ADOPTED RULES An agency may take final action on a section 30 days after a proposal has been published in the Texas Register. The section becomes effective 20 days after the agency files the correct document with the Texas Register, unless a later date is specified or unless a federal statute or regulation requires implementation of the action on shorter notice. If an agency adopts the section without any changes to the proposed text, only the preamble of the notice and statement of legal authority will be published. If an agency adopts the section with changes to the proposed text, the proposal will be republished with the changes. TITLE 1. ADMINISTRATION PART V. General Services Commission CHAPTER 111.Executive Administration Division Cost of Copies of Open Records 1 TAC sec.111.63 The General Services Commission adopts an amendment to sec.111.63(g)(2), concerning allowable personnel charges for remote document retrieval without changes to the proposed text as published in the December 13, 1996, issue of the Texas Register (21 TexReg 11904). The amendment to sec.111.63(g)(2) is being adopted in order to correct an erroneous cite. The amendment will provide clearer rules for all governmental bodies in providing access to, and copies of public information. No comments were received regarding adoption of the amendment. The amendment is adopted under the Texas Government Code, Chapter 552, sec.552.262, which provides the General Services Commission with the authority to promulgate rules necessary to implement the section. 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 January 30, 1997. TRD-9701399 Judy Ponder General Counsel General Services Commission Effective date: February 20, 1997 Proposal publication date: December 13, 1996 For further information, please call: (512) 463-3960 CHAPTER 119.Automated Services Division 1 TAC sec.119.1 The General Services Commission adopts the repeal of sec.119.1, concerning requests for information without changes to the proposed text as published in the December 13, 1996, issue of the Texas Register (21 TexReg 11904). This section is being adopted for repeal in order to delete obsolete language created pursuant to the Texas Civil Statutes, Article 6252-17a, which was repealed by the 73rd Legislative Session, Senate Bill 248, effective September 1, 1993. The repeal will delete obsolete requirements. No comments were received regarding adoption of the repeal. The repeal is adopted under the authority of the Texas Government Code, Chapter 552, Subchapter F, sec.552.262 (the "Public Information Act") which provides the General Services Commission with the authority to promulgate rules necessary to accomplish the purpose of the section. 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 January 30, 1997. TRD-9701398 Judy Ponder General Counsel General Services Commission Effective date: February 20, 1997 Proposal publication date: December 13, 1996 For further information, please call: (512) 463-3960 PART VI. Texas Surplus Property Agency CHAPTER 141.Donation of Surplus Personal Property Manual 1 TAC sec.sec.141.1-141.3 The General Services Commission adopts the repeal of the Texas Surplus Property Agency rules under the Texas Administrative Code, Title 1, sec.sec.141.1-141.3, concerning the Donation of Surplus Personal Property Manual without changes to the proposed text as published in the December 13, 1996, issue of the Texas Register (21 TexReg 11905). These sections are being repealed in order to delete obsolete rules from the Texas Surplus Property Agency which was abolished and the management of its functions transferred to the General Services Commission by the 73rd Legislative Session, Senate Bill 381, effective September 1, 1993. The repeal of the Texas Administrative Code, Title 1, sec.sec.141.1-141.3 will delete obsolete requirements. No comments were received regarding adoption of the repeals The repeals are adopted under the authority of the Texas Government Code, Title 10, Subtitle D, sec.2175.061. 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 January 30, 1997. TRD-9701405 Judy Ponder General Counsel General Services Commission Effective date: February 20, 1997 Proposal publication date: December 13, 1996 For further information, please call: (512) 463-3960 CHAPTER 143.Plan of Operation 1 TAC sec.143.1 The General Services Commission adopts the repeal of the Texas Surplus Property Agency rules under the Texas Administrative Code, Title 1, sec.143.1, concerning the Plan of Operation without changes to the proposed text as published in the December 13, 1996, issue of the Texas Register (21 TexReg 11905). This section is being repealed in order to delete obsolete rules from the Texas Surplus Property Agency which was abolished and the management of its functions transferred to the General Services Commission by the 73rd Legislative Session, Senate Bill 381, effective September 1, 1993. The repeal of the Texas Administrative Code, Title 1, sec.143.1 will delete obsolete requirements. No comments were received regarding adoption of the repeal. The repeal is adopted under the authority of the Texas Government Code, Title 10, Subtitle D, sec.2175.061. 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 January 30, 1997. TRD-9701402 Judy Ponder General Counsel General Services Commission Effective date: February 20, 1997 Proposal publication date: December 13, 1996 For further information, please call: (512) 463-3960 CHAPTER 145.Merit System of Personnel Administration 1 TAC sec.sec.145.1-145.23 The General Services Commission adopts the repeal of the Texas Surplus Property Agency rules under the Texas Administrative Code, Title 1, sec.sec.145.1 - 145.23, concerning the Merit System of Personnel Administration without changes to the proposed text as published in the December 13, 1996, issue of the Texas Register (21 TexReg 11906). These sections are being repealed in order to delete obsolete rules from the Texas Surplus Property Agency which was abolished and the management of its functions transferred to the General Services Commission by the 73rd Legislative Session, Senate Bill 381, effective September 1, 1993. The repeal of the Texas Administrative Code, Title 1, sec.sec.145.1 - 145.23 will delete obsolete requirements. No comments were received regarding adoption of the repeals. The repeals are adopted under the authority of the Texas Government Code, Title 10, Subtitle D, sec.2175.061. 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 January 30, 1997. TRD-9701403 Judy Ponder General Counsel General Services Commission Effective date: February 20, 1997 Proposal publication date: December 13, 1996 For further information, please call: (512) 463-3960 CHAPTER 147.Executive 1 TAC sec.147.1 The General Services Commission adopts the repeal of the Texas Surplus Property Agency rules under the Texas Administrative Code, Title 1, sec.147.1, concerning the Executive without changes to the proposed text as published in the December 13, 1996, issue of the Texas Register (21 TexReg 11906). This section is being repealed in order to delete obsolete rules from the Texas Surplus Property Agency which was abolished and the management of its functions transferred to the General Services Commission by the 73rd Legislative Session, Senate Bill 381, effective September 1, 1993. The repeal of the Texas Administrative Code, Title 1, sec.147.1 will delete obsolete requirements. No comments were received regarding adoption of the repeal. The repeal is adopted under the authority of the Texas Government Code, Title 10, Subtitle D, sec.2175.061. 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 January 30, 1997. TRD-9701404 Judy Ponder General Counsel General Services Commission Effective date: February 20, 1997 Proposal publication date: December 13, 1996 For further information, please call: (512) 463-3960 TITLE 4. AGRICULTURE PART III. Texas Feed & Fertilizer Control Service/Office of the Texas State Chemist CHAPTER 63. Pet Food Rules 4 TAC sec.63.2 The Feed and Fertilizer Control Service/Office of the Texas State Chemist adopts an amendment to sec.63.2, concerning Label Format and Labeling, without changes to the proposed text as published in the November 5, 1996, issue of the Texas Register (21 TexReg 10858). This rule is being amended to simplify the requirements for quantity label statements under the United States Fair Packaging and Labeling Act and to reorganize paragraphs (3) and (4) under sec.63.2(o) to bring Texas Rules into conformity with those of AAFCO. It also ensures that consumers of dog and cat foods are able from the label to determine the appropriate use of the feed which they are purchasing and clarifies the present confusing terminology. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Agriculture Code Chapter 141, sec.141.004 which provides Texas Feed and Fertilizer Control Service with the authority to adopt rules relating to the distribution of commercial feeds. 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 January 31, 1997. TRD-9701447 Dr. George W. Latimer, Jr. State Chemist Texas Feed & Fertilizer Control Service/Office of the Texas State Chemist Effective date: February 21, 1997 Proposal publication date: November 5, 1996 For further information, please call: (512) 845-1121 4 TAC sec.63.7 The Feed and Fertilizer Control Service/Office of the Texas State Chemist adopts an amendment to sec.63.7, concerning Drugs and Pet Food Additives, without changes to the proposed text as published in the November 5, 1996, issue of the Texas Register (21 TexReg 10858). This rule is being amended to simplify the requirements for quantity label statements under the United States Fair Packaging and Labeling Act. It will also ensure that consumers of dog and cat foods are able from the label to determine the appropriate use of the feed which they are purchasing and clarifies the present confusing terminology. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Agriculture Code Chapter 141, sec.141.004, which provides Texas Feed and Fertilizer Control Service with the authority to adopt rules relating to the distribution of 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 January 31, 1997. TRD-9701448 Dr. George W. Latimer, Jr. State Chemist Texas Feed & Fertilizer Control Service/Office of the Texas State Chemist Effective date: February 21, 1997 Proposal publication date: November 5, 1996 For further information, please call: (512) 845-1121 4 TAC sec.63.8 The Feed and Fertilizer Control Service/Office of the Texas State Chemist adopts an amendment to sec.63.8, concerning Registration of Pet Foods in Packages of Five Pounds or Less, previously titled Application for Registration, without changes in the proposed text as published in the November 5, 1996, issue of the Texas Register (21 TexReg 10859). The amendment is adopted to bring the section of the rules into conformance with the amended Texas Feed Law. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Agriculture Code, Chapter 141, sec.141.004 which provides Texas Feed and Fertilizer Control Service with the authority to adopt rules relating to the distribution of commercial feeds. 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 January 31, 1997. TRD-9701449 Dr. George W. Latimer, Jr. State Chemist Texas Feed & Fertilizer Control Service/Office of the Texas State Chemist Effective date: February 21, 1997 Proposal publication date: November 5, 1996 For further information, please call: (512) 845-1121 4 TAC sec.63.9 The Office of the Texas State Chemist, Feed and Fertilizer Control Service, adopts an amendment to sec.63.9, concerning Statement of Caloric Content, with changes to the proposed text as published in the November 5, 1996, issue of the Texas Register (21 TexReg 10860). The only change from the proposed text is editorial in nature. It removes the word "and" in subsection (a), paragraph (1). The rule is amended to bring the Texas Pet Food Rules into conformity with recently adopted AAFCO labeling rules and the new amended Feed Law and clarification of confusing terminology such as "lite," and "reduced calorie." No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Agriculture Code Chapter 141, sec.141.004 which provides Texas Feed and Fertilizer Control Service with the authority to adopt rules relating to the distribution of commercial feeds. sec.63.9. Statement of Caloric Content. (a) The label of a dog or cat food may bear a statement of caloric content, provided: (1) the statement shall be separate and distinct from the "Guaranteed Analysis" and shall appear under the heading "Caloric Content"; (2) the statement shall be measured in terms of metabolizable energy (ME) on as fed basis and must be expressed as "kilocalories per kilogram" ("kcal/kg") of product, and may also be expressed as kilocalories per familiar household measure (e.g., cans, cups, pounds); and (3) an affidavit shall accompany the request for label review substantiating that the caloric content was determined: (A) by calculation using the following "Modified Atwater" formula: ME (kcal/kg) = 10 (3.5 x CP) + (8.5 x CF) + (3.5 x NFE) where CP = % crude protein as fed, CF = % crude fat as fed, NFE = % nitrogen-free extract (carbohydrate) as fed and the percentages of CP and CF are the arithmetic averages from proximate analyses of at least four production batches of the product, and the NFE is calculated as the difference between 100 and the sum of CP, CF, and the percentages of crude fiber, moisture and ash (determined in the same manner as CP and CF). The results of all the analyses used in the calculation must accompany the affidavit, and the claim on the label or other labeling must be followed parenthetically by the word "calculated"; (B) in accordance with a testing procedure established by the Association of American Feed Control Officials. The summary data used in the determination of calorie content must accompany the affidavit. The value stated on the label shall not exceed or understate the value determined in accordance with subparagraph (A) of this paragraph by more than 15%; and (4) comparative claims shall not be false, misleading or given undue emphasis and must be based on the same methodology for both products. (b) Labels of a dog or cat food bearing descriptors of caloric or fat content shall comply with the following: (1) When using the term "Light," "Lite," "Low Calorie," or words of similar designation: (A) Dog food product labels shall contain and state no more than 3,100 kcal ME/kg for products containing 15% or less moisture, no more than 2,500 kcal ME/kg for products containing more than 15% but less than 50% moisture, and no more than 900 kcal ME/kg for products containing 50% or more moisture. The label shall bear a calorie content statement. Feeding directions shall reflect a reduction in calorie intake consistent with the intended use. (B) Cat food product labels shall contain and claim no more than 3,250 kcal ME/kg for products containing 15% or less moisture, no more than 2650 kcal ME/kg for products containing more than 15% but less than 50% moisture, and no more than 950 kcal ME/kg for products containing 50% or more moisture. The label shall bear a calorie content statement. Feeding directions shall reflect a reduction in calorie intake consistent with the intended use. (2) When using the term "Less" or "Reduced Calories" or words of similar designation, the percentage of reduction and the product of comparison shall be explicitly stated and juxtaposed with the claim in the same size, style, and color print. The product label shall also bear a calorie content statement. Comparisons between products in different categories of moisture content (15% or less, more than 15% but less than 50%, 50% or more) are misleading. Feeding directions shall reflect a reduction in calories compared to feeding directions for the product of comparison. (3) When using the terms "Lean," "Low Fat," or words of similar designation: (A) Dog food product labels shall contain and guarantee no more than 9% crude fat for products containing 15% or less moisture, no more than 7% crude fat for products containing more than 15% but less than 50% moisture, and no more than 4% crude fat for products containing 50% or more moisture. The product label shall bear a maximum crude fat guarantee immediately following the minimum crude fat guarantee in addition to the mandatory guaranteed analysis information as specified in sec.63.2(c) of this title (relating to Label Format and Labeling). (B) Cat food product labels shall contain and guarantee no more than 10% crude fat for products containing 15% or less moisture, no more than 8% crude fat for products containing more than 15% but less than 50% moisture, and no more than 5% crude fat for products containing 50% or more moisture. The product label shall bear a maximum crude fat guarantee immediately following the minimum crude fat guarantee in addition to the mandatory guaranteed analysis as specified in sec.63.2(c) of this title. (4) When using the term "Less," "Reduced Fat," or words of similar designation on cat food labels, the percentage of reduction and the product of comparison shall be explicitly stated and juxtaposed with the claim in the same size, style, and color print. The product label shall also bear a maximum crude fat guarantee immediately following the minimum crude fat guarantee in addition to the mandatory guaranteed analysis information as specified in sec.63.2(c) of this title. Comparisons between products in different categories of moisture content (15% or less, more than 15% but less than 50%, 50% or more) are misleading. 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 January 31, 1997. TRD-9701450 Dr. George W. Latimer, Jr. State Chemist Texas Feed & Fertilizer Control Service/Office of the Texas State Chemist Effective date: February 21, 1997 Proposal publication date: November 5, 1996 For further information, please call: (512) 845-1121 TITLE 19. EDUCATION PART II. Texas Education Agency CHAPTER 89.Adaptations for Special Populations SUBCHAPTER AA.Special Education Services Clarification of Provisions in Federal Regulations and State Law 19 TAC sec.89.1115 The Texas Education Agency (TEA) adopts new sec.89.1115, concerning a memorandum of understanding related to students with disabilities living in residential care facilities. New sec.89.1115 is adopted with changes to the proposed text as published in the November 22, 1996, issue of the Texas Register (21 TexReg 11344). The interagency agreement, which became effective on June 28, 1996, was entered into by the Texas Education Agency and eight other state agencies at the direction of the Texas Senate Committee on Health and Human Services, 73rd Texas Legislature, 1993. In addition, the interagency agreement provides for: (a) the identification of responsibilities and programs of state agencies that place school-age residents in RCFs, fund these RCF placements, serve these RCF students, and/or regulate these RCFs; (b) the development of policies and procedures for implementing improved interagency coordination with regard to special education to this RCF population, such as increased sharing of information and a required "child find" notice imposed on an RCF as a condition of licensure or regulation; and (c) procedures for resolving disputes that may arise in implementing this agreement. The following change has been made to new sec.89.1115 since the section was published as proposed. Under subsection (i), language has been revised to reflect a change in the address and telephone number for the Texas Commission on Alcohol and Drug Abuse. The following comment has been received regarding adoption of the new section. Comment. A representative of the Texas Commission on Alcohol and Drug Abuse (TCADA) requested that the commissioner of education change the address and telephone number for TCADA in subsection (i). Agency Response. The agency revised the language in subsection (i) as requested. The new section implements 34 Code of Federal Regulations, sec.300.152 and sec.300.600, and the Texas Education Code, sec.29.001. sec.89.1115.Memorandum of Understanding Concerning Interagency Coordination of Special Education Services to Students with Disabilities in Residential Care Facilities. (a) Introduction. (1) Purpose of MOU. (A) As a result of completing investigations and activities directed by the Senate Committee on Health and Human Services, 73rd Texas Legislature, 1993, the parties to this memorandum of understanding (MOU) have recognized the need to strengthen interagency coordination with regard to ensuring that school-age (between birth and 22 years) residents of residential care facilities (RCFs) receive a free appropriate public education, as required under the Individuals with Disabilities Education Act (IDEA), Part B; 20 United States Code (USC), sec.sec.1400 et seq. The purpose of this MOU is to address improving interagency coordination with regard to a local education agency's (LEA's) provision of special education services to students with disabilities residing in residential care facilities (RCFs). (B) Given this purpose, this MOU identifies the following: (i) responsibilities and programs of state agencies that place school-age residents in RCFs, fund these RCF placements, serve these RCF residents, and/or regulate these RCFs; (ii) areas where increased, more effective interagency coordination can be accomplished with regard to the provision of special education services; (iii) procedures and policies for implementing this enhanced level of interagency coordination; and (iv) procedures for resolving disputes that may arise in implementing this MOU. (C) The provisions of this MOU will be implemented in a manner consistent with all state and federal laws, and based on existing resources. (2) Parties to MOU. (A) The following parties are participating in this MOU because they place school-age individuals in RCFs, fund these RCF placements, serve these RCF residents, and/or regulate these RCFs. (i) Texas Education Agency (TEA); (ii) Texas Department of Human Services (TDHS); (iii) Texas Department of Mental Health and Mental Retardation (TDMHMR); (iv) Texas Department of Health (TDH); (v) Texas Department of Protective and Regulatory Services (TDPRS); (vi) Texas Interagency Council on Early Childhood Intervention (ECI); (vii) Texas Commission on Alcohol and Drug Abuse (TCADA); (viii) Texas Juvenile Probation Commission (TJPC); and (ix) Texas Youth Commission (TYC). (B) The state agencies specified in subparagraph (A) of this paragraph will be collectively referred to as "parties." Health and human services agencies shall refer to all the parties except TEA. (3) Relationship to other memoranda of understanding. The following memoranda of understanding have been previously executed and address some of the school-age residents of residential care facilities. (A) Memorandum of Understanding Defining Responsibilities to Children Who Are Medically Fragile, executed on October 27, 1994, by TEA, Texas Commission for the Blind (TCB), TDH, TDHS, TDMHMR, TDPRS, and ECI. (B) Memorandum of Understanding Relating to School-Age Residents of Intermediate Care Facilities for the Mentally Retarded, executed in 1992 between TEA and TDHS, 19 Texas Administrative Code (TAC) sec.89.1105. (4) Definitions. (A) Residential care facilities are facilities which provide 24-hour care to more than six students between the ages of birth and 22 years who have been placed for non- educational reasons. These facilities include: (i) child care facilities or institutions; (ii) foster group homes; (iii) therapeutic foster group homes; (iv) habilitative foster group homes or agency group homes regulated by TDPRS; (v) intermediate care facilities for the mentally retarded (ICFs-MR); (vi) psychiatric treatment centers; (vii) therapeutic camps or ranches; (viii) residential treatment centers; and (ix) nursing or convalescent homes. (B) Students with disabilities are school-age (i.e., between the ages of birth and 22) individuals with "mental retardation; hearing impairments, including deafness; speech or language impairments; visual impairments (including blindness); serious emotional disturbance; orthopedic impairments; autism; traumatic brain injury; other health impairments; or specific learning disabilities; and who, by reason thereof, need special education and related services," pursuant to IDEA, 20 USC, sec.1401(a)(1)(A). (b) Parties' responsibilities to students with disabilities residing in residential care facilities (RCFs). (1) Texas Education Agency. (A) The Texas Education Agency (TEA) is the state education agency (SEA). As an SEA, TEA is responsible for ensuring that a Free Appropriate Public Education (FAPE) is provided to all students with disabilities residing in the State of Texas and that all requirements of IDEA, Part B, are met, pursuant to 34 CFR, sec.300.600. A FAPE means special education and related services that are provided at public expense under public supervision; meet the state standards which include the requirements of IDEA, Part B; include preschool, elementary, and secondary school education; and are provided in conformity with an individual education plan, pursuant to 20 USC, sec.1401(a)(18). (B) In most cases, local education agencies (LEAs), primarily independent school districts in Texas, have the direct responsibility of providing FAPE to students with disabilities whom the LEAs are obligated to serve under Texas Education Code, sec.25.001. The TEA is responsible for ensuring that LEAs comply with all state and federal requirements concerning the provision of FAPE. (C) Within this general responsibility to assure FAPE, TEA specifically assures that each child with a disability, regardless of severity, residing within an LEA's jurisdiction will be identified, located, and evaluated in accordance with IDEA and its implementing regulations. To meet this responsibility, TEA requires LEAs to establish policies and procedures to identify, locate, and evaluate students with disabilities residing within their jurisdictions. Activities done pursuant to these policies and procedures are commonly referred to as "child find" activities because LEAs actively search for students with disabilities residing within their jurisdictions, often in coordination with regional education service centers and state agencies. These "child find" activities include searching for students with disabilities residing in RCFs. (D) Before any student is placed in special education, a full and individualized evaluation is completed to determine eligibility and the nature of the disability. (E) The local admission, review, and dismissal (ARD) committees are responsible for developing the individual educational plans (IEPs) of students with disabilities after considering the results of the evaluation. The TEA does not have the general authority to review or modify in any way the individual decisions of ARD committees made after following federal and state special education procedures. Parents, however, have procedural safeguards available to challenge decisions of ARD committees which include requesting due process hearings under 19 TAC Chapter 89, Subchapter AA, sec.sec.89.1151-89.1190, and filing complaints with the office responsible for special education complaints at TEA. Additionally, TEA has a regular monitoring system for reviewing LEA compliance with federal and state special education requirements. (F) The TEA also specifically assures that each LEA in Texas will provide FAPE to students with disabilities in the least restrictive environment. When deciding what is the least restrictive environment for a student in an RCF, the ARD committee must base its decision on the individual needs of the student, not what is the most convenient arrangement for the school district or the RCF. (G) The LEAs are responsible for implementing the IEP. The IEPs typically contain specified instructional and related services. Related services are intended to support the provision of special education services and are only provided when they are necessary for the student to benefit from special education instruction. (H) Although TEA and LEAs are responsible for ensuring that all students with disabilities residing in Texas receive FAPE, this responsibility under IDEA and its implementing regulations does not: (i) limit the responsibility of state agencies other than educational agencies for providing or paying for some or all of the costs of educating these students if obligated under another federal or state statutory or regulatory authority, pursuant to 34 CFR, sec.300.600(c); and (ii) permit a state to reduce medical and other assistance available to children with disabilities, or alter the eligibility of a child with a disability under Title V (Maternal and Child Health) or Title XIX (Medicaid) to receive services that are also part of FAPE, pursuant to 34 CFR, sec.300.601. (2) Texas Interagency Council on Early Childhood Intervention. (A) The Texas Interagency Council on Early Childhood Intervention (ECI) is the lead agency under the Human Resources Code, Chapter 73, and the Individuals with Disabilities Education Act (IDEA), Part H, for early childhood intervention efforts for infants and toddlers with developmental delays or the potential for developmental delays between the ages of birth and three years. The ECI is governed by an interagency council composed of representatives from six health and human service agencies which provide some of the services needed by infants and toddlers who have developmental delays or the potential for developmental delays, and their parents, and three public members who are parents of children who have developmental delays. The council is responsible for the planning and implementation of a service system which benefits families with young children who are eligible for services under the Human Resources Code, Chapter 73, and IDEA, Part H. (B) These services include providing assistance in dealing with variations in normal child development in one or more of the following areas: (i) cognitive development; (ii) physical development, including hearing and vision; (iii) motor skills; (iv) nutritional status; (v) communications development; (vi) social and emotional development; and (vii) adaptive development and self-help skills. (C) When infants and toddlers between birth and age three with developmental delays or the potential for developmental delays are discovered through the child find process in RCFs, they will be referred to LEAs by the RCFs and to an ECI-funded program by the LEAs for appropriate services. These services will be provided pursuant to the Human Resources Code, Chapter 73; IDEA, Part H; and existing MOUs between ECI and TEA. (3) Texas Department of Human Services. The Texas Department of Human Services (TDHS) is responsible for the licensing, under the Texas Health and Safety Code, Chapter 242, and Medicaid certification, as the designated state survey agency, of the following long-term care facilities, which may include children as residents: (A) Nursing facilities. Nursing facilities primarily provide skilled nursing care and related services, as well as rehabilitation services, to injured, disabled, or sick persons who reside in the facility. (B) Intermediate care facilities for the mentally retarded (ICFs/MR). Intermediate care facilities for the mentally retarded provide institutional care and treatment for persons with mental retardation and persons with related conditions. These facilities range in size from small group homes to large state schools. (4) Texas Department of Mental Health Mental Retardation. (A) The Texas Department of Mental Health Mental Retardation (TDMHMR) is the state mental health and mental retardation authority and, as such, oversees the following residential programs that are six beds or greater and may serve students with disabilities as defined in this MOU. (i) The intermediate care facilities/mental retardation or related conditions (ICF- MR/RC) Medicaid program provides residential and habilitation services to persons with mental retardation and to persons with a related condition. The TDMHMR is the operating agency for the ICF-MR/RC program, and the Health and Human Services Commission is the single state Medicaid agency. Providers who participate in this program have a contract with TDMHMR to deliver services under Title XIX of the Social Security Act (the Medicaid program). (ii) The TDMHMR adopts rules and standards to ensure proper care and treatment of patients in private mental hospitals and mental health facilities required to obtain a license under the Texas Health and Safety Code, Chapter 577. All other licensing responsibilities for these facilities are performed by the Texas Department of Health. (iii) The TDMHMR designates local mental health and mental retardation authorities in local service areas. A community mental health or mental retardation center, established under the Texas Health and Safety Code, Chapter 534, can be designated as a local mental health or mental retardation authority. The community center may own and operate residential services for students with disabilities, as defined in this MOU. (B) The TDMHMR is authorized by law to provide mental health and mental retardation residential services to students with disabilities, as defined in the MOU, instate-operated facilities and community programs pursuant to the Texas Health and Safety Code, sec.sec.531.001 et seq. (5) Texas Department of Health. The Texas Department of Health (TDH) is responsible for the following programs that may provide services to school-age residents of RCFs. (A) Child health services. This program provides comprehensive health evaluations for infants, children, and adolescents, including health education, with emphasis on injury prevention, age-appropriate dietary patterns, normal child development, and parenting skills. Services are provided by agency employees, contracts with local government providers, and contracts with private sector providers. The TDH is authorized to provide these services under Title V of the Social Security Act and the Maternal and Infant Health Improvement Act, the Health and Safety Code, Chapter 32. (B) Texas medical assistance program (Medicaid) which includes the early and periodic screening, diagnosis, and treatment program (EPSDT). The EPSDT program provides comprehensive health