires. The commission defines a tire to include all its parts; therefore, recycling of the tire must also include the recycling of all its parts. Therefore, the rules are consistent with the statutory requirements as amended by SB 776 and the suggested change has not been made. TDS referencing sec.330.802(d) and sec.330.872(e)(4), recommended that the proposed rule be amended to reflect that only landfill owners or operators who knowingly accept WTRF program-eligible tires for disposal could be subject to penalties for such disposal activities. The commission agrees that it was not the intent of the legislature to penalize landfills that unknowingly disposed of scrap tires. Accordingly, the commission has amended the provisions as requested. Brown McCarroll questioned the reasoning behind locating sec.330.802(k) in the Applicability section and recommended that it be moved to sec.330.843. The requirements for registration under SB 741 affect all registrations issued by the executive director. Since energy recovery facilities and recycling facilities, as well as all other entities operating under the WTRF program, require issuance of a registration prior to operation, the language dealing with motion for reconsideration for approval of registration must be located in a section that applies to all program participants. Since this subsection is only implementing SB 741 mandates, the commission believes it is more appropriately located in sec.330.802. North Texas Cement recommended that the sec.330.803 definition of "End Use Market" focus on the consumer rather than the individual manufacturing the product. Although the commission concurs with the commenter's insight that the consumer is the driving factor behind recycling and energy recovery and is, therefore, the solution to developing markets for 100% of the tires generated in Texas annually, the commission does not have jurisdiction to dictate recycling product usage. The commission, to the maximum extent possible, promotes the development and growth of end use markets in the state through a variety of legislatively-approved and mandated activities; however, since those activities focus on assistance and encouragement to the recycler or the energy recovery facility owner or operator, the definition of end use market is appropriate. Therefore, the commission has not amended the definition as requested. Alcoa and WRI, referencing sec.330.803, recommended that while they agree, in general, with the definitions for "End User" and "End Use Market", both definitions are confusing and should be amended slightly to clarify the recycling and energy recovery intent of the WTRF program and to prohibit the continued practice of shredding and stockpiling tires. In addition, the definitions should assist in prohibiting "sham" tire recycling in the state. The commission concurs with the suggested modifications and adds the appropriate language. Referencing sec.330.803, Gibson Recycling, ERRI, Brown McCarroll, and Quality Rubber Products, argued that the proposed definition for two-inch minus industry standard is too limiting. The staff has researched the issue of recycling and energy recovery particle size. That research has revealed that throughout the United States the majority of shredded material processed annually is forwarded to energy recovery. In fact, most states (43) have recognized that the only feasible mechanism to utilize the almost 200 million scrap tires generated annually in the U.S. is through energy recovery. Texas generates the equivalent of almost 30 million passenger tires per year. In addition, the originating program legislation made clear its intent that funds shall only be used once for payment for shredding a tire. Therefore, it is critical that the state protect and ensure its ability to readily forward to an end use tire shreds that come into the state's possession from abandoned or bankrupt facilities. Currently, the most feasible and economic means of end use is energy recovery; accordingly, the commission believes the industry standard must be that for energy recovery. In addition, the rule reflects the SB 776 provision for a variance. Under that provision, if a processor can produce a contractual requirement for an alternative size shred, the executive director may approve shredding to that size. Accordingly, the commission has not amended the section as requested. Alcoa commented that in sec.330.803 the definition of recyclable material focuses exclusively on recycling and ignores the usage of waste tires as fuel. The commission concurs that the definition does not include energy recovery as a form of recycling. The commission in December 1993 formally determined that energy recovery was a legitimate recycling mechanism. Therefore, the definition will be amended to include the requested language. Brown McCarroll, referencing sec.330.803, recommended that the definition of waste tire recycling facility specifically exclude waste tire energy recovery facilities because some confusion exists. The commission has designated energy recovery facilities as an approved recycling mechanism. This approval was granted in December 1993. Since that date, program modifications from legislative changes have resulted in the commission's redefinition of recycling facilities to distinguish between varying processing types. Because this change has possibly caused confusion, the commission agrees to specifically exclude energy recovery facilities from the definition of recycling facilities; however, there should be no confusion that energy recovery facilities are still considered a legitimate and approved recycling mechanism for the use of whole and shredded scrap tires. Brown McCarroll recommended that in sec.330.803, the definition of waste tire transporter be clarified to specify that the transportation requirements apply to entities that transport tires over public roads, not within plant boundaries. The commission, since program implementation, has never intended that the transportation requirements apply to transportation equipment maintained within a plant's boundaries. In fact, sec.330.811(a) specifically states that transporters are individuals or companies that transport tires or tire shreds to or from generators, waste tire facilities, storage facilities, recycling facilities, energy recovery facilities, transfer stations, collection centers, transportation facilities, or PEL sites. Transportation within a facility is specifically excluded. Since the rules already specify applicable facilities, the commission has not amended the definition as requested. Alcoa recommended that sec.330.803 contain the defined terms "waste tire utilizer" and "utilizing" for consistency and clarity. Also, the commenter recommended that the definition of waste tire utilizer be revised slightly to include all individuals and/or companies operating under the WTRF program. The commission concurs with the suggestion to move the definitions; however, the commission believes the definition of waste tire utilizer currently includes all participants in the WTRF program who utilize tires in some process. The provision will be so amended. Alcoa recommended that the generator definition in sec.330.805 be made consistent with the definition of generator contained in the definitions section or eliminated. The commission concurs with the recommendation to ensure the definitions are in agreement. The commission has amended the language defining generator in the definitions section of the rules and has eliminated the definition of generator in the referenced provision as requested. The TTDRA asserted that in sec.330.805 the remuneration prohibition was not stringent enough to control generators receiving monies for "good" used tires. The commission concurs that frequently a generator does receive reimbursement from transporters or processors for those tires that could be classified as "good" used tires. However, based on field inspections and investigations over time, the commission has determined that one man's scrap tire is another man's "good" used tire. Therefore, requiring the generator to sort and classify those tires in his scrap tire bin that could be resold as "good" used tires might result in the transporter or processor being charged for tires that could not actually be resold. The current process of a general cost per load, which assumes a historic percentage of "good" used tires, provides the generator and the purchaser (transporter or processor) with a fair reimbursement for the "good" tires in the load. In addition, the legislation (SB 1051, 73rd Legislature) only prohibits generators from receiving remuneration for the scrap tires. By assuming that the tires are all possibly "good" used tires, the purchaser will reuse as many tires as possible, thus furthering the commission's objective of recycling, because reuse nationwide is considered a legitimate form of conservation. In fact, the commission's rules consider and promote recycling, reuse and energy recovery as the three recognized and approved forms of used- tire conservation in the state. Brown McCarroll commented that the requirement contained in sec.330.807(b) and sec.330.853(g) that utilizers provide manifests to all generators was illogical and a waste of funds. Since program implementation, an increasing number of utilizers have supplied their generator clients with manifests as a courtesy. By requiring the utilizer to provide generators with manifests, the commission only intended utilizers to supply manifests to their client generators (those individuals or companies from whom they collect whole tires at business locations). In addition, the commission did not intend the requirement to encompass processors who deliver tire shreds to end users. In those cases, the commission expects the processor to continue to supply and use the designated Tire Shred Manifest. Since the commission meant to limit the manifest provisions to those generators with whom the utilizer is working and for whole tires only, the provisions have been clarified accordingly. TDS, referencing sec.330.809(f), requested clarification because it did not believe that the legislature intended for occasional sales out of the ordinary course of business to trigger the assessment of the $1.00 "good used" tire fee. The commission understands the language in SB 776 to clearly state that the $1.00 "good used" tire fee is to be applicable on the sale of any "good used" tire in the state. Since the section is simply implementing a mandate of SB 776, the commission has not amended the section as requested. Alcoa, referencing sec.330.820(a)(1), stated that the processor's portion of the fund should be defined not as the amount available for reimbursement but as the initial amount available under the statute. Funding for the WTRF program is provided through SB 2, not SB 776. As such, the amount appropriated to the agency is simply a specific dollar amount; there are no categories associated with the funds appropriated. Based on the funding received and the requirements contained in SB 776, the agency must categorize monies to ensure payments do not exceed the amount available. To be able to refer to the category of monies for shredding reimbursement purposes, the agency has titled that category, the "amount available for reimbursement"; however, that dollar amount is not the sum total of the dollars initially available under the statute. That amount is $31 million, and it would be erroneous to reflect that amount as the amount that processors could be reimbursed. Accordingly, the commission has not amended the provision as requested. WRI, referencing sec.330.820(b)(1), sec.330.821 and sec.330.822, commented that the rules governing allocation should clearly state the intent of the statutory amendment, that the commission shall consider the average monthly percentage of shredded tires the processor has forwarded to an end use market. The commission agrees; however, the legislation also states that the commission may consider the historical average number of tires reimbursed and other factors as may be determined by the commission. (emphasis added). Thus, the language in SB 776 provides the commission with the choice that end use shall be considered in allocation determination, while historical shredding and other factors may be considered. Section 330.820(b)(1) states that the executive director shall develop a model that takes into consideration each of three delineated criteria: end use, historical shredding amount of money in the fund, and other factors. The commission believes that in order to distribute tires fairly to all processors operating under the WTRF program, all three factors should be considered. However, to determine and emphasize the importance of the factors, they will be weighted differently. Therefore, processors who forward all tires to an end use market will receive more tires because that factor will be weighted greater than the other factors. Since the provision implements the requirements in SB 776, no change has been made. Alcoa, referencing sec.330.821(c), sec.330.823, sec.330.843(j), and sec.330.884, expressed concern that the allocation model as proposed does not take into consideration the 180-day delivery period authorized by SB 776. As such, the possibility exists that six months into allocation the commission could learn that little or no recycling occurred and have few funds remaining. To address this potential problem the commenter recommends that delivery be considered in the allocation model. The commission recognizes the potential for several factors to impact both the allocation model and the available funds in the WTRF. The commission believes the legislature also foresaw that possibility and provided the agency with the means to adjust and/or adapt the model to offset that occurrence. Specifically, SB 776 authorizes the commission to consider other factors that may be determined necessary by the commission. Therefore, the commission could include delivery as an "other factor" and thus consider and adjust for its impact on the program. Accordingly, the commission does not consider it is necessary to put this factor into the rule. Tiregator and North Texas Cement, referencing sec.330.825(c), argued that despite the lack of limitation set by SB 776 on fiscal audits, the commission should require the recipient to bear only reasonable costs associated with the audit. In addition, if the individual or company possesses an independent audit of its WTRF program receipts, those audit findings should satisfy the legislative mandate. The commission believes the legislature's intent in mandating fiscal audits was to ensure that WTRF program reimbursements were made for actual services rendered. For that purpose, the commission was charged with the responsibility to manage and provide oversight for a fiscal audit program. After thoroughly investigating all the options available for performing fiscal audits biennially, the commission determined that agency staff could best complete the audits within the time frame specified by SB 776 and with the least cost to the entity. Because of the commission's need to ensure that the audit was totally independent and impartial, independent audits performed by firms hired by program participants, could not be considered. However, the commission spent considerable time and effort to identify the possible costs involved in an audit, in an attempt to ensure entities would be charged only for those activities absolutely necessary for a determination of appropriate reimbursements made over time. Since both the legislation and the legislative intent were clear, the commission has not modified the provision as requested. Alcoa suggested that the conditions for fiscal audit in sec.330.827 could be modified to include reimbursement to the WTRF for failure to meet the 180-day delivery date. The legislation mandates that the commission shall withhold further reimbursements until the deliveries are made, thus bringing the entity into compliance with WTRF program statutes and rules. The commission believes it has sufficient authority under the statute and rules to address situations where delivery does not occur within 180 days. Brown McCarroll inquired why in sec.330.827(d) the reimbursement responsible party (RRP) should be required to pay the cost of a hearing on overpayment. They are unaware of any statutory authorization for the recovery of such costs. Requiring the RRP to pay the cost of a hearing on overpayment is at the commission's discretion; however, the provision is fair because it is the processor's responsibility to ensure that its vouchers, and thus its claims for reimbursement for services rendered, are justified. If they are not, then they, not the agency, should bear the burden of the cost to recover funds owed to the state. Accordingly, the provision has not been amended as requested. WRI recommended that sec.330.832(b)(3) should require that an independent survey be performed to assess the quantity of shredded tires on registered storage sites. WRI believes that the TNRCC does not have the expertise to assess the reliability of the information received. The purpose of the referenced provision is to obtain information from the processors relating to schedules and milestone dates that the existing tire shreds will be forwarded into end use markets. The commission had no intent to determine the amount of material currently housed at storage facilities, or the accuracy of quantity information received from the processor. The commission, based on storage capacity registration information submitted by registered professional engineers, has accurate data regarding the quantity of tire shreds in storage in the state. Accordingly, the commission has not amended the section as requested. Regarding sec.330.832(b)(3), Gibson Recycling commented that there is no need to demand the scheduled removal of tires shredded prior to January 1, 1996, into the recycling market because a primary goal of the WTRF program was to eliminate the health hazard caused by the illegal dumping of whole tires. Once tires are shredded and placed in a controlled environment, the purpose of the program was satisfied. While this is true, another primary objective of the WTRF program is recycling. The originating legislation contained a clear directive to all processors receiving reimbursement from the fund that they should aggressively promote the development of end use markets. That directive was re-emphasized by the 74th Legislature with the decision to not further delay implementation of the January 1, 1996, recycling deadline. Since 100 percent recycling is the goal of the program, it is necessary to address, in a positive manner, the over 100 million shredded tires currently housed at storage facilities in the state. By allowing the processor to develop and submit his schedule containing milestone dates for project completion, the commission has provided the flexibility to enable consideration of methods of recycling, size of the storage sites and available recycling markets. The commission, accordingly, has not amended this section. Gibson Recycling, ERRI, and Quality Rubber Products requested that sec.330.835(a)(6)(F) be amended to not require shred removal within 60 days of a commission suspension of a registration to operate. The commission agrees that shred removal for a temporary suspension is not necessary; therefore, the section has been amended to reflect that shred removal occurs within 60 days only when the commission has approved revocation of the registration. As a result of the comments made by the Sierra Club, Wimberley S.A.F.E. and the Downwinders at Risk concerning fire plans under sec.330.855(b), the staff reviewed requirements under sec.330.835. Since inception of the WTRF program, the agency has relied upon the approval of the local fire marshal to ensure that the fire prevention plan and on-site fire fighting equipment at a waste tire storage facility was adequate to fight and contain any fire outbreak at the facility site in order to protect property and lives, and the environment from contamination. From the catastrophic fire that occurred at a waste tire storage facility in late 1995, the agency learned that additional protective measures are needed. The rules have therefore been amended to add two new subsections (sec.330.835(a)(7)(C)(xx) and sec.330.835(c)(3)) and language has been added to two existing subsections (sec.330.835(c)(2)(D) and sec.330.835(b)(7)). In the discussions concerning fire prevention and fire fighting plans, staff considered the need to amend sec.330.835(b)(2)(A) to allow "superpiles" or "supersize piles" because they might be easier to manage from a firefighting perspective. The rules, as proposed, provide the option for a variance to allow increases in pile size. The variance is conditioned upon the local fire marshal's approval, thus allowing the local ordinances to have final approval for the large-sized piles. Since the rules have already been amended to incorporate the potential for storage facilities to modify their existing site layout plans to include larger piles, the section will not be further amended. However, a reference to supersize piles has been included in sec.330.835(b)(3) and the term is defined in sec.330.803. The discussions involving sec.330.835(b)(2)(A) and the approval of "superpiles" determined that the 20-foot minimum separation (essentially the width of the all-weather fire lane) between piles should be greater. Discussions with firefighting personnel revealed that unless equipment is maintained on the storage site to fight a fire from a significant distance (i.e., water canons), the aisle spaces or separation between tire shred piles should be of sufficient width to allow firefighting/ heavy earth-moving equipment to have ready access up to the point of the fire. Also, it is generally believed by fire marshals that wider space between aisles may serve as a greater firebreak between piles. The commission concurs with this recommendation and accordingly has amended sec.330.835(b)(3) and sec.330.835(b)(5) to incorporate a minimum of at least 40 feet of separation between piles for firefighting purposes and a minimum of at least 40 feet of setback from property lines or easements. The discussions also identified the need to define in sec.330.835(b)(5) what constitutes an all-weather road. Inspections performed by staff since inception of the WTRF program have repeatedly documented problems with determination and adequacy of all-weather roads. Therefore, the commission has clarified what constitutes an all-weather road within the referenced section accordingly. Alcoa commented that sec.330.841(f) does not identify a concise mechanism or list the standards or procedures on which the commission bases its determination of end user legitimacy. The commission agrees that no clear cut mechanism or procedure is followed to determine the legitimacy of an end user because the commission has found over time that the variety of mechanisms which may be proposed are virtually endless. If the process to be followed were set by rule, the possibility exists that the commission might either unintentionally limit the development of new recycling mechanisms or limit its ability to pursue a new line of investigation to confirm the legitimacy of a proposed recycling mechanism. Currently, upon receipt of an application, the agency employs several mechanisms to analyze and/or research a proposed end use process. It is this ability to utilize alternative procedures to confirm new recycling mechanisms that enables the commission to prevent "sham" recycling. Accordingly, the commission has not changed the provision as requested. Alcoa commented that sec.330.841(g) which requires semi-annual reporting by processors is ambiguous in its limitation of current delivery. The commission concurs that since submittal of the report is only required semi-annually, the processor should identify all end users to which the processor delivered shreds during the preceding six months and a projection for delivery for the upcoming six months. Therefore, the commission has included the language necessary to implement the suggestion. Alcoa and North Texas Cement stated that sec.330.841(k) appears to continue the concept of "unpaid carryover". Based on directives from the legislature, the commenter believes perpetuating this practice is inappropriate. The commission concurs that the legislation sought to provide $1.4 million annually during the biennium to eliminate unpaid carryover. However, the legislature was also concerned about fund adequacy and the ability to collect all tires generated in the state annually. Because of those overriding concerns, SB 776 provided the TNRCC with the ability to utilize the concept of paid and unpaid carryover in FY 1996 and 1997. Since the provision is simply implementing SB 776 mandates, no changes to the provision are made. Referencing sec.330.841(m), sec.330.851(h) and sec.330.853(g), Gibson Recycling , ERRI, and Quality Rubber Products requested elimination of the requirement that manifests be specific for each waste tire utilizer. Upon further research and input from the State Auditor's Office, the commission concurs that the requirement would serve no useful purpose. Therefore, the commission has amended the provisions as requested. Gibson Recycling, referencing sec.330.842(f), commented that the requirement for processors to begin weighing incoming PEL tires was unnecessary and would create a significant negative economic impact. Since adoption of these rules incorporating the SB 1051 changes in 1994, the agency has experienced significant problems verifying the number of tires being removed from PEL sites. In an effort to reduce the potential for WTRF program fraud, the commission believes weighing PEL tires separately, on an incoming basis, in addition to the historically-accepted and statutorily-mandated after-shredded basis, will provide a greater degree of confidence that PEL numbers and subsequent tires reimbursed are accurate. Accordingly, the commission has not amended this section. Referencing sec.330.843(e)(6), Gibson Recycling and Quality Rubber Products argued that the requirement to submit an amended application, at a cost of $500, each time the designated end user changed was unreasonable. The commission has realized, since implementation of the January 1, 1996, deadline, that the frequency with which new end user contracts are submitted to the agency by processors eliminates the effectiveness of requiring registration amendment applications. Therefore, the commission has deleted this provision. Referencing sec.330.843(f), Alcoa expressed concern that while SB 776 mandates re-registration of all processors to provide the agency the necessary information regarding end users, the rules, as proposed, do not clearly require immediate re-registration. The commission, in an effort to increase WTRF program flexibility and limit undue hardship on the processors, believes the intent of the legislation, by specifying new, renewal or amended applications, was to make the requirement effective upon the processor's submittal of an application subsequent to the effective date of SB 776. In addition, the January 1, 1996, deadline requires all processors to identify their end use mechanism in order to receive reimbursement from the fund. That requirement, as well as the requirement to identify end users in amendment applications, which has already affected a majority of the registered processors, serves to provide the agency with ample control over the end use mechanisms proposed by processors. Accordingly, the commission has not modified the provision as recommended. WRI recommends that sec.330.843(j) reflect the requirement that material delivered be marketed and consumed when the processor and the end user are related parties. The commenter is concerned that transactions between a processor and end user be true arm's-length transactions. The commission has required in sec.330.852(e) that percentage amounts of shred usage and raw material manufacturing, monthly and semi-annually, respectively, be documented to assure the commission that the shredded material and resulting raw material are utilized and not stockpiled at the recycling facility. The commission also is adding a provision in sec.330.843(j) requiring a waste tire facility to submit an affidavit as well as the contract to the executive director. The affidavit shall state that the contract meets the requirements of Texas Health and Safety Code sec.361.477(g) and other applicable law. Additionally, the agency will approve end use credit upon receipt of proof of actual delivery to an authorized end user. Referencing sec.330.845(a)(4), Gibson Recycling and ERRI argued that the requirement to provide contracts or binding agreements which are private and confidential should not be a condition of a new or renewal registration. SB 776 requires that after January 1, 1996, all new, amended or renewal applications for registration must identify the individual to whom the processor will be delivering shredded tires. To the extent that any information submitted is deemed confidential by sec.361.493 of the Texas Health and Safety Code, agency procedures require handling such information accordingly. Referencing sec.330.845(c)(10)(N), WRI observed that the requirement to maintain weigh tickets and payment invoices for wire transported to landfills ends 25 days before the closure of the comment period for the rules. The commission concurs with the observation. The agency notified processors in mid-1995 that material sent to the landfill should no longer be eligible for reimbursement unless it is also recycled or forwarded to an end use market. Since the general WTRF program end use mandate went into effect on January 1, 1996, the commission decided that the same date should apply for the prohibition of landfilling this tire material previously landfilled as waste from the shredding process (specifically, but not exclusively, metal bead, wire and fluff). The language has been corrected to reflect that there is no reporting requirement for this waste because it may no longer be landfilled. Alcoa commented that in sec.330.846 and throughout the rules that the TNRCC uses the terms "legitimate end user" and "end user" interchangeably, and that it is critical with respect to tire shred delivery that the terminology be consistent. In addition, the commenter indicated that the reference in that section to "other in-state facilities for delivery" was confusing. Other than waste tire storage, recycling and energy recovery facilities, there are no additional types of facilities the agency has approved for tire shred delivery at this time. The commission concurs that the terms are used interchangeably because they are interchangeable. With respect to the phrase "other in-state facilities for delivery", although the agency has not to date identified or approved delivery locations other than those specified previously, such a delivery source (a new end use mechanism) might be identified and approved in the future. Accordingly, the commission does not want to limit the WTRF program rules unduly. Therefore, the provision has not been amended as requested. One individual recommended that sec.330.850(a)(2) should be amended to remove the term "thermal processes" from the list of eligible mechanisms to manufacture end use products. Due to the fact that the agency has, in the past 4 years of program operation, recognized the legitimacy of several recycling and end use mechanisms, the deletion of thermal processing as an eligible mechanism would result in the elimination of the most widely-accepted and-internationally recognized end use mechanism. Further, since the commission formally considered and approved the use of tire shreds and/or whole tires in energy recovery systems in December 1993, elimination of that mechanism at this time would be contrary to that previous determination. Accordingly, the commission has not modified the language as requested. Alcoa, referencing sec.330.852(a)(6)(A) and sec.330.852(a)(6)(C)(vii), expressed concern regarding the lack of detail for the executive director's decision regarding verification of the end use market. Specifically, the commenter believes there is a need for the recycler to identify its end user. The legislation authorizes the commission to approve a mechanism as a legitimate end use. The commission believes that the established procedure provides sufficient information to properly run the program. In addition, the commenter expressed concern that crumb rubber is not, in and of itself, a product. It is a raw material and thus any manufacturer of crumb rubber should be required to identify its customer (end user). The legislature, in SB 776, enabled crumb rubber facilities to qualify for recycling facility construction grant funds. By adopting this legislative modification, the process of crumbing rubber was designated as a legitimate end use. In an attempt to qualify crumb rubber more specifically, the commission has modified its definition of "powdered rubber" and included a definition of "crumb rubber". However, the commission does not believe it is necessary for proper administration of the program to demand specific information regarding a facility's end user. Accordingly, the commission has not amended the provisions as requested. One individual commented that sec.330.852(b)(1)(A), containing the conditions for registration of a waste tire recycling facility, should be altered to require that all tires be stored in covered facilities with automatic fire extinguisher systems. The commission agrees in part with the commenter's recommendation, especially for the material generated from the recycling process. However, due to the quantity of tires often necessary to be held for feed stock in the recycling process, it would not be realistic to require enclosed buildings of such a size to contain that amount of material. Accordingly, the commission has added the language in sec.330.851(i) to require an enclosed building for material produced from the recycling process. Alcoa commented that in sec.330.852(c) and sec.330.852(e) there are no measures specified for failure to comply with the requirements of the provisions. The commission, in an effort to reduce the voluminous nature of the WTRF program rules, consolidated the enforcement authority for owners or operators of recycling facilities, energy recovery facilities, transfer stations, collection centers and transportation facilities into sec.330.859. Under this section, the agency is provided with the ability to pursue any action authorized by law to secure compliance with the requirements of the subchapter. Since the ability to ensure adequate enforcement authority does exist, the provisions need not be amended. Gibson Recycling, Quality Rubber Products, and ERRI stated that the requirement in sec.330.852(e) for processors to use 30% of all scrap tires delivered monthly unfairly restricts the amount of raw material that a manufacturing facility can maintain in inventory. In addition, they argued that processors cannot be held responsible for the product sales of the manufacturer to whom they sell their tire shreds. Since inception of the WTRF program, it has been the intent of the commission that processors develop markets for the recycling of tire shreds and then forward their shreds to those end uses. However, in program implementation, the staff found that the few recyclers who existed in 1992 and 1993 were treated as "dumping" grounds for some processors who wanted to rid their storage facilities of tires shreds to, among other reasons, lower financial assurance costs. The commission is concerned that this same situation could arise in the near future, this time due to the January 1, 1996, recycling deadline. In an effort to control bulk quantities of shreds being shifted from storage facilities to recyclers' manufacturing facilities, and subsequently building up at the recycling facility, the commission believes that the rate of shred use at the manufacturing facility must be managed and controlled. Research by the agency's market development team indicates that 30% monthly use of in-coming shreds and 30% semi-annual manufacturing sales of the recycled (or energy recovered) product are realistic and sustainable quotas. Therefore, the provision remains unchanged. Referencing sec.330.853(e), Brown McCarroll commented that energy recovery facilities are unsure which provisions in sec.330.845 apply to them specifically. Further, the commenter believed that the applicable sections should be specifically repeated in sec.330.853. Because of the number and variety of entities regulated by the WTRF program, the commission attempted to reduce the voluminous nature of the rules by referencing energy recovery facilities to applicable portions of sec.330.845. However, the commission concurs that the referencing may be confusing; therefore, in order to clarify which requirements apply to energy recovery facilities, sec.330.855(c) will be amended to state the relevant requirements. Brown McCarroll commented that sec.330.853(f) should specifically state the revocation and suspension requirements for waste tire energy recovery facilities, rather than reference them to the applicable portions of the waste tire facility revocation and suspension requirements. Again, in an effort to limit the already extensive WTRF program rules, the commission referenced energy recovery facilities and waste tire recycling facilities to requirements previously stated in sections of the rules. However, in order to eliminate confusion, the commission will amend sec.330.852(f) and sec.330.855(f) to remove the provisions that reference waste tire facility requirements and include provisions that specify the revocation and suspension conditions and procedures for both types of facilities. ERRI, referencing sec.330.854, requested clarification as to whether the grants to assist in the retrofitting or equipment costs to burn tires included the cost and installation of air pollution equipment. The WTRF grant rules adopted by the commission on March 6, 1996, were amended to include the cost of air pollution emission control equipment and installation providing that equipment was required as a condition of the air permit amendment. Since the WTRF grant rules clearly address the eligibility of those costs, this provision is unchanged in this regard. Alcoa commented that 330.854(b) and 330.877(c) propose to limit the 40-cent reimbursement for shredded tire burning to facilities that were capable of burning before September 1, 1996. The commenter believes this is arbitrary and conflicts with the legislation that authorizes the agency to transfer funds in order to promote recycling and energy recovery. The commission agrees and has changed the rule accordingly. Alcoa, referencing sec.330.854(e)(2), commented that a blanket prohibition should not be imposed on reimbursements to grant recipients. SB 776, enacted by the 74th Legislature, provided grants to individuals or companies interested in retrofitting facilities to burn whole or shredded tires. However, the commission feels that the legislation only provided grants in FY 1996 for shredded tire burners because the legislature apparently believed that a per-tire reimbursement for a tire that had already received an 80-cent reimbursement for shredding did not reflect the true intent of the WTRF program. It would seem that, by reimbursing for the shredding of the tire and then the burning of the tire, the WTRF would be reimbursing twice in the program. This activity would seem to be counter to the original intent of the program. It was SB 1051 language, enacted in 1993, that initially reflected the legislature's heightened concern regarding the need to recycle the approximately 30 million tires generated annually. In response to the few companies that acted upon that initial concern, the legislature, in 1995, provided a small fund ($600,000 annually) for a 40-cents-per-tire reimbursement for the few companies that had retrofitted facilities in an attempt to assist and promote energy recovery in the state based on legislation from the 73rd Session. The commission believes legislative intent was clear in addressing this situations, and has not modified the provision as requested. However, in reviewing the subsection, it was noted that the last sentence needed clarification and was appropriately changed. Brown McCarroll commented that the registration requirements contained in sec.330.855(a) do not specifically state that the application is for registration in the WTRF program. Also, the commenter suggested that the commission "grandfather" existing energy recovery facilities rather than requiring a new registration. Since confusion exists, appropriate language has been added to clarify the referenced provision. In addition, the commission had not intended to require existing facilities to re-register upon adoption of the new rules. The commission anticipated that the affected facilities would make necessary modifications in record keeping, operation and maintenance to ensure compliance with the new and/or amended provisions. Alcoa commented that sec.330.855(c)(6) should allow entities other than the Texas Department of Agriculture (TDA) or the manufacturer of the scale to calibrate the scale at its required frequency. The commission concurs that there are companies within the state whose purpose is to provide calibration and servicing of in-plant scales. Therefore, with the condition that the alternative party receives prior approval from the executive director, the commission modifies the provision as requested. Brown McCarroll, referencing sec.330.855(c)(5), inquired as to whether energy recovery facilities will be required to report on tire collection and transportation if they only contract with a processor for delivery of the tire shreds. The referenced provision addresses the manifesting and monthly records retention requirement. The TNRCC manifest contains sections for the generator and the transporter to complete; therefore, upon receipt and completion of the manifest, the energy recovery facility will automatically have information about the generation and transportation of the tires or tire shreds delivered to the facility. The provision only requires that the energy recovery facility maintain its appropriate copy of the manifest and its generated monthly reports for a minimum of three years. If the energy recovery facility merely contracts for delivery of tire shreds, neither the manifest nor the monthly report require information about the generation and transportation of the tires. Accordingly, the commission believes no change to the referenced provision is necessary. Referencing sec.330.855(c)(6), Gibson Recycling is concerned about the apparent double standard in WTRF program requirements relating to scale certification. The rules require that scales be certified annually at energy recovery facilities, while scales must be certified monthly at processing facilities. The reason for this difference is two-fold. First, based on agency site investigations, the commission has determined that energy recovery metering equipment is internal and inaccessible for adjustment unless the entire kiln is taken off-line. Since the kiln owner and/or operators cannot adjust the metering equipment externally, the need to confirm accuracy regularly for reimbursement purposes does not exist. Second, in addition to the primary metering equipment, most kilns have two or three backup systems to track and weigh incoming tires and/or tire shreds. Multiple systems to confirm amounts accepted and burned allows staff to compare several tracking logs, thus increasing the accuracy in quantity consumed for reimbursement. Processors do not have these mechanisms. Accordingly, this portion of the rules remains unchanged. Brown McCarroll expressed concern relating to sec.330.855(c)(6)-(8) because the weigh scales are located on facility property and the TDA will not access private property to calibrate or certify scales. It should be noted that the rules authorize the energy recovery facility to have access to a scale that is either certified annually by the TDA or certified annually by the manufacturer that developed and installed the scale. The commission feels that the proposed provisions adequately address the commenter's concern. Brown McCarroll suggested the language in sec.330.855(c)(7) be clarified to indicate that energy recovery facilities can use either a public scale or and in-plant scale. In an effort to eliminate possible confusion, the provision was amended to state that if the energy recovery facility is using a public scale, the executive director will be notified as to its location. Brown McCarroll argued that sec.330.855(c)(9) should not require PEL tires to be weighed separately by energy recovery facilities and that energy recovery facilities do not need to meet the PEL 15%/30% requirements. The commission concurs, and the language has been clarified accordingly. Shredded tire utilizers receive their tire shreds from tire processors and it must be assumed that those entities complied with the percentage requirement if the PEL assignment process is in effect. However, those energy recovery facilities that utilize whole tires will be required to maintain separate documentation detailing receipt and use of PEL tires in the 15%/30% ratio mandated by SB 776. Brown McCarroll commented that sec.330.856 precluded energy recovery facilities from operating collection centers or transfer stations to satisfy the community service requirement. The commission intended the community service mandate to be fulfilled through the entity's registration as an energy recovery facility. Therefore, if the energy recovery facility planned to collect tires at a community cleanup event that activity would be accomplished (and credit would be documented) using the registration number they were granted as an energy recovery facility. The commission has chosen to implement the mandated community service requirement in this manner in an effort to eliminate excessive program requirements for registration, record keeping and tracking. Transfer stations and collection centers are specifically designed for entities who do not currently, and will not in the future, seek reimbursement from the fund. Accordingly, the provisions have not been changed as requested. Referencing sec.330.861(f), Gibson Recycling stated that the requirement to reinstate the 15%/30% PEL cleanup rate places an unfair economic burden on processors because they must complete cleanup. Senate Bill 776 mandates that when the number of tires on the PEL exceeds 2.5 million the individual assignment process automatically goes into effect and the PEL contract process is discontinued. This situation can also occur in reverse. However, when either process goes into effect, it is critical that the PEL sites previously assigned (by contract or individually) are cleaned up by the responsible processor. Currently, the number of tires on PEL sites is significantly below 2.5 million; however, approximately 125 sites, assigned to processors when the individual assignment process was still in effect, are in various stages of cleanup. Therefore, the requirement remains that processors honor their commitment and complete PEL sites already assigned or which are in the process of being cleaned up when the PEL process changes. ERRI commented that under sec.330.865 "oversized" tires from PEL sites should either not be required to be cleaned up or should be eligible for reimbursement from the fund for collection and shredding. Regardless of size or condition, all tires collected from PEL sites are eligible for reimbursement. Section 330.865(d)(5) of the existing rules states that all PEL tires will be reimbursed providing funds are available. The referenced section does not exempt "oversized" tires. Since the rule currently addresses the issue raised in the comment, no change in the referenced provision is necessary. Referencing sec.330.871(a) and (b)(1), Alcoa believes that the provisions are duplicative and should be deleted. The commission, pursuant to a previous Alcoa comment, removed the definitions contained in sec.330.871(a). However, the commission believes the requirement for facility compliance is not duplicative because the requirement considers approving operation at a new facility on the basis of compliance at an existing facility. This requirement is mandated by statute and thus cannot be eliminated. Accordingly, as the provision is merely implementing previous legislation contained in SB 1051, no changes to the provision are made. Alcoa commented that sec.330.871(d)(8) is confusing because it contains the limitations on reimbursement to processors. The commenter believes the requirements would be better located in the section dealing with waste tire facilities and should be moved. The commission has, since inception of the WTRF program, attempted to assemble a majority of the statutory mandates dealing with conditions for reimbursement and operation of the WTRF itself in a section dedicated to the WTRF. As such, the reimbursements limitations have not been relocated within the rules. Referencing sec.330.872, Alcoa argued that by defining "utilization" to include shredding, as well as recycling and energy recovery, the commission was not promoting the legislative intent of SB 776. The commission, by incorporating the term "utilization" into the rules, was attempting to use a word that could be inclusive of all the activities authorized under SB 776. Since the legislation enacted by the 74th Legislature provided $15.2 million annually for the collection, transportation and shredding of tires, it is assumed that shredding was an activity still allowed by the legislature. The commission believes that the drafters of the legislation recognized the state's almost total dependence on processors for tire collection and opted for a gradual shifting of funding rather than a total elimination of funding to ensure that the legislative mandate of free tire collection for generators is guaranteed throughout the 1996 and 1997 biennium. Accordingly, shredding remains an objective of the WTRF program. TDS commented that sec.330.872(d)(1) requires a $1.00 fee to be collected for the sale of a "good used" tire that has a rim diameter of 12 inches or more, but less than 17.5 inches. The commenter requested clarification to exclude the requirement to collect the $1.00 from the individuals who only occasionally sell "good used" tires. The commission feels that SB 776 clearly states that the assessment of the $1.00 fee was to be applicable on the sale of any and all "good used" tires. Therefore, this portion of the rule is not changed. Regarding sec.330.872(e)(3), Gibson Recycling argued that suspension of the 50% generator shredding reimbursement is unrealistic. Further, Gibson states that due to the maximum 30% PEL shredding rate, processors could potentially be ineligible for reimbursement for some tires shredded. The commission believes that provisions in SB 776 provide for suspension of the 50% requirement if that is authorized by the commission based on service needs contained in an end use delivery contract. Since the provision simply implements SB 776, no changes to the provision are made. Alcoa argued that sec.330.872(e)(4), which prohibits the landfilling of scrap tires, scrap tire pieces or shredded tire pieces that are program eligible, should be amended to allow disposal upon executive director approval. The prohibition on landfilling any and all program eligible tires and shredded tire pieces is statutory. Since the provision simply implements SB 776, no change can be made. Alcoa commented that sec.330.872(g) does not seem necessary for energy recovery facilities and should be removed or the applicable facilities should be specifically identified. The referenced provision does apply for all entities seeking reimbursement from the WTRF. The commission cannot appropriately anticipate reimbursement demands on the fund if the reimbursement requests are not made to the agency in a timely manner. To eliminate the potential of fund depletion that might result in the inability to reimburse entities for services rendered, the commission has conditioned reimbursement on receipt of the request within 60 days after the reimbursable activity (either shredding or burning whole or shredded tires) has been performed. Accordingly, the provision has not been amended as requested. Referencing sec.330.873, Alcoa recommended that the requirement to publish notice of intent to operate in the WTRF program is unnecessary since it is required to publish notice for the air permit to burn. The commenter suggested that a waiver be added stating that if notice has recently been required under another program it is not necessary to republish under the WTRF program. The commission agrees that if the notice were published within the last 12 months and if the notice was associated in some form with operation under the WTRF, a waiver could be obtained. However, as the purpose behind the notice is to allow citizens in the area adjacent to the site to know that a new facility intends to begin operations, or a new process or fuel is being utilized, the commission believes consideration of any waiver must take into account the significance of the impact to the community of the change in operations. Accordingly, the commission has modified the provision as indicated. Alcoa and North Texas Cement, referencing sec.330.874, stated that the section is redundant because the commission recently adopted rules governing the WTRF grant program. Also the commenters stated that the 35-cents-per-tire reimbursement limit and the 80% Texas-tire requirement are arbitrary, and North Texas Cement considered them capricious. Since the grant program requirements are closely aligned with, and in some cases overlap, other rule modifications made under SB 776, the commission believes that it is necessary to have a grants section that addresses grant conditions that could not be contained in Subchapter V. Specifically, the issues of tire collection reimbursement and the annual percentage rate of Texas tire consumption are both authorized and regulated by Subchapter R rules. In addition, the 35 cent reimbursement for tire collection is based on information received from transporters currently operating in the state. Since the data used to develop the reimbursement rate is based on an average of the current "going" rate for tire collection and transportation across the state, the commission believes the limit is justified. Finally, the commission believes that energy recovery facilities should not be forced to use only Texas tires due to the possibility of "price gouging". However, the commission also believed that since the grant funds came from the sale of Texas tires there should be some requirement dictating that a minimum number of the tires utilized by the energy recovery facility annually should be Texas tires. Accordingly, the section has not been deleted or changed as requested. Referencing sec.330.876(c), North Texas Cement and Alcoa requested that additional explanation be provided to clarify the reimbursement limit of 80 cents per tire. SB 776 mandates that no individual or company operating under the WTRF program could receive more than 80 cents per tire. This reimbursement mandate is completely apart and separate from the grant program and, therefore, does not affect grant program regulations or the fund amounts awarded under the grant. However, because the limit currently affects processors and will affect energy recovery facilities beginning September 1, 1997, the commission was compelled to state the reimbursement limit imposed by statute. Since the provision is simply implementing SB 776, the commission has not amended the provision as requested. Alcoa requested that sec.330.876(d) and sec.330.885(a) ensure financial assurance was required for storage of whole tires and/or processed tires in excess of 30 days. In addition, the commenter was concerned that a definition contained in the closure cost calculations does not appear to be contained in the rules. Currently, the closure cost estimate requires financial assurance for processors that store whole tires or shredded tires for any period of time. Unlike waste tire recycling and energy recovery facility regulations which allow the storage of a 30-day supply of whole tires or tire shreds as raw material, processors are required to post financial assurance in advance for any tires or tire shreds held at the storage facility during the subsequent month. The definition of monthly cumulative closure cost estimate is contained in sec.330.803; however, since the definition was not modified during the rule- making process it was not contained in the published draft. It will be present in the incorporated version. Since the rules address the concerns identified by the commenter, the sections do not require amendment. One individual, referencing sec.330.877(a)(b) and (c), recommends that the comptroller, rather than the agency publish a report detailing the need to transfer funds, that no more than $1 million or 3.0% of the amount available be transferred for WTRF program operation and that the 20-day notice be published in the Austin American-Statesman rather than the Texas Register. The agency was charged with the responsibility in SB 776 to consider the transferral of funds from one category to another. In order to provide adequate notice to the public, the agency developed the procedure contained in the proposed rules. The decision to prepare and publish a report discussing the need and purpose to transfer funds was decided upon as the preferred procedure to follow. However, since the responsibility was placed under the agency's jurisdiction by the legislature, the commission believes that it, and not the comptroller, must carry it out. In addition, SB 776 dictates to which other categories funds may be transferred. As such, the legislature limited the transfer of funds to categories other than agency administrative costs and Comptroller administrative costs. Therefore, no funds transferred can be utilized to operate the administrative portions of the WTRF program. Because the commission is aware that the WTRF program affects individuals and companies statewide, the commission proposed to publish the report relating to the need and purpose for transferring funds in the Texas Register which has statewide distribution. This enables individuals across the state to know that the agency proposes to transfer funds and the reasons for doing so. Therefore, because the changes are either prohibited by statute or would serve to limit public involvement and comment, the section has not been modified as requested. Alcoa commented that sec.330.877(g) should allow the agency maximum discretion to transfer funds between eligible users. The commission concurs with the need to expand the conditions allowing the commission to transfer funds and to determine legitimate reimbursement and grant requests. Accordingly, the commission has amended the provision to include the recommended language. Brown McCarroll commented that sec.330.878(d) required the maintenance of a daily log in the event an energy recovery facility accepted special authorization tires. Since special authorization tires are, for the most part, the type of tires that will be collected to satisfy the community service mandate, the commission included the need to maintain such a log pursuant to that requirement. In addition, previous comments relating to clarification of record keeping for energy recovery facilities prompted the commission to state clearly, rather than by reference, the need for such facilities to maintain a daily log. The commission concurs that clarification is necessary. Please note that response to previous comments has resulted in amendment to the rules in the manner requested. The language contained in sec.330.879(a) is clarified to help ensure there is no confusion regarding the types of community service projects that would qualify to satisfy the annual community service requirement necessary to receive funds from the WTRF. The referenced section has been amended to provide guidance on the types of community service projects that would satisfy the requirement. Alcoa commented, referencing sec.330.884, that while the end use credit system is well-reasoned it focuses only on one end of the system, payment out. For the system to work better it should also require payment back to the WTRF when delivery of tire shreds does not occur within the 180-day timeframe. The legislation mandates that the TNRCC shall withhold further reimbursements until the deliveries are made thus bringing the entity into compliance with WTRF program statutes and rules. The commission believes it has sufficient authority under the statute and rules to address situations where delivery does not occur within 180 days. WRI expressed concern that the end use credit system as proposed in sec.330.884 totally circumvents the intent of SB 776 and that it essentially exposes the commission to the potential for further abuse, fraud and deceit in the program. The commission, by providing the ability for processors to carry forward unused credits, enables future use for unused material. For example, if a processor delivered 5,000 tons of material to an end user in March, but only shredded 3,000 tons of tires, it would be able to carry the unused material forward to a subsequent month when perhaps it did not have a contract for delivery. The end use market for tire shreds is subject to a great deal of fluctuation. Based on market development reports, the agency is aware that the instability in the recycling marketplace will continue for the foreseeable future. Because processors are subject to the contracts by recyclers, and recyclers often vary the frequency of delivery, the ability of a processor to collect and shred is also dependent on that delivery frequency. However, the legislature mandates that all generator tires will be collected. Currently, Texas generates approximately 65,000 tires daily. Since processors provide a majority of the tire collection statewide, the need to provide an ability to carry forward unused credits to assure continued tire collection was realized during rules development. Since the need for such a system will continue until end use markets are better developed in Texas, the section has not been changed as requested. WRI, referencing sec.330.885, contended that the financial assurance requirements for the WTRF program are short by an amount approximating $45 million. During the 74th Legislative Session, significant modifications on the WTRF program were enacted in SB 776. These program changes focused on contract requirements for end use, increased recycling requirements, and, most importantly, reduction of the maximum shred size allowable for reimbursement. The commission believes the legislature realized the statewide concerns relating to the adequacy of financial assurance on tire shred piles and addressed those concerns in a manner that would not cause an unreasonable financial hardship on processors currently operating in the program, but would ensure the ability to end use all tires shredded from the effective date of the legislation. In addition, the commission believes the concerns expressed by the commenter are adequately addressed without amending the section. Referencing sec.330.885(a)(1)(B), WRI argued that the financial assurance requirements incorporate only the cost for transportation of the shredded material to another storage site. However, the agency, during incorporation in the rules of program modifications contained in SB 1051 (73rd Legislature), became increasingly aware of the potential storage site capacity inadequacies in the near future. As a result, the referenced section was changed in 1993 to allow the movement of tire shreds to other storage facilities, recycling facilities or energy recovery facilities. By expanding the alternatives for relocation of the tire shreds, should the storage facility be abandoned or file for bankruptcy, the commission believes it has adequately addressed the potential problem of inadequate storage capacity for existing shreds. Accordingly, this section has not been changed as requested. Alcoa, referencing sec.330.885(a)(1)(B), argued that the estimated cost for closure should also include the cost for recycling or beneficially using the tires or tire shreds at the receiving facility. The commission believes that the entity accepting the whole or shredded tires from an abandoned or bankrupt facility will realize a significant monetary benefit in the form of free raw material for the recycling process or free fuel for energy recovery. Requiring the storage site owner or operator to post financial assurance to cover the cost associated with usage of the free tire material is unnecessary. Senate Bill 776 specifically dictates that the costs included in calculation of financial responsibility shall be cleanup and closure of the facility. The statute does not authorize the commission to also require calculation of usage costs at the receiving facility. Since the rules implement financial responsibility as mandated, the provision has not been modified as requested. Brown, McCarroll suggested that sec.330.885(a)(1)(C) should specify in that provision the type of equipment required to be dismantled. Because energy recovery facilities have extensive equipment that does not pertain to and is not related to the utilization of tires as an alternative fuel, the commission agrees that clarification of the closure cost estimate is necessary to avoid confusion. Therefore, the provision has been amended as recommended. Referencing sec.sec.330.885-330.888, Wimberley S.A.F.E., the Sierra Club and the Downwinders at Risk argued that financial responsibility calculations should cover the potential costs of fire fighting and pollution cleanup as a result of fires. Since the issue was not mentioned in the proposed rules, the commission will consider possible options for providing the needed financial assurance and will propose an appropriate rule in the near future. During the process of reviewing the comments and modifying the rules to incorporate those comments, several errors in the proposed rules were identified. The sections that contain the errors are stated below with a brief description of the error and the correction made to the rules. In reviewing the definitions, it was felt that a definition of "powdered rubber" should be based on an industry standard, and in discussions with staff of National Rubber a better definition was developed. In sec.330.811(a) the phrase, "mobile tire processor" should have been removed. The commission during the rulemaking process combined and eliminated the sections associated with mobile tire processors. The term, "waste tire facility" now includes both mobile tire processors and fixed tire processors. In sec.330.854(b) the word "recovery" was misspelled and there is a typographical error in the effective retrofitting date in the rules. The correct date is September 1, 1995, not June 5, 1995, as indicated. The complete section title for sec.330.861 was not included. The correct title for the section is "Priority Enforcement List (PEL) Program". In sec.330.872(e)(7) the closing bracket to delete the language was omitted. It was also found that in the coding of the proposed rules for transmission to the Texas Register the first five and one-half lines from sec.330.885(d)(4) were omitted and the remaining lines were incorporated with subsection (d)(3). The omitted lines included three lines which were bracketed for deletion, and they pertained to baled whole tires which are no longer part of the program. The other two and one-half lines which had been omitted are retained from the earlier rules and are incorporated as the lead-in to subsection (d)(4). Other minor changes were made as a result of recommendations by Alcoa concerning consistency of terminology in sec.330.843(i), sec.330.843(j) and sec.330.841(c), and also clarifying sec.330.843(k) and correcting a typographical error. The sections are adopted under Health and Safety Code Chapter 361, which provides the commission with the authority to establish the rules necessary to adequately administer the Waste Tire Recycling Fund, and implement the activities necessary to ensure prompt and accurate reimbursement from the fund, and to register and monitor the activities of waste tire generators, transporters, waste tire facilities, storage facility owners or operators, and owners and/or operators of waste tire recycling facilities, waste tire energy recovery facilities, transfer stations, recycling collection centers, and transportation facilities, and under Texas Water Code sec.5.103, which gives the commission the powers and authority to adopt any rules necessary to carry out its duties under the Code and other laws of the State of Texas, and to establish and approve all general policy of the commission. SUBCHAPTER R.Management of Whole Used or Scrap Tires 30 TAC sec.sec.330.802, 330.803, 330.805-330.813, 330.815, 330.818, 330.820- 330.833, 330.835, 330.836, 330.838, 330.841-330.846, 330.848-330.859, 330.861- 330.886, 330.889 The amendments and new sections are adopted under Texas Water Code, sec.5.103, which provides the TNRCC with the authority to adopt any rules necessary to carry out its powers and duties under the provisions of the Texas Water Code and other laws of this state. These amendments and new sections are also proposed under the Texas Solid Waste