care services that include preventive periodic screening, diagnosis, and treatment of medical and dental health problems to children eligible for Medicaid. Services are provided through fee-for-service billing by local government providers and private sector providers. The TDH is authorized to provide these services under the Social Security Act sec.sec.1902(a)(4)(B) and 1905(r). (C) Medically dependent children program (MDCP). The MDCP provides in-home and out- of-home licensed nursing, facility-based respite care, and regular Medicaid state plan benefits. Services are provided through contracts with private sector providers. The TDH is authorized to provide these services under the Social Security Act, sec.19115(c). (D) Children with special health care needs program (Chronically ill and disabled children's services (CIDC)). The CIDC provides case management, medical care, and related services for children with certain chronic illnesses or conditions. Services are provided by agency employees, through contracts with private sector providers and fee-for-service billing by private sector providers. The TDH is authorized to provide these services under Title V of the Social Security Act and the Chronically Ill and Disabled Children's Act, Chapter 35 of the Health and Safety Code. (E) Vision and hearing screening program. This program provides training and certification for vision and hearing screeners to prevent eye injuries and preserve hearing. The services are provided by agency employees and through contract with private sector providers. The TDH is authorized to provide these services under the Special Senses and Communications Disorders Act, Chapter 36 of the Health and Safety Code. (F) School health program. The school health program provides start-up funding for model school health centers to provide health, social, and mental health services for children and adolescents. Services are provided through grants to local government providers. (G) Speech language screening program. The speech language screening program provides training and certification for speech/language screeners in identifying and referring children with communication delay. Services are provided by agency employees and through contracts with private sector providers. The TDH is authorized to provide these services under the Special Senses and Communication Disorders Act, under the Health and Safety Code, Chapter 36. (H) Childhood lead prevention program. This program provides tracking and technical support for the professionals caring for children with positive EPSDT blood screening for lead. Services are provided by agency staff. The TDH is authorized to provide these services under the Social Security Act, sec.1905(r). (I) Newborn screening program. This program provides testing at birth and two weeks of age for all children for five rare disorders to ensure early diagnosis and treatment. Services are provided by agency staff. The TDH is authorized to provide these services under the Phenylketonuria, Other Heritable Diseases, and Hypothyroidism Act, the Health and Safety Code, Chapter 33. (J) Program for amplification for children in Texas (PACT). The PACT provides diagnostic evaluation of hearing impairments, hearing aid evaluations and hearing aids, and related hearing aid services. Services are provided through contracts with private sector providers and fee-for-service billing by private sector providers. The TDH is authorized to provide these services under the Special Senses and Communications Disorders Act, the Health and Safety Code, Chapter 36. (K) Immunization program. This program provides vaccines for preventable diseases to all public and some private health care providers, tracks the incidence of immunization of preventable diseases, and investigates epidemics. Services are provided by TDH employees, through contracts with local government providers and through agreements with private sector providers. The TDH is authorized to provide these services under federal law by pursuant to 42 USC, 247b, and 42 CFR, 51b, Subparts A and B. The immunization program is authorized in state law under the Health and Safety Code, Chapters 81 and 161, and the Texas Education Code, sec.38.001. (L) Spinal screening program. This program provides instructor and screener training and spinal screening to detect abnormal spine curvature in children attending public and private schools. The services are provided by agency employees. The TDH is authorized to provide these services under the Abnormal Spinal Curvature in Children Act, the Health and Safety Code, Chapter 37. (6) Texas Department of Protective and Regulatory Services. (A) The Texas Department of Protective and Regulatory Services (TDPRS), through its Child Care Licensing Division, is responsible for licensing the following entities that are RCFs for purposes of this MOU: (i) foster group homes, including the following, under the authority of the Texas Human Resources Code, Chapter 42: (I) primary medical care homes; (II) habilitative homes; (III) therapeutic homes; (IV) homes serving children with autistic-like behavior; and (V) basic care homes; and (ii) twenty-four hour child care institutions, including the following, under the authority of the Texas Human Resources Code, Chapter 42: (I) emergency shelters; (II) residential treatment centers; (III) institutions serving mentally retarded children; (IV) institutions providing basic child care; (V) halfway houses for children; and (VI) therapeutic camps; and (iii) maternity homes under the authority of the Texas Health and Safety Code, Chapter 249. (B) The TDPRS, through its Protective Services to Families and Children (CPS) Division, is responsible for the following programs that provide services to children who may need special education. (i) Children with disabilities projects are located in the Edinburg and Arlington areas and provide services to children with disabilities who are in the care of CPS or who have been referred to CPS because of being at-risk of child abuse or neglect. The TDPRS is authorized to provide services to these children under the Child Abuse Prevention and Treatment Act, 42 United States Code Annotated (USCA), sec.sec.5101-5106h. (ii) Protective services to families and children program (CPS) provides services to all children, including children with disabilities, who have been or are at risk of being abused, neglected, or abandoned. Services may include investigation of alleged abuse or neglect, assessment, counseling, referrals to appropriate resources, family preservation services, and foster care. The TDPRS is authorized to perform these duties under the Texas Human Resources Code, Chapter 40; the Texas Family Code, Chapters 102, 153, 261-264; and Child Abuse Prevention and Treatment Act, 42 USCA, sec.sec.5101-5106h; and Titles IV-B and IV-E of the Social Security Act, 42 USCA, sec.sec.620-628 and sec.sec.670-679. (7) Texas Youth Commission. (A) The Texas Youth Commission (TYC) is the state juvenile correctional agency for youth who are committed to the TYC by local juvenile courts upon the youth's adjudication for delinquent conduct. (B) The TYC places and funds RCFs through contracts for residential care for certain TYC youth. The TYC also certifies RCFs that take only TYC youth. (C) The TYC halfway houses and those RCFs that are certified by TYC are required through TYC core standards to provide an educational component. (D) The RCFs which contract with TYC are responsible for providing the educational component as required by TDPRS licensing standards based on the level of care they provide. (E) All RCFs rely on LEAs to meet these licensing or core standards as provided in paragraph (1) of this subsection. (8) Texas Juvenile Probation Commission. The Texas Juvenile Probation Commission (TJPC) is responsible for setting standards of operation and monitoring juvenile detention facilities and post- adjudication facilities. The TJPC also provides some funding to county operated juvenile probation departments, which may be used for placement of juvenile offenders in residential care facilities. (9) Texas Commission on Alcohol and Drug Abuse. The Texas Commission on Alcohol and Drug Abuse (TCADA) licenses facilities (including residential facilities) that provide chemical dependency treatment for adolescents. (c) Child find notification to local education agencies (LEAs). (1) To further the assurances of TEA and LEAs to identify, locate, and evaluate students with disabilities residing in RCFs, the health and human services agencies agree to effectuate the following "child find" notification requirement: within three working days of admitting an individual between the ages of birth and 22 into a RCF for an educationally significant time period, the facility shall notify in writing the admittance of such an individual to the school district in which the RCF is located. (2) To the extent authorized by existing federal and state laws, the health and human services agencies agree to adopt and implement policies and procedures requiring RCFs covered by this MOU to comply with the notification requirement as specified in subsection (c) of this section. These agencies further agree to have these policies and procedures in effect by September 1, 1996, to the extent possible, but no later than January 1, 1997. (3) The TEA agrees to assist any of the health and human services agencies in the development and implementation of this "child find" notification requirement. The TEA further agrees to assist RCFs in identifying which school district should be given the "child find" notification specified in subsection (c) of this section. (d) Sharing of information. (1) The parties acknowledge that one vital component of interagency coordination with regard to the provision of special education services is the ability to share information between the parties and LEAs. Increasing this sharing should improve efficiency and minimize duplication of efforts. Given this acknowledgment, the parties agree to share all appropriate client and student records to the extent permitted by the applicable confidentiality statutes and regulations. Additionally, the parties agree to develop a "universal" consent form(s) by September 1, 1996, to facilitate this sharing of information. (2) The parties also acknowledge that LEAs need the following information and/or records in order to determine the appropriate educational services for students with disabilities: (A) birth certificate or another document as proof of the child's identity; (B) medical history and medical records, including current immunization records; (C) social history; (D) vision and hearing screening and/or evaluation; (E) assessment reports including psychological, educational, related service, and vocational assessments; (F) RCF's treatment plan of care; (G) educational history (at least previous educational placement to facilitate LEA's efforts to obtain educational records from previous LEA); and (H) any court order which authorizes the placement in the RCF. (3) Given this acknowledgment, the health and human services agencies agree to adopt and implement, to the extent permitted by existing federal and state laws, policies and procedures requiring RCFs to provide LEAs any of the information specified in paragraph (2) of this subsection and/or records available to the RCF within 14 working days of the school-age resident's admission to the RCF. These agencies further agree to have these policies and procedures in effect by September 1, 1996, to the extent possible, but no later than January 1, 1997. (4) To the extent permitted by the Family Educational Privacy Rights Act, 20 USC, sec.1232g, and its implementing regulations, 34 CFR, Part 99, TEA assures that LEAs will provide available educational records requested by RCFs within 14 working days. (e) Educational space. (1) The parties acknowledge that all students with disabilities are entitled to be educated in the least restrictive environment (LRE) in accordance with the requirements of IDEA and its implementing regulations. The parties further acknowledge that many RCF placements are made primarily for non-educational reasons, such as for treatment or juvenile justice considerations. Nevertheless, TEA and LEAs must assure that the LRE requirements are met for these placements. (2) Under IDEA, ARD committees are charged with the responsibility of deciding what is the appropriate educational placement for individual students with disabilities, including school-age residents of RCFs. In making this decision, ARD committees must consider the non-educational needs of these students that restrict the ability of school districts to serve these students on campus in a less restrictive environment. These needs include the student's health and safety needs (e.g., medically fragile), the student's placement in a restrictive RCF program (e.g., juvenile incarceration), and the student's participation in intensive care and treatment (e.g., intensive substance abuse treatment). The ARD committees' decision process must be individualized and not done on a categorical basis, such as the category of the student's disability or residence in a RCF. Further, ARD committees cannot determine educational placement on the basis of what is most convenient to school districts or RCFs. (3) The TEA assures that, before making these decisions, ARD committees will consider: (A) the care and treatment plan; (B) the nature or conditions of the RCF program; (C) the RCF's preference as to where the student should be educated in light of the student's care and treatment needs and the RCF program; and (D) the RCF's description of available space should the student need to be educated at the RCF. (4) The ARD committees are also charged with the responsibility of determining whether space available at the RCF is adequate for the education of individual students for whom the ARD committee is considering educational placement at the RCF. This determination must be based on the individual student's needs and the RCF's description of available space. (5) If the ARD committee decides that the space described by the RCF is not adequate for the education of the individual student in question or the RCF has no available space, the ARD committee shall find alternative locations for providing educational services. If the LEA disputes the accuracy of the RCF's description of available space, the LEA may use the dispute resolution procedures specified in subsection (h) of this section. (6) If the RCF subsequently decides to eliminate or reduce space it has previously described to the LEA as being available for one or more individuals, the RCF shall notify the LEA immediately. If the RCF determines that the space it is currently making available to the LEA will no longer be available for one or more individuals or must be reduced, the RCF shall notify the LEA at least 30 days with regard to an individual student or 90 days if the RCF decision impacts more than one student prior to taking any action regarding this space. (7) The notice requirements specified in paragraph (6) of this subsection are not applicable to those situations where an RCF must interrupt or terminate a school district's use of space due to regulatory actions beyond the RCF's control (e.g., an order to immediately receive additional clients because of an emergency occurring in another RCF). (8) In those instances where the ARD committee decides that the RCF is the appropriate educational placement consistent with the RCF's preference and the ARD committee determines that the available space described by the RCF is adequate, the RCF is required to: (A) assure that the space described by the RCF prior to the ARD committee's decision to place the student at the RCF will be provided; and (B) not charge LEAs any of the costs related to this space which include the costs incurred for the operation and maintenance of this space. (9) In those instances where the ARD committee decides that the RCF is the appropriate educational placement and the RCF has recommended a preference for not educating the student at the RCF and the ARD committee decides that the available space described by the RCF is adequate, the RCF is required to provide the described space. If the RCF seeks to charge a LEA for this space and these two entities cannot reach an amicable resolution of this matter, the dispute resolution procedures as provided in subsection (h) of this section must be used. (10) The requirements specified in subsection (e) of this section do not abrogate the responsibility of LEAs to provide the educational and related services set out in the individual educational plan (IEP). Nor do these requirements create a duty on RCFs to construct space if adequate space does not exist in the RCF for educating its residents. (11) To the extent authorized by existing federal and state law, the health and human services agencies agree to adopt policies and procedures to implement the requirements specified in subsection (e) of this section by September 1, 1996, to the extent possible, but no later than January 1, 1997. (12) The parties agree to coordinate their regulatory and planning functions with regard to the licensure, certification, and funding of RCF placements involving school-age residents with disabilities to further assure that adequate space will be available for educating those students who cannot be served on a school campus because of their non-educational needs. (f) Impact of residential care facilities (RCFs) on local education agencies (LEAs). (1) The parties acknowledge that LEAs are impacted in their ability to provide special education services when a new RCF opens up or expands which serves school-age residents. This impact may be substantial especially in situations where the LEA is small and located in a rural setting. (2) Given this acknowledgment, the parties agree to develop the following with regard to contracting, licensing, or certifying entities that seek to establish or expand RCFs which serve or plan to serve school-age residents: (A) State agency coordination. The parties agree to coordinate their regulatory and planning functions and collaborate on assessment, planning, and use of specialists to ensure that education and treatment resources are efficiently and effectively used to appropriately serve students with disabilities in supportive, integrated and least restrictive environments. (B) Notification to the local education agency (LEA). Any entity requesting to establish a new RCF or expand a RCF that serves or plans to serve school-age residents will be required to provide prior written notice to the affected LEA of their intent to establish or expand a RCF within the LEA's boundaries. This notice must be given within a reasonable time period so that the LEA can plan accordingly. To the extent permissible under current law, the health and human services agencies agree to establish policies and procedures for this notification requirement by September 1, 1996, to the extent possible, but no later than January 1, 1997. The TEA agrees to assist the health and human service agencies in the development and implementation of the policies and procedures. (g) Parental participation. (1) The parties acknowledge that parental participation is essential for the determination and the provision of appropriate special education services under IDEA. However, many of the school- age residents placed in RCFs are under the conservatorship of the State of Texas (usually through TDPRS). For these residents, the parties acknowledge the following "surrogate parent" requirements: (A) The LEAs have the obligation to ensure that a properly trained surrogate parent with no conflicts of interest is appointed for these residents for whom: (i) no parent can be identified; (ii) the parent cannot be located after reasonable efforts by the LEA to locate; or (iii) are wards of the state (e.g., in Texas, the term "conservatorship" is often used to indicate a student is a ward of the state, pursuant to 34 CFR, sec.300.514(a)). (B) The LEAs decide as to when and whom to appoint as surrogate parents. (C) The appointment of a surrogate parent is not restricted to circumstances in which parental rights have been formally terminated by a court. In fact, the requirement to appoint a surrogate parent will be triggered by placing a child under the temporary or permanent conservatorship of the state. (D) The appointment of a surrogate parent does not necessarily terminate parental rights under IDEA. Unless parental rights have been terminated under the Texas Family Code, parents do not lose their rights to participate in the educational process of their children as the result of the appointment of a surrogate parent. (E) The obligation to appoint a surrogate parent is not necessarily eliminated when a student turns 18 years old. In some instances, a surrogate parent can be appointed for a student with a disability who is between 18 and 22 years old if needed to assure that this student receives FAPE. (F) The surrogate parent appointed must have the knowledge and skills to ensure adequate representation of the child and no personal or professional interest which would create a conflict of interest in his or her representation of the child, pursuant to 34 CFR, sec.300.514(c). (G) Pursuant to 34 CFR, sec.300.514(c), a person assigned as a surrogate parent may not be an employee of a public agency that is involved in the education or care of the child. Thus, public (state, county, or local) employees, like caseworkers or probation officers, would be ineligible to serve as surrogate parents. (H) Directors and employees of private RCFs generally cannot serve as surrogate parents because of a conflict of interest. (I) Pursuant to 34 CFR, sec.300.514(e), surrogate parents may represent the child in all matters relating to: (i) the identification, evaluation, and educational placement of the child; and (ii) the provision of FAPE to the child. (2) The TEA assures that in those cases where a surrogate parent is appointed, state caseworkers and the appropriate RCF personnel will be given an opportunity to discuss the student's educational needs with the surrogate parent prior to ARD committee meetings, or at a mutually agreeable time. The TEA further assures that the caseworker representing the state agency having conservatorship of the student and the appropriate RCF representative may participate in the deliberations of the ARD committee, but in no circumstance in place of the required surrogate parent or make the decisions belonging to the surrogate parent. (h) Dispute resolution. (1) Intra-agency disputes. Intra-agency disputes concerning the implementation of the MOU shall be resolved in accordance with that agency's established policies and procedures. (2) Inter-agency disputes. (A) Disputes concerning implementation of this MOU between either agencies that are parties to the MOU or a local education agency and a party to this MOU, should first be resolved at the local level. The specific issues involved in the dispute and possible solutions shall be identified and referred to the local officials authorized to make the decisions necessary to resolve the dispute. (B) If local resolution is not possible after a reasonable time period, the inter-agency dispute should be referred to the executive officers of the respective state agencies for further negotiations towards a mutually agreeable resolution. Local agencies submitting to the state agency level shall identify the: (i) nature of the dispute; (ii) resolutions agreed upon at the local level; (iii) issues that remain unresolved at the local level; and (iv) local contact person(s). (C) The appropriate state officials shall meet to seek resolution of the dispute. (D) If resolution is not possible at the state level, the executive officers may pursue resolution through the use of mediation or refer the local parties to mediation. As defined in the Texas Civil Practices & Remedies Code, sec.154.023, "ediation is a forum in which an impartial person, the mediator, facilitates communication between parties to promote reconciliation, settlement, or understanding among them." The parties should mutually agree on an impartial third party to serve as the mediator, as well as the procedures for conducting the mediation. The mediation shall be non-binding unless the parties agree otherwise. (i) Contact persons. The following are the contact persons for the respective parties to whom questions or concerns may be directed with regard to this MOU and its implementation. (1) Texas Education Agency (TEA), director of interagency coordination, 1701 North Congress Avenue, Austin, Texas 78701, (512) 463-9283. (2) Texas Department of Human Services (TDHS), assistant deputy commissioner for long term care, 701 West 51st Street, Austin, Texas 78751, (512) 438-3011. (3) Texas Department of Mental Health and Mental Retardation (TDMHMR), Managed Care Division Children Services, P. O. Box 12668, Austin, Texas 78711, (512) 206-4830. (4) Texas Department of Health (TDH), director, Children's Health Division, Bureau of Women and Children, 1100 West 49th Street, Austin, Texas 78756-3199, (512) 458-7355, extension 3104. (5) Texas Department of Protective and Regulatory Services (TDPRS), staff attorney for programs, 701 West 51st Street, Austin, Texas 78751, (512) 438- 3803. (6) Texas Interagency Council on Early Childhood Intervention (ECI), deputy director, 1100 West 49th Street, Austin, Texas 78756-3199, (512) 502-4900. (7) Texas Commission on Alcohol and Drug Abuse (TCADA), general counsel, 9001 North IH-35, Suite 105, Austin, Texas 78753-5233, (512) 349-6615. (8) Texas Juvenile Probation Commission (TJPC), general counsel, P.O. Box 13547, Austin, Texas 78711, (512) 443-2001. (9) Texas Youth Commission (TYC), chief of community placement, P.O. Box 4260, Austin, Texas 78751, (512) 483-5093. (j) Other terms. (1) This MOU shall be signed by the executive officers of the participating agencies and shall be effective upon signature by all. (2) This MOU shall be adopted by rule prior to January 1, 1997. (3) This MOU may be considered for expansion, modification, or amendment upon mutual agreement of the executive officers of the participating agencies. (4) In the event that federal and/or state laws should be amended, federally interpreted, or judicially interpreted so as to render continued implementation of this MOU unreasonable or impossible, the participating agencies may agree to amend or terminate this MOU. 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 January 29, 1997. TRD-9701366 Criss Cloudt Associate Commissioner, Policy Planning and Research Texas Education Agency Effective date: February 19, 1997 Proposal publication date: November 22, 1996 For further information, please call: (512) 463-9701 CHAPTER 161.Advisory Committees SUBCHAPTER AA.Commissioner's Rules 19 TAC sec.sec.161.1001-161.1003 The Texas Education Agency (TEA) adopts an amendment to sec.161.1001-161.1003, concerning advisory committees, without changes to the proposed text as published in the November 15, 1996, issue of the Texas Register (21 TexReg 11156). The sections provide guidelines for establishing and operating advisory committees and a list of public education advisory committees in effect. The amendments are necessary to conform with the Texas Education Code, Texas Education Agency (TEA) operating procedures and the Comptroller of Public Accounts approval of the current TEA advisory committee list. No comments were received regarding adoption of the amendments. The amendments are adopted under the Texas Education Code, sec.7.055(a)(11), which authorizes the commissioner of education to appoint advisory committees as necessary to advise the commissioner in carrying out the duties of the TEA. 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 January 29, 1997. TRD-9701367 Criss Cloudt Associate Commissioner, Policy Planning and Research Texas Education Agency Effective date: February 19, 1997 Proposal publication date: November 15, 1996 For further information, please call: (512) 463-9701 TITLE 22. EXAMINING BOARDS PART VI. Texas State Board of Registration for Professional Engineers CHAPTER 131.Practice and Procedure Examinations 22 TAC sec.131.101 The Texas State Board of Registration for Professional Engineers adopts an amendment to sec.131.101, concerning engineering examinations required for registration as a professional engineer, without changes to the proposed text as published in the November 12, 1996, issue of the Texas Register (21 TexReg 11041). The amendment redefines when a student is considered to be a senior in college for the purpose of scheduling the fundamentals of engineering examination. The rule provides clarification that an undergraduate student who is within two regular semesters (not including summer sessions) of graduating is considered a senior and may take the fundamentals of engineering examination. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 3271a, sec.8(a), which provide the board with the authority to make and enforce all rules and regulations necessary for the performance of its duties. 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 January 30, 1997. TRD-9701385 John R. Speed, P.E. Executive Director Texas State Board of Registration for Professional Engineers Effective date: February 20, 1997 Proposal publication date: November 12, 1996 For further information, please call: (512) 440-7723 Professional Conduct and Ethics 22 TAC sec.131.155 The Texas State Board of Registration for Professional Engineers adopts an amendment to sec.131.155, concerning professional practice and reputation, without changes to the proposed text as published in the November 12, 1996, issue of the Texas Register (21 TexReg 11042). The amendment was necessary to remove the legal action of making a political contribution from the list of illegal actions otherwise described in subsection (a) and to correct the legal reference to the Texas Professional Services Procurement Act from the civil statute to the government code in subsection (d). The rule eliminates the legal right of making political contributions from the list of illegal actions and provides the correct legal reference to the Texas Professional Services Procurement Act. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 3271a, sec.8(a), which provide the board with the authority to make and enforce all rules and regulations necessary for the performance of its duties. 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 January 30, 1997. TRD-9701386 John R. Speed, P.E. Executive Director Texas State Board of Registration for Professional Engineers Effective date: February 20, 1997 Proposal publication date: November 12, 1996 For further information, please call: (512) 440-7723 TITLE 25. HEALTH SERVICES PART II. Texas Department of Mental Health and Mental Retardation CHAPTER 401.System Administration SUBCHAPTER A.Advisory Committees sec.sec.401.4-401.7, 401.13, 401.15, 401.19, 401.20, 401.22 The Texas Department of Mental Health and Mental Retardation (TDMHMR) adopts amendments to sec.sec.401.4-401.7, 401.13, 401.15, 401.19, 401.20, and 401.22, concerning advisory committees, without changes to the proposed text as published in the December 13, 1996, issue of the Texas Register (21 TexReg 11935). The amendments reflect the Texas Board of Mental Health and Mental Retardation's resolution to authorize the continuation of the advisory committees through January 1, 2001, unless abolished on an earlier date or reauthorized. No comments were received regarding adoption of the amendments. The amendments are adopted under the Texas Health and Safety Code, Title 7, sec.532.015, which provides the Texas Board of Mental Health and Mental Retardation with rulemaking powers. 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 January 31, 1997. TRD-9701417 Ann Utley Chairman, Texas MHMR Board Texas Department of Mental Health and Mental Retardation Effective date: February 21, 1997 Proposal publication date: December 13, 1996 For further information, please call: (512) 206-4516 25 TAC sec.401.11 The Texas Department of Mental Health and Mental Retardation (TDMHMR) adopts the repeal of sec.401.11, concerning advisory committees, without changes to the proposed text as published in the December 13, 1996, issue of the Texas Register (21 TexReg 11936). The adoption abolishes the MI/Deaf Advisory Committee because it accomplished its purpose in August 1995. No comments were received regarding adoption of the repeal. The repeal is adopted under the Texas Health and Safety Code, Title 7, 532.015, which provides the Texas Board of Mental Health and Mental Retardation with rulemaking powers. 