Disposal Act (the Act), Texas Health and Safety Code,sec.361.011 and sec.361.024, which provide the TNRCC with the authority to regulate municipal solid waste and adopt rules consistent with the general intent and purposes of the Act. sec. 330.802. Applicability. (a) The sections in this subchapter are applicable to persons that are involved in the generation, transportation, processing, storage, recycling, reuse or energy recovery of whole used or scrap tires or scrap tire pieces that are classified as municipal solid waste and regulated by the Texas Natural Resource Conservation Commission (commission or TNRCC) pursuant to sec.330.3 of this title (relating to Applicability). The sections in this subchapter are not applicable to whole used or scrap tires that are classified as industrial solid waste. (b) A tire becomes a scrap tire and is eligible for reimbursement under the Waste Tire Recycling Fund (WTRF) when it is discarded by a person after it has been utilized for its intended purpose. A used tire that can be salvaged and used for another purpose, retreaded, or sold as a good used vehicle tire is not subject to the requirements of this subchapter, except as noted in sec.330.80 of this title (relating to Generator Record Keeping) and sec.330.889 of this title (relating to the Beneficial Use of Whole Used or Scrap Tires). A whole used tire that cannot be reused for or legally modified to be reused for its original intended purpose is a scrap tire and is subject to the requirements of this subchapter. (c) Whole used or scrap tires that can be salvaged and used for another purpose, retreaded, or sold as a good used vehicle tire are exempted from the requirements to be split, quartered, or shredded at processing sites. All discarded tires will be subject to manifesting by registered generators in accordance with the requirements in sec.330.807 of this title (relating to Generator Record Keeping). Tire stockpiles being held for adjustment by the manufacturer must be classified by the manufacturer for reuse, recycling or energy recovery within 90 days. Used tires being held for resale that are stockpiled shall receive appropriate vector control made at a frequency based upon weather conditions and other applicable local ordinances. (d) Scrap tires that are eligible for reimbursement under this subchapter are prohibited from disposal in a landfill. Landfill owners and operators who knowingly accept and dispose of WTRF program-eligible tires shall be subject to any commission action authorized by law to secure compliance, including the assessment of administrative penalties or civil penalties as prescribed by law. (e) A whole used or scrap tire, attached to a rim, that is received at a waste tire facility, storage site, disposal site, or other solid waste facility shall be removed from the rim and processed in accordance with this chapter. (f) Scrap tires that are off-the-road tires intended for use on heavy machinery, including an earth mover/dozer, a grader, or mining equipment pursuant to sec.330.872(h) of this title (relating to WTRF Program Operation) are exempt from the requirements to be split, quartered or shredded at a storage site or a permitted landfill. Adequate vector control shall be maintained at the registered waste tire storage facility that is storing these tires. (g) Scrap tires that are off-the-road tires intended for use on heavy machinery, including an earth mover/dozer, a grader, or mining equipment pursuant to sec.330.872(h) of this title (relating to WTRF Program Operation) will not be eligible for reimbursement from the WTRF unless they come from priority enforcement list (PEL) sites. (h) No more than 500 scrap tires or that equivalent in shredded tire pieces shall be stored at a facility that is not registered with the commission. (i) Mobile tire processing facilities shall be considered waste tire facilities and required to comply with all applicable requirements contained in this subchapter relating to waste tire facilities. (j) The commission shall appoint to the Municipal Solid Waste Management and Resource Recovery Advisory Council, one registered fixed waste tire processor and one registered mobile tire processor pursuant to the Texas Health and Safety Code, sec.363.041 (relating to Composition of Advisory Council). (k) Motion for reconsideration for approval of registration. (1) The applicant or a person affected may file with the chief clerk a motion for reconsideration of the executive director's final approval of an application for a registration under this subchapter. (2) A motion for reconsideration must be filed with the chief clerk not later than the 20th day after the date on which the chief clerk mailed to the applicant the signed registration or other approval. (3) A decision by the executive director, including a registration issued by the executive director, is not affected by the filing of a motion for reconsideration under this section unless expressly so ordered by the commissioners. If a motion for reconsideration is not acted on by the commissioners within 45 days after the date on which the chief clerk mailed the signed registration to the applicant, the motion shall be deemed overruled. When a motion for reconsideration is overruled by commission action or pursuant to this subsection, the Texas Government Code, sec.2001.146, regarding motions for rehearing in contested cases is inapplicable and no motions for rehearing shall be filed. To the extent applicable, the commission decision may be subject to judicial review pursuant to Texas Water Code, sec.5.351 or the Texas Health and Safety Code, sec.361.321. sec.330.803. Definitions. The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise. Other definitions, pertinent to specific sections, are contained within the appropriate sections. Alter - The modification of any record keeping document kept or received by any entity subject to the requirements of this subchapter. Crumb rubber - For the purpose of this subchapter, crumb rubber is a coarse particle matter that does not pass through a number 80 mesh screen resulting from mechanical shredding or cryogenic processes involving scrap tires. End user - A waste tire recycling facility or waste tire energy recovery facility, approved by the executive director, that accepts whole scrap tires, scrap tire pieces or shredded tire pieces for further utilization either to manufacture a new product which it sells for consumption, or to use as tire derived fuel. End use market - A specific person or facility, approved by the executive director, involved in the purchase of whole tires, scrap tire pieces or shredded tire pieces in order to recycle the material to manufacture a new product which is sold on an ongoing basis, or to use the material as tire derived fuel. Fleet operator - An entity that owns or operates more than 15 vehicles and generates 30 or more whole used or scrap tires per quarter. Generator - An entity that accepts whole used or scrap tires or scrap tire pieces for temporary storage, except a waste tire energy recovery facility and a waste tire recycling facility, is a fleet operator, is an automotive dismantler, or is a whole new or used tire retailer, wholesaler, manufacturer, recapper or retreader. Good used tire - A used tire, not including a recapped or retreaded tire, suitable for continued use for its original intended purpose. Industry standard two-inch minus particle size - For the purpose of shredding for reimbursement under the WTRF, the tire shred must fall through a screen with holes not greater than two inches in diameter and the shred must be substantially free of wire. Mobile tire processor - A waste tire facility that is registered as a mobile facility at which scrap tires or tire pieces are collected and shredded for delivery to a waste tire storage facility, or a facility that recycles, reuses, or recovers the energy from the shredded tire pieces. Powdered Rubber - For the purpose of the subchapter powdered rubber will be considered a fine particle matter that passes through a number 80 mesh screen resulting from mechanical shredding or cryogenic processes involving scrap tires. Program Review - A review of records by WTRF program staff that may occur prior to or after any claims for reimbursement have been paid. Such reviews will occur on an as needed basis and may include an investigation of the records documenting the generation, transportation, processing, storage, burning, and recycling of scrap tires or shredded tire pieces. Such reviews may include investigations of associated waste tire storage facilities, waste tire recyclers, waste tire energy recovery facilities and facilities, located in- state or out-of-state, from which the party has received tires or to which the party has delivered tires. Only waste tire facilities, waste tire energy recovery facilities and waste tire recycling facilities are subject to program reviews. Recyclable material - Material that has been recovered or diverted from the solid waste stream for purposes of reuse, recycling, energy recovery, or reclamation, a substantial portion of which is consistently used in the manufacture of products or processes which may otherwise be produced using raw or virgin materials. Recyclable material is not solid waste. However, recyclable material may become solid waste at such time, if any, as it is abandoned or disposed of rather than recycled, whereupon it will be solid waste with respect only to the party actually abandoning or disposing of the material. Rural County - A county having a population of less than 50,000. Scrap tire - A waste tire that has been disposed of and can no longer be used for the purpose for which it was originally intended. Shredding - The mechanical reduction of a scrap tire or scrap tire pieces. Shredded tire piece - A particle of a scrap tire or scrap tire piece that has been split, quartered, or shredded to an industry standard two-inch minus particle size or other size approved by the executive director as set by a contract requirement related to recycling or end use of the particles. Supersize pile - For the purpose of this subchapter, a supersize pile shall be any shredded tire pile in excess of 8,000 square feet up to a maximum of 24,000 square feet. All piles designated as supersize shall be required to receive prior approval from the local fire marshal, publish public notice of intent, and maintain a 40-foot fire lane. Tire piece - A portion of a waste tire such as the sidewall, tread, bead, etc. generally though not necessarily disposed of by a business that uses some other part of the waste tire to make a product. The discarded portion of the waste tire can be shredded for reimbursement from the WTRF and shall be addressed in any PEL site clean-up plan. Tire recycling collection center - A site operated by a governmental entity receiving scrap tires or scrap tire pieces from the general public for shipment to a registered waste tire facility, waste tire energy recovery facility, or waste tire recycling facility. Such facilities can only be operated by governmental entities. Tire transfer station - A facility operated by a waste tire facility, waste tire recycling facility or waste tire energy recovery facility that receives scrap tires or scrap tire pieces from multiple generators for shipment to a registered waste tire facility, waste tire energy recovery facility, or waste tire recycling facility. Transportation facility - A facility where a registered waste tire facility, waste tire recycling facility or waste tire energy recovery facility may store scrap tires or scrap tire pieces for periods longer than 30 consecutive calendar days. For the purpose of this subchapter, such facilities are marine terminals, rail yards or trucking facilities. Utilize - The process or activity performed by an entity involving the use of scrap tires, scrap tire pieces or shredded tire pieces at waste tire facilities, waste tire recycling facilities or waste tire energy recovery facilities. Utilizing - The activity or process of shredding, recycling or burning for energy recovery. Waste tire energy recovery facility - A facility at which scrap tires or shredded tires are used as a fuel including: a cement kiln; a utility boiler; a pulp and paper mill; a cogeneration facility; or other facilities designated by the commission. Waste tire facility - A registered facility, not including a waste tire energy recovery facility or a waste tire recycling facility, at which scrap tires or tire pieces are collected and shredded for delivery to a waste tire storage facility, or a facility that recycles, reuses, or recovers the energy from the shredded tire pieces. Waste tire recycling - Any process (including energy recovery) in which all or part of scrap tires or scrap tire pieces or shredded tire pieces are utilized either alone or in conjunction with other materials to make a product which has a commercial market verifiable by the executive director. Waste tire recycling facility - An entity, not including a waste tire energy recovery facility, that manufactures from whole or shredded tires useful products with a certified end use. Waste tire recycling fund (WTRF) - The fund into which tire fees collected on new tires or good used tires that are sold in Texas are deposited. Waste tire storage facility- A registered facility at which scrap tires or shredded tire pieces are collected and stored to facilitate the future extraction of useful material for recycling, reuse, or energy recovery. The term does not include a registered waste tire recycling facility or waste tire energy recovery facility, marine dock, rail yard, or trucking facility used to store tires that are awaiting shipment to an entity for recycling, reuse, or energy recovery for 30 days or less. Waste tire transporter - A registered entity that collects and transports whole used or scrap tires, or tire pieces or shredded tire pieces for storage, processing, recycling, or energy recovery. Waste tire utilizer - An individual or company that is registered under this subchapter as a waste tire facility, waste tire recycling facility or a waste tire energy recovery facility. Weighed tire - A unit of weight for scrap tires, shredded tires or tire pieces that is equal to 18.7 pounds. sec. 330.805. Generators of Scrap Tires. (a) Applicability. The regulations contained in these sections establish standards applicable to the generators of whole used or scrap tires or scrap tire pieces. For the purpose of this subchapter, a generator shall be a person that accepts whole used or scrap tires or scrap tire pieces for temporary storage, is a fleet operator, is an automotive dismantler, or is a whole new or used tire retailer, wholesaler, manufacturer, recapper, or retreader. (b) Responsibility. Each generator shall be responsible for ensuring that scrap tires or scrap tire pieces are transported by a registered transporter. Each generator shall ask the transporter where their scrap tires or scrap tire pieces are being delivered to, and may designate on the waste tire manifest the destination of the scrap tires or scrap tire pieces that they generate. (c) Generator. A generator shall not place a whole used or scrap tire or split, quartered, or shredded tire pieces in a dumpster for pickup by a collection vehicle that has an enclosed packer unit attached or that is used on a routine and/or regular collection route. All whole used or scrap tires and shredded tire pieces transported from a generator's location shall be transported and manifested in a separate, identifiable load. (d) Invoices. Whole used tires sold as good used vehicle tires shall be invoiced according to sec.330.807 of this title (relating to Generator Record Keeping). (e) Remuneration. A generator may not receive remuneration in exchange for scrap tires. (f) Resale. A wholesale or retail tire dealer or a person in the business of selling new or good used tires for use on a vehicle or selling used vehicle parts shall accept from customers, without charge, used tires of the type and in a quantity at least equal to the number of tires the customer purchases. In addition, a generator is not required to accept a scrap tire from a customer who purchases a new or used vehicle on which the tires purchased are mounted. (g) Rim removal. Generators shall arrange to remove scrap tires from the rim prior to transport to a waste tire utilizer. Failure to remove the rim may result in the waste tire utilizer charging the generator a fee for rim removal or refusing to accept the scrap tire. sec.330.807. Generator Record Keeping. (a) Maintenance of records. Originals of manifests, work orders, invoices or other documentation used to support activities related to the accumulation, handling, and shipment of whole used or scrap tires or scrap tire pieces shall be retained by the generator for a period of three years. All such records shall be made available to the executive director upon request. (1) Any change made to the face of an original record shall be made by drawing a single line through the item being changed, ensuring that such item remains legible and readable. To the side of such mark, the person making the change shall place his/her initials with the date of such change. (2) Any change made to the face of an original record and made in accordance with subsection (a) of this section shall be accompanied by a written justification stating the reason and purpose for the change. This written justification shall be attached to the original record and maintained in the same manner set forth in subsection (a) of this section for a period of three years. The justification shall include the date of the change, the full name and position of the individual making the change, and the justification shall be prepared simultaneously with the change to the original records. (3) Should the executive director identify discrepancies/errors in records, an opportunity will be given to the mobile tire processor or waste tire facility to justify, in writing, any such errors or discrepancies. However, the executive director shall determine whether any written justification is adequate for the purposes of reimbursement. (b) Manifest. Generators shall obtain from the waste tire utilizer(s) collecting whole tires from their place of business and complete, then maintain, a record of each individual load of whole used or scrap tires or scrap tire pieces hauled off-site from their business location. The record shall be in the form of a five-part manifest or other similar documentation approved by the executive director. The generator shall complete the following information on the manifest: (1) name and address of the generator and the type of generator; (2) generator's commission registration number; (3) date of the off-site shipment; (4) name and commission registration number of the transporter; (5) whether the generator was monetarily charged by the transporter for the service of hauling away the whole used or scrap tires or scrap tire pieces; (6) number or weight in pounds and the type of whole used or scrap tires or scrap tire pieces collected for transportation; (7) name of responsible person(s) transporting the whole used or scrap tires or the shredded tire pieces; (8) the physical location of the generator's site; and (9) a signature of the representative of the generator acknowledging that the information on the manifest is true and correct. (c) Completed manifest. A generator shall obtain the completed manifest within three months after the scrap tires or scrap tire pieces were transported off- site by the transporter. (d) Uncompleted manifest. The generator shall notify the appropriate TNRCC regional office of any transporter or waste tire utilizer that fails to complete the manifest, who alters the generator portion of the manifest or fails to return the manifest within three months after the off-site transportation of the whole used or scrap tires or scrap tire pieces. (e) Records. Generators shall maintain a record of whole used tires sold as good used vehicle tires and hauled off-site from their business location. The record shall be in the form of a manifest completed in accordance with subsection (b) of this section or a work order or invoice which includes the following information: (1) name and address of the person who sold the whole used tires; (2) date of the off-site shipment; (3) number and the type of whole used tires sold; and (4) name and address of the person or business who purchased the whole used tires. The generator shall retain the records for a period of three years and the records shall be made available to the executive director for review upon request. (f) Notice. The generator shall maintain a copy of the commission notice confirming the status as a registered generator and the notice shall be made available to the executive director for review upon request. sec. 330.811.Transporters of Whole Used or Scrap Tires. (a) Applicability. The regulations contained in these sections establish standards applicable to transporters collecting and hauling whole used or scrap tires or shredded tire pieces. These sections are applicable to waste tire transporters and other tire transporters who transport whole used or scrap tires or shredded tire pieces to or from a registered generator, waste tire facility, registered waste tire storage site, waste tire recycling facility, waste tire energy recovery facility, transfer station or collection center, transportation facility, or Priority Enforcement List (PEL) site. (b) Responsibility. Transporters shall maintain records using a manifest system as provided in sec.330.815 of this title (relating to Transporter Record Keeping). Each transporter shall be responsible for ensuring that scrap tires or shredded tire pieces are transported to a waste tire facility, a registered waste tire storage site, a waste tire recycling facility, waste tire energy recovery facility, transfer station, a recycler of whole used or scrap tires or shredded tire pieces, or a retreader. (c) Prohibition. A waste tire transporter may not charge a fee to a wholesale or retail tire dealer for collecting scrap tires that were accepted for temporary storage by the dealer from purchasers of new or good used tires. sec.330.835.Requirements for a Type VIII-R Waste Tire Storage Facility. (a) Registration requirements. (1) Persons who store or intend to store more than 500 whole used or scrap tires and/or an equivalent amount of shredded tire pieces on the ground or 2,000 whole used or scrap tires and/or an equivalent amount of shredded tire pieces in a totally enclosed and lockable container shall register these sites with the executive director. Registration forms shall be provided by the executive director upon request. Persons who own or operate a waste tire recycling facility or a waste tire energy recovery facility are not subject to the design, management, and record keeping requirements and conditions contained in this section. (2) Persons who apply and receive Type VIII-R facility registration from the executive director shall maintain a copy of the registration at their designated place of business and at the designated storage facility location. (3) A Type VIII-R registration shall expire 60 months from the date of issuance unless the storage site changes ownership prior to that time. A Type VIII-R registration is transferable contingent upon executive director approval. A change in the federal tax identification number will constitute a change of ownership. Registrations shall be renewed prior to the expiration date. Applications for renewal shall be submitted at least 60 days prior to the expiration date of the Type VIII-R storage facility registration. (4) Type VIII-R storage facility owners and/or operators shall submit an amendment to their application to the commission within 15 days of a change to their registration if: (A) any data submitted in support of the application for registration has changed; (B) the office or place of business is relocated; or (C) the registered name of the facility owner or operator has changed. (5) A new Type VIII-R storage facility registration application and a non- refundable $500 application review fee shall be submitted to the executive director within ten days of a determination by the executive director that operations or management methods are no longer adequately described by the existing registration. If ownership of the registered Type VIII-R storage facility will change or the operator of a Type VIII-R storage facility will change notification of the pending change shall occur at least 60 days prior to the actual transfer of ownership or operations. Until the change of ownership and/or operations of the facility is approved in writing by the executive director no WTRF reimbursements will occur. (6) Suspension, revocation or denial of initial or renewal registration procedures are as follows: (A) The commission may suspend or revoke a registration or refuse to issue an initial or renewal registration for: (i) failure to maintain complete and accurate records required under this subchapter; (ii) failure to maintain on-road vehicles in safe working order as evidenced by at least two citations per vehicle excluding parking citations from the Texas Department of Transportation or local traffic law enforcement agencies; (iii) altering any record maintained or received by the registrant; (iv) failure to comply with any rule or order issued by the commission pursuant to the requirements of this subchapter; (v) failure to submit the annual report required in sec.330.835(d)(5) of this title (relating to Requirements for a Type VIII-R Waste Tire Storage Facility); (vi) failure to maintain financial assurance as required in sec.sec.330.885- 330.888 of this title (relating to Cost Estimate for Closure; Financial Assurance for Closure; Incapacity of Owners or Operators or Financial Institutions; and Wording of the Instruments); (vii) collection and/or storage of shredded tire pieces or whole used or scrap tires or scrap tire pieces without the registration; and (viii) altering any documentation used to substantiate a request for reimbursement from the WTRF; (ix) failure to deliver scrap tires, tire pieces or shredded tire pieces to another registered waste tire storage site, registered waste tire energy recovery facility or registered waste tire recycling facility or other in-state or out-of-state facility approved by the executive director within the time frame specified in sec.330.832(b)(2) of this title (relating to Waste Tire Storage Facility Classification). (B) A Type VIII-R storage facility registration shall be suspended for a period of one year; however, depending upon the seriousness of the offense(s), the time of suspension may be increased or decreased. A Type VIII-R storage facility registration is revoked automatically upon a second suspension. If the registration is suspended or revoked, a Type VIII-R storage facility shall not store waste tire shreds or whole used or scrap tires or scrap tire pieces regulated under this subchapter. (C) The holder of a Type VIII-R storage facility registration that has been revoked by the commission may reapply for registration pursuant to this subchapter as if applying for the first time, after a period of at least one year from the date of revocation. If a Type VIII-R storage facility registration is revoked by the commission a second time, the revocation shall be permanent. (D) Appeal of suspension, revocation or denial of initial or renewal registration procedures are as follows: (i) an opportunity for a formal hearing on the suspension or revocation of registration must be requested in writing by the registrant by certified mail, return receipt requested, provided the request is postmarked within 20 days after a notice of proposed revocation or denial of registration has been sent from the executive director to the last known address of the registrant; (ii) an opportunity for a formal hearing on the denial of registration or renewal of registration must be requested in writing by the applicant by certified mail, return receipt requested, provided the request is postmarked within 20 days after a notice of denial has been sent from the executive director to the last known address listed on the application. If the registration is denied, the individual or company shall not store shredded tire pieces or whole used or scrap tires or scrap tire pieces regulated under this subchapter; and (iii) the formal hearing under this paragraph shall be in accordance with the requirements of the Administrative Procedures Act, Texas Government Code Annotated, sec.2001 (Vernon 1993) and the Texas Solid Waste Disposal Act, Texas Health and Safety Code Annotated Chapter 361 (Vernon 1993) and the rules of the commission. (E) If the registration is suspended or revoked, and a formal hearing has been timely requested by the registrant the Type VIII-R storage facility shall not accept for storage additional shredded tire pieces, whole used or scrap tires or scrap tire pieces regulated under this subchapter until a final decision has been made by the commission as result of the hearing. (F) If the revocation of the Type VIII-R storage facility registration is approved by the commission, the owner or operator of the facility shall remove all shredded tire pieces and whole used or scrap tires and scrap tire pieces stored at the facility within 60 days from the date of suspension or revocation in accordance with the requirements contained in this subchapter. (7) Preparation and submission of an application for a Type VIII-R storage facility shall be in accordance with the following procedures: (A) The application for registration shall be prepared and signed by the applicant on a form to be provided by the executive director. The application shall include information necessary for the executive director to make an evaluation of the proposed operation to ensure that the facility is located, designed, and operated so that the health, welfare, and physical property of the public as well as the environment and endangered species are protected. Failure to submit complete information as required by these sections shall result in the return of the application to the applicant without further action by the executive director. The submission of false information shall constitute grounds for denial of the initial or renewal application or suspension or revocation of the current Type VIII-R storage facility registration. (B) The application for a registration of a Type VIII-R storage facility shall be submitted in duplicate to the executive director with all supporting data also submitted in duplicate unless otherwise directed by the executive director. Within 30 days of receipt of the application, the executive director will forward to the applicant a letter acknowledging receipt of the application. (C) Data presented in support of an initial or renewal application for a Type VIII-R storage facility shall consist of: (i) the legal name, address and federal tax identificationnumber of the individual, partnership, corporation, city, county or other governmental entity that is applying for the registration and will be responsible for operations at the Type VIII-R storage facility; (ii) the legal name and address of landowner where the Type VIII-R storage facility will be or is currently located; (iii) the current status of the Type VIII-R storage facility; (i.e. proposed or existing); (iv) the specific location of the Type VIII-R storage facility by street address, if within the city limits, or distance and direction from a city corporate limits or road intersection. The Type VIII-R storage facility location shall be further described by giving the direction (using compass headings as N, NE, E, etc.) and distance measured perpendicularly (in feet or miles), unless otherwise noted, from each Type VIII-R storage facility boundary to a known physical feature (such as a road, highway, canal, creek, etc.); (v) the location of the Type VIII-R storage facility by county, or extraterritorial jurisdiction of a city; (vi) the estimated number of whole used or scrap tires or shredded tire pieces to be received daily; (vii) the size of the Type VIII-R storage facility in acres; (viii) the maximum number of whole used or scrap tires or shredded tire pieces to be stored at the Type VIII-R storage facility; (ix) the intended purpose of the whole used or scrap tires or shredded tires pieces stored at the Type VIII-R storage facility; (x) the time period that the whole used or scrap tires or shredded tire pieces will be stored at the Type VIII-R storage facility (not to be in excess of 12 months unless written authorization for a longer storage period has been granted by the executive director); (xi) the storage method (tire pile on the ground, inside a building or enclosure, totally enclosed and lockable containers); (xii) a topographic map which shall be a United States Geological Survey 7-1/2 minute quadrangle sheet or equivalent, encompassing the area of the site and showing the location of area streams (particularly those entering and leaving the site), and marked to show the Type VIII-R storage facility boundaries, and roadway access. These maps may be obtained at a nominal cost from: Branch of Distribution, United States Geological Survey Federal Center, Denver, Colorado 80225; (xiii) a general location map, which shall be all or a portion of a half-scale county map, prepared by the Texas Department of Transportation, annotated as necessary to show the location of the Type VIII-R storage facility; prevailing wind direction; residences, cemeteries, and recreational areas within a one mile radius of the Type VIII-R storage facility and location and type of surface of all roads within a one mile radius which will be used for entering or leaving the Type VIII-R storage facility. If only a portion of the map sheet is used, the portion shall include scale, date, north arrow, and two or more latitudes and longitudes. These maps may be obtained at a nominal cost from the nearest District Highway Engineer Office or by writing to: Texas Department of Transportation, Attention: Transportation Planning Division (D-10), P. O. Box 5051, West Austin Station, Austin, Texas 78763-5051; (xiv) a statement from the property owner shall be submitted on a form prepared by the executive director when the applicant is not a city, county, state agency, federal agency, or other governmental entity and is not the owner of record of the land described in the application, or does not have an option to buy the land. The statement shall be witnessed and notarized; (xv) a Type VIII-R storage facility layout plan showing location of the storage areas, oversize tires that qualify for WTRF reimbursement, and oversize tires that do not qualify for reimbursement, fire lanes, access roads (internal and external), fire control facilities, facility security and fencing, maintenance and control buildings, sanitation facilities, location and description of the type of tire processing equipment to be used, other operational buildings to be located on the Type VIII-R storage facility, and current dated signature of the fire marshal within whose jurisdiction the waste tire storage facility is located; (xvi) a drainage plan showing drainage flow throughout the Type VIII-R storage facility area, specifically the potential for contaminated storm water run-off from storage piles, or wastewater run-off from areas of the waste tire storage facility where equipment is operated or stored; locations of streams; and any other important drainage feature of the facility. Any additional surface drainage controls that are necessary to ensure facility containment and treatment of potentially contaminated storm water or wastewater shall be designed by a registered professional engineer. If, during review of the application or after issuance of the registration, a detailed drainage plan is determined to be required, then it shall be prepared, signed, and sealed by a registered professional engineer within the time period requested by the executive director; (xvii) a legal description of the Type VIII-R storage facility consisting of the official metes and bounds description including the volume and page number of the deed record, or if platted property, the book and page number of the plat record of only that acreage encompassed in the application; (xviii) a Type VIII-R storage facility operating plan containing information outlined in subsection (c) of this section; (xix) an applicant's statement and signature provided by the applicant, or the authorized representative empowered to make commitments for the applicant, that he/she is familiar with the application and all supporting data and is aware of all commitments represented in the application and that he/she is also familiar with all pertinent requirements in these regulations and he/she agrees to develop and operate the Type VIII-R storage facility in accordance with the application, the sections in this subchapter, and any special provisions that may be imposed by the executive director; and (xx) a Type VIII-R storage facility fire plan containing information outlined in subsection (c)(3) of this section. (b) Design requirements for Type VIII-R waste tire storage facility. (1) A Type VIII-R waste tire storage facility shall be designed so that the health, welfare and safety of operators, transporters, and others who may utilize the Type VIII-R waste tire storage facility are maintained. (2) Scrap tires or shredded tire pieces may be stored using outside tire piles, inside storage, or lockable containers, or a combination of any of the aforementioned methods. (A) Tire piles consisting of scrap tires or shredded tire pieces shall be no greater than 15 feet in height nor shall the pile cover an area greater than 8,000 square feet. The executive director may grant a variance from the 8,000 square feet pile size requirement on a case-by-case basis. In order for the applicant to be granted a variance, the applicant must demonstrate to the satisfaction of the executive director that the increased size of the piles requested in the variance is adequate for fire fighting purposes and meets the other applicable requirements of this subchapter. The variance shall include the fire marshal's current dated signature on the site layout plan and a letter stating that fire protection is adequate for the increased pile size. If an existing facility requests a variance to increase pile size, the applicant must comply with public notice requirements contained in sec.330.873 of this title (relating to Public Notice of Intent to Operate). The executive director will receive public comments in consideration of the applicant's variance request. (B) Scrap tires or shredded tire pieces may be stored in any enclosed building or other type of covered enclosure. Where applicable, local fire prevention codes must be met and appropriate precautions taken. Inside storage piles or bins shall not exceed 12,000 cubic feet with a 10 foot aisle space between piles or bins. (C) Scrap tires or shredded tire pieces may be stored in trailers provided the trailer is totally enclosed and lockable and shall not be capable of containing more than 2,000 scrap tires or equivalent number of shredded tire pieces. (3) Outside piles consisting of scrap tires or shredded tire pieces and entire buildings used to store scrap tires or shredded tire pieces shall not be within 20 feet of the property line or easements of the Type VIII-R storage facility. This setback line shall be kept open at all times and maintained free of rubbish, equipment, tires, or other materials. The executive director may grant a variance to the 20-foot property line or easement requirement on a case-by- case basis in cases of unusual building codes or site conditions. In order for the applicant to be granted a variance, the applicant must demonstrate to the satisfaction of the executive director that the distance that is the subject of the variance is adequate for fire fighting purposes and meets the other applicable requirements of this subchapter. In the event that a variance for supersize piles is approved by the executive director, the minimum setback from property lines or easements will be 40 feet; however, the existing property line or easement variance requirement remains in effect. (4) Scrap tires shall be split, quartered, or shredded within 90 days from the date of delivery to the Type VIII-R storage facility. Off-the-road tires that are used on heavy machinery, including earthmovers, loader/dozers, graders, and mining equipment are exempt from this requirement. Truck and agricultural implement tires shall not be classified as off-the-road tires and thus are not exempt from this requirement. Appropriate vector controls shall be used at a frequency based upon type and size of piles, weather conditions and other applicable local ordinances. (5) There shall be a minimum separation of 20 feet between outside tire piles consisting of scrap tires or shredded tire pieces. This 20-foot space shall be designated as a fire lane that totally encircles the tire piles and shall be an all-weather road. Provisions shall be made for all-weather access from publicly- owned roadways to the scrap tire storage site, and from the entrance of the site to unloading and storage areas used during wet weather. The design (a cross- section), location, maintenance, and all-weather serviceability of interior access roads/fire lanes shall be addressed in the overall facility design and in the Site Operating Plan, and shall be indicated on the Site Layout Plan with appropriate design notes. An estimate shall be provided of the number, size, and maximum weight of vehicles expected to use the site daily. At a minimum, these roadways shall have minimum 25-foot turning radii, shall be capable of accommodating firefighting vehicles during wet weather, and shall meet applicable local requirements and specifications. The open space between buildings and outside tire piles consisting of scrap tires or shredded tire pieces shall be a minimum of 20 feet and kept open at all times and maintained free of rubbish, equipment, tires, or other materials. In the event that a variance for supersize piles is approved by the executive director, the minimum fire lane separation will be at least 40 feet; however, upon coordination with the local fire marshal, the distance may be increased as necessary to protect human health and safety. (6) The Type VIII-R storage facility shall be completely enclosed with a chain- link type security fence at least six feet in height with no less than three strands of barbed wire encircling the top of the fence with lockable gates. Storage buildings or enclosures not enclosed with a chain-link type security fence shall be secured by lockable doors. Waste tire storage facilities shall be kept locked during all non-operational hours. (7) The Type VIII-R storage facility shall have an adequate fire protection system using fire hydrants or a firewater storage pond or tank at the facility. The capacity of a firewater storage pond or tank shall be of sufficient size for firefighting purposes and shall be in conformance with all local and state fire code requirements. The fire marshal within whose jurisdiction the waste tire storage facility is located shall approve the fire protection system. A letter approving the fire protection system and site layout plan from the fire marshal shall be included in the application for waste tire storage facility registration which states that the fire marshal reviewed the application and has approved the fire protection aspects of the application and the design of the all-weather roads to accommodate fire fighting vehicles which would be utilized to fight fires at the site. The fire marshal shall sign and date the submitted site layout plan. (8) The Type VIII-R waste tire storage facility shall have a large capacity carbon dioxide or dry chemical fire extinguisher(s) located in strategically- placed enclosures throughout the entire site. Fire extinguishers used at waste tire storage facilities with inside and outside storage should be equally spaced within the facility to provide quick access from any location within the facility. The minimum spacing between fire extinguishers, inside and outside, shall be 100 feet. The minimum number of fire extinguishers or fire hydrants for each waste tire storage facility shall be one per acre. (9) If required, suitable drainage structures or features shall be provided to divert the flow of rainfall run-off or other uncontaminated surface water within the Type VIII-R storage facility to a location off-site. (10) Each site shall conspicuously display at the entrance a sign at least 1 and 1/2 feet by 2 and 1/2 feet in size with clear, legible letters stating the name of the Type VIII-R storage facility using the words "waste tire storage facility", the registration number, and operating hours. (11) A Type VIII-R storage facility located within a designated floodplain area shall provide adequate protection levees or dikes to prevent the discharge off- site of any contaminated material stored within the Type VIII-R storage facility. (12) The Type VIII-R storage facility shall be designed in accordance with all local building codes, fire codes, or other appropriate local codes. (13) All oversized tires must be weighed in separately from other tires and stored in separate piles if the oversized tires do not qualify for reimbursement from the WTRF. (c) Type VIII-R Waste Tire Storage Facility Operating Plan. (1) The purpose of the Type VIII-R storage facility operating plan is to provide specific guidance and instructions for the management and operation of a Type VIII-R waste tire storage facility. The operating personnel shall have instructions in sufficient detail to enable them to conduct day-to-day operation in a manner consistent with the design of the Type VIII-R storage facility and the requirements contained in this subchapter. (2) The Type VIII-R storage facility operating plan shall include guidance or instructions on the following: (A) security, facility access control, the hours and days during which tire- hauling vehicles will be accepted, traffic control, and safety; (B) sequence of the development of the Type VIII-R storage facility such as utilization of storage areas, drainage features, firewater storage ponds, trenches, and buildings; (C) control of loading and unloading of whole used or scrap tires or shredded tire pieces within designated areas so as to minimize operational problems at the Type VIII-R storage facility; (D) fire prevention and control plans outlined in detail in paragraph (3) of this subsection, and special training requirements for fire-fighting personnel that may be called for assistance; (E) vector control procedures for any type of vector that may be found at the Type VIII-R storage facility; (F) a procedure for removal of any waste material that is not a whole used or scrap tire or shredded tire piece to a disposal facility permitted by the commission. This procedure must include the means to be used for removal of the waste material illegally deposited at the Type VIII-R storage facility. In all cases, such waste shall be removed from the storage area immediately and placed in suitable collection bins or be returned to the transporter's vehicle and removed from the Type VIII-R storage facility. Collection bins must be emptied at least weekly, depending on the amount and type of unauthorized waste. The equipment necessary to meet this objective shall be specified in the design requirements and shall be on site and operable during operating hours; (G) a facility employee shall be designated by the owner or operator to inspect each load of whole used or scrap tires or shredded tire pieces that is delivered to the Type VIII-R storage facility. The employee shall have the authority and responsibility to reject unauthorized or improperly manifested loads, or loads that contain whole used or scrap tires that were obtained from wholesale or retail dealers of new tires by charging such individuals or companies for the collection of those tires. The employee shall also be authorized to have unauthorized materials removed by the transporter, assess appropriate disposal fees, and have any unauthorized material removed by on-site personnel. The name of the designated employee shall be provided to the executive director by the owner or operator of the facility; (H) a procedure whereby the transporter manifest required by sec.330.807 of this title (relating to Generator Record Keeping), the daily log and other required documents shall be maintained at the Type VIII-R storage facility for a period of three years and be made available for inspection by the executive director or authorized agents or employees of local governments having jurisdiction to inspect the storage facility; (I) dust and mud control measures for access roads, fire lanes, and storage areas within the Type VIII-R storage facility; (J) posting of signs and enforcement of Type VIII-R storage facility rules; (K) wet-weather operations; (L) preventive maintenance procedures for all storage areas, tire processing equipment, fire lanes, fire control devices, drainage facilities, access roads, buildings, and other structures on the Type VIII-R storage facility in use during the active operating period of the Type VIII-R storage facility. A schedule shall be established for periodic inspection of all equipment and facilities to determine if unsatisfactory conditions exist; (M) incorporation of other instructions as necessary to ensure that the Type VIII-R storage facility personnel comply with all of the operational standards for the facility; and (N) the waste tire storage facility owner or operator shall conduct a training program on a quarterly basis, for all waste tire storage facility employees that transport or handle whole used or scrap tires or shredded tire pieces. This training program shall address the review and proper completion of manifest forms prior to the transportation of whole used or scrap tires from a generator, or the acceptance of whole used or scrap tires or shredded tire pieces at the waste tire storage facility. Transporters not employed by the waste tire storage facility but that deliver whole used or scrap tires or shredded tire pieces to the waste tire storage facility shall be required to attend a training and orientation program to familiarize the transporter with facility operational guidelines and requirements, the acceptable procedures for the collection and transportation of whole used or scrap tires from a generator (specifically when a collection fee can or cannot be charged), the proper completion of a manifest form, and the rules and regulations under which all aspects of the generation, transportation, processing, storage, and disposal of whole used or scrap tires or shredded tire pieces are governed. A waste tire storage facility owner or operator shall submit written documentation to the executive director indicating that the training and orientation programs required in this section, have been completed. This written documentation shall be submitted by the waste tire storage facility owner or operator to the executive director within 10 days of completion of the training and orientation program. (3) The Type VIII-R storage facility FIRE PLAN and all revisions shall be maintained at the site, with copies provided to all local fire departments and other emergency response teams, and shall include guidance or instruction on the following: (A) roles to be assumed by on-site personnel (example: fire-fighting coordinator, equipment custodian, hose operator, etc.) in the event of a fire, duty stations, and procedures to be followed by these persons; (B) arrangements agreed to by local fire departments, police departments, hospitals, contractors, nearby businesses and industries that can be called for assistance, and State and local emergency response teams (in this regard, a letter should be obtained from each of these entities and included in the FIRE PLAN that acknowledges that they have received a copy of the FIRE PLAN, that they understand their part in the plan, and that they agree to do whatever it is that they have agreed to do); (C) names, addresses, and telephone numbers of these emergency response teams (fire, police, medical, etc.) that are included in the plan (in this regard, the FIRE PLAN must include a map of the general area of the site that shows the site location, the location of the emergency response teams included in the plan (fire stations, police stations, hospitals, etc.), and the best route for these emergency response teams to take from their location to the site location; (D) names, addresses, and telephone numbers of all site employees that are qualified to act as emergency coordinator(s) (this list must be kept up to date, and where more than one person is listed one must be designated as primary coordinator and the others as alternates); (E) a list of all emergency equipment at the facility (fire extinguishers, protective clothing items, hoses, pumps, axes, shovels, detention ponds, water storage tanks, fire hydrants, signal and alarm system equipment, decontamination equipment, etc.), a copy of the Site Layout Plan (to be posted at several prominent locations on the site as well as included in the FIRE PLAN) drawing that clearly marks the location of these items as well as personnel assembly points and evacuation routes from the site and from buildings on the site, and a narrative description of where these items are kept or located on site as well as a description of how the items are used (if applicable) and their capabilities; (F) an evacuation procedure for facility personnel where there is a possibility that evacuation could be necessary, evacuation routes, alternate routes, and signals to be used by the emergency coordinator(s) for the various necessary procedures; and (G) information about pollution legal liability insurance, environmental impairment insurance, and any other insurance held by the company that would cover fire damage, loss, and cleanup. (d) Type VIII-R Waste Tire Storage Facility Record Keeping. (1) General requirements. (A) The executive director approved Type VIII-R storage facility layout plan, Type VIII-R storage facility operating plan, and all supporting data to the application, is an operational requirement. Any significant deviation as determined by the executive director, from any part of the site layout plan or operating plan or other supporting data without prior approval from the executive director shall be a violation of this subchapter. (B) A copy of the registration with all supporting data, including the approved Type VIII-R storage facility layout plan, the approved Type VIII-R storage facility operating plan, and the commission's current rules shall be on-site at all times. The facility supervisor shall be knowledgeable of current commission rules and contents of the approved Type VIII-R storage facility application in relation to the operational requirements of the specific Type VIII-R storage facility. (C) All drawings or other sheets prepared for revisions to a Type VIII-R storage facility layout plan or other previously approved documents, which may be required by this subchapter, shall be submitted in duplicate. (2) Daily log. Persons that store whole used or scrap tires or shredded tire pieces subject to control under this subchapter shall maintain a record of each individual delivery and removal. Such record shall be in the form of a daily log or other similar documentation approved by the executive director. The daily log shall include, at a minimum, the: (A) name and commission registration number of the waste tire storage facility; (B) physical address of the Type VIII-R storage facility; (C) number of whole used or scrap tires or shredded tire pieces received at the Type VIII-R storage facility; (D) number of whole used or scrap tires or shredded tire pieces, removed from the Type VIII-R storage facility (for disposal, resale, recycling, reuse or energy recovery); (E) specific location in the Type VIII-R storage facility (i.e., tire pile number, bin number, building number, etc.) where whole used or scrap tires or shredded tire pieces are delivered or removed (for disposal, resale, recycling, reuse or energy recovery); (F) description of specific events or occurrences at the Type VIII-R storage facility relating to routine maintenance, fires, theft, spraying for vectors, observations of vectors or evidence of vectors, or other similar events or occurrences; (G) number of whole used or scrap tires being held for resale, adjustments, or other purposes; (H) name and signature of facility representative acknowledging truth and accuracy of the daily log; and (I) the name, address, telephone number, and date of the individual or company delivering or removing the whole used or scrap tires or shredded tire pieces to or from the Type VIII-R waste tire storage facility. (3) Manifests. The Type VIII-R storage facility operator shall retain all manifests received from a waste tire facility or waste tire transporter for scrap tires or shredded tire pieces delivered to the Type VIII-R storage facility or removed from the Type VIII-R storage facility. The Type VIII-R waste tire storage facility shall ensure that the top original of the five-part manifest shall be returned to the generator completely filled out within 90 days of the date and time of collection as indicated in Section 1 of the manifest form. (4) Maintenance of records and reporting. The Type VIII-R storage facility operator shall retain an original of all records showing the collection and disposition of the whole used or scrap tires or shredded tire pieces. Such records shall be retained for three years and made available for review to the executive director upon request. (A) Any change made to the face of an original record shall be made by drawing a single line through the item being changed, ensuring that such item remains legible and readable. To the side of such mark, the person making the change shall place his/her initials with the date of such change. (B) Any change made to the face of an original record and made in accordance with subparagraph (A) of this paragraph shall be accompanied by a written justification stating the reason and purpose for the change. This written justification shall be attached to the original record and maintained in the same manner set forth in subsection (a) of this section for a period of three years. The justification shall include the date of the change, the full name and position of the individual making the change, and the justification shall be prepared simultaneously with the change to the original records. (C) Should the executive director identify discrepancies/errors in records, and opportunity will be given to the mobile tire processor or waste tire facility to justify, in writing, any such errors or discrepancies. However, the executive director shall determine whether any written justification is adequate for the purposes of reimbursement. (5) Annual report. The Type VIII-R storage facility owner or operator shall submit to the executive director an annual summary of their activities through December 31 of each year showing the number of whole used or scrap tires or shredded tire pieces delivered, the disposition of whole used or scrap tires or shredded tire pieces, and the number of whole used or scrap tires or shredded tire pieces removed from the facility. The annual report shall be submitted no later than March 1 of the year following the end of the reporting period. The annual report shall be prepared on a form provided by the executive director. (e) Local ordinances. Where local ordinances require controls and records substantially equivalent to or more stringent than the requirements of this subchapter, the Type VIII-R waste tire storage facility owner or operator shall use such controls and records to satisfy the commission's requirements, upon review and approval by the executive director. sec.330.841.Waste Tire Facility Processors of Scrap Tires. (a) The regulations contained in these sections establish standards for and apply to both fixed and mobile registered shredders seeking reimbursement under the WTRF. (b) All persons who operate a waste tire facility shall be responsible for obtaining all necessary and appropriate state and local permits, licenses, or registrations required, and operate in compliance with such permits, licenses, or registrations, or other applicable state and local codes. (c) Each waste tire facility that participates in the WTRF program and receives reimbursement from the WTRF shall be responsible for ensuring that the shredded tire pieces generated at the waste tire facility have been delivered to a registered waste tire storage facility, waste tire recycling facility, waste tire energy recovery facility, or other entity that has been as a legitimate end user by the executive director in accordance with applicable sections of this subchapter. (d) Waste tire facilities that participate in the WTRF program shall not charge a fee to retail or wholesale dealers for collecting for delivery to a processing facility or for collecting and shredding scrap tires accepted for temporary storage by the dealer from the purchasers of tires on or after April 1, 1992. This prohibition does not apply to the collecting and shredding of scrap tires from manufacturers, retreaders, fleet operators, automotive dismantlers, and storage site owners or operators of scrap tires. (e) Waste tire facilities that are not seeking reimbursement from the WTRF for the shredding of scrap tires are not required to obtain a registration from the executive director authorizing the use of fixed processing equipment for the shredding of such tires. (f) The executive director shall determine whether an entity identified by a waste tire facility constitutes a legitimate end user. (g) Effective January 1, 1994, and on a semiannual basis thereafter, waste tire facilities shall report their recycling, reuse, and energy recovery activities to the executive director. The semi-annual report shall be prepared on a form provided by the executive director, and at a minimum the following information shall be required in the report: (1) the name, physical address, mailing address, county and telephone number of the waste tire facility; (2) the name, physical address, mailing address, county and telephone number of partners, corporate officers, and directors; (3) a listing of all registered waste tire recycling facilitiesor waste tire energy recovery facilities where the waste tire facility delivered scrap tires or shredded tire pieces during the preceding six months, where the waste tire facility currently delivers the scrap tires or shredded tire pieces and where the waste tire facility anticipates delivery of scrap tires or shredded tire pieces during the upcoming six months. Each waste tire recycling facility or waste tire energy recovery facility listed shall include the following information: (A) name of responsible person, partners, corporate officers, and directors; (B) phone number of company and responsible person; (C) physical address and mailing address of the waste tire recycling facility or waste tire energy recovery facility; (D) detailed description of process to recycle, reuse or recover the energy from the shredded tire pieces; (E) copies of contracts and agreements between the waste tire facility and the waste tire recycling facility or waste tire energy recovery facility for the recycling, reuse or energy recovery for the scrap tires or shredded tire pieces; (F) exact quantities, by month, (in number of tires or weight of shredded tire pieces) that the waste tire facility delivered to the registered waste tire recycling facility or waste tire energy recovery facility; (G) the duration of the contract or agreement and the total material intended to be delivered; (4) a complete description of additional activities in which the waste tire facility is currently involved that may be classified as encouraging or promoting the growth of additional recycling, reuse, or energy recovery facilities in the state, or assisting in the expansion of existing recycling, reuse, or energy recovery facilities in the State; and (5) any information considered confidential shall be so indicated on each page of the report and submitted with a cover letter requesting that it remain confidential. Such request shall be recognized as confidential pursuant to sec.330.875 of this title (relating to Confidentiality). (h) The commission each month shall pay a waste tire facility that shreds scrap tires and scrap tire pieces and meets the requirements of this subchapter an amount equal to $.80 for each weighed tire unit shredded by the waste tire facility during the preceding calendar month. The executive director may not expend more than $15.2 million annually to waste tire facilities that conduct registered shredding activities. (i) The expenditure limit set forth in subsection (h) of this section may be modified by action of the commission pursuant to sec.330.877 of this title (relating to Transfer of Appropriated Funds Within the WTRF). (j) Effective September 1, 1995, the commission shall reimburse a waste tire facility $. 85 for each weighed tire shredded if the commission determines that the waste tire facility has a binding agreement to deliver 100% of the scrap tires shredded monthly to an entity that recycles or uses the shreds for energy recovery. Prior to approving the $. 85 reimbursement rate, the executive director shall verify that the waste tire facility has made delivery of shredded tires to the identified end use market. The $. 