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 January 31, 1997. TRD-9701416 Ann Utley Chairman, Texas MHMR Board Texas Department of Mental Health and Mental Retardation Effective date: February 21, 1997 Proposal publication date: December 13, 1996 For further information, please call: (512) 206-4516 CHAPTER 408.Standards and Quality Assurance SUBCHAPTER E.Health, Safety and Rights in Community-based Mental Retardation Programs 25 TAC sec.sec.408.151- 408.164 The Texas Department of Mental Health and Mental Retardation (TDMHMR) adopts new sec.sec.4081.151-408.164. Sections 408.152-408.159 and 408.163, concerning health, safety, and rights in community-based mental retardation programs are adopted with changes to the text as proposed in the September 20, 1996, issue of the Texas Register (21 TexReg 9038). Sections 408.151, 408.160-408.162, and 408.164 are adopted without changes and will not be republished. The new sections describe minimum health, safety, and rights standards necessary to ensure the protection of individuals receiving mental retardation supports and services in community-based programs. These standards will be applied within the scope of the Quality Assurance and Improvement System (QAIS) as described in Chapter 408, Subchapter C, governing quality assurance and improvement system (QAIS) for mental retardation services and supports. The standards set forth in the rule are intended to replace the 1988 TDMHMR Community Standards for Individuals with Mental Retardation which are adopted by reference in Chapter 408, Subchapter A, governing standards of the Texas Department of Mental Health and Mental Retardation -- Quality Assurance. In sec.408.153, the definition of designated provider has been revised to reference a local mental retardation authority rather than just local authority. The definition of interdisciplinary team has been amended to reflect the principle of person-centered planning by stating that the team is determined by the individual or LAR and identified by the organization. The term "psychotropic" in the definition of polypharmacy has been changed to "psychoactive" for consistency. The term "restraint, physical" has been revised to "restraint" for consistency with the term as used in the text of the sections. In sec.408.154(d) the language is revised to clarify that the organization must have written policies and procedures. In subsection (c) of the same section, the term "service plan" is substituted for "habilitation plan" to reflect a more extensive array of services and supports than the more traditional habilitation services. In subsection (d) of the same section, language has been revised to require an organization to develop and implement procedures for dealing with allegations of abuse, neglect, and exploitation, as well as allegations of rights violations. In addition, a reference to the department's rule on the rights of persons receiving mental retardation services has been added. In sec.408.155, language has added requiring the organization to maintain documentation of the type and content of training, along with attendance records. In sec.408.156, supervision of self-administration of medication has been added to the listing of elements to be addressed in the organization's written policies and procedures. An incorrect reference in sec.408.157(c)(6) to tests for acquired immune deficiency syndrome (AIDS) has been corrected to specify that tests will be conducted for the human immunodeficiency virus (HIV). Language in sec.408.158(a) has been clarified to reflect that approved interventions for behavior management programs could include aversive techniques and procedures, and that these must be addressed in the organization's written policies and procedures. In subsections (b) and (d) of the same section, the term "intrusive" has been included to be consistent with language in subsection (a). In subsection (c), the misspelling of "threat" has been corrected. Clarifying language has been added in subsection (d) specifying that the control of the symptoms of mental illness may be achieved through restrictive or intrusive interventions; the proposed language implied that mental illness could be eliminated through the use of such interventions. In subsection (g), the reference to "drug therapies" has been deleted in the parenthetical phrase. The second sentence of the stem of subsection (h) has been deleted as contradictory. In subsection (h)(1), the term "capacity" has been replaced with the phrase "inability to provide legally adequate consent" in keeping with the department's current use of terminology. In sec.408.159(1), clarification has been added that the rationale for the use of psychoactive medications must include a current DSM diagnosis. Also in that paragraph, the department has clarified that the individual's quality of life, and not the service plan, should be the focus when considering the impact of a psychoactive medications. In paragraphs (4) and (6), language has been added to specify that the individual with the ability to provide legally adequate consent or the LAR may provide or withdraw consent. In sec.408.163, the department's rule on abuse, neglect and exploitation in community- based programs has been added to the list of referenced documents. A public hearing was held in Austin on November 1, 1996. No members of the public offered testimony. Written comments were received from the following members of the public: Austin-Travis County MHMR, Austin; Dallas County MHMR, Dallas; Lubbock Regional MHMR Center, Lubbock; Permian Basin Community Centers, Midland; and Tarrant County MHMR Services, Fort Worth. Three commenters suggested that the definition of interdisciplinary team in sec.408.153 was prescriptive and inconsistent with the principles of person- centered planning. The department has revised the definition. Another commenter suggested that having a member of a mental retardation authority's public responsibility committee (PRC) included on the IDT was of doubtful value. The department responds that the option of including an PRC member is required by law, and explains that the inclusion is not automatic. The individual with the ability to provide legally adequate consent or the LAR may request participation by a member of the PRC or, if the individual is unable to provide legally adequate consent and does not have an LAR, the PRC may request that a PRC member participate. A commenter suggested that the supervision of self-administration of psychoactive medications should be addressed in an organization's written policies and procedures. The department agrees with the suggestion and has modified sec.408.156(a). A commenter requested clarification in sec.408.157 concerning who should be tested for HIV and hepatitis B. The department has clarified that the organization is to specify in its written policies and procedures the criteria to be followed for determining when an individual served by the organization should be tested for HIV and hepatitis B. A commenter requested clarification of the "accepted standards of professional practice" referenced in sec.408.158. The department responds that "accepted standards" could include, but not necessarily be limited to, guidelines promulgated by the Texas State Board of Examiners of Psychologists and or the Texas Board of Medical Examiners or by national accreditation associations. If the organization is unsure of whether the standards and procedures they propose to follow are acceptable, appropriate professional staff in Central Office may be consulted. A commenter questioned whether the language in sec.408.158(h) is intended to require that written informed consent be obtained for the use of physical interventions prescribed in the department's Prevention and Management of Aggressive Behavior curriculum. The department has revised the language to specify that only when physical interventions are used as part of a behavior management program does informed consent need to be obtained. A commenter asked whether the surrogate decisionmaking process referenced in sec.408.158(h)(1) was being expanded to apply to community-based residential programs other than ICF/MR. The department responds that only the legislature has the authority to expand the program beyond community-based ICF/MRs. The statutory authority for the program is to be considered by the legislature during the 75th Legislative Session; unless reauthorized, the program will be discontinued in August 1997. A commenter questioned what constitutes "assistance" to a person who will be entering the service delivery system when that person is not admitted to direct services operated by or contracted for by the organization. The department responds that "assistance" would include, at a minimum, a good faith effort to provide information about service and support providers appropriate to meet the needs of that individual. These sections are adopted under the Texas Health and Safety Code, sec.532.015, which provides the Texas Mental Health and Mental Retardation Board with broad rulemaking authority, and sec.534.052, which gives the board rulemaking authority for community-based mental health and mental retardation services provided by community centers and other contract providers. sec.408.152.Application. This subchapter applies to community-based mental retardation services and supports funded by the department and delivered by: (1) local mental retardation authorities (including both community centers and state operated community MHMR services) and the providers with which they contract; and (2) designated providers. sec.408.153.Definitions. The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise: AIDS -- Acquired immune deficiency syndrome as defined by the National Centers for Disease Control and Prevention of the U.S. Public Health Service. Actively involved -- Involvement with the individual which the IDT deems to be of a quality nature based on the following: (A) observed interactions of the person with the individual; (B) advocacy for the best interests of the individual; (C) knowledge of and sensitivity to the individual's preferences, values, and beliefs; (D) ability to communicate with the individual; and (E) availability to the individual for assistance or support when needed. Behavior management -- All efforts to increase socially adaptive behavior and to modify maladaptive or problem behaviors and replace them with behaviors and skills that are adaptive and socially productive. This broad category includes behavior interventions, emergency procedures used to protect an individual or other persons due to the actions of that individual, and both formal and informal planned interactions intended to increase socially adaptive behavior and/or to modify maladaptive or problem behaviors. Community center -- A community mental health and mental retardation center established under the Texas Health and Safety Code, Title 7, Chapter 534. Designated provider-- As defined in the Texas Health and Safety Code, sec.534.054(c), a service provider with whom the department contracts for the delivery of a specific community-based mental retardation support or service in a specified local service area of the state if the MRA for that local service area is unable or unwilling to provide that service. The term does not include a local mental retardation authority. Emergency care -- Procedures and intervention designed to respond to medical emergencies. Hepatitis B -- An infection of the liver caused by the hepatitis B virus (HBV). Hepatitis B immunization -- Vaccination of persons at risk of infection from HBV. Hepatitis B testing-- Blood test for detection of hepatitis B surface antigens and antibodies. HIV -- Human immunodeficiency virus. HIV testing -- Blood test for detection of human immunodeficiency virus infection. HC (human rights committee) -- A committee appointed by the MRA comprising an independent group of representatives with the delegated authority to ensure that the civil and legal rights of individuals receiving services are acknowledged, respected, and protected through the review of organizational practices and approaches. The HC is a mechanism for ensuring due process. Members of the human rights committee include, but are not limited to, individuals served by the MRA or designated provider, their legally authorized representatives, local advocates, and persons from the community who are not affiliated with the MRA or designated provider. (A) Minimally, one committee member should be experienced in issues and decisions regarding human rights. (B) At least one third of the members should not be affiliated with the MRA or designated provider. (C) Any member directly involved in the development, review, or approval of a proposal before the committee will not take part in deliberations relative to that proposal. (D) Members should receive appropriate training to maximize the benefit of their participation on the committee. Interdisciplinary team (IDT) -- Mental retardation professionals and paraprofessionals and other concerned persons, as appropriate, who assess the individual's treatment, training, and service plan needs and make recommendations for services. This team, as determined by the individual or LAR and identified by the MRA or designated provider includes: (A) the individual; (B) the legally authorized representative of an individual who has been adjudicated by a court as lacking legal capacity; (C) at the invitation of the individual with the ability to provide legally adequate consent or the legally authorized representative, family members or other persons who are actively involved in the life of the individual; (D) persons who are professionally qualified, certified, or both, in various professions with special training and experience in the diagnosis, management, needs, and treatment of individuals with mental retardation; (E) persons who are directly involved in the delivery of mental retardation services to the individual; and (F) member(s) of the local authority's public responsibility committee (PRC), if requested by the individual with the ability to provide legally adequate consent, a legally authorized representative, or the PRC in instances when the individual does not have either the ability to provide legally adequate consent or an LAR. Informed consent (legally adequate consent) -- A term consistent with provisions of the Texas Health and Safety Code, sec.591.006, concerning consent obtained from an individual with mental retardation which is legally adequate when each of the following conditions has been met: (A) legal status: The individual giving the consent is of the minimum legal age and currently does not have a guardian appointed to manage personal affairs by an appropriate court of law; (B) comprehension of information: The individual giving the consent has been informed of and comprehends the nature, purpose, consequences, risks, and benefits of and alternatives to the procedure, and the fact that withholding or withdrawal of consent shall not prejudice the future provision of care and services to the individual with mental retardation; and (C) voluntariness: The consent has been given voluntarily and free from coercion and undue influence. Legally authorized representative -- The parent of an individual who is a minor, the guardian of an individual who has been determined by a court to lack capacity, or the managing conservator of an individual. MRA (mental retardation authority) -- As defined in the Texas Health and Safety Code, sec.531.002, an entity to which the Texas Mental Health and Mental Retardation Board delegates its authority and responsibility within a specified region for planning, policy development, coordination, and resource development and allocation and for supervising and ensuring the provision of mental retardation services to individuals with mental retardation in one or more local service areas. An MRA can be either a community center or a state-operated community MHMR services division. Medication administration -- The direct application of a drug by injection, inhalation, ingestion, topical application or any other means to the body of a person in accord with the Texas Medical Practice Act. Polypharmacy -- Simultaneous use of more than one psychoactive from the same medication class to treat an individual. The period of overlapping use of more than one psychoactive medication when a physician changes an individual from one drug to another shall not be considered polypharmacy. Psychoactive medication -- Any medication which is prescribed for the primary intent of, improving cognition, affective state, and/or behavior. Restraint -- Refers to the use of personal restraint methods or mechanical devices that are intended to restrict the movement or normal functioning of a portion of an individual's body. State operated community-based MHMR services division -- Those entities which provide community-based mental health and/or mental retardation services and which are operated by the department. Formerly known as community-based service divisions of state facilities. Tardive dyskinesia -- A possible side effect of neuroleptic medication characterized by involuntary and abnormal movements which are purposeless and stereotypical. Tuberculosis -- A disease spread through airborne particles containing tubercle bacilli which become established in the lungs and may spread throughout the body. sec.408.154.Encouraging Full Expression of Individual Rights. (a) The MRA or designated provider will encourage the full expression of legal and civil rights by each individual receiving services and will provide supports, as necessary, to assist individuals and their legally authorized representatives in the exercise of their rights. The MRA or designated provider will fully inform individuals and their legally authorized representatives of their rights as guaranteed under the Persons with Mental Retardation Act (Texas Health and Safety Code, Title 7, Subtitle D). In doing so, the MRA or designated provider will refer to Chapter 405, Subchapter Y of this title (relating to Client Rights -- Mental Retardation Services) and use the handbook prescribed in the subchapter. (b) The MRA or designated provider shall ensure that due process is provided when an individual's rights must be limited. (As applicable, see Chapter 405, Subchapter J of this title (relating to Surrogate Decision-Making for Community- Based ICF/MR and ICF/MR/RC Facilities).) Due process includes: (1) obtaining informed consent in writing for a period not to exceed one year from the individual or the legally authorized representative; and (2) review by the IDT and, if appropriate, the human rights committee of the proposed limitation of the individual's rights. (c) When an individual's rights must be limited, the IDT will consider what, if any, training or modifications to the individual's service plan might enable the limitations to be removed. (d) The MRA or designated provider shall develop and implement written policies and procedures for reporting and investigating allegations of rights violations and allegations of abuse, neglect, and exploitation, and taking appropriate action in confirmed cases. See Chapter 405, Subchapter Y of this title (relating to Client Rights Mental Retardation Services) and Chapter 404, Subchapter B of this title (relating to Abuse, Neglect, and Exploitation of People Served by Providers of Local Authorities). (e) Procedures for appeal of decisions shall be delineated and publicized, and shall include a mechanism for external review or mediation if agreement can not be reached. For MRAs, these procedures will include those set forth in sec.401.464 of this title (relating to Notification and Appeals Process). See Chapter 401, Subchapter G of this title (relating to Community Mental Health and Mental Retardation Centers.) sec.408.155.Human Resources. The MRA or designated provider ensures that: (1) all staff possess the work experience and education/credentials required by the job description or contract; (2) verification of credentials and verification of the renewal of credentials is maintained in the human resource file for all certified or licensed professionals; (3) professional personnel are licensed, certified, or registered, if required by law; (4) there is a mechanism in place for maintaining and ensuring standards of professional and ethical practice; (5) staff have the necessary training and demonstrate the necessary skills to ensure that the health, safety, and support needs of individuals are met ; and (6) documentation is maintained of the type and content of training and attendance records. sec.408.156.Medication Practice and Health Related Services. (a) The MRA or designated provider operates in accordance with accepted principles of practice and applicable federal and state laws and regulations to ensure medication is administered safely and appropriately. The written policies and procedures of the MRA or designated provider shall address: (1) proper handling, storage, and disposal of medications; (2) proper use of telephone orders; (3) administration of medications by staff licensed or authorized to administer medications; (4) supervision of self-administration; (5) administration of medications without errors; and (6) documentation of follow up and corrective action when medication errors do occur. (b) Each individual receives preventive and timely health care services based on health needs and condition. (c) The MRA or designated provider ensures the availability of physician, dental, nursing, pharmacy, and laboratory services by qualified personnel, in compliance with laws and regulations, based on each individual's needs, and provides for emergency care during hours of program operation. (d) The MRA or designated provider has written policies and procedures which address the use of physical restraints and psychoactive medication when necessary during a medical or dental procedure or to promote healing following a medical procedure or an injury. The policies and procedures shall address appropriate documentation including: (1) medical necessity; (2) the behavior to be controlled; (3) a physician's or dentist's written order; (4) renewals, if necessary, every 12 hours; and (5) provision of appropriate medical treatment and observation. sec.408.157.Infection Control. (a) In accordance with recommendations of The Centers For Disease Control and Prevention and the Occupational Safety and Health Administration, the MRA or designated provider shall ensure that an infection control plan is in place to decrease the risk for infection and/or transmission of diseases. (b) Documentation shall be included in the MRA's records that the plan has been implemented. (c) The plan addresses the following: (1) orientation training and updates; (2) prevention and management of infections for staff/providers and individuals (to include, but not be limited to, HIV, hepatitis B, and tuberculosis); (3) postexposure treatment for consumers and staff; (4) procedures for reporting of reportable diseases to the Texas Department of Health (TDH); (5) personnel policies in compliance with state and federal law; (6) criteria for determining when a consumer should be tested for HIV and hepatitis B; (7) hepatitis B immunization; and (8) special waste disposal as required by TDH as described in 25 TAC sec.sec.1.131-1.137 (relating to Definition, Treatment, and Disposition of Special Waste from Health Care). sec.408.158.Behavior Management. (a) The MRA or designated provider has written policies and procedures addressing behavior management which: (1) specify all approved interventions including aversive procedures and techniques; (2) designate a hierarchy of intervention from most positive and least intrusive to most restrictive and intrusive; and (3) specify accepted standards of professional practice for the use of these interventions. (b) Restrictive and/or intrusive interventions (i.e., physical restraint, time- out, or psychoactive medications) are used only when warranted by the severity of the behavior, based on a functional analysis and team input, and result in desired behavioral outcomes. (c) The emergency use of restrictive interventions occurs when the behavior is not predictable and presents the clear threat of injury to self or others. If emergency interventions are needed more than twice during two consecutive months a functional analysis is undertaken to develop a program to reduce the frequency and severity of the identified behaviors. (d) Restrictive and/or intrusive interventions may be used as part of an individualized plan that is intended to lead to less restrictive means of managing and eliminating the behavior or controlling the symptoms of mental illness. (e) Monitoring of the individual during all restrictive interventions is at the appropriate level for the type of intervention being used and assures that individual rights are protected. (f) All restrictive interventions addressing the management of targeted behavior are justified by the functional assessment, the current level of behavior, and are reviewed by the treatment team at least annually to determine the ongoing need and to assess for the possible decrease in the use of the intervention, based on current clinical evidence. When possible, the acquisition of adaptive replacement behaviors are also measured. (g) Non-contingent interventions (i.e. environmental engineering, counseling, etc.) are similarly evaluated for their effectiveness through the use of individualized and quantified measures. (h) Except in an emergency, written informed consent for a period not to exceed one year is obtained when restrictive and/or intrusive interventions are included as part of a behavior management program. (1) The Human Rights Committee should review the situation carefully as a matter of due process. When the failure to obtain written informed consent is based on the individual's assessed inability to provide legally adequate consent, the need for obtaining a guardian should be considered. When applicable, surrogate decision making will be considered as described in Chapter 405, Subchapter J of this title (relating to Surrogate Decision-Making for Community-Based ICF/MR and ICF/MR/RC Facilities.) (2) The individual or guardian have the right to withdraw consent to treatment at any time without regard to any time limit specified in the consent form. (3) People do not have the right to cause injury to self or others, but the individual does have a right to be free of unnecessary drugs and other restrictive interventions and to receive appropriate treatment. This can best be ascertained when planned interventions are evaluated and determined to be effective. sec.408.159.Psychoactive Medications. In accordance with accepted principles of practice, the MRA or designated provider shall ensure that: (1) psychoactive medications are used judiciously as part of an individualized plan in which the following are carefully considered: (A) rationale including current DSM diagnosis; (B) benefits of treatment in light of potential risks of the targeted behavior; (C) overall impact on the individual's quality of life; (D) adjunctive procedures; (E) monitoring of side effects; and (F) monitoring for efficacy; (2) when tardive dyskinesia is suspected, the physician: (A) informs the individual and/or legal guardian; (B) discusses treatment options; and (C) documents in the record that the individual and/or legal guardian has been informed of the suspected condition, possible treatment options, and the rationale for the treatment chosen; (3) the physician obtains a second opinion to review and determine the safety of any usage of polypharmacy or over the maximum dosage levels when clinically indicated prior to the individual receiving such medications; (4) informed consent in writing for a period not to exceed one year from the individual or legally authorized representative (including a surrogate decision- making committee, if applicable, as described in Chapter 405, Subchapter J of this title (relating to Surrogate Decision-Making for Community-Based ICF/MR and ICF/MR/RC Facilities)) is obtained prior to initiation of the medication unless the use is necessitated by an emergency as described in sec.408.158 of this title (relating to Behavior Management.). Informed consent must include: (A) an explanation of the medication and its purposes; (B) expected beneficial effects, side effects and risks; (C) probable consequences of not taking medication; (D) the existence and value of alternative less restrictive forms of treatment, if any, and why the physician rejects the alternative therapy; (E) instruction that the individual with the ability to provide legally adequate consent or the LAR may withdraw consent at any time without negative actions on the part of staff; (F) an offer to answer any questions concerning the medication and its use; and (G) a specification of the time period to be covered by the consent document (5) informed consent will be obtained on at least an annual basis or any time the medication regimen is altered in a way which would result in a change of medication class or result in a significant change in the risks or benefits to the individual; and (6) if the individual with the ability to provide legally adequate consent or the LAR consents to the administration of psychoactive medication but is physically unable to provide written consent, the physician will document the verbal consent in the individual's record. sec.408.163.References. Texas laws, department rules, and other standards referenced in this subchapter include: (1) Texas Health and Safety Code, sec.531.002; (2) Texas Health and Safety Code, sec.534.052; (3) Texas Health and Safety Code, sec.534.054(c); (4) Texas Health and Safety Code, sec.534.058; (5) Texas Health and Safety Code, sec.591.006; (6) Persons with Mental Retardation Act (Texas Health and Safety Code, Title 7, Subtitle D); (7) Texas Medical Practice Act; (8) Chapter 401, Subchapter G of this title (relating to Community Mental Health and Mental Retardation Centers. (9) Chapter 408, Subchapter C of this title (relating to Quality Assurance and Improvement System (QAIS) for Mental Retardation Services and Supports); (10) Chapter 405, Subchapter Y of this title (relating to Client Rights -- Mental Retardation Services; (11) Chapter 404, Subchapter B of this title (relating to Abuse, Neglect, and Exploitation of People served by Providers of Local Authorities); (12) Chapter 408, Subchapter D of this title (relating to Additional Mandatory Standards for Selected Providers of Community-based Mental Retardation Supports and Services); and (13) Life Safety Code. 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 January 31, 1997. TRD-9701421 Ann Utley Chairman, Texas MHMR Board Texas Department of Mental Health and Mental Retardation Effective date: February 21, 1997 Proposal publication date: September 20, 1996 For further information, please call: (512) 206-4516 TITLE 28. INSURANCE PART I. Texas Department of Insurance CHAPTER 19.Agent's Licensing SUBCHAPTER P.Fees Charged by Local Recording Agents 28 TAC sec.19.1501-19.1503 The Commissioner of Insurance adopts amendments to sec.sec.19.1501 - 19.1502 and new sec.19.1503, concerning fees charged by local recording agents to purchasers of insurance policies. Sections 19.1502 and 19.1503 are adopted with changes to the proposed text as published in the August 27, 1996 issue of the Texas Register (21 TexReg 8083). Section 19.1501 is adopted without changes and will not be republished. The amendments to these sections and new sections are necessary to delete reference to repealed Insurance Code, Article 21.14, sec.4(e) and insert reference to the Insurance Code, Articles 21.35A and 21.35B concerning reimbursement and payments agents are permitted to charge clients. The department has received calls from agents who are confused as to what fees they are allowed to charge insurance customers. The department has also received calls from consumers complaining of being charged fees without their knowledge. These sections will help to ensure that both local recording agents and consumers know what fees may be properly charged and to ensure disclosure of fees to purchasers of insurance. This will discourage agents from charging fees without the consumer's knowledge and enable consumers to make more informed decisions when purchasing insurance. The amendments to sec.sec.19.1501 - 19.1502 and new sec.19.1503 harmonize the provisions of Articles 21.35A and 21.35B. In response to comments, several changes were made to the subchapter. The definition for agent fee was changed to clarify that agents may charge a fee for services the agent agrees to perform, not just services the agent has actually performed. The definition for fees was deleted as unnecessary since the definition for service fee has also been changed to include language which more closely follows the provisions of the statutes. The definition for policy fee has been amended to show that the charge is in addition to the premium and that it may also be collected by a managing general agent and a surplus lines agent on behalf of an insurer. Existing sec.19.1503, which refers to adoption by reference of the Disclosure Statement for Local Recording Agents' Fees form, has been repealed elsewhere in this issue of the Texas Register. New sec.19.1503, which sets out the procedures which must be followed when local recording agents charge clients fees under Articles 21.35A or 21.35B, has been changed. Generally, local recording agents must disclose to a client, in writing, the following: that the agent has notified the client of the agent's reimbursement or fee requirement; the policy fee, agent fee, service fee or inspection fee, if any, charged by the agent on the transaction; the client's written agreement to the charges (Article 21.35A only); the client's signature; the toll-free telephone number of the department for information on how to file a complaint; an itemized list of the services provided and the corresponding charges for each service. Section 19.1504 has been repealed elsewhere in this issue of the Texas Register since the text of that section is now included in new sec.19.1503. Comment: Commenters believe that Article 21.35A and Article 21.35B do not authorize promulgation or adoption of the proposed rules by the Commissioner of Insurance. Commenters believe that the language in Article 1.03A which permits the Commissioner to adopt rules and regulations "only as authorized by statute" does not itself authorize the Commissioner to adopt rules and regulations independently of another statute's authorization to adopt rules. The commenters contend that Article 21.35A contains no authority for the promulgation of rules and Article 21.35B has very limited authority for the promulgation of rules. The commenters contend that there is no statutory authorization for the type and scope of rules proposed. Response: The agency disagrees. Article 1.03A was passed by the 73rd Legislature in 1993. A review of the legislative history of Article 1.03A shows that during debate concerning Article 1.03A on the Senate floor, on May 24, 1993, the sponsor of Article 1.03A agreed that the department must have specific statutory jurisdiction to issue a rule, but each section of the Insurance Code in which the department has jurisdiction need not explicitly reference the department's rulemaking authority. The sponsor of the bill further established that the department only needs general statutory authority to adopt a rule. Article 1.03A provides the agency with general rulemaking authority to implement, interpret or prescribe law or policy to carry out the provisions of the Insurance Code. Each article of the Insurance Code over which the department has regulatory and enforcement jurisdiction need not explicitly state that "the Commissioner has authority to adopt rules under this article." Insurance Code, Articles 21.35A, 21.35B, 21.21 and Article 1.03A together provide statutory authority to adopt these rules. The department agrees that Article 1.03A does not itself authorize substantive rules to be adopted by the Commissioner without a specific authorizing statute independent of Article 1.03A. In this case, the specific authorizing statutes independent of Article 1.03A are Articles 21.35A, 21.35B and 21.21. Article 1.03A authorizes the Commissioner to adopt rules for the conduct and execution of the "duties and functions" of the department only as authorized by statute. Insurance Code, Articles 1.01A and 1.09 establishes the "duties and functions" of the department as the regulation of the business of insurance in this state and implementation of the purpose of the Insurance Code. Articles 21.35A, 21.35B, and 21.21 are the "authorizing statutes" under which the Commissioner may exercise his general rulemaking authority under Article 1.03A. Since Articles 21.35A and 21.35B regulate fees and services charged by agents, including local recording agents, the agency has the authority under 1.03A to adopt rules to implement these statutes. The agency also believes that the Commissioner has authority to adopt these sections under Insurance Code, Article 21.21 (Unfair Competition and Unfair Practices). The agency believes that charging consumers fees without their knowledge is "an unfair or deceptive act or practice in the business of insurance" (See Article 21.21, sec.3) and that requiring disclosure of fees to be charged encourages fair competition and allows consumers to make informed decisions when purchasing insurance. Comment: A commenter has a concern about the aggregation of Article 21.35A and Article 21.35B to propose one set of rules since the statutes were enacted at different times and deal with different subjects. Article 21.35A provides for local recording agents' reimbursement for costs incurred in providing services to insurers; Article 21.35B provides for insurers, agents and sponsoring organizations to recover various fees and costs, which may or may not include the costs described in Article 21.35A. Response: The agency disagrees with the contention that because the statutes were enacted at different times and deal with different subjects that a single rule cannot implement both statutes. Articles 21.35A and 21.35B both address closely related subjects and regulate fees charged not only by local recording agents (21.35A), but other entities (21.35B). The agency believes that it is appropriate to require disclosure of fees which may be charged in a single rule addressing fees. Although Article 21.35B is broader in scope than Article 21.35A because it deals with both permissible reimbursement for fees and permissible payments and applies to agents and entities other than local recording agents, this does not mean that rules cannot address disclosure of fees authorized in both articles. Article 21.35B refers to service fees, including charges for costs described under Article 21.35A. Although Article 21.35A applies specifically to local recording agents, Article 21.35B also includes local recording agents. It is entirely appropriate and reasonable to combine different statutes into one rule to address disclosure of fees, particularly when one of the statutes refers to the other. Comment: One commenter objects to the changes made to the sections from the published proposal. The commenter argues that the changes are substantive and requests that the sections be republished. The commenter also objects to the elimination of a standard disclosure form, arguing that some consumers may receive clear disclosure while others might receive poor disclosure. Response: The changes to the sections do not affect a new group of people nor do the changes impose a greater burden on the group of people affected by the sections. Therefore, the agency disagrees that the changes to the sections from the published proposal are substantive; nor does the agency believe that the sections should be republished. The requirement of a standard disclosure form was eliminated from the proposed sections because local recording agents are already required to disclose fees and obtain consumers' written consent to fees collected under Article 21.35A. Requiring that agents use a standardized form may interfere unnecessarily with local recording agents' ability to adjust the disclosure forms they are currently using to incorporate the requirements of these sections. In requiring disclosure of fees under Article 21.35B, the agency does not seek to add unnecessarily to the costs agents must incur to comply with the sections, but simply to ensure consumers know what fees they are being charged. Requiring disclosure of fees helps to achieve that goal. Finally, there would be additional costs to the state for developing a standard disclosure form which were not anticipated in the sections as proposed. sec.19.1501 Comment: A commenter suggested applying the sections to all agents. Response: The agency agrees with the concept of requiring all agents to disclose fees that are charged to an insured but has not made the recommended change in these sections. The agency published these sections requiring disclosure of fees by local recording agents and it would be inappropriate to apply this rule to agents other than local recording agents since other agents have not been put on notice of application of these sections to them. sec.19.1502 - Definitions Comment: Several commenters suggested deleting the word "made" after the word "charge" in the various definitions as unnecessary. Response: The agency agrees and has made the changes. Comment: One commenter requested clarifying the definition of "agent fee" by including the words "or services" and "agrees to perform" rather than actually performs since some services are performed in the future. Response: The agency agrees and has made the suggested change since it makes the definition more accurate. Comment: One commenter believed the words "in lieu of" in the definition for "policy fee" was unclear and believed the words "in addition to" added nothing to the definition. Response: The agency believes the commenter has confused the definition for "policy fee" with the one for "agent fee" since the words "in lieu of" are not part of the definition for "policy fee". The agency believes, however, that the words "in addition to the premium" in the definition of "policy fee" correctly define the term. Comment: A commenter suggests that subparagraph (B) in the definition of "fees" is unnecessary as it repeats the wording in the definition of "service fee" and is already included in subparagraph (C) of the "fees" definition. A commenter recommends adding the words "reasonable charge" prior to the listing of the various fees. Another commenter suggests deleting the fee definition. Response: The agency has deleted the definition of "fees" as unnecessary since it has made other changes to the definitions due to comments received and the definition is no longer necessary. Comment: Some commenters believe that the definition of "policy fee" is unworkable as it relates to disclosure by the local recording agent of fees charged by county mutual insurance companies, managing general agents (MGAs) and surplus lines agents. The commenters believe that these fees are controlled by parties other than the local recording agent and it is unreasonable to require local recording agents to disclose fees outside their control. The commenters also believe that the local recording agent is unable to comply with the disclosure requirement in proposed sec.19.1503(c)(4), because the local recording agent does not know what fees are being charged or what services are being provided by the insurer, the MGA or the surplus lines agent. The commenters feel that the local recording agent should not be responsible for disclosing and explaining a fee charged by another entity. Further, the agent may not know the amount of the policy fee before the close of the transaction. The commenters state that some local recording agents know what policy fee is being charged on a policy at the time a transaction is being completed, but many agents will not have that information before the transaction is completed. The commenters assert the disclosure of such fees would be a burden on the vast majority of local recording agents who do not now charge fees on their own behalf and do not intend to charge fees to their customers in the future. Commenters recommended various changes to the definition of "policy fee" to include no requirement of disclosure if the policy fee is reflected on the declaration page of the policy. The commenters further state that "policy fees" are shown on the policy declarations page and are subject to premium tax as a part of the premium, as required by Insurance Code, Articles 1.14-2 and 4.10, and do not need to be disclosed again. Another commenter objects to the elimination of the requirement that policy fees be disclosed only if not listed on the policy declarations page. The commenter asserts that by the time consumers get their declarations page and learns of the policy fee, they have already lost the opportunity to reject the fee. Response: The agency is not attempting to require local recording agents to disclose something that is outside of their control, rather it wants local recording agents to disclose those fees they charge customers so that customers can make knowledgeable decisions. The agency has changed the definition of "policy fee" to clarify that the policy fee is charged on behalf of the insurer, managing general agent or surplus lines agent. The agency agrees that if the policy fee is disclosed on the policy declaration page, there is no necessity for the fee to be disclosed also on the disclosure form. The agency reasserts that the purpose of the sections is to provide disclosure of fees charged by agents so that consumers can make informed decisions. Since policy fees are not charged by the agent, but by the insurer, requiring disclosure of policy fees only if they are not separately disclosed on the declarations page is reasonable and consistent with the purpose of the sections. As to the commenter who argues that the consumer has lost the opportunity to reject the policy fee by the time he or she receives a copy of the declarations page of the policy, the agency does not believe that requiring the disclosure of policy fees before the close of the transaction will address this issue since the policy fee, as defined in these sections, is charged by the insurer, not by the agent. The proposed sections as published sought to address the problem of agents who charged consumers fees, which were labeled as "policy fees", without the consumer's knowledge. By requiring that policy fees be disclosed if they are not disclosed on the declarations page of the policy, this problem is addressed since the agent must then disclose any fee that may be improperly labeled a policy fee. Comment: A commenter suggested deleting the last sentence of the definition of service fee. Under Article 21.35A (c), these charges are not limited to the actual costs incurred by the agent. Another commenter objects to the change in the definitions which no longer defines a reasonable fee as the actual cost. The commenter believes that this change removes consumer protection by providing no guidance on the term "reasonable". Response: To be consistent with Article 21.35A, the agency has changed the definition of service fee to specify those charges which are to be based on actual costs and those charges for which the fee charged must be reasonable, and to clarify to local recording agents the fees which may be charged. The agency has made the change in the definition for service fee to include the actual cost for those items specified in Article 21.35A(b) and the reasonable cost for those items specified in Article 21.35A(c) because it more closely follows the actual language and requirements of the statute. As previously stated, the purpose of these sections is to provide for disclosure of fees so that consumers may make more informed decisions when buying insurance and to clarify to both local recording agents and consumers what fees agents may properly charge. sec.19.1503 Comment: Commenters suggested exempting "policy fees" as defined in the proposal from the disclosure requirements. Another commenter was concerned that the sections improperly required the consumer's written agreement to charges under Article 21.35B when written agreement to charges is only required under Article 21.35A. Another commenter suggested separating the procedures to be followed for the fees permitted in Articles 21.35A and 21.35B. Response: The agency has changed this section, as recommended by one commenter, to differentiate between the fees permitted in Article 21.35A and Article 21.35B and the procedures which must be followed for each article. The section now requires written agreement only for those fees charged under Article 21.35A. The agency disagrees with exempting policy fee from the disclosure requirements in this section. Since the agency has changed the sections to require disclosure of a policy fee only if it is not separately disclosed on the declarations page of the policy or endorsed onto the policy, the agency does not believe it is appropriate to make the recommended change. Comment: Commenters objected to the lengthy record keeping requirement in sec.19.1503(d). The commenters stated that agents will keep records of fees in the individual customer file and that any complaint concerning a fee is a complaint from a specific customer. The required disclosure information will be readily available for the agency to inspect or copy the agents' customer files. The commenters further stated that agents retain files for as long as that person remains an active customer, but most agents purge their files three years after the person is no longer an active customer. The commenters feel that three years is an adequate period of time for retention. A commenter expressed concern over the need to maintain the disclosure form in a separate file. Response: The agency does not believe that retaining records for a period of five years is an unreasonable amount of time. The records must be available when the agency needs to review the records. A five year retention period is consistent with other rules on retention of records (See sec.19.1204(b)(16) Licensing and Regulation of Managing General Agents). Additionally, Insurance Code, Article 1.41 sets out a five year limitation period for imposing sanctions, penalties or fines against insurers, agents or other licensees subject to the agency's jurisdiction when there has been a violation of the Insurance Code or other insurance laws of the state. Therefore, the agency believes that retention of records for five years is reasonable and necessary to help in its enforcement of Texas insurance laws. The agency understands the concern over separate files and has deleted the requirement of maintaining the disclosure forms in a separate file as unnecessary. Comment: A commenter suggests that the agency consider repealing 28 TAC sec.5.20l and incorporating it into this new proposed rule. If not, the agency should clarify sec.5.201 as an exception to local recording agents. Response: The agency disagrees with incorporating the suggested repeal into this proposal. Repeal of sec.5.201 was not included in the notice of this proposal and it would not be within the scope of this proposal to attempt to repeal another rule without putting the public on notice. The agency will consider what, if anything should be done regarding sec.5.201. FOR: Texas Association of Insurance Agents, Texas County Mutual Association, Texas Surplus Lines Association. AGAINST: Automobile Insurance Agents of Texas, Inc., Center for Economic Justice. The amendments and new sections are adopted under the Insurance Code, Articles 21.35A, 21.35B, 21.21 and 1.03A. The Insurance Code, Article 21.35A sets out the fees a local recording agent may charge a client for reimbursement of certain costs. Article 21.35B establishes the various payments an insurer, its agent, or sponsoring organization may collect. Article 21.21 regulates trade practices in the business of insurance by defining and prohibiting unfair methods of competition or unfair or deceptive acts or practices. Article 1.03A provides that the Commissioner of Insurance may adopt rules and regulations to execute the duties and functions of the Texas Department of Insurance only as authorized by a statute. The Government Code, sec.sec.2001.004 et seq. authorizes and requires each state agency to adopt rules of practice setting forth the nature and requirements of available procedures and to prescribe the procedures for adoption of rules by a state agency. sec.19.1502. Definitions. The following words and terms, when used in this subchapter, shall have the following meanings unless the context clearly indicates otherwise. Agent fee - A charge by a local recording agent, in lieu of or in addition to the commission, for services the agent agrees to perform in connection with the sale or service of a particular policy. Inspection fee - A charge by a local recording agent for examination of a risk to be insured to determine acceptance, rejection or rate. Local recording agent - A person subject to licensing under Insurance Code, Article 21.14. Membership dues - A payment or obligation required by an organization or group for an individual to be considered a member or part of the organization or group. Policy fee - A charge by a local recording agent on behalf of an insurer, managing general agent or surplus lines agent in connection with issuance of the policy. This charge is in addition to the premium. Service fee - A charge by a local recording agent for actual costs incurred in obtaining a motor vehicle record of a person, or a photograph of property, insured under, or to be insured under, an insurance policy; or the reasonable costs of special delivery or postal charges, printing and reproduction costs, electronic mail costs, telephone transmission costs, and similar costs incurred by the agent on behalf of the client. sec.19.1503. Procedures for Charging Fees. (a) A local recording agent may charge a client a service fee to reimburse the agent for actual costs as specifically enumerated in and in accordance with the Insurance Code, Article 21.35A(b). A local recording agent may also charge a client a reasonable service fee for those items listed in Insurance Code, Article 21.35A(c). A local recording agent may not charge a service fee unless the agent notifies the client of the service fee (including for reimbursement of actual costs) and obtains the client's written consent for each item charged under the service fee prior to the local recording agent incurring an expense on behalf of the client. (b) Local recording agents may, aside from service fees, charge a client policy fees, agent fees, inspection fees and membership dues in accordance with Insurance Code, Article 21.35B. (c) The local recording agent must follow the procedures for disclosure set out in this subsection when charging a client for these fees. The local recording agent must obtain the client's signature on a disclosure form. The local recording agent must disclose, to a client, the following information in the written disclosure form signed by the client: (1) that the agent has notified the client of the agent's reimbursement or fee requirement prior to incurring the expense or providing the service; (2) the agent fee, service fee or inspection fee, if any, charged by the agent on the transaction. If a policy fee is charged which is not separately disclosed on the declarations page of the policy or endorsed onto the policy, the agent must disclose the policy fee; (3) the toll-free telephone number (1-800-252-3439) of the Texas Department of Insurance and a statement in bold face type advising the client that the client may call that number to obtain information on how to file a complaint if the client has a complaint regarding such fees; and (4) a complete, itemized listing of the fees being charged and, if a service fee is charged, a complete itemized listing of the services provided and the corresponding charge for each item under the service fee. (d) All files relating to fees, including written records of disclosure of fees, must be maintained for a period of five years and must be made available to the Texas Department of Insurance for inspection or copying upon request to insure compliance with this subchapter and Texas Insurance Code, Articles 21.35A and 21.35B. 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 January 31, 1997. TRD-971475 Caroline Scott General Counsel and Chief Clerk Texas Department of Insurance Effective date: February 21, 1997 Proposal publication date: August 27, 1996 For further information, please call: (512) 463-6327 28 TAC sec.sec.19.1503 - 19.1504 The Commissioner of Insurance adopts the repeal of sec.sec.19.1503-19.1504 concerning fees charged by local recording agents to purchasers of insurance policies. The repeal of these sections is adopted without changes to the proposed text published in the August 27, 1996 issue of the Texas Register (21 TexReg 8085). Section 19.1503 is repealed because the department will no longer promulgate a form for disclosure of fees charged by local recording agents. The repeal of sec.19.504 is necessary to delete reference to repealed Insurance Code, Article 21.14, sec.4(e) and enable adoption of new sec.19.1503 to insert reference to Insurance Code, Articles 21.35A and 21.35B concerning reimbursement and payments agents are permitted to charge clients. The repeal of these sections eliminates a procedure no longer used by the department, deletes reference to a repealed statute, and enables the Commissioner of Insurance to adopt new sec.19.1503 concerning fees charged by local recording agents, which appears elsewhere in this issue of the Texas Register. No comments were received on the proposal as published in the Texas Register. The repeals are adopted pursuant to the Insurance Code, Articles 21.35A, 21.35B, and 1.03A. The Insurance Code, Article 21.35A sets out the fees a local recording agent may charge a client for reimbursement of certain costs. Article 21.35B establishes various payments an insurer, its agent, or sponsoring organization may collect. Insurance Code, Article 1.03A provides that the Commissioner of Insurance may adopt rules and regulations to execute the duties and functions of the Texas Department of Insurance only as authorized by a statute. The Government Code, sec.sec.2001.004 et seq. (Administrative Procedure Act) authorize and require each state agency to adopt rules of practice setting forth the nature and requirements of available procedures and to prescribe the procedures for adoption of rules by a state agency. 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 January 31, 1997. TRD-971474 Caroline Scott General Counsel and Chief Clerk Texas Department of Insurance Effective date: February 21, 1997 Proposal publication date: August 27, 1996 For further information, please call: (512) 463-6327 TITLE 31. NATURAL RESOURCES AND CONSERVATION PART XX. Edwards Aquifer Authority CHAPTER 721. Interim Critical Period Management Rules The Edwards Aquifer Authority (Authority) adopts new subchapters A through H, sec.sec.721.1-721.8, 721.11-721.12, 721.21-721.24, 721.31-721.33, 721.41-721.48, 721.51, 721.52, 721.61-721.65, 721.71 and 721.72, concerning interim critical period management rules,. Proposed sec.sec.721.5, 721.12, 721.21-721.24, 721.31- 721.33, 721.41-721.45, 721.47, 721.48, 721.51, 721.52 and 721.61 are adopted with changes to the proposed text as published in the September 3, 1996, Texas Register (21 TexReg 8405). Proposed sec.721.34 has been withdrawn, but the substance of its text has been incorporated with changes into 721.5(a)(6). Sections 721.1-721.4, 721.6-721.8, 721.11, 721.46, 721.62-721.65, 721.71, and 721.72 have been adopted without changes. The Authority adopts these new rules pursuant to the Conservation Amendment of the Texas Constitution, article 16, section 59; the powers and duties of the Authority to promulgate and enforce rules to implement a critical period management plan under the Edwards Aquifer Authority Act, chapter 626, 73rd Legislature, Regular Session (1993), as amended (the "Act"), sec.sec.1.08, 1.11, 1.14, 1.17, 1.26, 1.35, 1.36, 1.37, 1.38, 1.40 and 1.41; and chapter 36 of the Texas Water Code. The purpose of these critical period management rules is to reduce withdrawals from the Edwards Aquifer in order to protect and preserve available water supplies during critical periods in accordance with the Authority's Critical Period Management Plan, which was published for public comment along with the proposed rules, 21 TexReg 8406 (September 3, 1996). The rules are intended to be in force and effective for an interim period. The Authority intends to replace these interim rules with permanent critical period management rules after the permitting system and the comprehensive management plan required by the Act have been implemented. The rules are designed to accomplish the following goals: to protect public health, safety and welfare; to sustain springflow levels at Comal and San Marcos Springs and protect endangered species and their habitats; to provide downstream water flows; to prolong and promote water supplies throughout the region; to protect water quality; to minimize economic losses; to delay or avoid the day when substantial reductions will have to be made of essential uses of underground water; and to preserve state sovereignty and regional control of the aquifer. The critical period management rules as adopted differ in some respects from the rules as proposed. Revisions to the proposed rules were made as a result of comments received from the public and further review by staff. Specific changes and reasoned justification for the changes and agency responses to comments are addressed below. The numbering of the adopted rules is the same as the proposed rules with one exception. Section 721.34 has been withdrawn, but the text of proposed sec.721.34 now appears as part of the definition of "base usage" at sec.721.5(a)(6). In addition, subsection designations have changed in several of the rules, including the definitions section sec.721.5, the section describing the critical period stages (sec.721.24), and the section dealing with monthly use reports (sec.721.52), to reflect additions or deletions to those sections. Subchapter A of the rules, relating to general provisions, contains sec.sec.721.1-721.8. Those rules provide a general statement of the purpose, authority, and the circumstances that make the rules necessary, set forth definitions and abbreviations of words and terms when used in the chapter, set forth the computation of time for filing documents with the Authority, require a person subject to the rules to notify the Authority of a change of address within fourteen days, and provide for severability. Section 721.2 provides that the rules apply throughout the jurisdictional boundaries of the Authority. Section 721.5 is the definitions section. The definitions of "aquifer" and "underground water" make clear that the rules apply only to water within or produced, obtained, or originating from the Edwards Aquifer. "Underground water" does not include recycled, reclaimed or reused water. "Essential uses" are defined as those uses of underground water which are not defined as discretionary uses and which are essential to the protection of public health, safety, or welfare, essential to industrial use or agricultural or military activity which directly supports gainful employment, or essential to irrigation use. "Discretionary uses" are expressly defined to include recreational use to the extent the underground water is not recycled (including the watering of turf areas), landscape watering (including residential, commercial and public landscapes, golf courses, athletic fields, and cemeteries), filling or maintaining swimming pools, operating outdoor fountains, washing of parking lots and other impervious outdoor ground coverings, and use in an aquaculture operation to the extent the water is not recycled. The term "landscape watering" means the application of underground water to grow or maintain plants, but does not include production use by a nursery, watering of a family garden or orchard, or limited application to a concrete foundation to prevent damage. Notwithstanding these definitions, any use of underground water that is necessary to prevent danger to public health, safety, or welfare or that is required to comply with state or federal law, is considered essential. Subchapter B, relating to applicability of the rules, explains which persons are "primary users" subject to the rules and which uses are exempt from the rules. A "primary user" is any person who withdraws or supplies more than 25,000 gallons per day of underground water, see sec.sec.721.11, 721.5(a)(28). A primary user who supplies more than 25,000 gallons of underground water per day is termed a "primary supplier," sec.721.5(a)(27). "Withdraw" is defined broadly to mean to "effect, cause, suffer, allow or permit" taking of water from the Edwards Aquifer through either action or inaction, sec.721.5(a)(40), (41). Thus, any person who owns, leases, or has actual or constructive possession of a producing Edwards Aquifer well or the land upon which the well is located "withdraws" from that well. All primary users, except irrigation users, are subject to the maximum allowable usage limits mandated by subchapter D of the rules, sec.sec.721.31-721.33, and must file base usage reports and monthly usage reports during critical period stages in accordance with subchapter F, sec.sec.721.51-721.52. Section 721.12 provides that no person is required to reduce withdrawals of underground water from any well that produces 25,000 gallons per day or less, under either the maximum allowable usage limitations or specific water use restrictions of these rules. Exempt users are encouraged to comply with the landscape watering restrictions. Section 721.12(b) states that no person is required to reduce the amount of underground water withdrawn or supplied to the extent it is used for an essential use as defined in sec.721.5(a)(14). Certain uses are expressly defined as discretionary, sec.721.5(a)(12), and thus are excluded from the definition of essential use. Persons subject to mandatory reductions or specific restrictions must reduce discretionary uses to the maximum extent feasible as may be necessary to comply. All persons are subject to sec.1.35(c) of the Act, which prohibits the waste of underground water, regardless of the amount of water produced or the use of the water. Subchapter C, relating to critical period stages, divides the Authority into three compliance areas for purposes of the critical period stages established in these rules. As stated in sec.721.21, the eastern area consists of Bexar County and portions of the counties of Comal, Hays, Caldwell, and Guadalupe within the Authority. Stages in the eastern area are triggered by aquifer levels as measured at Well J-17 in San Antonio. Stage I is triggered when the J17 level falls to 650 feet above mean sea level ("ft. m.s.l."). Stage II is triggered when the J-17 level falls to 642 ft. m.s.l. Stage III is triggered when the J-17 level falls to 636 ft. m.s.l. Stage IV is triggered when the J-17 level falls to 632 ft. m.s.l. As stated in sec.721.22, the Medina area consists of Medina County and the portion of Atascosa County within the Authority. Stages in the Medina area are triggered by the aquifer level as measured at the Hondo Yard Well in Hondo. The stages in the Medina area are as follows: Stage I - 670 ft. m.s.l.; Stage II - 660 ft. m.s.l.; Stage III - 655 ft. m.s.l. Section 721.23 states that the Uvalde area consists of Uvalde County. Stages in the Uvalde area are triggered by the aquifer level as measured at Well J-27 in Uvalde. The stages in the Uvalde area are as follows: Stage I - 845 ft. m.s.l.; Stage II - 840 ft. m.s.l. The rules do not provide for Stage IV to be triggered in the Medina area, or for Stages III or IV to be triggered in the Uvalde area. The critical period stages in these three compliance areas, along with the applicable reduction multipliers, are stated at sec.721.24(d) and (e), Figure 1. A reduction multiplier is used to calculate a primary user's maximum allowable usage. The reduction multipliers are as follows: Stage I - 1.8 x base usage; Stage II - 1.6 x base usage; Stage III - 1.4 x base usage; Stage IV - either 1.2, 1.3, or 1.4 x base usage. As stated in 721.24(d), if the Authority determines to implement its voluntary Irrigation Suspension Program for 1997, the reduction multiplier for participants in the program will be 1.4. If the program is not implemented, the board will, by order issued no later than April 10, 1997, establish the applicable reduction multiplier in Stage IV, in which case the multiplier will not exceed 1.4 nor be less than 1.2. Section 721.24(a) provides that the general manager of the Authority is required to make daily postings of springflow rates and well levels, the 10-day rolling average of these values, and the stage which is in effect in each of the three compliance areas. Section 721.24(c) states that once a stage is triggered in a compliance area, it will remain in effect for at least ten days, and will not be rescinded until the 10-day average of the aquifer level is above the applicable trigger point. Subchapter D of the rules, relating to maximum allowable usage and enforcement, creates maximum allowable usage limits for use of underground water by primary users as well as enforcement of the rules. Section 721.31 states that maximum allowable usage is computed by multiplying a user's base usage by the reduction multiplier applicable to the critical period stage then in effect. The key term "base usage" is defined in sec.721.5(a)(6). Generally, base usage is the average of a user's three lowest monthly water usage volumes for the following four months: November 1995, December 1995, January 1996, and February 1996. A different base usage formula is provided for conjunctive users. A "conjunctive user" is defined in sec.721.5(a)(9) as a primary user that uses or supplies water other