85 reimbursement rate applies only to waste tire facilities registered by January 1, 1995 and for which the executive director verified the existence of the end use market by June 1, 1995. (k) Unpaid carryover, accumulated prior to September 1, 1995, for tires shredded in excess of allocations, shall be reimbursed to waste tire facilities as soon as practicable after September 1 of each fiscal year during the 1996-1997 biennium, up to $1.4 million. The reimbursement will be made annually on a percentage basis. (l) After January 1, 1996, process wire, wire bead, fluff, and material, other than rubber, that is generated as waste by-product from the shredding process must be recycled, reused or used for energy recovery in order for the waste tire facility to receive reimbursement for its weight. (m) Waste tire facilities shall provide manifests to registered generators in order that they may initiate the manifest for each individual load of whole used or scrap tires hauled off-site from their business location. sec.330.843.Waste Tire Facility Registration. (a) Persons that process whole used or scrap tires at a waste tire facility shall obtain a registration number from the executive director for the operation of the waste tire facility. The registration number assigned to the waste tire facility shall be stenciled on each piece of mobile shredding equipment owned by the waste tire facility. (b) Waste tire facilities shall register their operation with the executive director prior to commencing operations. An application for registration shall be made on a form provided by the executive director upon request. The following registration information must be provided to the executive director: (1) the name, physical address, mailing address, county, and telephone number of applicant; (2) the name, mailing address, and telephone number of partners, corporate officers, and directors; (3) a description of the vehicles or equipment to be registered, including the: (A) make, model, and year of the vehicle or equipment; (B) name of the vehicle or equipment owner; (C) vehicle license plate (tag number) including state and year, if applicable; (D) rated capacity of each piece of equipment or vehicle; (E) type of equipment or vehicle; and (F) area within Texas that the permanent shredding equipment will be located; (4) the anticipated number of whole used or scrap tires to be split, quartered, or shredded per year; (5) a metes and bounds description of the site location of the facility; and (6) financial assurance as referenced in sec.sec.330.885-330.888 of this title (relating to Cost Estimate for Closure; Financial Assurance for Closure; Incapacity of Owners or Operators or Financial Institutions; and Wording of the Instruments). (c) Persons who apply to the executive director for registration and receive the registration shall maintain a copy of the registration form containing their assigned registration number at their designated place of business and in each vehicle used to transport whole used or scrap tires or shredded tire pieces to or from their waste tire facility. (d) A waste tire facility registration shall expire 60 months after the date of issuance. A waste tire facility registration is required to be renewed prior to the expiration date. (e) A waste tire facility shall provide written notice and a revised application for registration to the executive director within 15 days of any change to the registration if: (1) the number of whole used or scrap tires handled or total waste tire facility operation has expanded by 50% over that originally registered; (2) the office or place of business is relocated; (3) the registered name of the waste tire facility has changed; (4) the amount of tire shredding equipment has increased; or (5) the intended area of the waste tire facility's operation has changed. (f) A new registration application shall be submitted to the executive director within ten days of a determination by the executive director that operation or management methods are no longer adequately described by the existing registration. If ownership of the registered waste tire facility will change or the location of the equipment or facility will change, notification of the pending change shall occur at least 30 days prior to the actual transfer of ownership or operations. Until the change of ownership and/or operations of the facility is approved in writing by the executive director no reimbursements will occur. A change in the federal tax identification number will constitute a change of ownership. (g) Suspension, revocation or denial of initial or renewal registration procedures are as follows: (1) The commission may suspend or revoke a registration, or deny the issuance of an initial or renewal registration for: (A) failure to maintain complete and accurate records pursuant to sec.330.845 of this title (relating to Waste Tire Facility Record Keeping); (B) failure to maintain equipment in safe working order; (C) altering any record maintained or received by the registrant; (D) delivery of shredded tire pieces to a facility not registered or permitted by the commission to handle the material; (E) failure to comply with any rule or order issued by the commission pursuant to the requirements of this chapter; (F) failure to submit annual reports as required by sec.330.845(d) of this title (relating to Waste Tire Facility Record Keeping); (G) failure to maintain financial assurance as required in sec.sec.330.885- 330.888 of this title (relating to Cost Estimate for Closure; Financial Assurance for Closure; Incapacity of Owners or Operators or Financial Institutions; and Wording of the Instruments); (H) failure to operate a registered waste tire processing facility within 180 days of receipt of registration from the executive director, or cessation of the processing operation for longer than 180 days after commencing processing of scrap tires at the facility; (I) collection and/or shredding of whole used or scrap tires without registration as required in this section; (J) failure to deliver shredded tire pieces to a registered waste tire facility or a recycling, reuse, or energy recovery facility as required in sec.330.841(c) of this title (relating to Waste Tire Facility Processors of Scrap Tires); (K) altering any request for reimbursement from the WTRF; (L) failure to complete the work required to clean up a PEL site as stated in the executive director approved Site Clean-Up Plan; (M) failure to account to the executive director for recycling, reuse, or energy recovery activities in the required five year period; (N) knowingly accepted out-of-state scrap tires on a manifest using a commission approved transporter or generator number; (O) failure of a new or expanded waste tire facility, approved after September 1, 1995, to provide certification that the waste tire facility is capable of collecting and transporting waste tires from registered generators in rural counties of the state at the request of the commission during emergency periods as defined by the commission; (P) failure of a new or expanded waste tire facility, approved after September 1, 1995, to collect waste tires from generators located in rural counties during commission declared emergency periods; or (Q) failure to have a binding agreement with authorized legitimate end users. (2) A waste tire facility registration shall be suspended for a period of one year; however, depending upon the seriousness of the offense(s), the time of suspension may be increased or decreased. A waste tire facility registration is revoked automatically upon a second suspension. If the registration is suspended or revoked, a waste tire facility shall not shred any whole used or scrap tires regulated under this subchapter. (3) The holder of a waste tire facility registration that has been revoked by the commission may reapply for registration pursuant to this subchapter as if applying for the first time, after a period of at least one year from the date of revocation. If a waste tire facility registration is revoked by the commission a second time, the revocation shall be permanent. (4) Appeal of suspension, revocation or denial of initial or renewal registration procedures are as follows: (A) An opportunity for a formal hearing on the suspension or revocation of registration may be requested in writing by the applicant by certified mail, return receipt requested, provided the request is postmarked within 20 days after a notice of proposed suspension or revocation or denial of the initial or renewal registration has been sent from the executive director to the last known address of the applicant. (B) An opportunity for a formal hearing on the denial of initial registration or renewal of registration may be requested in writing by the applicant by certified mail, return receipt requested, provided the request is postmarked within 20 days after a notice of denial of initial or renewal registration has been sent from the executive director to the last known address listed on the application. If the registration is denied, a person shall not process whole used or scrap tires regulated under this subchapter. (C) The formal hearing under this paragraph shall be in accordance with the requirements of the Administrative Procedure Act, Texas Government Code Annotated, sec.2001 (Vernon 1993), the Texas Solid Waste Disposal Act, Texas Health and Safety Code Annotated , Chapter 361 (Vernon 1993), and the rules of the commission. (h) A waste tire facility shall be inspected to insure compliance with the application by the executive director prior to receiving final approval for storage. (i) Effective January 1, 1996, all existing, new, amended, and renewal waste tire facility registration applications shall contain requirements for the applicant to identify the entity registered pursuant to sec.330.852 of this title (relating to Requirements for Registration for a Waste Tire Recycling Facility) or sec.330.855 of this title (relating to Requirements for Registration for a Waste Tire Energy Recovery Facility) that intends to accept for recycling or energy recovery, the waste tire facility's shredded tire pieces. The executive director shall only reimburse a waste tire facility for those shredded tire pieces that have been delivered to, or have been contracted for delivery to a registered waste tire recycling facility or waste tire energy recovery facility or other entity that has been approved as a legitimate end user by the executive director. (j) Beginning January 1, 1996, the commission may reimburse a waste tire facility for scrap tires shredded only if in accordance with one of the following options: (1) The waste tire facility has a binding agreement to deliver, within 180 days of reimbursement, 100% of the shredded scrap tires (including process wire, wire bead and fluff) to a registered waste tire recycling facility, waste tire energy recovery facility, or other entity that has been approved as a legitimate end user by the executive director. The waste tire facility shall submit an affidavit to the executive director which confirms that the contract it has submitted to the executive director with the registered waste tire recycling facility, waste tire energy recovery facility, or entity that has been approved as a legitimate end user by the executive director, is a binding agreement as required by and described in Texas Health and Safety Code sec.361.477(g) and applicable Texas law. This affidavit shall also affirm that the contract consists of terms that are certain as to quantity, duration, and parties. Further, the affidavit shall affirm that the parties agree to the terms of the agreement and that it is a valid and enforceable agreement. The affidavit should be notarized and signed by someone who has authority to sign contracts for the waste tire facility. The commission shall suspend reimbursements to a waste tire facility that fails to deliver the tire shreds (including process wire, wire bead and fluff) to a legitimate end user before the 181st day after the date of reimbursement unless the executive director determines that the failure to deliver was caused by an act of God or by unforeseen business events. The commission may not resume suspended reimbursements until the processor makes all delinquent deliveries. (2) The waste tire facility provides to the executive director proof of delivery of the shreds to an authorized end user. (k) For all shreds reimbursed after January 1, 1996, the waste tire facility shall report monthly to the executive director the date of reimbursement for each shredded tire and whether, as of the date of the monthly report, the shredded tire was delivered to a registered waste tire recycling facility, waste tire energy recovery facility, or other entity that has been approved as a legitimate end user by the executive director. The end use delivery information shall be submitted on a form provided by the executive director and shall be applied to the end use credit system pursuant to sec.330.884 of the title (relating to WTRF End Use Credit System). (l) Registration fees. (1) Individuals or companies that prepare a new, renewed or amended application on forms obtained from the executive director for registration as a waste tire facility shall pay a non-refundable registration fee of $500. (2) Registration fees collected under paragraph (l) of this subsection shall be allocated to the commission for its reasonable and necessary costs associated with reviewing for approval, applications for the registration of waste tire facilities. sec.330.844. Evidence of Financial Responsibility. The applicant seeking registration for a waste tire facility shall submit evidence of financial responsibility in conformance with the requirements contained in sec.sec.330.885-330.888 of this title (relating to Cost Estimate for Closure; Financial Assurance for Closure; Incapacity of Owners or Operators or Financial Institutions; and Wording of the Instruments). sec. 330.845. Waste Tire Facility Record Keeping. (a) General requirements. (1) The executive director approved waste tire facility layout plan, facility operating plan, and all supporting data to the application, is an operational requirement. Any significant deviation as determined by the executive director, from any of the requirements of this subsection without prior approval from the executive director shall be a violation of this subchapter. (2) A copy of the registration with all supporting data, including the approved waste tire facility layout plan, the approved waste tire facility operating plan, and the commission's current rules shall be on-site at all times. The facility supervisor shall be knowledgeable of current commission rules and the contents of the approved application in relation to the operational requirements of the specific waste tire facility. (3) All drawings or other sheets prepared for revisions to a waste tire facility layout plan or other previously approved documents, which may be required by this subchapter, shall be submitted in triplicate. (4) All records relating to contracts or binding agreements with entities that are legitimate end users must be submitted with a new or renewal application. (b) Maintenance of records. The waste tire facility shall maintain originals of all records required by this section for a period of three years. These records shall be maintained at the same location as the shredder at all times and shall be made available to the executive director for review upon request. (1) Any change made to the face of an original record shall be made by drawing a single line through the item being changed, ensuring that such item remains legible and readable. To the side of such mark, the person making the change shall place his/her initials with the date of such change. (2) Any change made to the face of an original record and made in accordance with the paragraph (1) of this subsection shall be accompanied by a written justification stating the reason and purpose for the change. This written justification shall be attached to the original record and maintained in the same manner set forth in subsection (a) of this section for a period of three years. The justification shall include the date of the change, the full name and position of the individual making the change, and the justification shall be prepared simultaneously with the change to the original records. (3) Should the executive director identify discrepancies/errors in records, and opportunity will be given to the mobile tire processor or waste tire facility to justify, in writing, any such errors or discrepancies. However, the executive director shall determine whether any written justification is adequate for the purposes of reimbursement. (c) Required records. A waste tire facility shall maintain the following records: (1) The manifest shall contain the following information filled out completely by the waste tire facility prior to final disposition of the scrap tires or scrap tire pieces: (A) the name, physical address and telephone number of the individual or company that is processing the scrap tires; (B) the waste tire facility registration number; (C) the date and time of delivery of the scrap tires to the waste tire facility; (D) the number and type of scrap tires delivered to the registered waste tire facility; and (E) the signature of an authorized representative of the waste tire facility acknowledging that the information on the manifest form is true and correct. (2) The daily log shall include at a minimum the following: (A) the name and commission registration number of the waste tire facility; (B) the physical address of the waste tire facility storage site; (C) the total number and type of whole used or scrap tires received at the waste tire facility from PEL sites, special authorization sites and generators, listed separately; (D) the total number and type of whole used or scrap tires processed, and the amount, by weight, of shredded tire pieces; (E) the amount by weight of shredded tire pieces removed from the waste tire facility for storage, recycling, disposal, resale, reuse or energy recovery; and (F) the name and signature of an authorized facility representative acknowledging the truth and accuracy of the daily log. (3) a record of the specific location in the waste tire facility (i.e., tire pile number, bin number, building number, etc.) where whole used or scrap tires are located upon delivery; (4) a record of the description of specific events or occurrences at the waste tire facility relating to routine maintenance, fires, theft, spraying for vectors, or other similar events or occurrences; (5) equipment and vehicle preventive maintenance records; (6) the annual report required by the executive director; (7) a log containing copies of all monthly reimbursement vouchers submitted to the executive director for reimbursement; (8) a record of the dates and documentation of calibration by the manufacturer of the scale; (9) a daily log of unmanifested tires listing the number and type of whole used or scrap tires received, the name of the individual or company that delivered the tires, and the date that the tires were delivered to the waste tire facility. (10) a log containing copies of the monthly operations reports. This report shall contain the following information and shall be completely filled out each month by the waste tire facility owner or operator: (A) the month and date that the report was completed by the waste tire facility owner or operator; (B) the name of the waste tire facility as shown on the monthly reimbursement voucher; (C) the mailing address and telephone number of the waste tire facility; (D) the name of a contact person employed by the waste tire facility; (E) the shredding operation time; (F) the amount in weighed tire units or whole tires that were stored at or removed from the waste tire storage site for which reimbursement was requested; (G) the amount in weighed tire units or whole tires that were stored at or removed from the waste tire storage facility for which reimbursement was not requested; (H) the monthly and total financial assurance secured and recorded with the Texas Natural Resource Conservation Commission Financial Assurance Section; (I) the carry-over in weighed tire units for PEL, generator, or special authorization tires shredded during that and previous months; (J) a list of all generators whose manifests were accepted during that month; (K) a list of all transporters that delivered whole used or scrap tires to the waste tire facility during that month; (L) a diagram of the storage site outlining the specific tire piles and the weight of shredded tire pieces deposited in each pile during that month; (M) a list of the legitimate end users to which tire shreds were delivered, the amount delivered to each end user and the amount added or deducted from the end user credit system maintained by the waste tire facility; (N) copies of the weigh tickets and payment invoices from the landfill where the process wire, wire bead or fluff is being disposed of; and (O) the signature of an authorized representative of the waste tire facility acknowledging that the information on the monthly operations report is true and correct. (11) a daily log identifying the location and time of all stops made by the transporter of tire shreds to and from a waste tire shredding facility and to and from a registered waste tire storage facility, waste tire recycling, or waste tire energy recovery facility. (d) Annual report. A waste tire facility operator shall submit to the executive director an annual summary of their activities through December 31 of each year showing the number and type of scrap tires collected and shredded or resold as good used tires and the amount by weight of shredded tire pieces removed from the facility and delivered to a registered waste tire storage facility, waste tire recycling facility, or waste tire energy recovery facility. If the shredded tire pieces were delivered to an end user, the annual report will include the name of the end user, type of end user and the date of delivery to the end user. The annual report shall be submitted no later than March 1 of the year following the end of the reporting period. The report shall be prepared on a form provided by the executive director. In addition, the waste tire facility shall comply with the requirements contained in sec.330.884 of this title (relating to Community Service). (e) Local ordinances. Where local ordinances require controls and records substantially equivalent to or more stringent than the requirements of this subchapter, waste tire facility operators shall use such controls and records to satisfy commission requirements under this section upon review and approval by the executive director. sec.330.851.Applicability and Responsibility for Waste Tire Recycling Facilities. (a) For the purpose of this section and sec.330.852 of this title (relating to Requirements for Registration for a Waste Tire Recycling Facility), whole scrap tires, scrap tire pieces or shredded tire pieces will be referred to as "TIRES". (b) All waste tire recycling facilities shall be subject to the applicable sections of this subchapter. (c) Entities that make powdered rubber, burn tire derived fuel, generate or utilize buffing dust, or retread or recap tires are not eligible for construction grants as identified in subsection (e) of this section. (d) An application for registration as a waste tire recycling facility shall be made to the executive director on a form provided by the executive director. (e) For each year of the fiscal biennium, the executive director may not expend more than $2 million to provide assistance grants for constructing waste tire recycling facilities. These construction grants may only be awarded in lump sums. (f) The expenditure limit identified in subsection (e) of this section may be modified by action of the commission pursuant to sec.330.877 of this title (relating to Transfer of Appropriated Funds Within the WTRF). (g) Waste tire recycling facilities shall comply with requirements contained in sec.330.852(c) and (e) of this title (relating to Requirements for Registration for a Waste Tire Recycling Facility) where applicable. (h) Waste tire recycling facilities shall provide manifests to registered generators in order that they may initiate the manifest for each individual load of whole used or scrap tires hauled off-site from their business location. (i) Waste tire recycling facilities shall store the resulting product of the process in which the facility is involved in an enclosed and covered building. sec.330.852.Requirements for Registration for a Waste Tire Recycling Facility. (a) Registration requirements. (1) All waste tire recycling facilities shall register with the executive director prior to operation. Registration forms shall be provided by the executive director upon request. (2) A copy of the recycling registration shall be maintained at the designated place of business. (3) A waste tire recycling registration shall expire 60 months from the date of issuance unless the waste tire recycling facility changes ownership prior to that time. A waste tire recycling registration is transferable contingent upon prior executive director approval. A change in the federal tax identification number will constitute a change of ownership. (4) Waste tire recycling facilities shall submit to the executive director written notification to amend their application within 15 days of a change in registration if: (A) any data submitted in support of the application for registration has changed; (B) the office or place of business is relocated; or (C) the registered name of the facility owner or operator has changed. (5) A new waste tire recycling facility registration application shall be submitted to the executive director within 15 days of a determination by the executive director that operations or management methods are no longer adequately described by the existing registration. (6) Preparation and submission of an application to the executive director for a waste tire recycling facility shall be in accordance with the following procedures: (A) The application for registration shall be prepared and signed by the applicant. The application shall identify the use of the tires (e.g. the product to be made and the end use market), and shall include information necessary for the executive director to make an evaluation of the proposed operation. (B) The application for registration of a waste tire recycling facility shall be submitted as one original and one copy to the executive director with all supporting data also submitted in duplicate unless otherwise directed by the executive director. (C) Data presented in support of an initial or renewal application for a waste tire recycling facility shall consist of: (i) the legal name, mailing address, telephone number and facsimile number of the responsible entity making the application and accepting responsibility and liability for operations; (ii) the name, mailing address, telephone number and facsimile number of the property owner of the waste tire recycling facility; (iii) the physical location, including county and street address, if applicable, of the waste tire recycling facility; (iv) the maximum amount of tires (in pounds) that will be on the waste tire recycling facility at any given time; (v) the amount of tires necessary to provide a 30 calendar day raw material supply for the proposed recycling process; (vi) the storage method (piles on the ground, piles inside a building or enclosure, or totally enclosed and lockable containers that are locked during non-operational hours); (vii) the product to be manufactured and the end use market; and (viii) a property owner affidavit on a form supplied by the executive director when the applicant is not the owner of record of the land described in the application on which the facility is located, or is not a city, county, state, federal agency, or other governmental entity. (D) The waste tire recycling facility registration shall be issued upon receipt and approval of an administratively and technically complete application, including the posting of the financial assurance, if required. (7) If the applicant seeking registration for a waste tire recycling facility intends to have more than a 30 calendar day supply of tires at the facility site, then the applicant shall provide the following additional information: (A) a waste tire recycling facility site layout plan drawn to an acceptable scale showing location of the storage areas; fire lanes; access roads (internal and external); fire control facilities; facility security and fencing; (B) the local governmental entities having jurisdiction over the waste tire recycling facility; and (C) evidence of financial responsibility in conformance with the requirements contained sec.sec.330.885-330.888 of this title (relating to Cost Estimate for Closure; Financial Assurance for Closure; Incapacity of Owners or Operators or Financial Institutions; and Wording of the Instruments). (b) Design requirements for a waste tire recycling facility. The following design requirements are required for registration as a waste tire recycling facility that intends to store more than a 30 calendar day supply of tires on site. (1) The waste tire recycling facility registration application and financial assurance instruments shall define the maximum number of tires on site. (A) Outside tire piles shall be no greater than 15 feet in height nor shall the pile cover an area greater than 8,000 square feet. (B) Inside storage piles or bins shall not exceed 12,000 cubic feet with a 10-foot aisle space between piles or bins. (2) Outside tire piles and entire buildings used to store scrap tires shall not be located within 20 feet of the property line or easements of the waste tire recycling facility. The executive director may grant a variance from the 20-foot property line or easement requirement. In order for the applicant to be granted a variance, the applicant must demonstrate to the satisfaction of the executive director that the distance that is the subject of the variance is adequate for fire fighting purposes and meets the other applicable requirements of this subchapter. (3) Appropriate vector controls shall be used as necessary and in accordance with other applicable ordinances and regulations. (4) There shall be a minimum separation of 20 feet between outside tire piles. This 20-foot space shall be designated as a fire lane and shall be an all- weather road as determined by the local fire authority and completely encircle each pile. The open space between buildings and outside tire piles shall be a minimum of 20 feet and kept open at all times and maintained free of rubbish, equipment, tires, or other materials. (5) The waste tire recycling facility shall be completely enclosed with at least a six- foot high chain-link type security fence with no less than three strands of taut barbed wire encircling the top of the fence and with lockable gates of the same design as the fence. (6) The waste tire recycling facility shall have an adequate fire protection system as defined by the local fire marshal and shall be in conformance with all local and state fire code requirements. The fire marshal within whose jurisdiction the waste tire recycling facility is located shall review the fire protection system. The application shall contain a letter from the fire marshal approving the fire protection system and the site layout plan shall contain the signature and date the fire marshal reviewed the plan. (c) Waste tire recycling facility recordkeeping. Pursuant to sec.330.879 of this title (relating to Community Service), the waste tire recycling facility operator shall submit to the executive director an annual summary of their activities through December 31 of each year showing the number and type of tires delivered to the facility and subsequently recycled and a summary of the community service that was performed during the preceding year. In addition, the waste tire recycling facility shall retain all manifests received from a transporter of tires delivered to the waste tire recycling facility. If the tires were received directly from a generator, the waste tire recycling facility shall return the top original of the five-part manifest to the generator. (d) Local ordinances. Where local ordinances require procedures, controls and records substantially equivalent to or more stringent than the requirements of this subchapter, the waste tire recycling facility may use such controls and records in satisfaction of applicable commission requirements. (e) Waste tire recycling facility manufacturing recordkeeping. The registered waste tire recycling facility shall report monthly, on a form prescribed by the executive director, the amount, in pounds, and percentage of the total scrap tires used in the manufacturing process and the percent of the total number of manufactured products that were sold to a distributor. The waste tire recycling facility shall use at least 30% of all scrap tires delivered monthly to the facility in the manufacturing process the subsequent month. The waste tire recycling facility shall document the sale to a distributor of at least 30% of the product manufactured semi-annually. (f) Suspension, revocation or denial of initial or renewal registration procedures. (1) The commission may suspend or revoke a registration, or deny the issuance of an initial or renewal registration for: (A) failure to maintain complete and accurate records under sec.330.852 of this title (relating to Requirements for Registration for a Waste Tire Recycling Facility); (B) failure to maintain equipment in safe working order; (C) altering any record maintained or received by the registrant; (D) delivery of intermediate manufactured material to a facility not authorized, registered or permitted by the commission to handle the material; (E) failure to comply with any rule or order issued by the commission under the requirements of this chapter; (F) failure to maintain financial assurance as required in sec.sec.330.885- 330.888 of this title (relating to Cost Estimate for Closure; Financial Assurance for Closure; Incapacity of Owners or Operators or Financial Institutions; and Wording of the Instruments); (G) failure to complete the work required to clean up a PEL site as stated in the executive director approved Site Clean-Up Plan; or (H) having knowingly accepted out-of-state scrap tires on a manifest using a commission approved transporter or generator number. (2) A waste tire recycling facility registration shall be suspended for a period of one year; however, depending upon the seriousness of the offense(s), the time of suspension may be increased or decreased. A waste tire recycling facility registration is revoked automatically upon a second suspension. If the registration is suspended or revoked, a waste tire recycling facility shall not utilize any whole used or scrap tires or shredded tire pieces regulated under this subchapter. (3) The holder of a waste tire recycling facility registration that has been revoked by the commission may reapply for registration under this subchapter as if applying for the first time, after a period of at least one year from the date of revocation. If a waste tire recycling facility registration is revoked by the commission a second time, the revocation shall be permanent. (4) Appeal of suspension, revocation or denial of initial or renewal registration procedures are as follows: (A) An opportunity for a formal hearing on the suspension or revocation of registration may be requested in writing by the applicant by certified mail, return receipt requested, provided the request is postmarked within 20 days after a notice of proposed suspension or revocation or denial of the initial or renewal registration has been sent from the executive director to the last known address of the applicant. (B) An opportunity for a formal hearing on the denial of initial registration or renewal of registration may be requested in writing by the applicant by certified mail, return receipt requested, provided the request is postmarked within 20 days after a notice of denial of initial or renewal registration has been sent from the executive director to the last known address listed on the application. If the registration is denied, a person shall not utilize whole used or scrap tires or shredded tire pieces regulated under this subchapter. (C) The formal hearing under this paragraph shall be in accordance with the requirements of the Administrative Procedure Act, Texas Government Code Annotated, sec.2001 et seq. (Vernon 1993), the Texas Solid Waste Disposal Act, Texas Health and Safety Code Annotated, Chapter 361 (Vernon 1993), and the rules of the commission. sec.330.853. Applicability and Responsibility for Waste Tire Energy Recovery Facilities. (a) Unless otherwise designated, for the purpose of this section and sec.sec.330.854-330.855 of this title (relating to Funding for Waste Tire Energy Recovery Facilities and Requirements for Registration for a Waste Tire Energy Recovery Facility), whole scrap tires, shredded tire pieces or scrap tire pieces will be referred to as "TIRES". (b) Waste tire energy recovery facilities shall be subject to the applicable sections of this subchapter. (c) Waste tire energy recovery facilities shall obtain all other applicable authorizations (i.e., permits and/or registrations) necessary for conducting tire related activities prior to submittal of an application for registration as a waste tire energy recovery facility under the WTRF program. (d) Entities that intend to operate as waste tire energy recovery facilities are not required to obtain additional registrations under WTRF program rules in order to operate, unless the entity intends to personally transport tires from registered generators, waste tire facilities, or storage facilities. In such event, the waste tire energy recovery facility shall obtain a waste tire transporter registration pursuant to sec.330.812 of this title (relating to Transporter Registration). (e) Waste tire energy recovery facilities that collect whole tires from generator places of business shall provide manifests to registered generators in order that they may initiate the manifest for each individual load of whole used or scrap tires hauled off-site from their business location. sec.330.854.Funding for Waste Tire Energy Recovery Facilities. (a) The executive director may not reimburse a waste tire energy recovery facility if the facility does not burn tires, is not registered or permitted to burn tires or is not physically capable of burning tires for energy recovery. (b) The executive director each month shall pay a waste energy recovery facility that burns shredded tires and meets the requirements of this subchapter $ .40 for each weighed tire unit burned