than underground water in an amount equal to at least 10% of the total water used or supplied in the preceding 12 months, if the non-Edwards Aquifer water relieves demand on the Edwards Aquifer, all available non-Edwards Aquifer water is used or supplied first, and the first qualifying use of non- Edwards Aquifer water occurred after 1986. If a primary user qualifies as a conjunctive user, sec.721.5(a)(6) provides that the user's base usage is computed as the average of the three lowest months among the four months of November, December, January, and February, for the three 12 month periods preceding the first qualifying use of nonEdwards Aquifer water. Section 721.32(a) states that a primary user other than an irrigation user is prohibited from withdrawing or supplying more than its maximum allowable usage during any critical period stage, but makes clear that this prohibition does not apply to exempt withdrawals or essential uses under sec.721.12. This prohibition will be enforced beginning on the effective date of the rules, which is the 20th day following the date the adopted rules were filed with the Secretary of State. Section 721.32(c) provides an adjusted formula for maximum allowable usage to be used in an action brought by the Authority to enforce maximum allowable usage limits against certain primary suppliers who experience unavoidable drought- caused water main breaks. In such an enforcement action, a primary supplier that has exceeded its maximum allowable usage limit as computed on total withdrawals is entitled to a calculation of maximum allowable usage based on total metered sales rather than total amount of water withdrawn if the supplier proves that the exceedance is due to nonpreventable water main breaks caused by dry weather conditions during the critical period, the unaccounted-for water is less than 20% of total water pumped by the supplier or does not exceed 25 million gallons per day, whichever is lower, the supplier implements and maintains an aggressive leak detection program, and the supplier exercises reasonable diligence in detecting, repairing, and preventing the breaks. If the supplier successfully establishes that the metered sales formula should be applied in accordance with this section, the supplier will not be subject to fines or penalties for the exceedance to the extent the exceedance is proven by the supplier to have been caused by the nonpreventable water main breaks. Section 721.33 makes it the general manager's duty to calculate base usage and maximum allowable usage for every primary user, other than an irrigation user, based on the base usage report and other available information. In particular cases, the general manager has discretion, with approval from the board, to calculate base or maximum allowable usage on different criteria more appropriate for a particular primary user in order to approximate better the minimum amount of water needed by that primary user for essential uses, or to avoid penalizing a user for development of alternative water supplies. Primary users have the duty to calculate their own base and maximum allowable usage values for purposes of compliance. If a primary user disagrees with the general manager over the determination of base or maximum allowable usage, the user is entitled to seek review by the general manager and the board in accordance with sec.721.71 and sec.721.72. Section 721.32(d) provides for enforcement of the rules. Any person that violates any term or provision of any subchapter of the rules may be assessed an administrative penalty or subject to a suit for injunction or civil penalties in state district court. The procedure by which the Authority can assess an administrative fine is detailed in the Act, sec.1.37. The fine may be in an amount of not less than $100 per day nor more than $1,000 per day per violation. Section 1.40 of the Act states that the Authority may seek a civil penalty in court against any person who violates the Act or a rule of the Authority. The court-imposed fine may be in an amount of not less than $100 per day or more than $10,000 per day per violation. Section 1.40 states that the Texas Natural Resource Conservation Commission can also seek civil penalties for violations of the Act or of any rule, permit, or order adopted or issued by the Authority under the Act. Subchapter E, relating to restrictions on specific uses, creates specific restrictions on particular uses of underground water, depending on the critical period stage in effect. Unlike the maximum allowable usage limits, which apply only to primary users, these specific restrictions apply to all persons within the jurisdiction of the Authority. Section 721.41 states that primary users must achieve the maximum allowable usage level at each critical period stage by conserving underground water, minimizing waste, and reducing discretionary uses to the maximum extent feasible. The section again makes clear that essential uses of water as defined in sec.721.5(a)(14) are not subject to mandatory reductions. The section also requires primary suppliers to make timely and effective use of inverted rate structures, conservation charges, critical period surcharges, and other programs to reduce discretionary demand for water during critical periods. This latter provision implements the requirement in sec.1.26(3) of the Act. Section 721.42 provides for specific restrictions applicable in Critical Period Stage I and subsequent stages, except to the extent the restrictions are more restrictive for subsequent stages. When Stage I is in effect and continuing as long as any stage is in effect, no person is allowed to waste underground water and no person is allowed to use underground water for landscape watering between the hours of 10:00 a.m. and 8:00 p.m., for washing of impervious outdoor ground coverings, or for residential car washing except on designated watering days. Restaurants must not serve underground water unless requested. Swimming pools are required to be covered by a cover, screen or evaporation shields covering at least 25% of the surface of the pool when not in active use. No person is allowed to permit irrigation tailwater to escape from the property. Charity car washes are prohibited unless held at a car wash that recycles at least 75% of the underground water it uses or is certified as a conservation car wash. Section 721.43 provides for specific restrictions applicable in Critical Period Stage II. When Stage II is in effect, landscape watering is limited to two watering days per week, except that watering by means of a bucket (not to exceed 5 gallons in capacity), hand-held or soaker hose, or properly-installed drip irrigation system is permissible on any day before 10:00 a.m. and after 8:00 p.m. Municipalities must set their own watering days so as to reduce peaks of demand. The watering days for areas outside of municipalities are Saturday and Wednesday. Outdoor fountains are prohibited unless they recirculate water. Section 721.44 provides for specific restrictions applicable in Critical Period Stage III. When Stage III is in effect, landscape watering is limited to one watering day per week, except that watering of ornamental plants other than grass or turf by means of a bucket (not to exceed 5 gallons in capacity), hand- held or soaker hose, or properly installed drip irrigation system is permissible on any day before 10:00 a.m. and after 8:00 p.m. Municipalities must set their own watering days so as to reduce peaks of demand. The watering day for areas outside of municipalities is Saturday. Outdoor fountains are prohibited altogether. Section 721.45 provides for specific restrictions applicable in Critical Period Stage IV. When Critical Period Stage IV is in effect, landscape watering is limited to one day in any calendar week restricted to the morning hours of 3:00 a.m. to 7:00 a.m. and the evening hours of 8:00 p.m. to 11:00 p.m. The watering of ornamental plants other than grass or turf by means of a bucket (not to exceed five gallons in capacity), hand-held or soaker hose, or properly- installed drip irrigation system is allowed any day of the week during the morning hours 7:00 a.m. to 11:00 a.m. Persons using irrigation systems requiring more than seven hours to complete one weekly watering cycle may seek a variance accompanied by a water conservation and reuse plan. Outdoor fountains continue to be prohibited. Filling of all new and existing swimming pools is prohibited unless at least 30% of the water is obtained from a non-Edwards Aquifer source. However, underground water can be used to replenish pools to maintain appropriate pool levels. Drainage of pools, when necessary, is allowed only onto a pervious surface or pool deck where the water is transmitted directly to a pervious surface. Sections 721.47 and 721.48 treat golf courses and athletic fields separately from other types of landscape watering. Section 721.47, relating to golf courses, sets out two categories of golf courses: conforming and non conforming. A conforming course is one that timely files an adequate water use reduction plan with the Authority which provides for conversion to an alternative water supply, if feasible, and usage of a computer controlled irrigation system. Such a plan must be filed within 30 days of the effective date of these rules, and will be approved or disapproved by the general manager within 30 days unless the general manager requests additional information. If the golf course is conforming, it must achieve the following reductions in the replacement of daily evapotranspiration rates or daily soil holding capacity: Stage I: 10%; Stage II: 20%; Stages III & IV: 30% (20% if the conforming golf course is a participant in the Irrigation Suspension Program). If the golf course is non-conforming, it must achieve the following reductions in replacement of daily evapotranspiration rate (or the correlative reduction multiplier for courses that do not have a computer controlled irrigation system): Stage I: 10% (1.8 x base usage); Stage II: 20% (1.6 x base usage); Stage III: 30% (1.4 x base usage); and Stage IV: 40% (1.3 x base usage). Section 721.48, relating to athletic fields, allows an owner or operator of an athletic field to file a conservation and reuse plan within 30 days after the effective date of the rules. The general manager will approve or disapprove the plan or request additional information within 30 days of filing. In addition to identifying information, the plan must describe the water delivery system used and when it is used, describe the watering practices used to control the amount of water applied, identify any turf areas that are not essential to the functioning of the field, and state what the owner or operator believes is a minimum watering regimen during critical periods that applies only the amount of water necessary to maintain the viability of the turf without creating a safety hazard. The plan must also state what actions the owner will take to obtain alternative water supplies, include a copy of any letter of commitment from a water purveyor regarding alternative water supplies, and state that the plan complies with local conservation plans. Subchapter F, relating to reports, requires primary users other than irrigation users to file two kinds of reports. Under sec.721.51, base usage reports must be filed within 30 days of the effective date of the rules. This one-time report must provide information about the user such as name, address, location of wells, amount of water withdrawn or supplied within the past 12 months, estimated amount of water applied to essential uses, and a summary of the user's efforts to conserve water. The information provided in this report will be used by the general manager to calculate the user's base usage and maximum allowable usage. Section 721.52 requires primary users to file monthly usage reports for any month in which a stage was in effect. These reports must provide information concerning the amount of water withdrawn or supplied during the reporting month, the estimated amount of water applied to essential uses during the reporting month, and any other information requested by the general manager. These monthly reports must be filed with the Authority no later than the 5th business day of the month following the reporting month, except in special cases where the general manager in advance approves a different reporting regimen. If a primary user without good cause fails to file timely the monthly use report, the user is prohibited from excluding exempt or essential uses of water from mandatory reductions for the reporting month. Subchapter G, relating to variances, establishes a procedure for persons to request variances from requirements of the rules. Under sec.721.61, a person may file a written request for a variance stating the facts upon which the request is based, with a certificate that the facts as stated are true and within the person's personal knowledge. Section 721.62 states that the board may grant a variance if it finds that the variance is necessary to avoid an unusual, direct, and substantial hardship or to prevent the evisceration of a vested property right, that there is no other available means of avoiding the hardship or evisceration, that the variance would be consistent with the goals of the Act and the rules, and that it would not harm other users. Variances are subject to such terms and conditions as the board deems appropriate, sec.721.63, and may be rescinded by the board due to changed circumstances, new information, or non- compliance by the user, sec.721.64. Subchapter H, relating to review and reconsideration, provides for internal review of decisions by the general manager and review of board decisions. Under sec.721.71, any person who wishes to dispute a determination made by the general manager may file a written request for review with the general manager within 15 days of the determination. The general manager may consider additional information submitted by the person and change the determination accordingly. A person who is not satisfied by the general manager's action on the request for review may appeal to the board by filing a written motion for reconsideration within 20 days of mailing of notice of the action, in accordance with sec.721.72. The board will consider the motion within 30 days, and may make a final decision, delegate the matter to a committee for recommendation to the board, or remand the matter for a contested case hearing before an administrative law judge from the State Office of Administrative Hearings. A final decision of the Authority must contain findings of fact and conclusions of law in accordance with the Administrative Procedures Act, and is subject to judicial review under that act. Summary of Comments and Agency Responses. The following entities and persons submitted comments on the proposed rules: Bexar County Water Control and Improvement District No. 10, Canyon Regional Water Authority, Guadalupe-Blanco River Authority, City of Leon Valley, New Braunfels Utilities, San Antonio Water System, City of San Marcos, City of Sequin, St. Mary's University, Gary Pools, United Services Automobile Association, Southwest Research Institute, Vulcan Materials Company, Hyatt Regency Hill Country Resort, San Antonio Golf Association, Friesenhahn Farms, Texas Association of Nurserymen, San Antonio Apartment Association, San Antonio Zoo, Southwest Car Wash Association, Southwest Cattle Raisers' Association, Rep. John Shields, Fay Sinkin, George Rice, Thomas S. Thelen, Tom Culbertson, J.W. Scanlon, John C. Navarro, Hans R.F. Helland. Most of the commenters favored revision and adoption of the rules in some form. General Comments. Rules Should Be Interim in Nature. One commenter noted that these rules were drafted in the midst of a critical period without the benefit of a comprehensive management plan or a 20-year plan for alternative supplies, and recommended that the rules be placed into effect on an interim basis pending development of these other plans. The commenter recommended that the Authority develop a more complete plan before the next stress period with assistance from a working group which includes irrigators, affected industries, utilities and representatives of regional interests. The commenter stated that the rules as ultimately developed should apply water use restrictions and demand management measures to all users of aquifer water. Another commenter stated that the rules are not appropriately named. Response. The commenter is correct that the Authority's critical period management rules will eventually be integrated with the comprehensive management plan that the Authority is required to develop and implement by the Act. To make it clear that this set of critical period management rules is intended to be interim in nature, the word "interim" has been inserted in the title of the rules. The Authority's Critical Period Management Committee, along with the Board and staff, will continue to work toward a more complete set of rules that is integrated with the Authority's overall water management plan and that addresses all categories of use. Just as occurred during the development of these interim rules, representatives of various user groups will be involved in and contribute to that effort. With respect to the name of the rules, 1.26 requires the Authority to develop and implement a critical period management plan. The name "critical period management rules" is therefore appropriate. The Rules Should Be Integrated With A Dry-Year Option Plan. Several commenters stated that the Authority's critical period management rules should be integrated with demand management programs such as the "dry-year option." Response. The dry-year option is a voluntary demand management program wherein payments are made to irrigators or other users to suspend water-consumptive activity for a stated period of time. The program does not involve the lease or transfers of water rights. The Authority's Critical Period Management Plan, 21 TexReg 8406-8407 (Sept. 3, 1996), called for the development of such a dry year option program in connection with the Critical Period Management Plan. In coordination with the Plan, a voluntary pilot program for suspending irrigation use, called the Irrigation Suspension Program, has been developed and is currently being implemented by the Authority for calendar year 1997. The rules have been modified to provide adjusted reduction multipliers for entities that pay funds into the program. See sec.sec.721.24(d) and 721.47(b). If the Program is canceled, the reduction multiplier for Stage IV will be determined by the board by subsequent order, sec.721.24(d). For further discussion of reduction multipliers, see the comments and agency responses relating to sec.721.24. Definition of critical period. One commenter stated that the rules should define the term "critical period," and suggested that a critical period should be considered to begin when the aquifer falls below historical average levels. The commenter also stated that the rules as drafted will apply for major portions of the year, thus confusing users as to when the water supply situation becomes truly critical. Response: Because these critical period management rules set out specific water supply stages for purposes of water use limitations, there is no need to have a separate definition of the phrase "critical period" at this time. In adopting these rules, the Board has determined that when conditions as specified in the rules exist, critical period management justifies the implementation of restrictions under sec.1.26 of the Act. The Act contemplates that determination of whether and when to exercise critical period management powers is at the discretion of the Authority. Incentives. One commenter stated that the rules should provide incentives to users for reductions in water use beyond those required by the rules. Another commenter suggested incentives for municipal purveyors who have engaged in effective conservation efforts in the form of an adjustment based on per capita use. Response. With respect to reductions beyond those required by these rules, it is unclear from the comment what kind of incentive is recommended. The staff invites commenters to submit specific proposals for consideration in the development of future rules. With respect to per capita adjustment of maximum allowable usage for municipal purveyors, the staff agrees that such an adjustment may be appropriate under certain circumstances. These rules give the general manager discretion to use alternative criteria for calculating maximum allowable usage with board approval, sec.721.33(b), allow for review of decisions of the general manager, sec.sec.721.71-721.72, and provide for variances from rule requirements, sec.sec.721.61-721.62. These sections provide sufficient avenues for relief for users who believe that they are unfairly penalized by the rules for having implemented effective conservation measures or for suppliers who believe that their per capita consumption rate should be taken into account in calculating their maximum allowable usage. Rules Will Not Ensure Springflow. One commenter objected to adoption of the rules on the ground that they will not guarantee that the springs will not go dry. The commenter also opined that there is no necessity for critical period management rules at this time because a critical period does not presently exist, and that critical period rules should be triggered only when there is a genuine threat to human health and safety, rather than by falling aquifer levels or springflow rates. The commenter also urged the Authority to have computer model runs performed on these rules to determine their efficacy. Response. These rules will reduce demand on the Edwards Aquifer during times of insufficient water supply. The rules cannot ensure that the springs will never go dry, as has been shown by computer model runs, but they can mitigate the harmful effects of drought by stabilizing the water levels and artesian pressure in the aquifer during critical periods and making it less likely that the springs will go dry. Aquifer level and springflow rates are well below normal. If the current dry period continues in 1997, aquifer levels could fall to record lows. The staff does not believe that the phrase "critical period" means that the Authority must wait to take action to manage demand on the aquifer until water supply conditions threaten human health and safety. The staff believes that the critical period stage triggers in the adopted rules are appropriate guideposts which allow the region to phase in water use restrictions as drought conditions become more severe. It is necessary to effective critical period management to anticipate the onset or worsening of drought conditions and take meaningful steps to lessen the severity and impact of those conditions on users. As it has in the past, the Authority will continue to use computer model runs to help develop and refine its critical period management regulations. Rules Will Not Adequately Protect Downstream Interests. A commenter complained that the rules do not place sufficient restrictions on pumping to protect springflow and the habitats of endangered and threatened species at Comal and San Marcos Springs. The commenter stated that the rules do not go far enough in restricting specific uses of water, and err in dividing the region into three different areas for purposes of critical period stages. Because of these alleged deficiencies, the commenter asserted, the rules place the burden of conservation entirely on the Cities of New Braunfels and San Marcos and other users in the Guadalupe River basin. Response. The proposed rules require meaningful water use reductions throughout the region. The same specific restrictions that apply to San Marcos apply to San Antonio. According to the Texas Water Development Board's Edwards Aquifer model, no plan can guarantee protection of the endangered specie's habitats under all conditions. The staff believes that the rules fairly spread the burdens of these restrictions throughout the region. The specific restrictions provided in subchapter E of the rules, sec.sec.721.41-721.48, incorporate recommendations made during many public meetings. They reflect a sound effort to curtail water use without causing negative economic impacts that are worse than those caused by the drought itself. Substitute Plans. One commenter stated that the rules should allow a user to submit and use water in accordance with a substitute plan approved by the Authority as long as the applicable reduction requirements are met. Response. Individualized, substitute plans may be attractive to the individual user, but generally allowing users to opt out of restrictions would be difficult for the Authority to administer and enforce. Specific plans are encouraged, however, for particular kinds of uses; for example, the rules provide for submission of conservation and reuse plans by operators of golf courses and athletic fields. Areas Outside Municipal Areas. One commenter stated that primary users should not be held responsible for water usage beyond their control, such as usage in areas within the service area of a municipal purveyor outside the territorial limits of the municipality and thus beyond the reach of ordinances. Response. Municipal purveyors who serve areas outside municipal boundaries must achieve the maximum allowable usage just as rural purveyors whose entire service area is beyond the reach of municipal ordinances. Eliminating Discretionary Uses. One commenter complained that these rules allow underground water to be applied to discretionary uses when the springflow at Comal Springs falls below the "take" level of 200 cubic feet per second, and that discretionary uses are even allowed in Critical Period Stage IV, the most restrictive of the critical period stages established in the rules. The commenter urged the Authority to ban all discretionary uses throughout the region during Stages III and IV, and to allow discretionary use only with respect to water obtained from alternative supplies. The commenter also urged the Authority to ban irrigation prewatering as a discretionary and wasteful use of water, and to ban use of underground water for new lawns, parks, parkways, golf courses and other landscaped areas, for the protection of new foundations, and for filling or maintenance of new pools. Response. The rules generally make all discretionary water use subject to curtailment to the maximum extent feasible, to the extent necessary to meet the maximum allowable usage levels mandated by the rules. sec.721.41(a), (c). The rules also restrict a number of specific uses of water, sec.sec.721.41-721.45, depending on the applicable critical period stage. In the judgment of the staff, the rules provide a reasonable approach to limiting discretionary uses during critical periods. An outright ban on all discretionary uses is unnecessary in light of the framework set up by these rules, and would require an unreasonable level of monitoring and enforcement by the Authority. Further, such a ban would have a harsh effect on economically and socially important industries and activities which are dependent on traditionally discretionary uses, such as swimming pools, golf courses, and athletic fields. With respect to irrigation pre watering, the staff does not agree it should be considered a per se wasteful and discretionary use. Pre-watering appears to be an accepted technique to prepare soil for planting, at least with respect to some crops under some conditions. With respect to banning use of underground water for new lawns, parks, parkways, golf courses and other landscaped areas, and for the protection of new foundations or filling or maintenance of new pools, each of these measures was considered and rejected in the process of developing these rules. These rules attempt to strike a balance between water frugality during critical periods and the avoidance of undue or irreparable harm to the economy of the region. The staff does not believe at the present time that effective critical period management requires imposition of a regional no-growth policy. Such a policy would be counterproductive, because it could cripple regional economies and thus make investment in water resource development much less likely. Automatic Equipment. One commenter stated that the Authority should utilize automatic technical equipment to stabilize springflow at Comal Springs. Another commenter stated that the rules should describe and implement a springflow augmentation program. Response. Use of springflow stabilization equipment and implementation of a springflow augmentation program are beyond the scope of these interim rules. These possible aquifer management approaches will be considered by the Authority in developing a comprehensive aquifer management plan. Restrictions Not Sufficient. One commenter expressed the view that the specific water use reduction measures provided in the rules may not be sufficient to meet the reduction goals in Stages III and IV. Response. The rules require primary users to eliminate discretionary uses of Edwards Aquifer water, to the greatest extent feasible, to the extent necessary to meet the user's maximum allowable usage limit. sec.721.41. Thus, reductions in discretionary uses beyond those afforded by compliance with the specific reduction measures specified in subchapter E may be necessary. Use of the Media. A commenter urged the Authority to make use of the media to notify the public concerning critical period stages. Response. The rules require the general manager to post by 10 a.m. every business day the latest well levels and 10 day rolling averages of those levels and the applicable critical period stage. sec.721.24(a). The Authority will, to the greatest practicable extent, utilize the media to disseminate information about well levels and stages. Regulation in Uvalde County. One commenter queried why the rules impose restrictions in Uvalde County when it has not been established, according to the commenter, that pumping in Uvalde County has any impact on springflow. Response. Because of both Uvalde County's distance from the springs and the hydrologic restriction known as the Knippa Gap, the effect of pumping in Uvalde County on springflow is more attenuated than pumping east of the Knippa Gap. It is therefore reasonable that Uvalde County is subject only to critical period stages I and II, whereas Medina County is subject to stages I-III and the eastern counties are subject to stages I-IV. Although it is not known exactly how pumping reductions in Uvalde County will affect springflow, the staff believes that it is reasonable to expect some significant benefit, especially with respect to artesian pressure within the aquifer. Effective Date of Act. One commenter objected to the rules on the basis that the actual effective date of the Act creating the Authority is August 31, 1996, and not June 28, 1996, the date of the Texas Supreme Court decision that dissolved the trial court injunction that had prevented the legislation from becoming effective. Response. The effective date of the Act was June 28, 1996, the date the trial court injunction suspending the effectiveness of the Act was dissolved by the Texas Supreme Court. In any event, this comment, even if correct, is not germane to the enforceability or propriety of these critical period management rules. Conflict With Interim Authorization. One commenter opined that implementation of maximum allowable usage restrictions on primary users under these rules conflicts with sec.1.17 of the Act, which grants interim authorization to withdraw underground water to persons who own a producing well as of the effective date of the Act. Response. The staff does not agree. Interim authorization is expressly subject to the rules of the Authority (sec.1.17(c)), and in no way precludes the development, adoption and enforcement of critical period management rules under sec.1.26 of the Act. In fact, sec.1.26 makes development of a critical period management plan mandatory, without reference to the status of the permitting process. Further, it is clear from the sections of the Act relating to permitting that permitted withdrawals are also subject to critical period management. Protect Quality of Life. One commenter stressed that the rules ought to be designed to protect the way of life of the community, especially for the poor, and expressed the need to address the water problems through a systematic and scientific approach devoid of political rhetoric. Response. The staff agrees that preservation of quality of human life in this region is an important value, and has tried to develop these rules accordingly. The staff also agrees that scientific and technical considerations are of great importance in developing aquifer management measures. Real Property Rights Preservation Act. One commenter asserted that the rules do not meet the requirements of the Texas Private Real Property Rights Preservation Act, Tex. Government Code chapter 2007. Response. As stated in the preamble published with the proposed rules, 21 TexReg 8410 (Sept. 3, 1996), the Authority has prepared a takings impact analysis of the rules and has determined that the rules would not effect a constitutional or statutory taking. Comments Referring to Specific Sections. Section 721.3 Findings. A commenter challenged several of the findings stated in this section. According to the commenter, it is inaccurate to state that the aquifer, wells, or springs will be contaminated by movement of bad water, that federal authorities can or will exercise control over the aquifer, and that there is a threat to public health and safety. The commenter also stated that pumping restrictions are not the only management option available to the Authority, and that protection of endangered species should not be a primary concern of the Authority. Response. The staff supports the findings stated in sec.721.3. Some experts believe that there is a risk of intrusion by bad water into the fresh water zone of the aquifer if the aquifer falls to or below record low levels. If there is such a risk, it is lessened by management of withdrawals from the aquifer. It is not erroneous to suggest that federal authorities may intervene in management of the aquifer in order to enforce the Endangered