during the preceding calendar month. (c) For each fiscal year, the executive director may not expend more than $600,000 to waste tire energy recovery facilities that meet the requirements contained in subsection (b) of this section and burn shredded tires as fuel. (d) The executive director each month shall pay a waste energy recovery facility that burns whole tires and meets the requirements of this subchapter $ .80 for each weighed tire unit burned during the preceding calendar month. (e) Beginning September 1, 1995 through August 31, 1996, the executive director may not expend more than $6 million in grants to waste tire energy recovery facilities. (1) Not more than $4 million may be expended to provide grants to waste tire energy recovery facilities that are not, as of September 1, 1995, using tire derived fuel, to cover the necessary retrofitting costs to enable the facilities to use whole tires as fuel. These retrofitting grants may be awarded on a $ .80 per weighed tire unit basis or as a lump sum amount. (2) Not more than $2 million may be expended to provide grants to waste tire energy recovery facilities that are not, as of September 1, 1995, using tire derived fuel, to cover the necessary retrofitting costs to enable the facilities to use shredded tires as fuel. These retrofitting grants shall be awarded as a lump sum amount. Entities receiving a grant under this provision shall not be eligible for reimbursement of whole tires under the WTRF. (f) Beginning September 1, 1996 through December 31, 1997, the executive director may not expend more than $6 million for reimbursement payments to waste tire energy recovery facilities that burn whole tires as fuel. (g) The expenditure limits identified in subsections (c), (e), and (f) of this section may be modified by the commission pursuant to sec.330.877 of this title (relating to Transfer of Appropriated Funds Within the WTRF). sec. 330.855.Requirements for Registration for a Waste Tire Energy Recovery Facility. (a) Registration requirements for a waste tire energy recovery facility. (1) Waste tire energy recovery facilities shall register each site on forms provided by the executive director. (2) Entities that apply and receive a waste tire energy recovery registration from the executive director shall maintain a copy of the registration at the designated place of business. (3) A waste tire energy recovery registration shall expire 60 months from the date of issuance unless the facility changes ownership prior to that time. A waste tire energy recovery facility registration is transferrable contingent upon prior approval from the executive director. (4) Preparation and submission of an application to the executive director for a waste tire energy recovery facility shall be in accordance with the following procedures. (A) The application for registration of a waste tire energy recovery facility shall be submitted as one original and one copy to the executive director with all supporting data also submitted in duplicate unless otherwise directed by the executive director. (B) Data presented in support of an initial or renewal application for a waste tire energy recovery facility shall consist of: (i) the legal name, mailing address, telephone number of the responsible entity making the application and accepting responsibility and liability for operations; (ii) the name, mailing address, telephone number of the property owner of the waste tire energy recovery facility; (iii) the physical location, including county and street address, if applicable, of the waste tire energy recovery facility; (iv) the maximum number of weighed tire units that will be on site at any given time; (v) a list of all other applicable federal, state, and local permits and/or registrations and the associated numbers required by sec.330.853(c) of this title (relating to Applicability and Responsibility for Waste Tire Energy Recovery Facilities); and (vi) a property owner affidavit in a form supplied by the executive director when the applicant is not the owner of record of the land described in the application on which the facility is located, or is not a city, county, state, federal agency, or other governmental entity. (5) A statement whether the waste tire energy recovery facility will store in excess of a 30 day supply of tires on the site. If the waste tire energy recovery facility intends to store in excess of a 30 day supply on site, the application for registration shall include evidence of financial responsibility pursuant to sec.sec.330.885-330.888 of this title (relating to Cost Estimate for Closure; Financial Assurance for Closure; Incapacity of Owners or Operators or Financial Institutions; and Wording of the Instruments). (b) Design requirement. If the waste tire energy recovery facility does not intend to provide its own fire fighting personnel or system, the facility shall make arrangements with public or private emergency response personnel that are capable of complying with applicable fire and building codes. In addition, the waste tire energy recovery facility shall provide documentation that the fire protection system was reviewed and approved by the fire marshal within whose jurisdiction the waste tire energy recovery facility is located. (c) Waste tire energy recovery facility record keeping. (1) Facilities that store tires under this subchapter shall maintain the following records in the form of a monthly report approved by the executive director: (A) the number of in-state and out-of-state weighed tires received at the waste tire energy recovery facility; (B) the number of in-state and out-of-state weighed tires burned by the waste tire energy recovery facility; and (C) the name, signature and date of the facility representative acknowledging the truth and accuracy of the monthly report. (2) The monthly report shall be submitted to the executive director by the 20th day of the month following the month for which the data was collected. (3) The waste tire energy recovery facility shall retain all manifests received from a transporter of tires delivered to the waste tire energy recovery facility. The waste tire energy recovery facility shall complete the manifest and return the top original of the manifest to the generator or the waste tire facility. (4) Pursuant to sec.330.879 of this title (relating to Community Service), the waste tire energy recovery facility operator shall submit to the executive director an annual summary of their activities through December 31 of each year showing the number and type of tires delivered to the facility and subsequently burned, the date the waste tire energy recovery facility received reimbursement for such tires and a summary of the community service that was performed during the preceding year. (5) The waste tire energy recovery facility operator shall retain all manifests and all monthly reports regarding the collection, transportation and disposition of the tires. Such records shall be retained for three years and made available for review to the executive director upon request. (A) Any change made to the face of an original record shall be made by drawing a single line through the item being changed, ensuring that such item remains legible and readable. To the side of such mark, the person making the change shall place his/her initials with the date of such change. (B) Any change made to the face of an original record and made in accordance with subparagraph (A) of this paragraph shall be accompanied by a written justification stating the reason and purpose for the change. This written justification shall be attached to the original record and maintained in the same manner set forth previously in subsection (a) of this section for a period of three years. The justification shall include the date of the change, the full name and position of the individual making the change, and the justification shall be prepared simultaneously with the change to the original records. (C) Should the executive director identify discrepancies/errors in records, an opportunity will be given to the waste tire energy recovery facility to justify, in writing, any such errors or discrepancies. The executive director will determine whether any written justification is adequate for the purpose of reimbursement. (6) Waste tire energy recovery facilities shall have access to a scale that is either certified annually by the weights and measures section of the Texas Department of Agriculture (TDA) or certified on an annual basis by the manufacturer that developed and installed the scale, or an independent third party approved by the executive director. All tires for which WTRF reimbursement is being sought shall be weighed. (7) If the waste tire energy recovery facility is using a public weigh scale, the executive director shall be notified in writing of the name and location of the public weigh scale used for weighing tires. (8) For the purpose of this subchapter, the waste tire energy recovery facility shall determine the tare weight for each truck and trailer combination used to weigh tires for WTRF reimbursement on a daily basis. The tare weight for the truck and trailer combination shall be determined by the weigh scale and shall be mechanically printed on the weigh ticket. The date and time of all weighing activity must also be mechanically printed on the weigh ticket. If a public weigh station is used, it must be manned by a public weigher or deputy public weigher during hours of operation. (9) Waste tire energy recovery facilities utilizing whole tires shall comply with the PEL assignment or contract process and weigh those tires separately. The weight documentation shall identify them as priority enforcement list tires. (10) The waste tire energy recovery facility shall maintain a daily log of unmanifested tires listing the number and type of whole used or scrap tires received, the name of the individual or company that delivered the tires, and the date that the tires were delivered to the waste tire energy recovery facility. (11) The waste tire energy recovery facility shall maintain a record of the description of specific events or occurrences at the waste tire energy recovery facility relating to routine maintenance, fires, theft, spraying for vectors, or other similar events or occurrences. (d) Local ordinances. Where local ordinances require procedures, controls and records substantially equivalent to or more stringent than the requirements of this subchapter, the waste tire energy recovery facility owner or operator may use such procedures, controls and records to the satisfaction of commission requirements, upon prior review and approval by the executive director. (e) Annual report. A waste tire energy recovery facility owner or operator shall submit to the executive director an annual summary of their activities through December 31 of each year showing the number or weight, type of whole or shredded tires, both in-state and out-of-state, utilized at the facility. The annual report shall be submitted no later than March 1 of the year following the end of the reporting period. The report shall be prepared on a form provided by the executive director. (f) Suspension, revocation or denial of initial or renewal registration procedures. (1) The commission may suspend or revoke a registration, or deny the issuance of an initial or renewal registration for: (A) failure to maintain complete and accurate records under sec.330.855 of this title (relating to Requirements for Registration for a Waste Tire Energy Recovery Facility); (B) altering any record maintained or received by the registrant; (C) failure to comply with any rule or order issued by the commission under the requirements of this chapter; (D) failure to submit annual reports as required by sec.330.855(e) of this title (relating to Requirements for Registration for a Waste Tire Energy Recovery Facility); (E) failure to maintain financial assurance as required in sec.sec.330.885- 330.888 of this title (relating to Cost Estimate for Closure; Financial Assurance for Closure; Incapacity of Owners or Operators or Financial Institutions; and Wording of the Instruments); (F) altering any request for reimbursement from the WTRF; (G) failure to complete the work required to clean up a PEL site as stated in the executive director approved Site Clean-Up Plan; or (H) having knowingly accepted out-of-state scrap tires on a manifest using a commission approved transporter or generator number. (2) A waste tire energy recovery facility registration shall be suspended for a period of one year; however, depending upon the seriousness of the offense(s), the time of suspension may be increased or decreased. A waste tire energy recovery facility registration is revoked automatically upon a second suspension. If the registration is suspended or revoked, a waste tire energy recovery facility shall not utilize any whole used or scrap tires or shredded tire pieces regulated under this subchapter. (3) The holder of a waste tire energy recovery facility registration that has been revoked by the commission may reapply for registration under this subchapter as if applying for the first time, after a period of at least one year from the date of revocation. If a waste tire energy recovery facility registration is revoked by the commission a second time, the revocation shall be permanent. (4) Appeal of suspension, revocation or denial of initial or renewal registration procedures are as follows: (A) An opportunity for a formal hearing on the suspension or revocation of registration may be requested in writing by the applicant by certified mail, return receipt requested, provided the request is postmarked within 20 days after a notice of proposed suspension or revocation or denial of the initial or renewal registration has been sent from the executive director to the last known address of the applicant. (B) An opportunity for a formal hearing on the denial of initial registration or renewal of registration may be requested in writing by the applicant by certified mail, return receipt requested, provided the request is postmarked within 20 days after a notice of denial of initial or renewal registration has been sent from the executive director to the last known address listed on the application. If the registration is denied, a person shall not utilize whole used or scrap tires or shredded tire pieces regulated under this subchapter. (C) The formal hearing under this paragraph shall be in accordance with the requirements of the Administrative Procedure Act, Texas Government Code Annotated, sec.2001 et seq. (Vernon 1993), the Texas Solid Waste Disposal Act, Texas Health and Safety Code Annotated, Chapter 361 (Vernon 1993), and the rules of the commission. sec.330.861.Priority Enforcement List (PEL) Program. (a) Applicability. The regulations contained in these sections establish standards applicable to the creation and maintenance of the PEL and the identification and ranking of illegal waste tire sites, and the determination of a Potentially Responsible Party (PRP). For the purpose of this section and sec.sec.330.862-330.870 of this title (relating to Potentially Responsible Party (PRP), Priority Enforcement List (PEL), Ranking of Illegal Waste Tire Sites, Contracting of PEL Sites, Pre PEL Clean-Up Responsibilities, Site Clean-Up Agreement, Approval to Collect and Utilize Tires from PEL Sites, Post PEL Clean-Up Responsibilities, and Authority of Commission Personnel), the term, "WASTE TIRE UTILIZER" shall include waste tire facilities, waste tire recycling facilities and waste tire energy recovery facilities where applicable. (b) Responsibility. Each utilizer that participates in the WTRF shall be responsible for operating in compliance with all provisions of this subchapter when the total number of scrap tires or scrap tire pieces contained in illegal scrap tire sites that are identified on the PEL is above 2,500,000 tires for more than 60 consecutive days. (c) PEL procurement. Upon executive director determination that the number of PEL tires has fallen below 2,500,000, the commission may issue contracts to procure cleanups for the removal of tires from such sites through a competitive bid process conducted in accordance with the provisions of the State Purchasing and General Services Act (Article 601b, Vernon's Civil Texas Statutes) applicable to contract for services. The commission may choose to contract on a regional or site-specific basis and may award a contract for services that authorize reimbursement at a rate of $ .85 per weighed tire unit or an amount authorized by the commission based on the competitive bids received. The commission may elect not to enter into contracts under this section. (d) PEL requirement. The minimum 15% maximum 30% priority enforcement list requirement is not applicable when the commission is conducting cleanups through the competitive bid process described in subsection (c) of this section. Notification to any waste tire utilizer of inapplicability of the minimum 15% maximum 30% priority enforcement list requirement will be provided in writing by the executive director. (e) PEL restrictions. For the purposes of this subchapter the calculation for the maximum 2,500,000 tire PEL limit shall not include tires on sites currently assigned for clean-up, or tires on sites under commission enforcement or attorney general action. (f) Completion of PEL sites. Upon the commission's procurement for clean-up of PEL sites, any waste tire utilizer currently assigned PEL sites shall complete those clean-ups at the minimum 15% maximum 30% requirement per month until the site cleanup is completed. (g) WTRF encumbered for PEL procurement. For each fiscal year, the commission shall expend not more than $3.52 million for the cleanup and closure of PEL sites under conditions described in subsection (c) of this section. (h) Pursuant to subsection (c) of this section, if no bids are submitted under the commission's procurement process for the clean-up of PEL sites, or at the executive director's discretion, the executive director may reinstitute the PEL assignment process and begin assigning PEL sites on an individual basis to waste tire facilities. sec.330.871. Waste Tire Recycling Fund (WTRF). (a) Applicability. The regulations contained in these sections establish standards and procedures for the operation of the WTRF program. (b) Responsibility. (1) Each waste tire utilizer that participates in the WTRF program shall operate in compliance with the provisions of this subchapter. The waste tire utilizer shall comply with all provisions of this subchapter at each existing registered facility prior to receiving final approval from the executive director to operate any new or additional facility. (2) Waste tire facilities, waste tire recycling facilities and waste tire energy recovery facilities may not receive reimbursement under the WTRF for utilizing scrap tires, scrap tire pieces or shredded tires pieces generated out-of-state. (3) The executive director requires that all tires on which the WTRF fee is assessed for the replacement tire shall be subject to the free collection and transportation of those scrap tires from the generator's place of business, provided the generator is a wholesale or retail dealer of tires. (4) If a WTRF fee is assessed on a replacement tire, then the tire that was disposed of as a waste tire shall not be charged an additional disposal fee by the wholesale or retail dealer of the tire. (5) A whole used or scrap tire that does not fit the criteria for assessment of the WTRF fee as defined in sec.330.872(d) of this title (relating to WTRF Program Operation), shall not be eligible for reimbursement under the WTRF. (6) The WTRF shall maintain a balance of not less than $500,000. (7) If the commission has reason to believe that the money appropriated from the fund will fall below $500,000, the executive director shall suspend the requirement to reimburse priority enforcement list tires, limit the number of tires for which a waste tire facility will be reimbursed and discontinue paid carryover. (8) The executive director shall not reimburse a waste tire utilizer for utilizing scrap tires if the executive director determines that the utilizer: (A) has not provided adequate financial assurance, if necessary; or (B) does not have adequate fire protection; or (C) is causing an imminent danger to public health or welfare. (9) Under normal operating conditions, the WTRF program forwards all requests for reimbursement on the 20th day of the month for further consideration. If the commission region office or central office program staff have not been able to review and approve all information contained in the monthly reimbursement documents because of mathematical or credit errors, or incomplete or inaccurate reports by the waste tire utilizer, the reimbursement will be delayed until the corrected or additional information requested by the executive director has been submitted, reviewed and approved. (c) New or expanded shredding operation. A new waste tire facility that seeks to establish a new or expanded shredding operation in the state must: (1) certify that the waste tire facility is willing to provide collection and transportation of tires from registered generators in rural counties of the state at the request of the commission during emergency periods as defined by the commission when such generators are not being otherwise served by registered shredders or transporters; and (2) identify and provide a contract or agreement for delivery of all shredded tire pieces from a legitimate end user in the application for registration. sec.330.872.WTRF Program Operation. (a) Purpose. The purpose of the WTRF is to promote the utilization of scrap tires, scrap tire pieces or shredded tire pieces within the boundaries of the State. It is the commission's intent that the material contained in tires be effectively reused, recycled, or used in energy recovery facilities. (b) Objectives. The objectives of the WTRF program are to clean-up illegal waste tire sites that contain scrap tires or tire pieces, to collect scrap tires or tire pieces that are generated in Texas on a daily basis prior to being deposited at an illegal waste tire site, and to aid in the development of industries and businesses that recycle, reuse or recover the energy from scrap tires or shredded tire pieces. (c) Scrap tire category. The scrap tires or tire pieces that have been determined by the executive director to be eligible for reimbursement within the WTRF program are categorized as follows: (1) scrap tires or tire pieces from illegal waste tire sites and certain legal waste tire storage sites listed on the PEL; (2) scrap tires from a generator in Texas that accumulates the scrap tires on a daily basis; and (3) scrap tires or tire pieces from sources other than those indicated in paragraphs (1) and (2) of this subsection, as approved by the executive director. For the purposes of this subchapter and the WTRF program, scrap tires or tire pieces in this third category shall be called special authorization tires. For a complete explanation of special authorization tires refer to sec.330.878(a)-(i) of this title (relating to Special Authorization Tires). (d) Resale. A wholesale or retail dealer who sells or offers to sell tires not for resale shall collect at the time and place of sale a waste tire recycling fee for each tire sold in accordance with paragraphs (1)-(3) of this subsection . The sale of a tire as original equipment in the manufacture of a new vehicle is a sale for resale and is not subject to a fee. A fee may not be assessed for bicycle tires or for recapped or retreaded tires. (1) $2.00 for each new tire and $1.00 for each good used tirethat has a rim diameter of 12 inches or more but less than 17.5 inches; (2) $3.50 for each new tire that has a rim diameter of 17.5 inches or greater, other than an off-the-road tire intended for use on heavy machinery, including an earthmover, a loader/dozer, a grader, or mining equipment as defined in subsection (h) of this section; and (3) $2.00 for a new motorcycle tire, regardless of the rim diameter. (e) Operation of the WTRF program. (1) Scrap tires and scrap tire pieces generated in Texas, removed from Texas, and subsequently reintroduced to Texas shall be considered out-of-state tires for the purpose of this subchapter and therefore ineligible for reimbursement. (2) A waste tire utilizer that in any month utilizes between 15% and 30% PEL tires shall be reimbursed only for 15% and shall receive credit for the amount in excess of 15% up to 30%. Any PEL tires utilized over the maximum monthly limit of 30% will not be eligible for reimbursement. (3) A waste tire utilizer shall utilize at least 50% of the monthly weight of scrap tires or scrap tire pieces needed from generator sites unless the commission suspends the 50% requirement due to identified service needs contained in a contract for cleanup of PEL sites. (4) No entity may knowingly accept and dispose of scrap tires, scrap tire pieces, or shredded tire pieces that are eligible for reimbursement or for which reimbursement from the WTRF has been paid in a landfill, including a tire monofill. (5) A waste tire utilizer shall submit the reimbursement request on a payment voucher to the executive director on a monthly basis. The payment voucher form shall be supplied by the executive director, or on a voluntary basis, supplied on a removable storage medium stored in an industry standard file format acceptable to the executive director. Use of such removable storage mechanism must first receive executive director approval. (6) A waste tire utilizer shall maintain and retain originals of all reimbursement records for a period of three years and shall make such records available to the executive director for review upon request. (7) Not later than the tenth day of the month following the month during which the waste tire utilizer used the scrap tires or tire pieces, the commission's region office shall inspect the documentation submitted by the waste tire utilizer as support for the reimbursement voucher request. The voucher request shall be signed by the waste tire utilizer and submitted to the commission's region office for overnight mailing to the central office for review. The reimbursement voucher request shall be submitted on a form to be provided by the executive director or on a removable storage medium stored in an industry standard file form approved by the executive director. The total pounds of scrap tires or tire pieces utilized by the waste tire utilizer during the previous calendar month shall be reported separately as the total pounds of tires from PEL, generator and special authorization sites during the calendar month. (f) Reimbursement restrictions. The WTRF shall not be used to reimburse for utilization of: (1) innertubes; (2) scrap rubber products; (3) green tires; (4) industrial solid waste, excluding waste tires; (5) oversized tires, as defined by commission rule, unless the oversized tires are collected from a PEL site; (6) manufacturer reject tires; or (7) nonpneumatic tires. (g) Reimbursement requirement. A waste tire utilizer must notify and request that the commission regional office perform an inspection and records review within 60 days of utilizing the scrap tires or shredded tire pieces in order to receive reimbursement for the utilized scrap tires or shredded tire pieces. After 60 days, the scrap tires or shredded tires pieces are no longer eligible for reimbursement by the WTRF. (h) Off-the-road tires. For the purpose of this subchapter, off-the-road tires shall be those tires used on heavy machinery, including earthmovers, loader/dozers, graders, and mining equipment. Truck and agricultural implement tires shall not be classified as off-the-road tires and thus are eligible for the $3.50 fee and free-of-charge off-site transportation. sec.330.873.Public Notice of Intent to Operate. (a) Waste tire utilizers that are registered with the executive director that apply for a grant or receive reimbursement from the WTRF shall publish notice in a local area newspaper where they intend to utilize scrap tires or tire pieces prior to commencement of operation. Subject to executive director approval, a variance to the public notice requirement may be requested provided that similar notice has been published within the previous 12-month period and that the notice was associated with activities under the jurisdiction of this subchapter. (b) Waste tire facilities that are registered with the executive director and have submitted an application amendment to request a variance from the 8,000 square feet pile size shall publish notice of intent to increase the pile size in accordance with this section. (c) The notice of intent published by the waste tire utilizer shall contain at a minimum the following information: (1) the facility registration number; (2) the name under which the facility registration number was issued; (3) the permanent street address and telephone number of the facility; (4) a brief statement explaining the utilization activities the facility intends to perform at the location; (5) where the tires intended for utilization or already utilized will be stored, if different from the actual facility site; and (6) the number of tire piles planned for the storage facility and the square footage of the largest pile planned. (d) The public notice of intent to operate shall identify the Texas Natural Resources Conservation Commission as the state agency administering the WTRF. (e) The public notice of intent shall be published in the legal section of a local area newspaper at least five days prior to commencing activities. The public notice of intent shall be published for a period of 10 days continuously. (f) Waste tire storage facilities that are registered with the executive director and intend to store scrap tires, tire pieces, or shredded tires pieces that were reimbursed from the WTRF, shall publish such intent in a local newspaper in the area where the waste tire storage facility is located prior to commencement of storage described in subsection (c)(1)-(3) of this section. sec.330.877.Transfer of Appropriated Funds Within the WTRF. (a) For performing duties related to the WTRF, each fiscal year the Comptroller may expend up to $680,000 or an amount equal to 2.0%of the WTRF whichever is greater. (b) For administering the WTRF program, each year the commission may expend not more than the lesser of $2.05 million or 6.0% of the amount appropriated from the WTRF. (c) Each fiscal year the commission may not expend more than $1.4 million for paying accrued carryover credits, $15.2 million to waste tire facilities for tire shredding, $3.52 million for cleanup and closure of PEL sites, $2 million to waste tire recycling facilities for construction grants, $600,000 for reimbursements to waste tire energy recovery facilities retrofitted to burn tire shreds and $6 million to waste tire energy recovery facility grants for retrofitting to burn whole or shredded tires. (d) On or before May 30 of each fiscal year, the executive director shall prepare a report addressing the need, if it exists, to transfer funds from one category listed in subsection (c) of this section to another in order to promote recycling and energy recovery. The report shall also include any recommendations regarding the transfer of unused funds and the basis for the recommendations. The report will identify the amount of fees collected to date and deposited in the WTRF, the amount of fees estimated to be collected and deposited in the WTRF for the remainder of the fiscal year, the amount of appropriated funds requested or applied for, and the amount of appropriated funds reimbursed or awarded to each of the following: (1) waste tire facilities shredding tires; (2) waste tire energy recovery facilities burning shredded tires as fuel; (3) waste tire energy recovery facilities seeking grants (as a lump sum) to burn shredded tires as fuel; (4) waste tire energy recovery facilities seeking grants (as a lump sum or on a per tire basis) to burn whole tires as fuel; and (5) waste tire recycling facilities seeking grants to aid in the construction of such facilities. (e) The public shall be provided at least 20 days to comment on the executive director's report. The comment period will begin on the date that the executive director publishes notice of the availability of the report in the Texas Register. (f) Following the comment period, and on or before June 1 of each fiscal year, the executive director's report shall be set on agenda for commission consideration. (g) Based on the executive director's recommendations, the commission may transfer some or all of the unused amounts between categories of persons eligible to receive money from the WTRF if the commission determines that: (1) legitimate grants or reimbursement requests anticipated during the remainder of the fiscal year from the category of eligible persons from whom the transfer of unused funds is recommended or proposed will not exceed the money allocated to that same category of eligible persons; (2) legitimate grants or reimbursement requests anticipated during the remainder of the fiscal year for the category of eligible persons to whom the transfer of unused funds is recommended or proposed will exceed or has exceeded the money allocated to that same category of eligible persons; (3) the transfer of funds will promote recycling and energy recovery; and/or (4) other relevant factors, as the commission determines, that might warrant the transfer of funds. sec. 330.879. Community Service. (a) All entities that apply for reimbursement from the WTRF, whether in the form of a grant application, contract bid or reimbursement request, shall perform community service on an annual basis. Community service relating to tires and the goals of the WTRF Program shall include, but not be limited to, cooperation with local civic groups to cleanup abandoned tire sites that are not classified as PEL sites as identified in sec.330.861 of this title (relating to Priority Enforcement List (PEL) Program) and sec.330.863 of this title (relating to Priority Enforcement List (PEL); and are for the purpose of this subchapter defined as special authorization tires. (b) All entities that apply for reimbursement from the WTRF, whether in the form of a grant application, contract bid, or reimbursement request shall on August 31 each fiscal year submit a written report to the executive director identifying and describing the community service performed the previous fiscal year. The written report shall be in the format provided by the executive director. (c) Any entity required to perform community service on an annual basis and failing to report same as required in subsection (b) of this section shall be in violation of the requirements of this chapter and subject to any action authorized by law to secure compliance, including the assessment of administrative or civil penalties prescribed by law. In addition, the commission, after notice and opportunity for a hearing, may suspend a registration of reimbursement to such person upon the initiation of an enforcement proceeding for violation of this section. sec. 330.885. Cost Estimate for Closure. (a) As part of a facility's registration or permit application, an owner or operator of a Type VIII-R waste tire storage facility or a waste tire facility, and a waste tire recycling facility or a waste tire energy recovery facility with greater than a 30 calendar day supply of scrap tires or scrap tire pieces or shredded tire pieces on site, must prepare a written estimate, in current dollars, of the cost of closing the facility(ies). (1) The registration closure cost calculation for facilities with tires is determined by the sum of subparagraphs (A), (B), and (C) of this paragraph: (A) The estimated cost for the maximum number of whole tires generated from out of state stored at the facility is calculated as follows: Number of whole tires generated from out of state and stored at the facility multiplied by $ .85/tire equals dollar cost estimate. (B) The estimated cost to transport the maximum site capacity of tires as depicted by the site layout plan to another registered storage site, waste tire recycling facility or waste tire energy recovery facility with documentable available storage capacity by a third party. The estimate shall include equipment and operator time for loading tires. (C) The estimated cost to complete cleanup of the site of any and all debris, as well as dismantling any equipment used in the processing of whole tires into shreds or used to recycle whole tires or shredded tires into manufactured products and preventing access to the equipment or the cost of removing it from the site to a location acceptable to the executive director. This shall be considered to be a minimum of $3,000. (2) The registration closure cost calculation for an in state waste tire facility is determined by the sum of subparagraphs (A) and (B) of this paragraph. (A) If the waste tire facility has located the shredding equipment at a site different from a registered storage site the criteria in paragraph (1)(A) and (C) of this subsection apply; (B) The estimated cost to render the shredding equipment unusable and prevent access to the equipment or the cost of removing it from the site to a location acceptable to the executive director. (b) The registration closure cost estimate must equal the cost of closing the facility based on the maximum number of scrap tires generated from out of state stored at the facility, the maximum number of shredded tire equivalents, and disabling any equipment as disclosed in the facility's registration application. The executive director shall evaluate and determine the amount for which evidence of financial assurance is required and may amend the closure cost estimate provided by the owner or operator. (c) Any amendment application shall include a recalculation of the registration closure cost estimate based on any requested volume increases. Facilities shall not increase the volume of whole tires generated from out of state and stored at the facility and/or scrap tires until the registration amendment has been approved by the executive director. Only upon approval of the executive director will the amended registration closure cost estimate be the basis for determining financial assurance closure requirements. (d) The quantities of scrap tires reported on the registration application form and used in the calculation of financial assurance shall be obtained from the site layout plan volumes by using the following conversion factors: (1) a typical whole tire shall be considered to occupy four cubic feet unless an exact count of all whole tires is to be maintained by an operator; (2) a cubic yard of tire shreds or pieces shall be considered to weigh 950 pounds per cubic yard; (3) a weighed tire (waste tire unit or equivalent) shall be considered to be 18.7 pounds of tire pieces; and (4) the calculated capacity of a site as calculated for the financial assurance may not be exceeded without the submission and approval of an amended registration application specifically including, but not limited to, new site layout plans to substantiate the revised capacity and new financial assurance calculations based upon the depicted volumetric capacity converted to weights, posting of the revised financial assurance and written approval for the amended registration. The owner or operator is also responsible for submitting a registration amendment to revise the registration closure cost estimate whenever requested to do so by the executive director. Registration amendments with revised registration closure cost estimates shall be submitted to the executive dire an initial request for reimbursement from the waste tire recycling fund on or after September 1, 1993, the combination of options must provide financial assurance for closure of each registered or permitted facility based on the full cost estimate for closure as determined in sec.330.885 of this title (relating to Cost Estimate for Closure). The executive director may invoke any or all of the options to provide for closure of the facility. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's authority. Issued in Austin, Texas, on June 7, 1996. TRD-9608092 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: July 1, 1996 Proposal publication date: December 12, 1995 For further information, please call: (512) 239-6087 SUBCHAPTER R.Management of Whole Used or Scrap Tires 30 TAC sec.sec.330.821-330.828, 330.836, 330.837, 330.839, 330.851-330.858, 330.874, 330.877, 330.879 The repeals are adopted under Texas Water Code sec.5.103, which provides the TNRCC with the authority to adopt any rules necessary to carry out its powers and duties under the provisions of the Texas Water Code and other laws of this state. These repeals are also adopted under the Texas Solid Waste Disposal Act (the Act), Texas Health and Safety Code, sec.361.011 and sec.361.024, which provide the TNRCC with the authority to regulate municipal solid waste and adopt rules consistent with the general intent and purposes of the Act. sec.330.821.Mobile Tire Processors of Whole Used or Scrap Tires. sec.330.822.Mobile Tire Processor Registration. sec.330.823.Delivery Requirement. sec.330.824.Vehicle and Equipment Requirements. sec.330.825.Mobile Tire Processor Record Keeping. sec.330.826.Operational Requirements for Mobile Tire Processors. sec.330.827.Eligibility for the Waste Tire Recycling Fund (WTRF) Program. sec.330.828.Penalties for Mobile Tire Processors. sec.330.836.Requirements for a Type VIII-S Waste Tire Storage Facility. sec.330.837.Requirements for a Type VIII-L Waste Tire Storage Facility. sec.330.839.Eligibility for the Waste Tire Recycling Fund (WTRF) Program. sec.330.851.Waste Tire Baling Facility Registration. sec.330.852.Waste Tire Baling Facility Registration. sec.330.853.Waste Tire Baling Facility Operation. sec.330.854.Waste Tire Baling Facility Record Keeping. sec.330.855.Delivery Requirement. sec.330.856.Operational Requirements for Waste Tire Baling Facilities. sec.330.857.Eligibility for the Waste Tire Recycling Fund (WTRF) Program. sec.330.858.Penalties for Waste Tire Baling Facilities. sec.330.874.Other Permits or Registrations Required. sec.330.877.Payments to Waste Tire Facilities or Mobile Tire Processors. sec.330.879.WTRF Reimbursement Restrictions. 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 authority. Issued in Austin, Texas, on June 7, 1996. TRD-9608092 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: July 1, 1996 Proposal publication date: December 12, 1995 For further information, please call: (512) 239-6087 SUBCHAPTER X.Management of Whole Used or Scrap Tires or Shredded Tires Pieces 30 TAC sec.sec.330.900-330.917, 330.920-330.939 The repeals are adopted under Texas Water Code sec.5.103, which provides the TNRCC with the authority to adopt any rules necessary to carry out its powers and duties under the provisions of the Texas Water Code and other laws of this state. These repeals are also adopted under the Texas Solid Waste Disposal Act (the Act), Texas Health and Safety Code, sec.361.011 and sec.361.024, which provide the TNRCC with the authority to regulate municipal solid waste and adopt rules consistent with the general intent and purposes of the Act. sec.330.900.Useful Product Reimbursement Program. sec.330.901.Useful Product Reimbursement Program. sec.330.902.Useful Product Reimbursement Program Registration. sec.330.903.Request for Reimbursement. sec.330.904. Useful Product Reimbursement Program Restrictions. sec.330.905. Public Notice of Intent to Operate. sec.330.906.Useful Product Reimbursement Program Policies. sec.330.907.Definition of a Useful Product. sec.330.908.Useful Product Reimbursement Schedule. sec.330.909.Nonpayment of Requests for Reimbursement under the Useful Product Reimbursement Program. sec.330.910.Financial Audits. sec.330.911.Duty of Recipients of Reimbursement from the WTRF. sec.330.912.Reimbursement Defined. sec.330.913.WTRF Financial Audits. sec.330.914. Overpayment from the WTRF. sec.330.915. WTRF Program Audits Applicability and Responsibility. sec.330.916.WTRF Program Audits. sec.330.917.Penalties for Records Violations. sec.330.920.WTRF Percentage Index Allocation Method. sec.330.921.WTRF Percentage Index Allocation Model Factors. sec.330.922.Calculation of Factors for WTRF Percentage Index Allocation Model. sec.330.923.Determination of the Weighing Factors for the Percentage Index Allocation Model. sec.330.924.Notification of Allocation. sec.330.925.Reallocation for Rural County Collection. sec.330.926.Definition of Rural County. sec.330.927.Reallocation Criteria. sec.330.928.Calculation of Reallocation Model. sec.330.929. Reallocation Notification. sec.330.930.Allocation Restrictions. sec.330.931.Applicability and Responsibility for Recyclers of Whole Used or Scrap Tires or Scrap Tire Pieces or Shredded Tire Pieces. sec.330.932.Waste Tire Recycling Facility Registration. sec.330.933.Requirements for Registration for a Waste Tire Recycling Facility. sec.330.934.Waste Tire Energy Recovery Facility Registration. sec.330.935.Requirements for a Waste Tire Energy Recovery Facility. sec.330.936.Registration as a Waste Tire Transfer Station or Recycling Collection Center. sec.330.937.Requirements for a Waste Tire Transfer Station or Recycling Collection Center. sec.330.938.Requirements for a Transportation Facility. sec.330.939.Penalties for Owners or Operators of Waste Tire Recycling Facilities, Waste Tire Energy Recovery Facilities, Waste Tire Transfer Stations or Recycling Collection Centers, and Transportation Facilities. 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 authority. Issued in Austin, Texas, on June 7, 1996. TRD-9608091 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: July 1, 1996 Proposal publication date: December 12, 1995 For further information, please call: (512) 239-6087 PART I. Texas Department of Public Safety CHAPTER 28. Database The Texas Department of Public Safety adopts new sec.sec.28.1-28.6, sec.sec.28.21-28.31, sec.sec.28.41-28.48, sec.sec.28.61-28.67, and sec.sec.28.81-28.90, concerning establishment of a DNA database without changes to the proposed text as published in the April 16, 1996, issue of the Texas Register (21 TexReg 3324). The justification for these sections will be increased effectiveness in detection and prosecution of criminal offenses. The new sections provide for the establishment of a DNA database, and procedures for collection, preservation, shipment, analysis, and permissible uses of DNA information by criminal justice and law enforcement agencies and CODIS user laboratories in this state. No comments were received regarding adoption of the new sections. SUBCHAPTER A. General Provisions 37 TAC sec.sec.28.1-28.6 The new sections are adopted pursuant to Texas Government Code sec.411.144, which requires the department to establish standards and procedures for collection, preservation, shipment, analysis, and permissible uses of DNA information. Essentially these sections will require compliance with existing federal standards for quality assurance for DNA analysis as established by the Federal Bureau of Investigation (FBI) in Standards for CODIS Acceptance of DNA Data. Additional authority to adopt these rules exists under Texas Government Code, sec.411.006(4), which authorizes the director to adopt rules, subject to commission approval, considered necessary for the control of the department. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on May 29, 1996. TRD-9607961 James R. Wilson Director Texas Department of Public Safety Effective date: June 27, 1996 Proposal publication date: April 16, 1996 For further information, please call: (512) 424-2890 SUBCHAPTER B. Responsibilities of the Department 37 TAC sec.sec.28.21-28.31 The new sections are adopted pursuant to Texas Government Code sec.411.144, which requires the department to establish standards and procedures for collection, preservation, shipment, analysis, and permissible uses of DNA information. Essentially these sections will require compliance with existing federal standards for quality assurance for DNA analysis as established by the Federal Bureau of Investigation (FBI) in Standards for CODIS Acceptance of DNA Data. Additional authority to adopt these rules exists under Texas Government Code, sec.411.006(4), which authorizes the director to adopt rules, subject to commission approval, considered necessary for the control of the department. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on May 29, 1996. TRD-9607962 James R. Wilson Director Texas Department of Public Safety Effective date: June 27, 1996 Proposal publication date: April 16, 1996 For further information, please call: (512) 424-2890 SUBCHAPTER C. Responsibilities of the Texas Department of Criminal Justice Institutional Division 37 TAC sec.sec.28.41-28.48 The new sections are adopted pursuant to Texas Government Code sec.411.144, which requires the department to establish standards and procedures for collection, preservation, shipment, analysis, and permissible uses of DNA information. Essentially these sections will require compliance with existing federal standards for quality assurance for DNA analysis as established by the Federal Bureau of Investigation (FBI) in Standards for CODIS Acceptance of DNA Data.Additional authority to adopt these rules exists under Texas Government Code, sec.411.006(4), which authorizes the director to adopt rules, subject to commission approval, considered necessary for the control of the department. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on May 29, 1996. TRD-9607963 James R. Wilson Director Texas Department of Public Safety Effective date: June 27, 1996 Proposal publication date: April 16, 1996 For further information, please call: (512) 424-2890 SUBCHAPTER D. Responsibilities of the Texas Youth Commission; DNA Records of Certain Juveniles 37 TAC sec.sec.28.61-28.67 The new sections are adopted pursuant to Texas Government Code sec.411.144, which requires the department to establish standards and procedures for collection, preservation, shipment, analysis, and permissible uses of DNA information. Essentially these sections will require compliance with existing federal standards for quality assurance for DNA analysis as established by the Federal Bureau of Investigation (FBI) in Standards for CODIS Acceptance of DNA Data. Additional authority to adopt these rules exists under Texas Government Code, sec.411.006(4), which authorizes the director to adopt rules, subject to commission approval, considered necessary for the control of the department. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on May 29, 1996. TRD-9607964 James R. Wilson Director Texas Department of Public Safety Effective date: June 27, 1996 Proposal publication date: April 16, 1996 For further information, please call: (512) 424-2890 SUBCHAPTER F. Regulations of CODIS User Laboratories 37 TAC sec.sec.28.81-28.90 The new sections are adopted pursuant to Texas Government Code sec.411.144, which requires the department to establish standards and procedures for collection, preservation, shipment, analysis, and permissible uses of DNA information. Essentially these sections will require compliance with existing federal standards for quality assurance for DNA analysis as established by the Federal Bureau of Investigation (FBI) in Standards for CODIS Acceptance of DNA Data.Additional authority to adopt these rules exists under Texas Government Code, sec.411.006(4), which authorizes the director to adopt rules, subject to commission approval, considered necessary for the control of the department. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on May 29, 1996. TRD-9607960 James R. Wilson Director Texas Department of Public Safety Effective date: June 27, 1996 Proposal publication date: April 16, 1996 For further information, please call: (512) 424-2890 CHAPTER 29. Practice and Procedure 37 TAC sec.29.201 The Texas Department of Public Safety adopts new sec.29.201 concerning reimbursement of witnesses at Public Safety Commission Hearings, without changes to the proposed text as published in the April 16, 1996, issue of the Texas Register (21 TexReg 3328). The justification for this section will be more efficient hearings before the Public Safety Commission. The new section authorizes the director or the director's designee to reimburse witnesses for expenses incurred in testifying before the Public Safety Commission in employment matters heard under Texas Government Code, sec.411.007. No comments were received regarding adoption of the new section. The new section is adopted pursuant to Texas Government Code, sec.411.006 which provides that the director may adopt rules subject to commission approval, considered necessary for the control of the department; Texas Government Code, sec.411.007(f) which provides that the commission shall adopt necessary rules for the appointment, promotion, reduction, suspension, and discharge of all employees after hearing before the commission; and Texas Government Code, sec.2001.034 which provides for the adoption of administrative rules on an emergency basis, without notice and comment. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on May 29, 1996. TRD-9607959 James R. Wilson Director Texas Department of Public Safety Effective date: June 27, 1996 Proposal publication date: April 16, 1996 For further information, please call: (512) 424-2890 PART III. Texas Youth Commission CHAPTER 85. Admission and Placement Placement Planning 37 TAC sec.sec.85.23, 85.25, 85.29 The Texas Youth Commission (TYC) adopts the repeal of sec.sec.85.23, 85.25, and 85.29, concerning classification, minimum length of stay, and program completion and movement, without changes as published in the May 10, 1996, issue of the Texas Register (21 TexReg 4001). The justification for the repeals is to replace the repealed sections with rules which encourage more efficient agency operation. The repealed sections are being replaced by new sections adopted in this publication which will allow changes in rules of operation that are more consistent with legislative intent and agency mission regarding committed juvenile delinquents. No comments were received regarding adoption of the repeals. The repeals are adopted under the Human Resources Code, sec.61.034 which provides the Texas Youth Commission with the authority to make rules appropriate to the accomplishment of its functions. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on June10, 1996. TRD-9608114 Steve Robinson Executive Director Texas Youth Commission Effective date: July 1, 1996 Proposal publication date: May 10, 1996 For further information, please call: (512) 483-5244 37 TAC sec.sec.85.23, 85.25, 85.29 The Texas Youth Commission (TYC) adopts new sec.sec.85.23, 85.25, and 85.29, concerning classification, minimum length of stay, and program completion and movement, with changes to the proposed text as published in the May 10, 1996, issue of the Texas Register (21 TexReg 4001). The changes to the proposed text consist of adding to sec.85.23 a statement that clarifies that classification is based on the rule in effect at the time a youth is classified. Language addressing attempts, conspiracy and solicitation has been condensed without changing the meaning. To sec.85.25 minor edits have been made and specific language added from Family Code law to detail the amount of time a sentenced offender must serve. To sec.85.29 clarification has been added to distinguish sentenced offenders committed to TYC prior to January 1, 1996 and those committed after that date. Criteria for transferring a sentenced offender to the Texas Department of Criminal Justice, Institution Division, includes those who had already been returned to placement. The justification for the new sections is to provide a system for assigning youth to placements and consistent movement through the TYC system. New sec.85.23 established a system for classifying youth admitted to TYC which can be consistently applied and which ensures consistent management of each youth. New sec.85.25 establishes a minimum period of time youth committed to TYC will spend in residential placements of high or medium restriction having limited or no access to the public and which is based on the most extreme offense the youth committed. New sec.85.29 provides criteria and a process whereby TYC staff may determine when a youth including a sentenced offender has completed a program, is eligible to be moved to another program, released home, placed on parole status, or be transferred to the Department of Criminal Justice. No comments were received regarding adoption of the new rules. The new rules are adopted under the Human Resources Code, sec.61.075 which provides the Texas Youth Commission with the authority to order confinement under conditions it believes best designed for the youth's welfare and the interests of the public. sec.85.23. Classification. (a) Purpose. The purpose of this rule is to establish a system for classifying each youth admitted to TYC which can be consistently applied and ensures consistent management of each youth. (b) Explanation of Terms Used. (1) Classification - the designation assigned each youth based on the youth's offense history, the classifying offense, and a finding regarding extenuating circumstances incident to the classifying offense. A youth who commits an offense while in TYC custody may be administratively reclassified through a Level I hearing. (2) Classifying Offense - the offense on which classification is based. It is the most serious of the relevant offenses documented in the youth's record. Relevant offenses are: (A) on commitment, the committing offense and any offense(s) for which the youth was on probation at the time of the committing offense; or (B) following a level I hearing, the offense(s) found at the hearing. (3) Committing Offense - the most serious of the offenses found at the youth's most recent judicial proceeding. (4) Most Serious Offense - the offense having the most severe consequences attached. The most serious offense is determined according to the following hierarchy, with each subsequent factor being considered only if two or more relevant offenses yield the same result under the preceding factor. If two or more offenses yield the same results through all steps of the hierarchy, determination of the most serious offense is left to the discretion of the staff assigning classification. The most serious offense is: (A) an offense which carries determinate sentence; (B) the offense for which the designated minimum length of stay will produce the longest time in the physical custody of TYC; (C) the offense which requires the highest level of restriction in placement; (D) the offense which carries the most severe criminal penalty; and (E) the most recently adjudicated offense. (5) Federal Offenses - youth who have committed federal offenses and are sent to TYC by Federal courts. If a committing and/or classifying offense is a violation of a federal statute, the offense will be treated as a violation of a state statute which prohibits the same conduct as the relevant federal statute. Federal violations will be identified by the code number assigned to the corresponding substantive state statute preceded by an "F". (c) Classification assignment is based on the policy in effect at the time a youth is classified or is reclassified as appropriate. Classification of youth currently classified shall not change when the criteria for classification changes. (d) Classifications. (1) Sentenced Offender. A sentenced offender is a youth committed to TYC pursuant to section 54.04(d)(3) or 54.05(f) Family Code for offenses committed: (A) prior to January 1, 1996, for: (i) murder, 19.02, all (ii) capital murder, 19.03, all (iii) aggravated kidnapping, 20.04, all (iv) aggravated sexual assault, 22.021, all (v) deadly assault on a law enforcement officer, corrections officer, or court participant, 22.03 (vi) criminal attempt, 15.01, only if the offense attempted was Capital Murder (Sec.19.03). (B) on or after January 1, 1996, for an offense listed in subsection (c)(1)(A) of this section or: (i) sexual assault, 22.011, all (ii) aggravated assault, 22.02, all (iii) aggravated robbery, 29.03, all (iv) injury to a child, elderly individual, or disabled individual, 22.04, first, second or third degree felony only (v) deadly conduct, 22.05, felony only (vi) aggravated or first degree controlled substances felony, subchapter D, Chapter 481 Health and Safety Code, aggravated or first degree felony only (vii) criminal solicitation, 15.03, all (viii) indecency with a child, 21.11, second degree felony only (ix) criminal solicitation of a minor, 15.031, all (x) criminal attempt, 15.01, only if offense attempted was a murder (sec. 19.02), indecency with a child (sec. 21.11(a)(1), aggravated kidnapping (sec. 20.04), sexual assault 22.011(a)(2) upon a child only, aggravated sexual assault (sec. 22.021), aggravated robbery (sec. 29.03), or repeat conviction under Health and Safety Code 481.134(c), (d), (e), or (f). (xi) habitual felony conduct, as defined in Juvenile Justice Code, 51.031 (2) Type A - Violent Offender. A type A violent offender is a youth whose classifying offense is the commission, attempted commission , conspiracy to commit, solicitation or solicitation of a minor to commit one of the offenses listed in this paragraph and who has not been sentenced to commitment in TYC. TYC adopts the Texas Penal Code definition (Title 5) for each offense in its entirety except where TYC policy limits the applicability to the specific subsections or under the conditions named. (A) murder, 19.02, all (B) capital murder, 19.03, all (C) sexual assault, 22.011, all (D) aggravated sexual assault, 22.021, all (3) Type B - Violent Offender. A type B violent offender is a youth whose classifying offense is the commission, attempted commission, conspiracy to commit, solicitation, or solicitation of a minor to commit one of the offenses listed in this paragraph and who has not been sentenced to commitment in TYC. TYC adopts the Texas Penal Code definition for each offense listed in (A-S) of this subsection in its entirety except where TYC policy limits the applicability to specific subsections or under the conditions named. (A) manslaughter, 19.04, all (B) kidnapping, 20.03, all (C) aggravated kidnapping, 20.04, all (D) indecency with a child, 21.11, second degree felony only (E) sexual assault, 22.011, all (only for youth classified before July 1, 1996) (F) aggravated assault, 22.02, all (G) aggravated sexual assault, 22.021, all (only for youth classified before July 1, 1996) (H) injury to child, elderly or disabled individual, 22.04, first, second or third degree felony only (I) deadly conduct, 22.05, felony only (J) aiding suicide, 22.08, felony only (K) tampering with a consumer product, 22.09, first or second degree felony only (L) arson, 28.02, all (M) aggravated robbery, 29.03, all (N) burglary, 30.02, only with intent to commit any other violent offense defined in this paragraph (O) intoxication manslaughter, 49.08, all (P) intentionally participating with six or more persons in conduct at a TYC facility that endangers persons or property and substantially obstructs the performance of facility operations. (Q) intentionally, knowingly, or recklessly causing bodily injury to a TYC: (i) employee; (ii) contract program employee; or (iii) volunteer. (4) Chronic Serious Offender. A chronic serious offender is a youth whose classifying offense is a felony and who has been found to have committed at least one felony in each of at least three separate and distinct due process hearings, where the second felony was committed after the disposition of the first felony and the third felony was committed after the disposition of the second felony. (5) Controlled Substances Dealer. A controlled substances dealer is a youth whose classifying offense is any felony grade offense defined as a manufacture or delivery offense under the Texas Controlled Substances Act, Chapter 481, Health and Safety Code. (6) Firearms Offender. A firearms offender is a youth whose classifying offense involved a finding by the court or TYC hearings examiner that the youth possessed a firearm during the offense. Classifying offenses for this classification are not limited to offenses specified in Chapter 46 of the Texas Penal Code. (7) Violator of CINS Probation (Commitments were allowed prior to January 1, 1996). A violator of CINS probation is a youth who: (A) is committed for violating terms of probation by an act which would not be punishable by imprisonment or confinement in jail if committed by an adult; and (B) was on probation at the time of the probation revocation for no act more serious than Conduct Indicating a Need for Supervision (CINS) as defined in the Texas Family Code, Title 3. (8) General Offender. A general offender is a youth who is not eligible for any other classification. (e) Extenuating Circumstances. (1) A designated classification except sentenced offender may be waived and a less restrictive classification assigned by a TYC hearings examiner at a TYC Level I due process hearing when the hearings examiner finds extenuating circumstances. (2) Extenuating circumstances incident to a violent offense are those facts which indicate that the youth is not a significant danger to the physical or emotional well-being of another. Examples of such facts include, but are not limited to: (A) the youth was an indirect or passive participant in a violent act; (B) the youth set fire to an abandoned vehicle; (C) the youth engaged in consensual sexual intercourse with someone who was capable of appraising the nature of that act and of resisting it. (3) Extenuating circumstances incident to offenses other than violent offenses are those facts which explain a youth's conduct but do not constitute a legally- recognized defense to the conduct. Examples of such facts include, but are not limited to acts in which: (A) the only property involved in the offense was of minimal value and was returned undamaged to its owner; (B) the only bodily injury intended or inflicted by the youth consisted of brief or minor discomfort; (C) the youth's conduct was an impulsive response to perceived provocation and posed no threat to persons or property; (D) the youth was persuaded to participate in the offense by a parent or other authority figure. (4) When extenuating circumstances incident to the classifying offense are found, the designated classification may be waived. sec.85.25. Minimum Length of Stay. (a) Purpose. The purpose of this rule is to establish by policy, a minimum period of time a youth will spend in residential placements (high or medium restriction) having reduced access to the public and which is based on the most serious offense the youth committed. The maximum period of time a youth may spend in residential placement is the total time until he/she reaches age 21. Release from residential placement anytime prior to age 21 is based on the youth's successful completion of release criteria, one of which is the minimum length of time set by the agency. (b) Applicability. (1) Except where specifically named, requirements herein do not apply to sentenced offenders. See GOP.47.15 sec.85.35 of this title (relating to Sentenced Offender Disposition) for additional information. The Texas Youth Commission (TYC) complies with orders of the committing court regarding sentences for youth sentenced to commitment to TYC. (2) A disciplinary assigned length of stay of up to six months may be assigned in accordance with GOP.63.11, sec.91.11 of this title (relating to Disciplinary Transfer/Assigned Minimum Length of Stay Consequences). (c) Explanation of Terms Used. (1) Minimum length of stay (MLS) - the factor in the placement and movement system which is the predetermined minimum period of time a youth will be assigned to live in a residential placement. TYC has established two types of minimum lengths of stay requirements for TYC youth, classification MLS and assigned disciplinary MLS. This rule primarily addresses classification MLS. (2) Minimum period of confinement - the period of time established by law that a youth sentenced to commitment in TYC for offenses occurring on or after January 1, 1996, shall be confined in a TYC residential placement. The minimum period of confinement is the earliest of: (A) completion of the sentence, or (B) 10 years for youth sentenced for capital murder; three years for youth sentenced for an aggravated controlled substance felony or a felony of the first degree; two years for a felony of the second degree; and one year for a felony of the third degree or completion of the sentence, whichever occurs first. (3) Classification MLS - a minimum length of stay directly associated with each classification established on initial commitment, for youth recommitted for the commission of a felony or high-risk offense, and for youth found at an administrative level I hearing to have committed a felony or high-risk offense. Classification minimum lengths of stay of youth classified before January 1, 1996 may include creditable time for events occurring prior to commitment. (4) Assigned disciplinary MLS - the minimum length of stay assigned to a youth as a disciplinary consequence for behavior which may occur anytime a youth is in a residential setting. (d) Minimum Length of Stay. (1) Sentenced offenders shall serve the time assessed by the juvenile court, until the earliest of: (A) release approved by the committing court; (B) completion of the sentence; or (C) completion of the minimum period of confinement (for youth committed for acts occurring on or after January 1, 1996 only). (2) Type