Species Act; to an extent, they have already done so. Nor is it erroneous to state that drought can create a threat to public health and safety. The staff agrees that pumping restrictions are not the only aquifer management technique available to the Authority; however, it would violate both the letter and the spirit of the Act for the Authority not to take steps to limit withdrawals from the aquifer during or in anticipation of critical periods. While protection of springflow-dependent habitat and species is one of the Authority's functions under the Act, there are several other important public interests that are served by protecting inflows of Edwards Aquifer water into the river systems downstream from the springs. The Act contemplates protection of Comal and San Marcos Springs irrespective of whether endangered species are involved. Section 721.4 Effect on Demand Management Rules. One commenter stated that the public will be confused by the relationship between these rules and the Demand Management Rules previously adopted by the former Edwards Underground Water District. Response. The staff does not believe that there will be any significant confusion. As stated in this section, these interim rules largely supersede the Demand Management Rules. Section 721.5 Definitions. Various commenters stated that sec.721.5 should include definitions of the terms "agricultural," "athletic field," "playing field," "reuse," "recycle," and "waste." Other commenters recommended that the definition of "landscape watering" be revised to add watering stations for wild game; and the definition of "supply" be revised to delete the phrase "without regard to the source from where the underground water is obtained" and to clarify that recycled, reclaimed, or reused water is not included. Response. The staff does not believe that it is necessary for purposes of these rules to provide definitions for "agricultural" or "playing field." Staff agrees that the rules should include a definition of athletic field, and such a definition, adapted from the language suggested by the commenter, appears at sec.721.5(a)(3). Definitions of "reclaimed water," "recycled water" and "reused water" have been added as paragraphs (30), (31) and (33), respectively. Staff agrees that the concept of waste in the rules is important and should be defined in accordance with the Act. Subsection (a)(38) references the detailed definition of waste in sec.1.03 of the Act. After further review, the following definitions have also been added to sec.721.5 for the purpose of clarity: Irrigation Suspension Program (ISP), sec.721.5(a)(17); ISP Participant, sec.721.5(a)(19); J17 level, sec.721.5(a)(20); and reduction multiplier, sec.721.5(a)(32). The 5-gallon limit for watering buckets in the definition of landscape watering is appropriate, consistent with a number of local ordinances, and should remain unchanged. The watering of wild game should not be added to the definition of "livestock"; to do so would add an unquantifiable and easily abused demand for water. Staff agrees with the comment concerning the definition of "supply," sec.721.5(a)(36) (proposed paragraph (28)), and has revised the definition to delete the reference to the source of the water. The definition of "supply" refers to "underground water," sec.721.5(a)(37) (proposed paragraph (29)) which is by definition water "within or produced, obtained, or originating from the Edwards Aquifer." The definition of "underground water" has been revised to make clear that it does not include recycled, reclaimed and reused water. Section 721.5(a)(6) Definition of "Base Usage." A commenter stated that the definition of "base usage" in sec.721.5(a)(6) adversely impacts industrial users because there is no rational basis for applying the winter base usage period to such users. Industrial users operate at varying levels year round and changes in consumption are driven by demand for products or services and the vagaries of the business cycle. Another commenter made similar comments with respect to agricultural irrigation; according to the commenter, winter averaging is not a rational means of estimating essential use for irrigation, because such use is inherently seasonal and because sufficient information concerning past use is not available. A commenter also suggested that the base usage formula should be based on summer usage, not winter usage. Another commenter stated that including February 1996 in the base usage formula is inappropriate because Stage I and II of the Edwards Underground Water District's Demand Management Rules were in effect during that month. Another commenter opposed the base usage concept altogether. The commenter stated that the base usage formula discourages conservation, encourages waste, penalizes those who conserve and does not provide an incentive to conserve. The commenter also stated that the base usage formula does not account for weather changes, previous years of drought plan implementation, regional growth, previous conservation efforts, or changes in per capita water use. The commenter suggested that the Authority should form a committee of diverse users to agree on an alternative methodology such as a 10-year rolling average by month which would be adjusted for the various factors listed above. Response. Much industrial use is essential use and thus excepted from the reductions based on base usage. As to other industrial use, staff agrees that the base usage formula in the proposed rules may not account for seasonal or production-driven fluctuations in industrial or irrigation water demand. There is probably not a single base usage formula that can adequately address the water use patterns of all users. For this reason, sec.721.33 of the rules allows the general manager to utilize an alternative formula, with the approval of the board, to approximate better the minimum amount of underground water the user needs for essential uses or to avoid penalizing the user for development of alternative water supplies. An industrial user who believes that the base usage formula applied to functions irrationally or unfairly may file a variance request with the Board which proposes an alternative means of estimating base usage. With respect to irrigation use, based on public comments and further review the staff believes that for purposes of these interim rules irrigation use should be considered an essential use which is not subject to maximum allowable usage limits. Irrigation use would still be subject to the rules' prohibitions against wasting water and allowing tailwater to escape from irrigated land, sec.721.42(1), (4). Section 721.32(a), relating to enforcement of maximum allowable usage limits, and sec.721.33(a), relating to calculation of base and maximum allowable usage by the general manager, have been revised to exclude irrigation use. The rules requiring the filing of base usage reports and monthly usage reports, sec.sec.721.51 and 721.52, have also been revised to exclude irrigation use from the filing requirement. Winter usage is an appropriate estimator of essential water use for many users. Using a summer average to calculate base usage would obviously defeat the purpose of base usage. With respect to the use of February 1996 in the base usage formula, Stage II of the Demand Management Rules, the first mandatory stage, was declared on February 26, 1996, three days prior to the end of the month. February 1996 was unusually warm and dry, which resulted in relatively high usage for most users regardless of any reduction stages which were in place. The staff thus believes that it is reasonable to include February 1996 in the formula. The staff believes that the winter-average base use formula in the adopted rule is a reasonable and workable technique for estimating essential uses, and provides a suitable basis for computing maximum allowable usage limits for most users. In the judgment of the staff, the ten-year rolling average base usage suggested by the commenter would not be an improvement. Such an approach could actually encourage more use during the outdoor watering season. Developing and implementing 10-year averages and adjusting those averages for the various factors identified by the commenter would also be considerably more complicated and difficult than the base usage formula adopted in the rules. Section 721.5(a)(9) Definition of "Conjunctive User." One commenter recommended that the definition of "conjunctive user" be revised to make clear that conjunctive use involves integrated use of groundwater and surface water which obtains the most economical utilization of local storage resources and of distribution systems and the optimum amount of water conservation. Response. The staff generally does not disagree with the language suggested by the commenter, but believes that the definition of conjunctive user should be broadly worded to encourage use of any alternative water supply, not just surface water. After further review, the proposed rule has been revised. Under the rule as adopted, "substantial" use of alternative water supplies means at least a 10% conversion to alternative water sources during the prior 12 months, and the first use of alternative water supplies must have occurred after 1986 to qualify the user or supplier for treatment as a conjunctive user. Section 721.5(a)(12), (14) Definitions of "Discretionary Use" and "Essential Use." One commenter urged that watering of a golf course, and in particular a golf course at a hotel resort, ought to be defined as an essential use and thus excluded from required reductions under the rules, because the golf industry directly supports gainful employment. As proposed, all landscape watering is defined as a discretionary use, and is thus excluded from the definition of essential use. Similarly, another commenter recommended that the rules treat landscape watering as an essential use because a well-watered landscape reduces the risk of fire and reduces erosion, and because loss of landscape plants will cause economic harm. Other commenters suggested that golf courses, athletic fields, and cemeteries should be listed as discretionary uses. Another commenter stated that all non-wasteful water uses that affect property values or jobs should be considered non-discretionary, and that recreational use, landscape use, swimming pool use, and use for washing of parking lots should not be considered discretionary uses. Response. The staff believes that it is appropriate for purposes of these rules to treat landscape watering, including the watering of golf courses, athletic fields, cemeteries, and other turf areas, as a discretionary use. The definition of discretionary use in adopted sec.721.5(a)(12) has been revised to clarify that "landscape watering, including residential, commercial and public landscapes, golf courses, athletic fields, and cemeteries" is considered discretionary use for purposes of these rules. The staff agrees that the golf industry generates significant economic value for the region and provides jobs. A separate section applicable to golf courses, sec.721.47, is adopted which recognizes the special water management needs of golf courses and encourages golf courses to utilize efficient irrigation systems and use alternative sources of water. With respect to landscape watering, staff is not aware of any instance in which a residential or commercial landscape suffering from drought or watering restrictions was implicated in a structure fire. A well-maintained landscape, even in times of drought, should pose little threat of fire. A complete lack of vegetation does increase erosion, but the plan provides sufficient time to apply enough water to keep plants alive. Staff believes that persons in the Edwards Aquifer region should adopt a different style of landscaping that emphasizes drought tolerant ground cover and shrubs and minimizes the use of drought sensitive grass. Drought has and will continue to injure landscape plants, particularly those with water requirements that are ill-suited to this region. The landscape industry has the opportunity to supply the region's need for plants and turf that are adapted to the semi-arid climate of this region. If water use restrictions are to be meaningful, the concept of "essential use" cannot be defined to include every use of water that has economic value or supports employment. If this were the case, the Authority could reduce discretionary water usage under these rules only by targeting fringe uses of water that are wasteful and non beneficial. Section 1.26 of the Act requires the Authority to distinguish between discretionary and nondiscretionary ("essential") uses, and to provide for the reduction in discretionary uses during critical periods to the maximum extent feasible. If reductions in discretionary uses are not sufficient, the Authority then must call for reductions in essential uses based on the prioritization of uses stated in sec.1.26(4) of the Act. Thus, in order to avoid or delay the day when essential uses must be curtailed, the Authority must be able to achieve significant reductions in water use by restriction of discretionary uses. From the standpoint of fair and effective regulation of water use, it would be counterproductive for the Authority to avoid the difficult choices involved in distinguishing between discretionary and essential uses. Section 721.5(a)(16) Definition of "Industrial Use." Commenters stated that golf courses should be expressly listed as an industrial use, while another commenter stated that golf courses should be expressly excluded as an industrial use. Response. It is not necessary for purposes of these rules to modify the definition of "industrial use" which appears in the Act and is restated in the rules to include or exclude golf courses. Even if the definition of industrial use expressly included golf courses, watering golf courses would still be treated under these rules as a "discretionary use" as that term is defined by paragraph (12). Section 721.12 Exempt Wells and Essential Uses. One commented stated that this section should be clarified as to whether the exemption for essential uses of water in subsection (b) pertains only to owners of exempt wells or applies generally. Another commenter stated that this should also be made clear in subchapters D (relating to Maximum Allowable Usage and Enforcement), E (relating to Restrictions on Specific Uses), and F (relating to Reports). Response. While there is value in separating exempt and essential uses into two sections, staff believes, at this time, it is appropriate to leave both items in the original section (721.12). The essential use provision is not directly germane to subchapter D or F, but can be restated in the interest of clarity in subchapter E. Section 721.41(b), as adopted, is added for this purpose. Section 721.22 Critical Period Stages. One commenter argued that it is inconsistent for the Authority to develop a dry-year option plan for the purpose of reducing irrigation use in Medina County, based on the assumption that pumping in Medina County affects springflow at Comal Springs, while at the same time providing different critical period stage trigger levels for Medina County in sec.721.22 of these rules than are applied in the "East Area" by sec.721.21. Other commenters opposed the different treatment of the East, Medina, and Uvalde areas for purposes of the critical period stages, arguing that all restrictions should be imposed regionwide and at the same time. Response. Staff does not agree that there is an inconsistency between the different treatment between the East and Medina areas and the concept of the dry year option. It would be difficult if not impossible to calculate the exact correlation between pumping from a particular well in Medina County and springflow at Comal Springs, but there is no doubt that pumping from the Edwards Aquifer in Medina County in the aggregate affects the pressure and amount of water in the Aquifer and the flow of water at Comal Springs. It is also generally true that pumping in Medina County, simply as a function of distance from the springs, affects the springs less directly than pumping that occurs further to the East. Regulations cannot, and need not, model complex hydrological factors with exactitude, but it is reasonable and appropriate to take such factors into account. The same reasoning applies to the different treatment of the Uvalde Area; while the portion of the aquifer in Uvalde County is hydrologically linked to the portions of the aquifer to the East, distance and the hydrologic restriction called the Knippa Gap attenuate the rapidity and degree of effect that pumping in Uvalde County has on springflow. Section 721.24 Beginning and End of Critical Period Stages. Several commenters complained that the trigger levels of the critical period stages as set out in the chart at sec.721.24(e), Figure 1, begin too late to protect springflow in a period of drought and declining aquifer levels, and will not ensure compliance with the Act's regionwide permitted withdrawal cap of 450,000 acre feet per year. The commenters stated that the trigger levels should be designed to reduce pumping before springflows at Comal Springs drop to the "take" level as determined by the United States Fish and Wildlife Service under the federal Endangered Species Act. Specifically, one commenter suggests that the trigger levels for Stages I through IV in the East area should be 260, 200, 175, and 100 cubic feet per second at Comal Springs, respectively, and that these trigger levels should correlate with well level triggers for Medina and Uvalde Areas. A commenter also stated that the reduction multipliers set out in the proposed Figure 1 chart, and in particular the 1.4 multiplier in Stages III and IV, are too high and should be lowered to further restrict water use. In the opposite vein, another commenter complained that the trigger levels are much too high. The commenter maintained that there is no critical period until water levels fall below the historical average, and that no critical period stage should be triggered until springflow at Comal Springs falls to 60 cubic feet per second or the aquifer level falls to 628 feet above mean sea level at Well J-17. The commenter also complained that basing stage triggers on springflow at Comal Springs erroneously assumes that Comal Springs will go dry before San Marcos Springs. Another commenter suggested that this section should be revised so that stages would be triggered based on a 10-day average since weekend pumping can trigger a lower stage, avoiding short cycles and needless confusion and cost. Another commenter stated that proposed Figure 1 of sec.721.24(d) (now sec.721.24(e)), which summarizes the critical period stages, trigger levels, and reduction multipliers, was not published in the Texas Register. Response: The staff agrees that some adjustment in the trigger levels is appropriate. The trigger levels for the East area have been revised and are now expressed as aquifer level as measured as Well J-17 in San Antonio. Aquifer levels at Well J-17 are familiar to the public, and J-17 levels correlate well with springflow rates at Comal Springs. While springflow at San Marcos Springs does not correlate as well with Well J-17 as does springflow at Comal Springs, in general aquifer levels at Well J-17 are an excellent indicator of springflow and aquifer conditions in the Eastern portion of the aquifer. In the adopted rule, the trigger levels for the East area (Counties of Bexar, Comal, Hays, Caldwell, and Guadalupe) are 650 feet mean sea level for Stage I, 642 feet mean sea level for Stage II, 636 feet mean sea level for Stage III, and 632 feet mean sea level for Stage IV. These triggers correlate reasonably well with Comal Springs springflow of 211, 179, 132, and 98 cubic feet per second, respectively. The triggers in the Medina Area (Counties of Medina and Atascosa) are 670 feet mean sea level for Stage I, 660 feet mean sea level for Stage II, and 655 feet mean sea level for Stage III, as measured at the Hondo Yard Well. The triggers in the Uvalde Area (County of Uvalde) are 845 feet mean sea level for Stage I and 840 feet mean sea level for Stage II, as measured at Well J-27 in Uvalde. The staff believes that these restated triggers will create an appropriate staging of critical period water use reductions. The triggers may be adjusted in the future based on analysis of data collected relating to how they affect aquifer levels during drought conditions and how they impact users. It is not realistic, however, to expect implementation of these critical period management rules, regardless of where the triggers are set, in and of itself to result in adequate springflows at all times. Nor is it appropriate to look to these rules to ensure compliance with the regional cap on permitted withdrawals. The cap will be implemented through the issuance and enforcement of withdrawal permits, development of alternative water supplies, and other water supply management measures. In response to public comments and further review, staff has made an adjustment in one of the reduction multipliers listed in proposed Figure 1, sec.721.24(d). In the adopted rules, the reduction multipliers are listed both in Figure 1, which is incorporated into sec.721.24(e) and sec.721.24(d). Reduction multipliers are the factors that are multiplied by a user's base usage to calculate the user's maximum allowable usage. sec.721.31. In the proposed rules, the multiplier applicable in Stage IV, which applies only in the East Area of the Authority, would have been 1.4. In other words, under the proposed rules, water use in Stage IV was limited to 40% above the base usage. The adopted rule calls for a reduction multiplier of 1.3 (30% above base usage), with an adjusted reduction multiplier of 1.4 applicable to primary users who participate in funding the Authority's voluntary Irrigation Suspension Program. However, if the Irrigation Suspension Program is not implemented by the Authority, the board will determine the applicable Stage IV multiplier by order, in which case the multiplier cannot exceed 1.4 or be less than 1.2. Section 721.24 has been revised to state that any critical period stage will remain in effect for at least ten days unless a more restrictive stage is implemented. The proposed Figure 1 chart was published at 21 TexReg 8527 (Sept. 3, 1996), in the Tables and Graphics section of Volume II of that day's Register. The adopted Figure 1 chart, which has been revised, is being republished in the Tables and Graphics section of the Register. The chart is an integral part of sec.721.24. In order to avoid confusion, sec.721.24(d) has been revised to restate in text form the reduction multipliers that appear in Figure 1, and the text of proposed subsection (d) has been revised for clarity and moved to (e). Section 721.32 Enforcement. A commenter suggested that the rules should provide 45 days between the date that a reduction stage goes into effect and application of enforcement penalties, because this delay will allow water suppliers time to give public notice, implement a surcharge, and establish a billing cycle. Another commenter stated that sec.721.32(c), which allows the Authority to mitigate enforcement for exceedances by a primary supplier based on non- preventable water main breaks, should be extended to other primary users that have substantial lengths of water mains that are also subject to breakage under drought conditions. Another commenter suggested that the Authority should take a user's size into account when seeking administrative or civil penalties for violation of these rules. Response. The staff believes that providing a 45-day delay between stage declaration and application of enforcement penalties will defeat the purpose of the rules by allowing unabated water use during critical periods. Users and suppliers should develop and be prepared to implement surcharges and other necessary and appropriate measures well in advance of the declaration of a reduction stage. Users and suppliers should also stay abreast of water supply conditions in order to gauge when it may be necessary to implement critical period measures. In order to provide adequate notice to users and suppliers, sec.721.24(a) of the rules requires the general manager to post by 10:00 a.m. every business day the most recently available spring flow rates and water levels, as well as the 10-day rolling average of those numbers. Staff recognizes that some primary users distribute water through water mains and that they may experience nonpreventable water main breaks in the same manner as primary suppliers. Section 721.32(c), however, appropriately applies only to primary suppliers, who typically have metered customer accounts. This section cannot address primary users distributing water through water mains subject to breakage unless end use by such users is also measured. Staff recommends that primary users who exceed their maximum allowable usage because of water main breaks or other unforeseen and unpreventable situations seek a variance under subchapter G or seek relief under the subchapter H relating to review and reconsideration of determinations of the general manager. Sections 1.37 and 1.40 of the Act set out the limits of the administrative penalties the Authority may impose and the civil penalties the Authority may seek in court for violations of these rules. Enforcement decisions will be made on a case-by-case basis, and relative size of the violator may or may not be a relevant factor in a particular case. Section 721.33 Determination of Base and Allowable Maximum Usage. A commenter recommended that the requirement for board approval in sec.721.33(b), which allows the general manager to calculate base usage or maximum allowable usage based on alternative criteria, should be deleted in order to avoid unnecessary delays. Other commenters stated that allowing the general manager to use alternative criteria may be unfair to some users and will not promote regionwide implementation of the rules, and that any formula to be used in calculating base or maximum allowable usage should be expressly stated in the rule. Another commenter stated that in order to avoid confusion, the word "primary" should be inserted in this subsection before "user," and the word "base" should be deleted where it appears before "essential use." Another commenter recommended that maximum allowable usage be adjusted to allow more water for landscape use by owners of large lots. Response. The discretion conferred by sec.721.33(b) is appropriate because of the wide variations in water use patterns among users. The subsection, which requires board approval, promotes accountability and fairness when a modification is needed in the way base or maximum allowable usage is calculated. It would not be possible to anticipate in this rule all the possible sets of factors that might be appropriate for consideration in determining base or maximum allowable usage. With respect to large lots, staff does not believe that it is workable to key maximum allowable use to residential lot size. Further, landscape watering is treated as a discretionary use under these rules, and any substantial increase in this usage would likely have to be compensated for through reductions in essential uses. Section 721.34 Determination of Maximum Allowable Usage of Conjunctive User. Several commenters complained that the formula for calculating base usage set out in the proposed section penalizes entities that have financed and developed alternative water supplies in order to reduce withdrawals from the aquifer, and that the rule should be revised to instead create incentives for development of alternative water supplies or enhancement of recharge. Some commenters recommended that a conjunctive user's base usage be calculated in a similar manner to other users, but that the calculation take into account all water used, regardless of the source. On the other hand, another commenter suggested that New Braunfels should not be allowed any favorable treatment as a conjunctive user because the Edwards Underground Water District helped finance New Braunfels' partial conversion to surface water. A commenter queried whether a conjunctive user could seek a different base usage formula through the general manager, sec.721.33(b), or through a variance, sec.sec.721.61-721.62. Other commenters recommended that in connection with proposed sec.721.34 credit should be given to entities that purchase sensitive sinkhole and cave properties, avoid plugging such features, or otherwise provide for enhanced recharge of the aquifer. Response: Staff agrees that in some situations the proposed rule may have had the effect of not giving an entity that has developed alternative sources of water full credit for that development. The formula for determining base usage for a conjunctive user has been revised. Instead of using the proposed rule's summer-use based approach, the base usage for a conjunctive user is the average monthly total underground water usage for the three lowest months of November and December and the following January and February during each of the three consecutive 12-month periods prior to the commencement of the user's use of non- Edwards Aquifer water. This winter-use based formula is designed to take into account the extent to which a conjunctive user has actually shifted demand for water to non-Edwards Aquifer sources. Staff points out that a conjunctive user is subject to the specific water use restrictions set out in subchapter E, sec.sec.721.41-721.48, to the same extent as any other user. In the view of staff, the rule as adopted encourages conjunctive water use and avoids penalizing entities that have invested in alternative supplies, but at the same time requires conjunctive users to bear a fair share of the burden of reducing aquifer use during critical periods. Any user, including a conjunctive user, who believes that the applicable base usage formula does not reasonably approximate the user's essential water uses, or who believes that the applicable base usage or maximum allowable usage formula fails to give the user credit for development of alternative water supplies, may request the general manager to utilize, with board approval, alternative criteria for calculating these values. sec.721.33. The user may also seek review of the general manager's determination, sec.sec.721.71-721.72, and may request the board to grant a variance to avoid unusual, direct, and substantial hardship, sec.sec.721.61-721.62. With respect to the suggestion of credits for beneficial acquisitions in the recharge zone, the staff believes that such credits are more appropriately dealt with under provisions of the Act governing water use permitting and conservation credits, rather than critical period management. The Authority has ample authority to promulgate rules such as envisioned by the commenter, but it would not be appropriate to do so in the context of these interim critical period management rules. After further review, the staff has determined that the substance of proposed sec.721.34 is more logically included as part of the definition of "base usage" at sec.721.5(a)(6), and the substance of the proposed rule is transferred to that definitions section. Section 721.41 Reduction Efforts. A commenter recommended that this section, which requires primary users to achieve maximum allowable usage levels at each critical period stage, should be revised to make clear that reductions are not required with respect to essential uses of water. Another commenter suggested in connection with subsection (c) of this section, that the Authority should require water purveyors to utilize conservation pricing at all times to help eliminate discretionary use and to impose on their residential customers a conservation fee for water use in excess of 267 gallons per day for a single family residence. Another commenter was generally opposed to allowing municipalities to exercise discretion with respect to implementation of water consumption management measures. Response. It should be clear from sec.721.12(b)-(c) that essential uses as defined in sec.721.5(a)(14) are not subject to mandatory reductions. Nevertheless, staff has added a new subsection (b) to sec.721.41, which restates for clarity that essential uses are not subject to the reductions required by that section. Subsection (c) of sec.721.41 already requires suppliers to use inverted rate structures, conservation charges, critical period surcharges, and other programs to encourage water consumers to conserve, minimize waste, and reduce discretionary uses of water. The staff believes that water purveyors are generally in the best position to determine the most effective means of reducing consumption by their customers and meeting the applicable maximum allowable usage level. Further, imposing more specific requirements in these interim rules at this time might discourage purveyors from developing their own innovative approaches to consumption management. Section 721.42 Stage I Restrictions. A commenter stated that paragraph (3) of this rule, which restricts the use of underground water to wash parking lots and other impervious outdoor ground coverings, should be modified to allow such washing when necessary for health or safety reasons. Another commenter recommended that sec.721.42(6), pertaining to swimming pools, be revised to require the covering of pools "with an effective evaporation cover or screen, or evaporative shields covering at least 25% of the surface of the pool, when the pool is not in active use." The rule as proposed required at least a 50% cover when the pool is not in active use between the hours of 10:00 a.m. and 8:00 p.m., based on the assumption that most evaporation occurs during the hottest part of the day. The commenter stated that wind is also a major contributor to evaporation, and that significant evaporation from swimming pools occurs during all 24 hours each day. Other commenters stated that sec.721.42(6) should be limited in applicability to private swimming pools because public, community and apartment pools are generally in use throughout the swimming season. Other commenters stated that the requirement of swimming pool covers will be difficult to enforce, and that the requirement should not be invoked until Stage II. A commenter