A violent offenders must complete a minimum of 24 months. (3) Type B violent offenders must complete a minimum length of stay of 12 months. (4) Chronic serious offenders, controlled substances dealers, and firearms offenders must complete a minimum length of stay of twelve months if classified on or after January 1, 1996 or nine months if classified before that date. (5) General offenders must complete a minimum length of stay of nine months if classified on or after January 1, 1996, or six months if classified before that date. (e) Creditable Time. (1) On initial classification, the minimum length of stay shall be counted from the first day a youth reaches any TYC operated or assigned facility. (2) On recommitment: (A) the minimum length of stay shall be counted from the first day a youth reaches any TYC operated or assigned facility, and any incomplete MLS at the time of recommitment is eliminated; or (B) a youth recommitted for the same offense(s) for which a level I or II hearing has already been held shall be given credit toward completion of the new MLS for the time already served as a result of that level I or II hearing. (3) On reclassification, if previous classification MLS: (A) has been completed, the new classification minimum length of stay shall be counted from the date of the most recent due process hearing. (B) has not yet been completed, the new classification minimum length of stay shall be counted from the completion of the previous MLS. (4) After the count begins, all time spent in program, on furlough or in detention or jail (except as a disposition in a criminal case) will be counted toward meeting a minimum length of stay requirement. (5) Time spent as an escapee from a TYC placement or time spent in jail or a court ordered placement in an adult correctional residential program as disposition in a criminal case shall not be counted toward meeting the minimum length of stay requirement. (f) Creditable Time for Sentenced Offenders. (1) On initial classification, the minimum period of confinement shall be counted from the first day a youth reaches any TYC operated or assigned facility. Only time spent in a TYC assigned facility shall be credited toward completion of minimum period of confinement. (2) Sentenced offenders will be credited with days, as assessed by the court, detained in connection with the classifying offense. Time will be credited at the end of the total sentence. (g) Restrictions. (1) All minimum lengths of stay will run consecutively except when a youth is recommitted. (2) Classification MLSs must be completed before any assigned disciplinary MLS begins. (3) Youth may be eligible for transition to medium restriction to complete the minimum length of stay requirement in accordance with GOP.47.09, sec.85.29 of this title (relating to Program Completion and Movement). (h) Waivers and Reductions. (1) The classification minimum length of stay requirement may be reduced by the deputy executive director in extenuating circumstances when it is documented that the minimum length of stay is not justified because of the nature of the youth's classifying offense and offense history. (2) The disciplinary assigned MLS may be reduced in accordance with GOP.63.11, sec.91.11 of this title (relating to Disciplinary Transfer/Assigned Minimum Length of Stay Consequences). sec.85.29. Program Completion and Movement. (a) Purpose. The purpose of this rule is to provide criteria and a process whereby staff may determine when a youth including a sentenced offender has completed a program, is eligible to be moved to another program, released home, placed on parole status, or be transferred to the Department of Criminal Justice. (b) Applicability. (1) This rule does not address all types of disciplinary movements. See chapter on Disciplinary Practices. (2) Additional procedures and restrictions are applied prior to any movement of a sentenced offender youth. See GOP.47.15, sec.85.35 of this title (relating to Sentenced Offender Disposition). (3) This rule does not apply to movement for strictly treatment reasons. (c) Explanation of Terms Used. (1) Program completion criteria - all of the criteria which a youth must meet while in the current program in order to move to an equal or lesser level of restriction. (2) Disciplinary movement - a movement to equal or more restriction as a disciplinary consequence if found during appropriate dueprocess. A disciplinary movement may or may not be accompanied by a new minimum length of stay requirement. There are several types of disciplinary movement consequences. These movements are subject to policies in this chapter and in the Disciplinary Practices chapter, 63. For restriction levels see GOP.47.07, sec.85.27 of this title (relating to Program Restriction Levels). (3) Administrative transfer - a lateral movement, i.e., a movement from one program to another program within the same restriction level for an administrative purpose. Purposes may include but are not limited to proximity to a youth's home, specific treatment needed becomes available, appropriateness of placement due to education needs, age, etc. (4) Transition movement - also referred to as "a transition", any movement from one assigned program site to another as a result of a youth's progress toward meeting the program completion criteria of his/her program. Transition is always to placement of equal or less restriction than that of the current placement. Transition is not type of placement or a status. (5) Parole Status - a status assigned to a youth when criteria have been met. The status assures that a youth, having parole status, shall not be moved into a placement of high restriction without a level I hearing. A youth either earns parole status or is granted parole status under specific conditions. (6) High risk offense - any major rule violation which may result in a classification other than general offender or violator of CINS probation. (d) Program Completion Processes. (1) Program staff will explain completion criteria to every youth during orientation to each placement. (2) Prior to a transition movement, a youth may request and in doing so will be granted a level II hearing. (3) TYC shall not accept the presence of a detainer as an automatic bar to earned release. The agency shall release a youth to authorities pursuant to a warrant. (4) Progress toward successful completion of criteria shall be evaluated at specific regular intervals. (5) TYC program staff where the youth is assigned shall determine when criteria have been met. (6) When criteria have been met, a youth shall be eligible for movement to an equal or less restrictive placement. (e) Program Completion Criteria and Movement. (1) High Restriction Program Completion Criteria. (A) A youth in high restriction will be eligible for transition to medium restriction when the following criteria have been: (i) completion of minimum length of stay except three months; and (ii) completion of required Individual Case Plan (ICP) objectives; and (iii) completion of phase three resocialization goals (for youth classified on or after 1/1/96), (not applicable to youth in contract placements); and (iv) no major violation of rules of conduct within 30 days prior to the transition review. (B) A youth who is transitioned under these criteria has not earned and shall not be on parole status. A youth transitioned may be returned to high restriction through a level II due process hearing at any time priorto attaining parole status. After attaining parole the, youth shall not be returned to high restriction except through a level I due process hearing. (2) Residential Programs Completion Criteria. (A) A youth in any residential program will be eligible for transition to minimum or home level restriction when the following criteria have been met: (i) completion of the minimum length of stay; and (ii) completion of required Individual Case Plan (ICP) objectives; and (iii) completion of phase four resocialization goals (for youth classified on or after 1/1/96), (not applicable to youth in contract placements); and (iv) no major violations of rules of conduct within 30 days: (I) prior to the case review to determine eligibility for parole release; and (II) prior to the actual release. (B) A youth who is transitioned under these criteria has earned and shall be on parole status and thus shall not be returned to a high restriction program except through a level I due process hearing to revoke parole status. (f) Parole Status. (1) Parole status shall be earned by the youth when he is deemed to have completed residential programs completion criteria, subsection (e)(2)(A) of this section. When a youth has earned parole status and transition to minimum or home restriction level placement is pending, he attains parole status in the current program prior to the transition, unless he is in a high restriction program, in which case, he attains parole status on leaving the facility. (2) Parole status shall be granted to the youth, if not previously earned, at completion of six consecutive months in medium restriction program(s) even if criteria to earn parole has not been met. (3) Sentenced Offenders shall not attain parole at any time prior to completion of serving their minimum period of confinement unless approved by the committing court. See subsection (h) of this section. (g) Movement Without Program Completion. (1) Administrative Transfer Movements. Administrative transfer movements may be made among programs of equal restrictions without a due process hearing. An administrative movement shall not be made in lieu of a movement for which a due process hearing is mandatory. (2) Exceptions in Hardship Cases. Youth may be placed on parole status at home without meeting completion criteria in hardship cases on the recommendation by community corrections staff and approval by the deputy executive director. (3) Exceptions to Control Population. The deputy executive director may approve one or more of the following options when necessary to control population and/or manage available funds concerning youth in residential placement. (A) For youth sentenced to commitment in TYC for offenses committed before January 1, 1996, see subsection (h)(4)(C) of this section. Youth sentenced to commitment in TYC for offenses committed on or after January 1, 1996, except those sentenced for capital murder, may be considered for movement from high to medium restriction if the following criteria are met: (i) completion of a portion of the minimum period of confinement applicable to the youth's classifying offense in high restriction: (I) first degree felony, complete 30 months; (II) second degree felony, complete 18 months; (III) third degree felony, complete all of the minimum period confinement applicable to the classifying offense, e.g. 12 months; and (ii) completion of ICP objectives; and (iii) completion of resocialization goals and phases; and (iv) successful completion of a specialized treatment program; and (v) low risk to reoffend according to a recent psychological evaluation; and (vi) recommended by the superintendent or regional director; and (vii) cases individually approved by the deputy executive director. (B) Youth other than sentenced offenders may be: (i) moved into similar residential placements of equal restriction without meeting completion criteria when early movement to a less restrictive placement is not indicated, but movement is necessary to manage available funds; or (ii) moved to a less restrictive placement without meeting completion criteria when population is at or above established capacity. Youth who have completed the minimum length of stay and are low risk as determined by a psychological are released first. In general, youth who are closest to completing criteria may be moved next; however, type A violent, type B violent, chronic serious, controlled substance dealer, firearms and general offenders with a minimum length of stay must meet the following criteria: (I) completion of a portion of the minimum length of stay: (-a-) if 24 months, complete 18 months; (-b-) if 12 months, complete 9 months; (-c-) if 9 months, complete 7 months; (II) substantial completion of ICP objectives; (III) substantial completion of phase 3 resocialization; (IV) no major violations of rules of conduct within 30 days prior to consideration for waiver and prior to the actual release; and (V) approved by superintendent or regional director. (h) Sentenced Offenders. Due to the nature of determinate sentences, some rules governing the classification, placement, release, transition, parole status, and disciplinary movement of sentenced offenders must be applied differently, specifically: (1) Classification. A youth classified at commitment as a sentenced offender shall retain that classification as long as the youth remains under the jurisdiction of TYC as a result of that commitment. See GOP.47.03, sec.85.23 of this title (relating to Classification). (2) Initial Placement. All sentenced offenders shall be assigned to high restriction perimeter-secure facilities unless the deputy executive director waives such placement for a particular youth. (3) Youth who are sentenced to commitment in the Texas Youth Commission (TYC) for offenses committed on or after January 1, 1996 shall be subject to requirements in this subsection. (A) Requirements. (i) The minimum period of confinement is 10 years for youth sentenced for capital murder; 3 years for youth sentenced for an aggravated controlled substance felony or a felony of the first degree; 2 years for a felony of the second degree; and 1 year for a felony of the third degree or completion of the sentence, whichever occurs first. (ii) TYC jurisdiction shall be terminated and a sentenced offender discharged when his/her sentence is complete. All movement and transfer options occur prior to completion of sentence. (iii) Sentenced offenders shall serve the entire minimum period of confinement applicable to the youth's classifying offense in a high restriction facility. (B) Movement Between TYC Programs. (i) Following a sentenced offender's completion in high restriction, of the minimum period of confinement applicable to the youth's classifying offense, the youth shall be governed by the criteria and procedures for the classification the youth would have received if not a sentenced offender. (ii) Prior to a sentenced offender's completion of the minimum period of confinement applicable to the youth's classifying offense, a youth may be released home on parole only with the approval of the juvenile court. Prior to that completion, TYC may request a hearing by the juvenile court to obtain approval for release home on TYC parole for a youth: (I) who has participated and successfully completed a specialized treatment program as evidenced by completion of all ICP objectives and all resocialization goals; and (-a-) has not reached age 19; and (-b-) the superintendent or regional director recommends the release; and (-c-) the deputy executive director approves recommendation. (II) who is sentenced for capital murder; and (-a-) has completed at least three years in a high restriction facility; and (-b-) has completed all ICP objectives and all resocialization goals; and (-c-) the superintendent or regional director recommends the release; and (-d-) the deputy executive director approves recommendation. (C) Transfer From TYC High Restriction To TDCJ, Institution. Transfer from a high restriction facility to the Texas Department of Criminal Justice, Institutional Division (TDCJ, ID) may occur as follows. (i) A transfer shall be automatic for a youth at age 21 who: (I) was sentenced for capital murder; and (II) has not completed the minimum period of confinement applicable to the youth's classifying offense (10 years) or the sentence if less than 10 years. (ii) A transfer shall occur if ordered by the juvenile court. TYC may request a juvenile court hearing for a youth whose parole has been revoked and the following criteria have been met. (I) youth is at least age 16; and (II) youth's parole was revoked for: (-a-) felony, Class A misdemeanor, or a high risk offense; or (-b-) any other violation which resulted in placement in an intermediate sanction program at which the youth has failed to progress. (III) the superintendent or regional director recommends the transfer: and (IV) deputy executive director approves recommendation; and (iii) A transfer shall occur if ordered by the juvenile court.TYC may request a juvenile court hearing for any other youth if the following criteria have been met: (I) youth is at least age 16; and (II) youth has spent at least six months in a high restriction facility; and (III) has met behavior criteria: (-a-) youth has committed a felony or Class A misdemeanor; or (-b-) youth has engaged in disruptive behavior and alternative interventions have been tried without success (for example: special treatment plans, disciplinary transfer, extended stay); and (IV) the superintendent or regional director recommends transfer; and (V) the deputy executive director approves recommendation; and (D) Transfer From TYC High Restriction To TDCJ, Pardons and Parole. Transfer from a high restriction facility to the Texas Department of Criminal Justice, Pardons and Paroles (TDCJ, PP) shall be automatic: (i) at any time after age 19 that a youth has completed the minimum period of confinement applicable to the youth's classifying offense and TYC releases the youth. (ii) at age 21 if youth was sentenced for any offense other than capital murder and has not completed the sentence. (E) Transfer From TYC Home Parole To TDCJ, Pardons and Parole. Transfer from TYC under supervision (parole at home) to the Texas Department of Criminal Justice, Pardons and Paroles (TDCJ, PP) shall be automatic at age 21 if the youth has not completed his sentence. (4) Youth who are sentenced to commitment in TYC for offenses committed before January 1, 1996: (A) Movement and Parole. Sentenced offenders who meet program completion criteria for transition or parole shall not be released without proper authorization: (i) Prior to a sentenced offender's 18th birthday, a youth may be transitioned to an appropriate placement if approved by the deputy executive director. The placement may be to any location other than home or home substitute. (ii) When a juvenile court orders that a sentenced offender be released under supervision, the youth shall be transitioned or paroled, as appropriate to the youth's progress at the time of the court's order. (iii) When the juvenile court orders that a sentenced offender be recommitted to TYC without a determinate sentence, the youth's eligibility for release on parole or transition shall be governed by the release criteria and procedures for the classification the youth would have received if not a sentenced offender. (B) Disciplinary Movement. A sentenced offender may be assigned to any appropriate placement, including a high restriction facility, following a disciplinary hearing. The appropriate placement will be selected according to the totality of the circumstances, including the youth's age, sentencing offense, length of time and progress in TYC custody, and the nature of the misconduct for which the youth is being disciplined. (C) Release Exceptions. Sentenced offenders may be considered for release under a hardship or for population control only if: (i) the youth is less than 18 years of age and the release is approved by the committing court; or (ii) the youth is 18 years of age or older and meets the exception criteria for the classification the youth would have received if not a sentenced offender. (i) Notification. Parents or guardians will be notified of all movements. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on May 29, 1996. TRD-9608115 Steve Robinson Executive Director Texas Youth Commission Effective date: July 1, 1996 Proposal publication date: May 10, 1996 For further information, please call: (512) 483-5244 CHAPTER 93.General Provisions Transportation of Youth 37 TAC sec.93.31 The Texas Youth Commission (TYC) adopts an amendment to sec.93.31, concerning transportation of youth, without changes to the proposed text as published in the May 7, 1996, issue of the Texas Register (21 TexReg 3908). The justification for amending the section is the clarification of confusing sentence structure. The amendment consists of edits only. There are no other changes. No comments were received regarding adoption of the amendment. The amendment is adopted under the Human Resources Code, sec.61.034, which provides the Texas Youth Commission with the authority to make rules appropriate to the accomplishment of its functions. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on June 10, 1996. TRD-9608113 Steve Robinson Executive Director Texas Youth Commission Effective date: July 1, 1996 Proposal publication date: May 7, 1996 For further information, please call: (512) 483-5244 Records, Reports and Forms 37 TAC sec.93.61 The Texas Youth Commission (TYC) adopts new sec.93.61, concerning youth records disposition, with changes to the proposed text as published in the April 2, 1996, issue of the Texas Register (21 TexReg 2639). The retention period for records of discharged TYC youth is changed from 10 to 25 years. The justification for the new section is to provide more efficient handling of youth records. The new rule establishes a 25 year period for retention of records of discharged TYC youth. No comments were received regarding adoption of the new rule. The new rule is adopted under the Human Resources Code, sec.61.034, which provides the Texas Youth Commission with the authority to make rules appropriate to the proper accomplishment of its functions. The proposed rule implements the Human Resource Code, sec.61.034. sec.93.61. Youth Records Disposition. (a) Following discharge, a youth's records in the automated system are changed from active to discharge status and all other records are accumulated, microfilmed and the paper copy destroyed. (b) A discharged youth's records are maintained in the TYC youth records repository located in central office for 25 years after discharge. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 11, 1996. TRD-9608283 Steve Robinson Executive Director Texas Youth Commission Effective date: July 2, 1996 Proposal publication date: April 2, 1996 For further information, please call: (512) 483-5244 TITLE 40. SOCIAL SERVICES AND ASSISTANCE PART I. Texas Department of Human Services CHAPTER 6.Disaster Assistance Program The Texas Department of Human Services (DHS) adopts amendments to sec.6.2, concerning Individual and Family Grant Program, sec.6.103, concerning additional eligibility criteria for grants for flood damage, and sec.6.305, concerning recovery of grant funds, in its Disaster Assistance Program chapter. The justification for the amendments is to comply with a federally mandated policy establishing a minimum damage threshold of $201 or more in real or personal property losses or both for Individual and Family Grant (IFG) Program awards in these damage categories, and establishing a Group Flood Insurance Policy and the criteria for its implementation. The amendments will function by allowing IFG recipients who are required to purchase and maintain flood insurance to have a three-year prepaid flood insurance policy issued through the National Flood Insurance Program; thereafter, they will be responsible for renewal and premium payments after the three-year period. General Information 40 TAC sec.6.2 The amendment is adopted under the Human Resources Code, Title 2, Chapter 22, which authorizes the department to administer public assistance programs. The amendment implements the Human Resources Code, sec.sec.22.001-22.030. The amendments are adopted in compliance with federal requirements effective May 1, 1996. sec.6.2. Individual and Family Grant Program. The total grant amount cannot exceed the maximum amount as provided by law. The total federal grant is 75% of the actual cost of meeting necessary expenses or serious needs of individuals and families and is contributed only on condition the state contributes the remaining 25%. Individual and Family Grant (IFG) Program assistance for damage or losses to real or personal property, or both, will be provided to individuals or families with those IFG-eligible losses totalling $201 or more; those individuals with damages or losses of $200 or less to real or personal property, or both, are ineligible. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 10, 1996. TRD-9608240 Glenn Scott General Counsel, Legal Services Texas Department of Human Services Effective date: May 1, 1996 Proposal publication date: N/A For further information, please call: (512) 438-3765 Eligibility Criteria for Individual and Family Grants 40 TAC sec.6.103 The amendment is adopted under the Human Resources Code, Title 2, Chapter 22, which authorizes the department to administer public assistance programs. The amendment implements the Human Resources Code, sec.sec.22.001-22.030. The amendment is adopted in compliance with federal requirements effective May 1, 1996. sec.6.103. Additional Eligibility Criteria for Grants for Flood Damage. (a) The Flood Disaster Protection Act of 1973, Public Law 93-234, as amended, imposes certain restrictions on approval of federal financial assistance for acquisition and construction purposes. Financial assistance for acquisition and construction means a grant to an individual or family to repair, replace, or rebuild the insurable portions of a home, and/or to purchase or repair insurable contents. The restrictions are as follows: (1) The Texas Department of Human Services (DHS) may not award a grant for acquisition or construction if the structure is located in a flood hazard area which Federal Emergency Management Agency (FEMA) has identified as flood prone at least one year before the disaster, unless the community in which the structure is located participates in the National Flood Insurance Program (NFIP). An extension for the purpose of accepting and processing applications may be granted victims whose community qualifies for and enters into the NFIP during the six-month period described in flood insurance regulations 44 Code of Federal Regulations (CFR) 205.253(a)(3)(i). Applicants living in a flood hazard area in a sanctioned community are eligible only for grants for nonflood insurable items. These applicants are not eligible for flood insurance premium or housing and personal property grants. (2) DHS may not award a grant for acquisition or construction if the structure is located in a designated special flood hazard area in which the sale of flood insurance is available under the NFIP, unless the individual or family obtains adequate flood insurance and maintains such insurance for as long as they live at that property address. The coverage shall equal the maximum grant established under sec.411(f) of the Stafford Act. If the grantee is a homeowner, flood insurance coverage must be maintained on the residence at the flood-damaged property address for as long as the structure exists if the grantee, or any subsequent owner of that real estate, ever wishes to be assisted by the federal government with any subsequent flood losses to real or personal property, or both. If the grantee is a renter, flood insurance coverage must be maintained on the contents for as long as the renter resides at the flood-damaged property address. The restriction is lifted once the renter moves from the rental unit. (3) Individuals named by DHS as eligible recipients under sec.411 of the Stafford Act for an Individual and Family Grant (IFG) Program award for flood damage as a result of a presidential major disaster declaration will be included in a Group Flood Insurance Policy (GFIP) established under the NFIP regulations, at 44 CFR 61.17. (A) The premium for the GFIP is a necessary expense within the meaning of this section. DHS shall withhold this portion of the IFG award and provide it to the NFIP on behalf of individuals and families who are eligible for coverage. The coverage shall be equivalent to the maximum grant amount established under sec.411(f) of the Stafford Act. (B) DHS shall provide the NFIP with records of individuals who received an IFG award and are, therefore, to be insured. Records of IFG grantees to be insured shall be accompanied by payments to cover the premium amounts for each grantee for the three- year policy term. The NFIP will then issue a Certificate of Flood Insurance to each grantee. Flood insurance coverage becomes effective on the 30th day following the receipt of records of GFIP insureds and their premium payments from DHS and ends 36 months from the inception date of the GFIP, i.e., 60 days from the date of the disaster declaration. (C) Insured grantees would not be covered if they are determined to be ineligible for coverage based on a number of exclusions established by the NFIP. Therefore, once grantees/policyholders receive the Certificate of Flood Insurance that contains a list of the policy exclusions, they should review that list to see if they are ineligible for coverage. Those grantees who fail to do this may find that their property is, in fact, not covered by the insurance policy when the next flooding incident occurs and they file for losses. Once the grantees find that their damaged buildings, contents, or both, are ineligible for coverage, they should notify the NFIP in writing in order to have their names removed from the GFIP and to have the flood insurance maintenance requirement expunged from the NFIP date-tracking system. If the grantee wishes to refer to or review a Standard Flood Insurance Policy, it will be made available by the NFIP upon request. (4) DHS may not make a grant to any individual or family who received federal disaster assistance for flood damage occurring after September 23, 1994, if that property has already received federal flood-disaster assistance in a disaster declared after September 23, 1994, a flood insurance purchase and maintenance requirement was levied as a condition or result of receiving that federal disaster assistance, and flood insurance was, in fact, not maintained in an amount at least equal to the maximum IFG grant amount. However, if that property was determined to be ineligible for NFIP flood insurance coverage and is in a special flood hazard area located in a community participating in the NFIP, then DHS may continue to make grants to those individuals or families that receive additional damage in all subsequent Presidentially-declared major disasters involving floods. (5) The victim is not entitled to a grant for acquisition or construction if he was required to apply to the Small Business Administration or the Farmer's Home Administra- tion for loan assistance and was denied because the victim failed to obtain or maintain a flood insurance policy required as a condition of a previous loan assistance. (b) (No change.) This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 10, 1996. TRD-9608241 Glenn Scott General Counsel, Legal Services Texas Department of Human Services Effective date: May 1, 1996 Proposal publication date: N/A For further information, please call: (512) 438-3765 Case Decision, Review, and Closing 40 TAC sec.6.303 The Texas Department of Human Services (DHS) adopts an amendment to sec.6.303, concerning the right to request reconsideration and appeal, in its Disaster Assistance Program chapter. The justification for the amendment is to comply with a federally mandated policy revising appeal time frames to allow 60 days to appeal a grant decision. The amendment will function by extending the time recipients are allowed to appeal a grant decision from 20 days to 60 days. The amendment is adopted under the Human Resources Code, Title 2, Chapter 22, which authorizes the department to administer public assistance programs. The amendment implements the Human Resources Code, sec.sec.22.001-22.030. The amendment is adopted in compliance with federal requirements effective October 1, 1995. sec.6.303. Right to Request Reconsideration and Appeal. (a) Reconsiderations. (1) The applicant may request reconsideration of a grant decision by writing within 60 days of the date of the letter notifying the applicant of the decision to the grant coordinating officer, Individual and Family Grant Program (IFGP), requesting reconsidera- tion. If the applicant files a request for reconsideration after the 60-day deadline, it will not be considered unless the applicant demonstrates good cause for failure to request reconsideration within that time period. The IFGP grant coordinating officer or designee is the sole determiner of whether good cause is shown. Good cause means circumstances beyond the applicant's control. The filing of a timely request for reconsideration is a prerequisite to an administrative appeal. (2) (No change.) (3) The applicant is notified of the reconsideration decision by letter within 20 days of the reconsideration. The letter notifying the applicant of the grant reconsideration must contain notice of the right to appeal the reconsideration decision by filing a written request for an appeal with IFGP within 60 days of the date of the reconsideration decision letter. The appeal is decided by the Texas Department of Human Services's (DHS's) hearing officer in the appropriate region. (b) Appeals. (1) The applicant must direct any request to appeal in writing to the IFGP within 60 days of the date of the reconsideration decision. The appeal hearing will be held by a hearing officer in the region where the applicant is living at the time he files the appeal. The appeal hearing and the written hearing decision must be completed by the hearing officer by the earlier of the following two dates: (A)-(B) (No change.) (2)-(5) (No change.) (c) (No change.) This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 10, 1996. TRD-9608575 Glenn Scott General Counsel, Legal Services Texas Department of Human Services Effective date: October 1, 1995 Proposal publication date: N/A For further information, please call: (512) 438-3765 40 TAC sec.6.305 The amendment is adopted under the Human Resources Code, Title 2, Chapter 22, which authorizes the department to administer public assistance programs. The amendment implements the Human Resources Code, sec.sec.22.001-22.030. The amendment is adopted in compliance with federal requirements effective May 1, 1996. sec.6.305. Recovery of Grant Funds. Applicants are required to return grant funds that are: (1) obtained fraudulently, (2) expended for unauthorized items or services, or (3) expended for items for which assistance is received from other means. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 10, 1996. TRD-9608578 Glenn Scott General Counsel, Legal Services Texas Department of Human Services Effective date: May 1, 1996 Proposal publication date: N/A For further information, please call: (512) 438-3765