stated that the phrase "recycling car wash" in paragraph (8) should be changed to "conservation car wash," and another commenter suggested that paragraphs (7) and (8) ought to be combined and revised to restrict car washing to commercial car washes. Response: The staff agrees that washing of impervious outdoor ground surfaces should be permissible in the exceptional instances when it is necessary for health or safety reasons. Section 721.42(3) has been revised accordingly. Section 721.42(6), governing covering of swimming pools, has been revised to require effective covers, screens, or shields covering 25% of a pool's surface area at all times when a pool is not in active use or being maintained. The staff does not agree that this section should be limited to private swimming pools, but does agree that the covering requirement should be modified with respect to public, commercial, and apartment pools. The rule has thus been revised to state that with respect to these types of pools, "active use" means anytime the pool is not officially closed. This revision is justified by the heavy usage of public and quasi-public pools during the warm months of the year, and by the relatively small percentage of swimming pool water that is involved in such pools. With respect to enforcement of the pool covering requirement, representatives of the swimming pool industry demonstrated inexpensive, lightweight, and unobtrusive swimming pool shields which float on the surface of the pool. These shields reduce evaporation in direct proportion to the percentage of the surface of the pool that is covered. Because many swimming pool owners pay a purveyor for their water, they have an economic incentive to reduce the amount of water they use to make up for pool evaporation. The staff believes that in this region use of some means of reducing evaporation from a swimming pool is a reasonable pool management technique and should be used whenever practicable. Pool owners who fail to comply with the pool covering requirement will be subject to an enforcement action under sec.721.32(d) of the rules, which authorizes the recovery of administrative and civil penalties, among other remedies. In accordance with the comment concerning paragraph (8), which pertains to car washes, the word "conservation" has been inserted before "car wash" in place of "recycling." Staff does not believe that car washing should be allowed only at commercial car washes. Staff is not aware of any data that suggests that washing a car at a commercial facility is more efficient than washing using a bucket of soapy water and a hand-held hose with nozzle on the lawn at home. Sections 721.43-.45 Stages II-IV Designation of Watering Days. Paragraph (3) of each of these sections requires that municipalities designate their own watering days in Stages II, III, and IV, respectively. Paragraph (4) of each of these sections as proposed designated watering days for areas outside municipalities and areas within municipalities that have not designated their own watering days. A commenter stated that the word "must" in paragraph (3) of each of these sections, making it mandatory for municipalities to designate their own watering days, should be changed to "may" in keeping with paragraph (4), which provides in effect a default designation of watering days. Another commenter suggested that industrial users be allowed to designate their own watering days in order to avoid overtime costs and staffing problems. Another commenter stated that all landscape watering should occur on the same day throughout the region. Response. The staff believes that these rules should continue to state that municipalities "must" designate their own watering days. This requirement encourages municipalities to consider what is best for their own residents with respect to what day or days should be designated for landscape watering. This requirement makes it unnecessary to set default watering days for municipalities, and paragraph (4) of sec.sec.721.43-721.45 has been revised accordingly. These sections have not been revised to allow industrial users to set their own watering days because the enforcement and administrative problems created by such a change would outweigh any benefit of convenience for individual industrial users. In exceptional cases, a variance may be available to an industrial user that shows that complying with the general watering days creates an undue hardship. With respect to the suggestion to require that all landscape watering occur on the same day, the staff points out that the rules are designed to give municipalities some discretion on watering days in order to accommodate their particular operating demands. Requiring all watering to occur on the same day would result in increased demand peaks on the aquifer. Sections 721.43-721.45 Stages II-IV Restrictions on Landscape Watering. Paragraph (2) of these sections allows limited landscape watering "by means of a bucket (not to exceed 5 gallons in capacity), hand-held or soaker hose, or properly-installed drip irrigation system." One commenter pointed out that sec.721.43(2) omits a reference to "soaker hose," stated that the phrase "drip irrigation" should be defined, and recommended that the phrase "properly installed" be expanded to maintenance and operation of drip irrigation systems. Other commenters stated that sprinkler systems are more efficient than hand watering and should be favored, that no sprinkling of landscape should be allowed in Stage IV, that watering by hand-held hose should be allowed at any time, and that watering by Authority-approved irrigation systems should be allowed at any time. Another commenter complained that the Stage IV limitation of landscape watering by bucket, hand-held or soaker hose, or drip irrigation system to the hours 7 a.m. and 11 a.m. on any day of the week, sec.721.45(2), is not sufficient time for people who work during the day to water their yards. Response. The suggestion to add "soaker hose" to sec.721.43(2) is appropriate, and the section is revised accordingly. The staff does not believe that it is necessary at this time to define the phrase "drip irrigation." Because the term "properly installed" includes maintenance, and because wasteful use of water is expressly prohibited by sec.721.42(1) during any reduction stage regardless of the mode of application, it is not necessary to state here that a drip irrigation system must be properly operated. With respect to sprinkler systems, in some cases these systems may be more water-efficient than hand watering; however, many sprinkler systems are not installed or operated properly and many users or owners of such systems are prone to neglect proper maintenance. Banning the use of sprinkler systems in Stage IV would unfairly impact commercial building landscapes without providing a substantial benefit to the aquifer. Watering with a hand held hose at any time of the day is unacceptable. Evaporation and drift are greatest during the mid-day hours even if a hand-held hose is used. For the same reason, it would not be appropriate during these critical period stages to allow landscape irrigation at any time of day, even if the irrigation system is "approved." With respect to the Stage IV provision limiting landscape watering by bucket, hand-held or soaker hose, or drip irrigation system to the hours 7 a.m. and 11 a.m. on any day of the week, the staff believes that this is an adequate timeframe for most persons who work during the day. Section 721.47 Golf Courses. Two commenters complained that this rule's restrictions on watering of golf courses is not stringent enough. One of these commenters doubted that the Authority would be able to monitor adequately evapotranspiration rates used by golf courses to control their water use, stated that the rules as proposed allow golf courses to increase their water use during times of drought, and proposed that as an alternative golf courses be allocated a limited amount of water per hole. Conversely, another commenter urged the Authority to adopt special treatment of resort hotels with golf courses, and complained that the restrictions imposed under Stages III and IV will threaten a golf resort's ability to maintain a first-class golf course and attract guests. The commenter suggested that golf resorts should never have to reduce their water replacement rate by more than 20%. Another commenter stated that the golf course rule is fair, manageable, and effective, but asked that the reduction percentage in Stage IV for conforming golf courses be changed from 35% to 30% to correlate with the maximum allowable usage limitation for that stage. Another commenter stated that sec.721.47(c) assumes that only golf courses without a computer controlled irrigation system are subject to being classified as non conforming. Response. This rule, like the rule applicable to athletic fields, sec.741.48, is designed to be as stringent as possible without causing widespread loss of turf areas that support economic activity and employment. Staff realizes that under the rules golf course and athletic field watering may increase as a drought progresses and evapotranspiration rates increase. But under the rules, the rate of increase will be controlled and the total water used will be substantially less than in non-drought periods. The rules are designed to protect the substantial employment associated with golf tourism in the region and to protect the safety of players on athletic fields. According to superintendents and caretakers, considerable damage to golf courses and athletic fields may still occur. The staff believes that the golf course and athletic field rules strike an appropriate balance between demand management and economic and social considerations. The staff does not agree that resort golf courses should be given special consideration and a distinct advantage over other private and public golf courses, all of which try to generate some revenue for profit or to cover expenses. The staff does agree, however, that the reduction percentage in Stage IV for conforming golf courses should be adjusted from 35% to 30% (or 20% for a conforming golf course that is a participant in the Authority's Irrigation Suspension Program), and sec.721.47(b)(2)(D) has been revised accordingly. With respect to non-conforming golf courses under subsection (c), in order to be considered "conforming" a golf course must submit a use reduction plan within 30 days of the effective date of the rules as described in subsection (b). Among other things, such a plan must provide for use of a computer controlled irrigation system. A golf course that fails to timely file an adequate use reduction plan is considered "non-conforming." A golf course without a computer controlled irrigation system is non-conforming because it cannot meet the use reduction plan requirement of subsection (b). If the general manager disapproves the use reduction plan, the golf course will also be considered non-conforming. A golf course that develops the ability to qualify as a conforming golf course after the effective date of the rules may apply to the general manager for such treatment by submitting an adequate use reduction plan. Section 721.48 Athletic Fields. A commenter expressed concern with respect to restrictions in watering of athletic fields under sec.721.48. The commenter stated that any further reductions in water use at its athletic fields will create unsafe playing conditions and may degrade the condition of the fields to such a point that they cannot be used. If this occurs, the commenter contends, the cost of restoring the fields to safe playing condition will be considerable. Another commenter suggested that conservation and reuse plans for athletic fields under this section should be subject to approval by the city, water supplier, or other entity with enforcement powers, and should be subject to review or revocation in Stage IV. The commenter also stated that watering of athletic fields should be defined as an essential use. Another commenter stated that there are inconsistencies between the administrative requirements of the plans required for golf courses and athletic fields. Response: Athletic fields are treated separately in the plan from other landscapes in order to take into account the safety of event participants. A separate treatment for athletic fields is justified because such facilities are an integral component of educational curricula, and contribute to public health and safety. Athletic fields can become unsafe to athletes if not watered adequately. Section 721.48 was developed after considering comments and suggestions from grounds superintendents. The rule allows the owner or operator of an athletic field to submit to the Authority a conservation and reuse plan that provides for watering of the field in an amount not to exceed that which is "necessary to maintain the viability of the turf and maintain the turf in a safe condition." The rule thus addresses the commenter's concerns. In response to the comment concerning approval of athletic field conservation and reuse plans by a local authority, a new subsection (b)(10) is added to sec.721.48 which requires the owner or operator to state that the conservation and reuse plan does not conflict with any local regulations. In the judgment of the staff, it is unnecessary at this time to require the athletic field operator to obtain approval from another entity. The staff encourages athletic field operators and other users who submit conservation and reuse plans as authorized by these rules to work with local authorities to ensure compliance with ordinances and regulations. The staff believes that athletic fields, like other recreational turf areas, should continue to be treated as discretionary users of water under these rules, subject to the special provisions provided in sec.721.48. The staff believes that the rule adequately accommodates the economic, safety, and other factors. With respect to the differences between the plan requirements for athletic fields and golf courses, the staff has reviewed these sections and believes that the plan requirements are appropriate and not inconsistent with one another. Both types of plan must be filed within 30 days of the effective date of these rules, and both must be approved or disapproved by the general manager within 30 days unless he or she requests additional information. The staff has not received information that owners of athletic fields like conforming golf courses should be required to utilize computer controlled irrigation systems and, if feasible, commit to obtaining alternate water supplies. Such measures may be further examined by staff in development of the comprehensive management plan and permanent critical period management rules. Sections 721.51 and 721.52 Base Usage Reports and Monthly Usage Reports. A commenter recommended that proposed sec.721.52, which required weekly usage reports, be revised to require once-a-month water use summaries. Other commenters suggested that proposed sec.721.51(a)(3) should be deleted or revised to allow the use of well designations in lieu of a map. Another commenter stated that proposed sec.721.51(a)(5) should be revised to require reporting of the total amount of underground water withdrawn or supplied during the preceding 12 months. With respect to proposed subsection (a)(6) of both sec.721.51 and sec.721.52, which required reporting of the amount of water applied to essential uses, commenters stated that users can at best provide an estimate, and the rules should allow for estimates. A commenter recommended that proposed paragraph (7), which required reporting of amount of water applied to discretionary uses, be deleted. Another commenter stated that the subsection allowing the general manager to request additional information, proposed sec.sec.721.51(a)(11) and 721.52(a)(10), should limit such information by inserting the term "relevant." Other commenters suggested that subsection (c) of sec.721.52 should provide for an administrative exception to the penalty for failure to timely file a weekly usage report, that there should be no weekly reporting requirement when stages are not in effect, and that the November 12, 1996 filing date for base usage reports should be extended. Other commenters suggested that sec.721.52(a) be revised so that weekly reports are required to be filed only in the months of June, July, August and September or during Stage III-IV and that monthly reports be filed at all other times; that sec.721.52(a)(4) be revised to refer to "inclusive dates of the reporting period"; that the word "week" in sec.721.52(a)(8) should be replaced with "period," that sec.721.52(a)(9), which requires the user to summarize its efforts to conserve and reduce usage of underground water, is excessive and redundant and should be deleted; that monthly reports should be filed the day after the first weekday of the month; and that the last part of sec.721.52(c) should read "during the reporting period." Response. The comment that water usage reports should be made on a monthly basis is well taken. Section 721.52 has been revised to require primary users to make monthly rather than weekly reports. These reports must be filed by the first Tuesday following the end of the calendar month which is the subject of the report. A water usage report must be filed for any calendar month during which a critical period stage was in effect at any time during the month. No water usage report is required for any calendar month in which no critical period stage was in effect, as determined by the Authority. The comments that expressed concerns with respect to weekly reporting under sec.721.52 are for the most part rendered moot by this change. Section 721.51(a)(3), which required a weekly usage report to designate the location of all wells from which underground water was withdrawn, is deleted as unnecessary. Section 721.51(a)(5) has been reworded as suggested. The staff realizes that at this time many primary users and suppliers can only estimate the amounts of water applied to essential and discretionary uses by their customers. The word "estimated" has thus been inserted in sec.721.51(a)(6) and sec.721.52(a)(5) (proposed sec.721.52(a)(6)). The user or supplier should be prepared to demonstrate the manner in which the amounts were calculated, including any assumptions or formulas utilized. An estimated amount which is not calculated based on reasonably reliable data or is not trustworthy under the circumstances need not be accepted by the Authority. Proposed paragraph (7) has been deleted as unnecessary. Adding the word "relevant" to proposed sec.sec.721.51(a)(11) and 721.52(a)(10) would invite disputes over what information is "relevant" for purposes of inclusion in base usage and monthly usage reports. The general manager has discretion to determine what information should be included in these reports. The staff agrees that failure to timely file a monthly usage report should not suspend the right to exclude exempt or essential uses from mandatory reductions if there is good cause for the failure, and sec.721.51(d) and sec.721.52(c) are revised accordingly. Proposed section 721.51(b), which required primary users to file their base usage reports with the Authority by November 12, 1996, has been revised to required such filing within 30 days after the effective date of these rules. The effective date of the rules will be the 20th day following the date the adopted rules are filed with the Secretary of State. Texas Government Code, sec.2001.036(a). Staff recommends no change to sec.721.52(a)(4) because it is sufficiently clear as written. "Reporting week" has not been changed to "reporting period," but instead has been changed to "reporting month" throughout the rule. Subsection (a)(9) of sec.721.52 has been deleted because it seeks information that is not critical to monitoring compliance with the rules. Due to the change to a monthly reporting format, sec.721.52(b) has been revised to require monthly usage reports to be filed by the 5th business day following the end of the reporting week. Because some items have been deleted from subsections (a) of both sec.721.51 and sec.721.52, the items in that subsection have been renumbered in the adopted rule. Section 721.61 Request for Variance. A commenter suggested that subsection (a) of this section be revised to read: "A person may file a request for variance from the Critical Period Management Rules of Chapter 721 with the Authority." Another commenter requested that subsection (a)(3) be revised to not require that the request for variance be acknowledged before a notary. Response. The phrase "from these rules" has been added to sec.721.61(a) to clarify that the variance procedures described in this rule apply only to the Critical Period Management Rules. The acknowledgment requirement is not necessary, and has been removed from subsection (a)(3). SUBCHAPTER A. General Provisions 31 TAC sec.sec.721.1-721.8 The Authority adopts these new rules pursuant to its general and special powers under the Edwards Aquifer Authority Act (the "Act"), chapter 626, 73rd Legislature, Regular Session, 1993, as amended, sec.sec.1.08, 1.11, 1.14, 1.17, 1.26, 1.35, 1.36, 1.37, 1.38, 1.40 and 1.41, and chapter 36 of the Texas Water Code. The adopted sections implement the Edwards Aquifer Authority Act, chapter 626, 73rd Legislature, Regular Session (1993), as amended, sec.sec.1.11, 1.14, and 1.26. sec.721.5. Definitions and Abbreviations. (a) Definitions. The following words and terms when used in this chapter shall have the following meanings, unless the context clearly indicates otherwise. (1) Act - The act creating the Edwards Aquifer Authority (Senate Bill 1477, chapter 626, 73rd Legislature, Regular Session, 1993, as amended. (2) Aquifer - The Edwards Aquifer, as defined in the Act. (3) Athletic Field - A sports play field used primarily for organized sports for schools, professional sports or sanctioned league play whose essential feature is a grass turf. (4) Authority - The Edwards Aquifer Authority. (5) Authority offices - The principal offices of the Edwards Aquifer Authority, located in Bexar County, San Antonio, Texas, 1615 North St. Mary's Street, Post Office Box 15830, 78212. (6) Base usage - For a primary user who is not a conjunctive user, base usage shall mean the average monthly total underground water usage for the three lowest months of November and December of 1995 and January and February of 1996. For a primary user who is a conjunctive user, base usage shall mean the average monthly total underground water usage for the three lowest months of November and December and the following January and February during each of the three consecutive 12 month periods preceding the commencement of the primary user's use of the non-Edwards Aquifer water which qualifies the primary user as a conjunctive user. (7) Beneficial use - The use of the amount of water that is economically necessary for a purpose authorized by law, when reasonable intelligence and reasonable diligence are used in applying the water to that purpose. (8) Board - The board of directors of the Authority. (9) Conjunctive user - A primary user shall be deemed a conjunctive user if: (A) the user uses or supplies water other than underground water (for example, surface water or water from an aquifer other than the Edwards Aquifer) as a substantial portion of the total amount of water it used or supplied in the preceding 12 months; (B) if the non-Edwards Aquifer water satisfies a demand that would otherwise be satisfied by Edwards Aquifer water; (C) if the user uses or supplies all available non-Edwards Aquifer water first before using or supplying Edwards Aquifer water; and (D) if the non-Edwards Aquifer water use considered with respect to determining the user's status as a conjunctive user was first used or supplied subsequent to 1986. For purposes of this definition, substantial' shall mean at least 10%. (10) Day - A 24-hour period beginning at midnight. (11) Demand Management Rules - The rules implementing the Demand Management Plan for the Edwards-Balcones Fault Zone Aquifer adopted by the Edwards Underground Water District on November 10, 1992, as revised. (12) Discretionary use - Any use listed as follows or any other use of underground water that is not an essential use (compare with "essential use"), provided that use of underground water is essential and not discretionary to the extent the use is necessary to prevent danger to public health, safety, or welfare, or to comply with state or federal law: (A) Recreational use to the extent the underground water is not recycled, including the watering of turf areas (see sec.721.47 and sec.721.48 of this title relating to Golf Courses and Athletic Fields). (B) Landscape watering including residential, commercial and public landscapes, golf courses, athletic fields and cemeteries. (C) Filling or maintaining swimming pools. (D) Ornamental outdoor fountains and similar features. (E) Washing of an impervious outdoor ground covering such as a parking lot, driveway, street, or sidewalk. (F) Use in connection with an aquaculture operation, to the extent the underground water is not recycled. (13) Domestic or livestock use - Use of underground water for: (A) Drinking, washing, or culinary purposes; (B) Irrigation of a family garden or orchard the produce of which is for household consumption only; or (C) Watering of animals. (14) Essential use - A use of water which is: (A) Essential to the protection of public health, safety, or welfare, including but not limited to use for drinking, food preparation, personal hygiene, public sanitation, control or prevention of disease, and fire fighting; or (B) Essential to an industrial use or agricultural or military activity which directly supports gainful employment, unless the use is specifically defined in these rules as a discretionary use; or (C) Essential to irrigation use. (15) General Manager - The general manager of the Authority. (16) Industrial use - The use of water for or in connection with commercial or industrial activities, including manufacturing, bottling, brewing, food processing, scientific research and technology, recycling, production of concrete, asphalt, and cement, commercial uses of water for tourism, entertainment, and hotel or motel lodging, generation of power other than hydroelectric, and other business activities. (17) Irrigation Suspension Program (ISP) -- A program administered by the Authority pursuant to which agricultural irrigators within the Authority's boundaries voluntarily agree to suspend some irrigation use of the underground water from the Edwards Aquifer in consideration of payments voluntarily funded by ISP participants. (18) Irrigation use - The use of water for the irrigation of pastures and commercial crops, including orchards. (19) ISP Participant -- Any beneficiary of the underground water who participates in an Irrigation Suspension Program by paying amounts to the Authority for the purpose of funding payments to irrigators to suspend some irrigation use of underground water. (20) J-17 level -- The level of the aquifer as measured by the Authority in Well J-17 (well number AY-68-37-203) in the City of San Antonio. (21) J-27 level - The level of the aquifer as measured by the Authority in Well J-27 (well number YP69-50-302) in the City of Uvalde. (22) Landscape watering - The application of underground water to grow or maintain plants such as flowers, ground covers, turf or grasses, shrubs, and trees, but for purposes of these rules does not include: (A) Essential use without waste of underground water by a commercial nursery to the extent the water is used for production rather than decorative landscaping; (B) Application of underground water without waste to a non-commercial family garden or orchard the produce of which is for household consumption only; and (C) Application of underground water in the morning before 10:00 a.m. and in the evening after 8:00 p.m. by means of a bucket (not to exceed 5 gallons in capacity), hand-held hose, soaker hose, or properly-installed drip irrigation system, immediately next to a concrete foundation solely for the purpose of preventing, and to the extent the watering is necessary to prevent, substantial damage to the foundation or the structure caused by movement of the foundation. (23) Livestock - Animals, beasts, or poultry collected or raised for pleasure, recreational use, or commercial use. The term includes but is not limited to cattle, sheep, goats, swine, horses, chickens, turkeys, and zoo animals, but does not include fish or other aquatic animals raised in a tank, raceway, reservoir, or watercourse. (24) Maximum allowable usage - The maximum allowable usage of underground water that a person is allowed to withdraw or supply as provided in sec.sec.721.31 - 721.33 of this title (relating to Maximum Allowable Usage; Enforcement; and Determination of Base and Maximum Allowable Usage). (25) Medina well level - The level of the Aquifer as measured by the Authority in the Hondo Yard Well (well number TD-69-47-306). (26) Person - An individual, corporation, organization, government or governmental subdivision or agency, business trust, estate, trust, partnership, association, and any other legal entity. (27) Primary supplier - A primary user that supplies more than 25,000 gallons of underground water per day in accordance with sec.721.11 of this title (relating to Primary Users). (28) Primary user - Any person who withdraws or supplies more than 25,000 gallons of underground water per day in accordance with sec.721.11 of this title (relating to Primary Users). (29) Produce - To withdraw underground water. (30) Reclaimed water - Domestic wastewater that is under the direct control of the treatment plan owner/operator which has been treated to a quality suitable for a beneficial use. (31) Recycled water - Water that is used by the same person two or more times sometimes with partial treatment in between uses. (32) Reduction multiplier - A multiplier specified in sec.721.24(d) and (e), Figure 1 of this title (relating to Critical Period Stages), which is used to calculate a primary user's maximum allowable usage depending on the applicable critical period reduction stage. (33) Reused water - Water that remains unconsumed after the water is used for the original purpose of use and that is used again before the water is discharged or otherwise allowed to flow into a watercourse, lake, or other body of state-owned water. (34) Springflow rate - The rate of flow, in cubic feet per second (c.f.s.), from Comal Springs in New Braunfels, Comal County, Texas, as measured by the United States Geological Survey. (35) Supplier - Any person that supplies underground water, including but not limited to a public or private water company, a water supply corporation, a municipality or water district. (36) Supply - To provide, sell, or transfer underground water to another person for any purpose and without regard to the manner in which the underground water is obtained, delivered, transported, or transferred to the other person, pursuant to a contract or otherwise. (37) Underground water - Water within or produced, obtained, or originating from the Edwards Aquifer. Recycled, reclaimed and reused water are specifically excluded from this definition. (38) Waste - For the purposes of this chapter, the term "waste" shall have the same meaning as defined in the Edwards Authority Act, Chapter 626, sec.1.03 relating to definitions, subsection (21). (39) Watering day - A day designated for landscape watering, limited to the morning hours from midnight to 10:00 a.m. and the evening hours from 8:00 p.m. to midnight. Thus, if Saturday is a designated watering day, the period of time referenced is Saturday morning between 12:00 a.m. to 10:00 a.m., and Saturday evening between 8:00 p.m. and midnight. (40) Withdraw - To effect, cause, suffer, allow or permit a withdrawal. For purposes of these rules, any person who owns, leases, or has actual or constructive possession of a producing well or the land upon which the well is located withdraws from that well. (41) Withdrawal - An act or a failure to act that results in taking of water from the Edwards Aquifer by or through man-made facilities, including pumping, withdrawing, or diverting underground water. (b) Abbreviations. The following abbreviations apply to this chapter: (1) C.f.s. - Cubic feet per second. (2) Ft. m.s.l. - Feet above mean sea level. (3) ISP - Irrigation Suspension Program. 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 January 28, 1997. TRD-9701302 Rick Illgner General Manager Edwards Aquifer Authority Effective date: February 18, 1997 Proposal publication date: September 3, 1996 For further information, please call: (210) 222-2204 SUBCHAPTER B. Applicability of Rules 31 TAC sec.721.11, sec.721.12 The Authority adopts these new rules pursuant to its general and special powers under the Edwards Aquifer Authority Act (the "Act"), chapter 626, 73rd Legislature, Regular Session, 1993, as amended, sec.sec.1.08, 1.11, 1.14, 1.17, 1.26, 1.35, 1.36, 1.37, 1.38, 1.40 and 1.41, and chapter 36 of the Texas Water Code. The adopted sections implement the Edwards Aquifer Authority Act, chapter 626, 73rd Legislature, Regular Session (1993), as amended, sec.sec.1.11, 1.14, and 1.26. sec.721.12. Exempt Wells and Essential Uses. (a) With regard to exempt wells, no person is required to reduce withdrawals of underground water from any well that produces 25,000 gallons of underground water per day or less; however, owners of such wells are strongly encouraged to follow the requirements for landscape watering of individuals served by municipal or public water supply systems. (b) With regard to essential uses, no person is required to reduce the amount of underground water withdrawn or supplied to the extent the water is used for an essential use, as defined in sec.721.5(a)(14) of this title (relating to Definitions). (c) This section does not relieve any person of the duty to reduce the amount of underground water actually applied to discretionary uses to the maximum extent feasible as may be necessary to comply with the applicable maximum allowable usage, or the duty to comply with specific restrictions mandated by sec.sec.721.42 - 721.48 of this title (relating to Stage I Restrictions; Stage II Restrictions; Stage III Restrictions; Stage IV Restrictions; Use Necessary for Public Health or Safety; Golf Courses; and Athletic Fields). 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 January 28, 1997. TRD-9701301 Rick Illgner General Manager Edwards Aquifer Authority Effective date: February 18, 1997 Proposal publication date: September 3, 1996 For further information, please call: (210) 222-2204 SUBCHAPTER C. Critical Period Stages 31 TAC sec.sec.721.21-721.24 The Authority adopts these new rules pursuant to its general and special powers under the Edwards Aquifer Authority Act (the "Act"), chapter 626, 73rd Legislature, Regular Session, 1993, as amended, sec.sec.1.08, 1.11, 1.14, 1.17, 1.26, 1.35, 1.36, 1.37, 1.38, 1.40 and 1.41, and chapter 36 of the Texas Water Code. The adopted sections implement the Edwards Aquifer Authority Act, chapter 626, 73rd Legislature, Regular Session (1993), as amended, sec.sec.1.11, 1.14, and 1.26. sec.721.21. Critical Period Stages-East Area . These critical period stages apply to all primary users located within the boundaries of the Authority that are in the counties of Bexar, Comal, Hays, Caldwell, and Guadalupe: (1) Stage I. Stage I applies on any day following a day when the J-17 level is at or below 650 ft. m.s.l. and above 642 ft. m.s.l. (2) Stage II. Stage II applies on any day following a day when the J-17 level is at or below 642 ft. m.s.l. and above 636 ft. m.s.l. (3) Stage III. Stage III applies on any day following a day when the J-17 level is at or below 636 ft. m.s.l. and above 632 ft. m.s.l. (4) Stage IV. Stage IV applies on any day following a day when the J-17 level is at or below 632 ft. m.s.l. sec.721.22. Critical Period Stages-Medina Area. These critical period stages apply to all primary users located within the boundaries of the Authority that are in the counties of Medina and Atascosa, when the Medina well level reaches the following levels: (1) Stage I. Stage I applies on any day following a day when the Medina well level is at or below 670 ft. m.s.l. and above 660 ft. m.s.l. (2) Stage II. Stage II applies on any day following a day when the Medina well level is at or below 660 ft. m.s.l. and above 655 ft. m.s.l. (3) Stage III. Stage III applies on any day following a day when the Medina well level is at or below 655 ft. m.s.l. sec.721.23. Critical Period Stages-Uvalde Area. These critical period stages apply to all primary users located within the boundaries of the Authority that are in the County of Uvalde, when the J-27 level reaches the following levels: (1) Stage I. Stage I applies on any day following a day when the J-27 level is at or below 845 ft. m.s.l. and above 840 ft. m.s.l. (2) Stage II. Stage II applies on any day following a day when the J-27 level is at or below 840 ft. m.s.l. sec.721.24. Beginning and End of Critical Period Stages. (a) The general manager will post by 10:00 a.m. every business day the most recently available springflow rate and well levels, as well as the 10-day rolling average of those rates or levels and the applicable critical period stage as established by sec.sec.721.21 - 721.24 of this title (relating to Critical Period Stages-East Area; Critical Period Stages Medina Area; Critical Period Stages-Uvalde Area; and Beginning and End of Critical Period Stages). (b) If springflow rate or a well index is not available on a particular day, the stage in effect in the applicable area will continue to the next day. (c) A critical period stage will remain in effect for at least ten days unless a more restrictive stage is implemented and otherwise will not be rescinded until the 10-day rolling average of the applicable well index triggers a less restrictive stage. (For example, if Stage III is in effect in the East area of the Authority, Stage II cannot be triggered in that area until the 10-day rolling average of the J-17 level rises above 636 ft. m.s.l.). (d) The reduction multipliers for each stage are as follows: Stage I: 1.8; Stage II: 1.6; Stage III: 1.4; and Stage IV: 1.2, 1.3, or 1.4, as applicable. In the event the Authority implements an Irrigation Suspension Program for 1997, the maximum allowable usage in Reduction Stage IV shall be 1.3 times base usage for all users except ISP participants, and the maximum allowable usage in Stage IV for ISP participants shall be 1.4 times base usage. In the event the Authority does not implement an Irrigation Suspension Program for 1997, the maximum allowable usage in Stage IV shall be set by order of the Authority not later than April 10, 1997, and in any event shall be no lower than 1.2 nor higher than 1.4. (e) The well levels which trigger stages as described in this section and the applicable reduction multipliers are stated in Figure 1, which is incorporated herein. Stages are triggered independently in each of the three areas. Figure 1: 31 TAC 721.24(e) 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 January 28, 1997. TRD-9701300 Rick Illgner General Manager Edwards Aquifer Authority Effective date: February 18, 1997 Proposal publication date: September 3, 1996 For further information, please call: (210) 222-2204 SUBCHAPTER D. Maximum Allowable Usage and Enforcement 31 TAC sec.sec.721.31-721.33 The Authority adopts these new rules pursuant to its general and special powers under the Edwards Aquifer Authority Act (the "Act"), chapter 626, 73rd Legislature, Regular Session, 1993, as amended, sec.sec.1.08, 1.11, 1.14, 1.17, 1.26, 1.35, 1.36, 1.37, 1.38, 1.40 and 1.41, and chapter 36 of the Texas Water Code. The adopted sections implement the Edwards Aquifer Authority Act, chapter 626, 73rd Legislature, Regular Session (1993), as amended, sec.sec.1.11, 1.14, and 1.26. 721.31. Maximum Allowable Usage. Maximum allowable usage is the product of the base usage times the reduction multiplier assigned to each reduction stage. The stages and reduction multipliers are shown in sec.721.24(e), Figure 1, of this title (relating to Beginning and End of Critical Period Stages). sec.721.31. Maximum Allowable Usage. Maximum allowable usage is the product of the base usage times the reduction multiplier assigned to each reduction stage. The stages and reduction multipliers are shown in sec.721.24(e), Figure 1, of this title (relating to Beginning and End of Critical Period Stages). sec.721.32. Enforcement. (a) Subject to sec.721.12 of this title (relating to Exempt Wells and Essential Uses), primary users other than irrigation users are prohibited from withdrawing or supplying more than the applicable maximum allowable usage during each critical period stage. (b) This prohibition will be enforced by the Authority to the fullest extent permitted by law beginning on the effective date of these rules. (c) Notwithstanding any other provision to the contrary, the Authority will base an enforcement action for exceedances of a primary supplier's maximum allowable usage on metered sales rather than the amount of water supplied as provided in sec.721.11 of this title (relating to Primary Users) if the primary supplier demonstrates that: (1) the exceedance is due to non-preventable water main breaks that are caused by weather conditions during the critical period; (2) the primary supplier's unaccounted-for water is less than 20% of total water pumped or does not exceed 25 million gallons per day, whichever is lower; (3) the primary supplier demonstrates to the satisfaction of the Authority that it implements and maintains an aggressive leak detection program; and (4) the primary supplier demonstrates that it exercises reasonable diligence in detecting, repairing, and preventing such breaks. (d) A person that violates any term or provision of these rules may be assessed an administrative penalty or subject to a civil suit in state district court for an injunction or civil penalties brought by the Authority to enforce these rules as provided for in the Act, sec.sec.1.36, 1.37, 1.38 and 1.40. sec.721.33. Determination of Base and Maximum Allowable Usage. (a) The general manager will initially determine the base usage and maximum allowable usage for each primary user, other than an irrigation user, based on the base usage report and other data available to the Authority. The general manager will notify primary users of the determinations in writing. (b) The general manager, with the approval of the board, may calculate base or maximum allowable usage on different criteria than is otherwise required by these rules in particular cases, in order to better approximate the minimum amount of underground water the primary user needs for essential uses or to avoid penalizing the user for development of alternative water supplies. (c) Notwithstanding subsection (a) of this section, primary users have the duty to self-determine their base usage and maximum allowable usage, and are subject to the prohibitions contained in sec.721.32 of this title (relating to Enforcement) regardless of whether the general manager has determined such amounts or notified the primary user of such determinations. 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 January 28, 1997. TRD-9701299 Rick Illgner General Manager Edwards Aquifer Authority Effective date: February 18, 1997 Proposal publication date: September 3, 1996 For further information, please call: (210) 222-2204 SUBCHAPTER E. Restrictions on Specific Uses 31 TAC sec.sec.721.41-721.48 The Authority adopts these new rules pursuant to its general and special powers under the Edwards Aquifer Authority Act (the "Act"), chapter 626, 73rd Legislature, Regular Session, 1993, as amended, sec.sec.1.08, 1.11, 1.14, 1.17, 1.26, 1.35, 1.36, 1.37, 1.38, 1.40 and 1.41, and chapter 36 of the Texas Water Code. The adopted sections implement the Edwards Aquifer Authority Act, chapter 626, 73rd Legislature, Regular Session (1993), as amended, sec.sec.1.11, 1.14, and 1.26. sec.721.41. Reduction Efforts. (a) Primary users shall achieve the maximum allowable usage level at each critical period stage by conserving underground water, minimizing waste, reducing discretionary uses of underground water to the maximum extent feasible, and taking any other necessary steps to reduce use of underground water. (b) No person is required to reduce the amount of underground water withdrawn or supplied to the extent the water is used for an essential use as defined in sec.721.5(a)(14) of this title (relating to Definitions and Abbreviations). (c) Primary suppliers shall make timely and effective use of inverted rate structures, conservation charges, critical period surcharges, and other programs to encourage water consumers to conserve underground water, minimize waste, comply with specific restrictions, utilize high-efficiency water systems such as low-flow toilets and shower heads, and reduce discretionary uses of underground water to the maximum extent feasible. sec.721.42. Stage I Restrictions. When Stage I is in effect, the following restrictions apply to all persons throughout the applicable area of the Authority: (1) No person may waste underground water. (2) No person may use underground water for landscape watering between the hours of 10:00 a.m. and 8:00 p.m. This subsection does not apply to non-potable water, graywater, and treated effluent. (3) No person may use underground water to wash an impervious outdoor ground covering such as a parking lot, driveway, street, or sidewalk unless for health or safety reasons. (4) No person may allow irrigation tailwater to escape from that person's land. (5) Restaurants and other eating establishments are prohibited from serving underground water to customers except upon request of the customer. (6) Every person who owns or has possession of a swimming pool must cover the pool with an effective evaporation cover or screen, or evaporation shields covering at least 25% of the surface of the pool, when the pool is not in active use. Active use includes necessary maintenance that requires removal of the cover, screen, or shields. Active use of public, commercial and apartment pools is whenever the pool is not officially closed. (7) No person may wash an automobile at a residence except on a watering day designated by these rules or by a municipality pursuant to these rules, and in no event may a person allow underground water from automobile washing at a residence escape into the street or otherwise off the person's property. (8) Charity car washes are prohibited except at a commercial car wash that recycles at least 75% of the underground water it uses or that is certified as a conservation car wash by a municipality or other political subdivision. sec.721.43. Stage II Restrictions. When Stage II is in effect, the following restrictions apply to all persons throughout the applicable area of the Authority: (1) All of the prohibitions applicable in Stage I apply in Stage II. (2) No person may use underground water for landscape watering on more than two watering days in any calendar week, except that landscape watering is permitted on any day before 10:00 a.m. and after 8:00 p.m. by means of a bucket (not to exceed 5 gallons in capacity), hand-held or soaker hose, or properly-installed drip irrigation system. This subsection does not apply to non-potable water, graywater, or treated effluent. (3) Municipalities must designate specific watering days on which persons within their jurisdictions are allowed to use underground water for landscape watering, in accordance with this section. Municipalities are encouraged to stagger such days so as to reduce peaks of demand. (4) For all persons whose property is outside of a municipality, the watering days are Saturday and Wednesday. (5) No person may use underground water for an ornamental outdoor fountain or similar feature, unless the water is recycled and the only additional underground water used for the feature is to compensate for evaporative losses. sec.721.44. Stage III Restrictions. When Stage III is in effect, the following restrictions apply to all persons throughout the applicable area of the Authority: (1) All of the prohibitions applicable in Stage I apply in Stage III. (2) No person may use underground water for landscape watering on more than one watering day in any calendar week, except that landscape watering is permitted to maintain shrubs, trees, and other ornamental plants, but not grass or turf, on any day before 10:00 a.m. and after 8:00 p.m. by means of a bucket (not to exceed 5 gallons in capacity), hand-held or soaker hose, or properly-installed drip irrigation system. This subsection does not apply to non-potable water, graywater, or treated effluent. (3) Municipalities must designate a specific day or days of the calendar week on which persons within their jurisdictions are allowed to use underground water for landscape watering, in accordance with this section. Municipalities are encouraged to stagger such days so as to reduce peaks of demand. (4) For all persons whose property is outside of a municipality, the watering day is Saturday. (5) No person may use underground water for an ornamental outdoor fountain or similar feature. sec.721.45. Stage IV Restrictions. When Stage IV is in effect, the following restrictions apply to all persons throughout the applicable area of the Authority: (1) All of the prohibitions applicable in Stage I and sec.721.44(5) of this title (relating to ornamental outdoor fountains and similar features) apply in Stage IV. (2) No person may use underground water for landscape watering on more than one watering day in any calendar week. For purposes of this subsection, "watering day" is limited to the morning hours of 3:00 a.m. to 7:00 a.m., and the evening hours of 8:00 p.m. to 11:00 p.m. However, landscape watering by means of a bucket (not to exceed five gallons in capacity), hand-held or soaker hose, or properly-installed drip irrigation system is permitted to maintain trees, shrubs, and other ornamental plants, but not grass or turf, on any day of the week during the morning hours of 7:00 a.m. to 11:00 a.m. Persons utilizing irrigation systems requiring more than seven hours to complete one weekly watering cycle may request a variance in accordance with sec.721.61 of this title (relating to Requests for Variances). Such a request must be accompanied by a conservation and reuse plan for the irrigation system. This subsection does not apply to non-potable water, graywater, or treated effluent. (3) Municipalities must designate a specific day or days of the calendar week on which persons within their jurisdictions are allowed to use underground water for landscape watering, in accordance with this section. Municipalities are encouraged to stagger such days so as to reduce peaks of demand. (4) For all persons whose property is outside of a municipality, the watering day is Saturday. (5) Filling of all new and existing swimming pools is prohibited, unless at least 30% of the water is obtained from a source other than the Edwards Aquifer. Underground water may be used to replenish swimming pools to maintenance level. Drainage of swimming pools is permitted only onto a pervious surface, or onto a pool deck where the water is transmitted directly to a pervious surface, only if necessary to: (A) remove excess water from the pool due to rain in order to lower the water to the maintenance level; (B) repair, maintain, or replace a pool component which has become hazardous; or (C) repair a pool leak. sec.721.47. Golf Courses. (a) Other provisions of these rules to the contrary notwithstanding, golf courses shall be divided into two categories: (1) Conforming Golf Course - means a golf course that has filed a Golf Course Use Reduction Plan with the general manager within thirty days after the effective date of these rules pursuant to subsection (b) of this section. (2) Non-conforming Golf Course - means a golf course that is not a conforming golf course. (b) Reduction Plan Requirements - In order to be approved by the general manager, a Use Reduction Plan must be filed within 30 days of the effective date of these rules and, at a minimum, comply with the following: (1) Contain a plan with projected implementation dates to convert to an alternate water supply to reduce and eliminate consumption of underground water to the maximum extent feasible. This conversion may incorporate the use of a purveyed reuse or recycled water system (evidenced by a letter of commitment from a purveyor) and/or the golf course must participate in the Irrigation Suspension Program; and (2) Provide methods of achieving enhanced conservation by utilizing a computer controlled irrigation system ("CCIS"), comprised of a computer controller (digital operating system), software, interface modules, satellite, field controller, soil sensors, weather station, or similar devices, which is capable of achieving maximum efficiency and conservation in the application of water to the golf course. A CCIS, at a minimum, should be designed to prevent over- watering, flooding, pooling, evaporation and run-off; and prohibit sprinkler heads from applying water at an intake rate exceeding the soil holding capacity. The plan must require the user to accomplish the following reductions: (A) Stage I - 10% reduction in the replacement of daily evapotranspiration rate ("ET rate") or daily soil holding capacity. (B) Stage II - 20% reduction in the replacement of daily ET rate or daily soil holding capacity. (C) Stage III - 30% reduction in the replacement of daily ET rate or daily soil holding capacity; provided that if the user is an ISP participant, the required reduction shall be 20%. (D) Stage IV - 30% reduction in the replacement of daily ET rate or daily soil holding capacity; provided that if the user is an ISP participant, the required reduction shall be 20%. (3) The reduction plan shall be approved or disapproved, or the general manager shall request additional information within 30 days of the filing of the plan. The reduction plan shall be subject to at least an annual review by the general manager. (c) Non-conforming Golf Course - shall comply with the following reduction measures: (1) Stage I - 10% reduction in the replacement of daily ET rate as monitored by a properly operating CCIS or use of not more than 1.8 times the base usage for golf courses that are not equipped with a CCIS. (2) Stage II - 20% reduction in the replacement of daily ET rate as monitored by a properly operating CCIS or use of not more than 1.6 times the base usage for golf courses that are not equipped with a CCIS. (3) Stage III - 30% reduction in the replacement of daily ET rate as monitored by a properly operating CCIS or use of not more than 1.4 times the base usage for golf courses that are not equipped with a CCIS (4) Stage IV - 40% reduction in the replacement of daily ET rate as monitored by a properly operating CCIS or use of not more than 1.3 times the base usage for golf courses that are not equipped with a CCIS. sec.721.48. Athletic Fields. (a) An owner or operator of an athletic field who files a conservation and reuse plan in compliance with this Section with the Authority within 30 days after the effective date of these rules, may apply underground water to the field in accordance with this section if the general manager approves the plan. Athletic fields that are not covered by an approved conservation and reuse plan must comply with all maximum allowable and specific restrictions provided in this chapter. (b) A conservation and reuse plan for athletic fields must contain the following information: (1) The name, title, address, and telephone number of the owner or operator of the athletic field; (2) the name, title, address, and telephone number of the person(s) responsible for the watering of the field; (3) whether the field is public or private, and the populations served by the field; (4) the location, dimensions, type of athletic field, and type of turf; (5) a description of the water-delivery system used and how and when it is used; (6) a description of management practices relating to watering the field that are employed to control the amount of water applied to the field; (7) a description of any turf areas that are not essential to the functioning of the field that are or could be watered in accordance with the specific restrictions on landscape watering contained in this chapter; (8) a statement of what the owner or operator believes is a minimum amount of water and a minimum watering regimen during critical periods that applies only the amount of water necessary to maintain the viability of the turf without creating a safety hazard to users of the field; (9) a statement of any actions or plans to obtain alternative water supplies such as reuse water, and if applicable a copy of any letter of commitment from a water purveyor regarding supplying such water to the field; (10) a statement that the conservation and reuse plan is also in compliance with any local conservation plans; (11) Any other information required by the general manager. (c) The general manager shall either approve or disapprove the conservation and reuse plan or request additional information within 30 days of the date of filing. (d) The general manager shall approve the conservation and reuse plan if the general manager is satisfied that the plan meets the following criteria: (1) It contains all necessary information and documentation. (2) The plan provides for a critical period watering regimen that uses only the amount of underground water necessary to maintain the viability of the turf and maintain the turf in a safe condition. (3) The plan provides that underground water will be applied to areas that are not essential to the use of the field in accordance with the applicable maximum allowable usage and specific restrictions imposed by this chapter. (4) If non-potable water is available or may be available to the field within five years, the owner or operator is committed to making use of such non-potable water for watering of athletic fields as soon as practicable. (e) The general manager may require the revision of a conservation and reuse plan or require the owner or operator to provide additional or updated information, and may disapprove a plan previously approved if it appears that the plan no longer meets the criteria set forth in subsection (d) of this section. 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 January 28, 1997. TRD-9701298 Rick Illgner General Manager Edwards Aquifer Authority Effective date: February 18, 1997 Proposal publication date: September 3, 1996 For further information, please call: (210) 222-2204 SUBCHAPTER F. Reports 31 TAC sec.721.51, sec.721.52 The Authority adopts these new rules pursuant to its general and special powers under the Edwards Aquifer Authority Act (the "Act"), chapter 626, 73rd Legislature, Regular Session, 1993, as amended, sec.sec.1.08, 1.11, 1.14, 1.17, 1.26, 1.35, 1.36, 1.37, 1.38, 1.40 and 1.41, and chapter 36 of the Texas Water Code. The adopted sections implement the Edwards Aquifer Authority Act, chapter 626, 73rd Legislature, Regular Session (1993), as amended, sec.sec.1.11, 1.14, and 1.26. sec.721.51. Base Usage Reports. (a) Every primary user, other than an irrigation user, must file a base usage report with the Authority which contains the following information, to the extent the information is available: (1) the person's name, address, and telephone number; (2) contact person and title; (3) the location and name or number of all wells from which underground water is withdrawn (attach map); (4) the monthly amount of underground water withdrawn or supplied during the months of November and December of 1995 and January and February of 1996, or for conjunctive users, the monthly amount of underground water withdrawn or supplied during the months of November and December and the following January and February during each of the three consecutive 12-month periods preceding the commencement of the primary user's use of the non-Edwards Aquifer water which qualifies the primary user as a conjunctive user. (5) the total amount of underground water withdrawn or supplied each month during the 12 months prior to the date of the report, and the total amount of underground water withdrawn for such months. (6) the estimated amount of water actually beneficially applied without waste to essential uses, and the nature of such uses; (7) the identification of any well that the person claims as an exempt well in connection with sec.721.12 of this title (relating to Exempt Wells and Essential Uses); (8) a summary of the person's past efforts to conserve water and reduce the amount of water required, and the efficacy of such efforts; (9) a summary of any actions the person intends to take to conserve water and reduce the amount of water required in order to comply with these rules; and (10) any other information requested by the general manager. (b) A primary user must file its base usage report with the Authority within 30 days after the effective date of these rules. (c) A person who becomes a primary user after the effective date of these rules must file a base usage report within seven days of the first day the person becomes a primary user. (d) A person who, without good cause, fails to timely file a complete base usage report in accordance with this section is not entitled to exclude underground water from mandatory reductions under sec.721.12 of this title (relating to Exempt Wells and Essential Uses) until a base usage report is filed with the Authority. (e) Forms for filing the base usage report will be available from the Authority. sec.721.52. Monthly Usage Reports. (a) Each primary user, other than an irrigation user, must file monthly usage reports with the Authority for any month during which a stage is in effect. These reports must contain the following information to the extent the information is available: (1) the person's name, address, and telephone number; (2) contact person and title; (3) the reporting month; (4) total amount of underground water withdrawn or supplied during the reporting month; (5) the estimated amount of underground water applied to essential use during the reporting month, and the nature of such use; (6) any other information requested by the general manager. (b) Monthly usage reports must be filed with the Authority no later than the fifth business day of the month following the reporting month. (c) A primary user who, without good cause, fails to timely file a monthly usage report in accordance with this section is not entitled to exclude underground water from mandatory reductions under sec.721.12 of this title (relating to Exempt Wells and Essential Uses) for the reporting month. (d) The general manager may in special cases arrange for different reporting requirements under this section, including less frequent reporting. (e) Forms for filing the monthly usage report will be available from the Authority. 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 January 28, 1997. TRD-9701297 Rick Illgner General Manager Edwards Aquifer Authority Effective date: February 18, 1997 Proposal publication date: September 3, 1996 For further information, please call: (210) 222-2204 SUBCHAPTER G. Variances 31 TAC sec.sec.721.61-721.65 The Authority adopts these new rules pursuant to its general and special powers under the Edwards Aquifer Authority Act (the "Act"), chapter 626, 73rd Legislature, Regular Session, 1993, as amended, sec.sec.1.08, 1.11, 1.14, 1.17, 1.26, 1.35, 1.36, 1.37, 1.38, 1.40 and 1.41, and chapter 36 of the Texas Water Code. The adopted sections implement the Edwards Aquifer Authority Act, chapter 626, 73rd Legislature, Regular Session (1993), as amended, sec.sec.1.11, 1.14, and 1.26. sec.721.61. Request for Variance. (a) A person may file a written request for a variance from these rules with the Authority. The request must contain the following information: (1) the specific nature of the variance requested; (2) a detailed explanation of why the person believes it should be granted the variance, including any supporting documentation; (3) a statement that the facts contained in the request are true and within the person's personal knowledge. (b) The general manager or the board may request the person to provide additional information, which must be filed within 10 days of the request or as otherwise directed in the request. 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 January 28, 1997. TRD-9701296 Rick Illgner General Manager Edwards Aquifer Authority Effective date: February 18, 1997 Proposal publication date: September 3, 1996 For further information, please call: (210) 222-2204 SUBCHAPTER H. Review and Reconsideration 31 TAC sec.721.71, sec.721.72 The Authority adopts these new rules pursuant to its general and special powers under the Edwards Aquifer Authority Act (the "Act"), chapter 626, 73rd Legislature, Regular Session, 1993, as amended, sec.sec.1.08, 1.11, 1.14, 1.17, 1.26, 1.35, 1.36, 1.37, 1.38, 1.40 and 1.41, and chapter 36 of the Texas Water Code. The adopted sections implement the Edwards Aquifer Authority Act, chapter 626, 73rd Legislature, Regular Session (1993), as amended, sec.sec.1.11, 1.14, and 1.26. 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 January 28, 1997. TRD-9701295 Rick Illgner General Manager Edwards Aquifer Authority Effective date: February 18, 1997 Proposal publication date: September 3, 1996 For further information, please call: (210) 222-2204 TITLE 34. PUBLIC FINANCE PART I. Comptroller of Public Accounts CHAPTER 3.Tax Administration SUBCHAPTER A.General Rules 34 TAC sec.3.9 The Comptroller of Public Accounts adopts an amendment to sec.3.9, concerning the electronic transmission of payments to the state by certain taxpayers, without changes to the proposed text as published in the November 26, 1996, issue of the Texas Register (21 TexReg 11439). The amended section lowers the threshold amount of the requirement to transmit payments electronically to the comptroller to $250,000 annually from $500,000. No comments were received regarding adoption of the amendment. The amendment is adopted under the Tax Code, sec.111.002, which provides the comptroller with the authority to prescribe, adopt, and enforce rules relating to the administration and enforcement of the provisions of the Tax Code, Title 2. The amendment implements the Government Code, sec.404.095(c) and (f) and Tax Code, sec.112.051. 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 January 29, 1997. TRD-9701364 Martin Cherry Chief, General Law Comptroller of Public Accounts Effective date: February 19, 1997 Proposal publication date: November 26, 1996 For further information, please call: (512) 463-3699 PART IX. Commission on Jail Standards CHAPTER 300.Fees Collection of Fees 37 TAC sec.300.5 The Texas Commission on Jail Standards adopts an amendment to sec. 300.5, concerning Fees, without changes to the proposed text as published in the November 29, 1996 issue of the Texas Register (21 TexReg 11576). The reasoned justification for this rule is that the Commission determined from testimony of the Commission staff that the staff has been experiencing difficulty performing the primary functions of the Commission on Jail Standards, that is the function designated in Texas Government Code sec.511.009, with the existing rule requiring the Commission to send invoices within 10 days. Analysis by Commission staff indicated that the invoice could still be sent to the municipalities or counties within a reasonable time after services were rendered and that the deletion of the 10 day requirement would allow staff to maintain compliance with the Commission's primary function. The Commission further reasoned that invoicing was secondary to its primary duties. Thus the Commission reasoned that adoption of this rule will allow the Commission to effectively invoice municipalities and counties within an adequate time constraint. This rule deletes the requirement that an invoice be sent within 10 days to a municipality or county for services rendered. No comments were received. The amendment is adopted under Government Code, Chapter 511 which provides the Texas Commission on Jail Standards with the authority to revise, amend, or change rules and procedures if necessary. 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 January 31, 1997. TRD-9701439 Jack E. Crump Executive Director Commission on Jail Standards Effective date: February 21, 1997 Proposal publication date: November 29, 1996 For further information, please call: (512) 463-5505