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 Administration 1 TAC sec.111.5 The General Services Commission adopts new sec.111.5, concerning complaints without changes to the proposed text as published in the April 11, 1997, issue of the Texas Register (22 TexReg 3355). The new sec.111.5 is being adopted to comply with the Texas Government Code, sec.2152.060, which directs the General Services Commission to establish methods to notify consumers, service recipients, and persons contracting with the commission of the commission's name, mailing address and telephone number for directing complaints to the commission. The new sec.111.5 designates the Customer Service Representative of the commission to be the recipient of complaints and provides methods of notifying consumers, service recipients, and persons contracting with the commission of where and to whom complaints may be directed. No comments were received regarding the adoption of new sec.111.5. The amendments are adopted under the Texas Government Code, Title 10, Subtitle D, which provides the General Services Commission with the authority to promulgate rules necessary to accomplish the purpose of the 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 May 30, 1997. TRD-9707098 Judy Ponder General Counsel General Services Commission Effective date: June 23, 1997 Proposal publication date: April 11, 1997 For further information, please call: (512) 463-3960 TITLE 22. EXAMINING BOARDS PART XXXIII. Texas State Board of Examiners of Perfusionists CHAPTER 761. Perfusionists 22 TAC sec.761.5 The Texas State Board of Examiners of Perfusionists (board) adopts an amendment to sec.761.5, concerning the requirements for examination of licensed Perfusionists and provisional licensed Perfusionists, without changes to the proposed text as published in the February 18, 1997, issue of the Texas Register (22 TexReg 1786), and therefore the section will not be republished. The amendment clarifies the examination requirement by specifying that the examination administered by the American Board of Cardiovascular Perfusion is acceptable for licensure. Also, the amendment establishes an alternative method of examining competency by the holding and maintaining of a Certified Clinical Perfusionist certificate issue by the American Board of Cardiovascular Perfusion. No comments were received concerning the proposal during the comment period. The amendment is adopted under the Licensed Perfusionists Act, Texas Civil Statutes, Article 4529e, sec.7, which provides the Texas State Board of Examiners of Perfusionists with the authority to adopt rules concerning the regulation and licensure of Perfusionists. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 2, 1997. TRD-9707099 James O. Fines III Chairman Texas State Board of Examiners of Perfusionists Effective date: June 23, 1997 Proposal publication date: February 18, 1997 For further information, please call: (512) 458-7236 TITLE 31. NATURAL RESOURCES AND CONSERVATION PART I. Texas Natural Resource Conservation Commission CHAPTER 106.Exemptions from Permitting SUBCHAPTER G.Combustion 30 TAC sec.106.183 The commission adopts new sec.106.183, concerning Boilers, Heaters, and Other Combustion Devices. The new section is adopted without changes to the proposed text as published in the April 1, 1997, issue of the Texas Register (22 TexReg 3205). EXPLANATION OF THE ADOPTED RULE. The commission recently recodified exemptions from Chapter 116 into a new Chapter 106. Standard Exemption 7, concerning Boilers, Heaters, and Other Combustion Devices was inadvertently omitted. This adoption reinstates the provisions of Standard Exemption 7 as a new sec.106.183. The new section is an administrative transfer of the requirements of Standard Exemption 7, without substantial changes. TAKINGS IMPACT ASSESSMENT. The commission has prepared a takings impact assessment for this new section under Texas Government Code, sec.2007.043. The following is a summary of that assessment. The specific purpose of the new section is to reinstate the provisions of Standard Exemption 7 for boilers, heaters, and other combustion devices. The commission believes it is necessary to continue to authorize these facilities through exemption. Promulgation and enforcement of the new section will not affect private real property that is the subject of the new section. COASTAL MANAGEMENT PLAN. The commission has reviewed this rulemaking for consistency with the Coastal Management Program (CMP) goals and policies in accordance with the regulations of the Coastal Coordination Council, and has determined that the rulemaking is consistent with the applicable CMP goals and policies. PUBLIC HEARING AND COMMENTS. A public hearing on this proposal was held on May 1, 1997. No comments were received during the comment period, which closed on May 1, 1997. STATUTORY AUTHORITY. The new section is adopted under the Texas Health and Safety Code, Texas Clean Air Act (TCAA), sec.382.017, which provides the commission with the authority to adopt rules consistent with the policy and purposes of the TCAA. 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 May 28, 1997. TRD-9707013 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: June 18, 1997 Proposal publication date: April 1, 1997 For further information, please call: (512) 239-1966 CHAPTER 116.Control of Air Pollution by Permits for New Construction or Modification SUBCHAPTER C.Permit Exemptions 30 TAC sec.116.213 The commission adopts the repeal of sec.116.213, concerning Registration of Emissions. The repeal is adopted without changes to the proposed text as published in the April 1, 1997, issue of the Texas Register (22 TexReg 3206). EXPLANATION OF THE ADOPTED RULE. The requirements of this section were recodified into 30 TAC sec.106.6 in November 1996. Section 116.213 is a duplicate section and is no longer needed. TAKINGS IMPACT STATEMENT. The commission has prepared a takings impact assessment for this adoption under Texas Government Code, sec.2007.043. The following is a summary of that assessment. The specific purpose of the repeal is to remove, from Chapter 116, those sections dealing with standard exemptions. The relevant sections have already been adopted into Chapter 106 and are not needed as duplicate requirements in another chapter. Promulgation and enforcement of this repeal will not affect private real property. COASTAL MANAGEMENT PLAN. The commission has reviewed this rulemaking for consistency with the Coastal Management Program (CMP) goals and policies in accordance with the regulations of the Coastal Coordination Council, and has determined that the rulemaking is consistent with the applicable CMP goals and policies. PUBLIC HEARING AND COMMENTS. A public hearing on this proposal was held on May 1, 1997. No comments were received during the public comment period, which closed on May 1, 1997. STATUTORY AUTHORITY. The repeal is adopted under the Texas Health and Safety Code, the Texas Clean Air Act (TCAA), sec.382.017, which provides the commission with the authority to adopt rules consistent with the policy and purposes of the TCAA. 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 May 28, 1997. TRD-9707012 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: June 18, 1997 Proposal publication date: April 1, 1997 For further information, please call: (512) 239-1966 TITLE 40. SOCIAL SERVICES AND ASSISTANCE PART I. Texas Department of Human Services CHAPTER 3. Income Assistance Services SUBCHAPTER E. Household Determination 40 TAC sec.3.501 The Texas Department of Human Services (DHS) adopts an amendment to sec.3.501, concerning household determination in its Income Assistance Services rule chapter, with changes to the proposed text as published in the March 14, 1997, issue of the Texas Register (22 TexReg 2732). The justification for the amendment is to implement severe personal and economic hardship exemptions for time limits in the Aid to Families with Dependent Children (AFDC) program. The amendment will function by ensuring that DHS will be in compliance with state legislation. During the 30-calendar-day public comment period, the department received written comments from Texas Legal Services Center. Comments were also received during a public hearing held on May 12, 1997. Comment One: The commenter suggests that definitions for the following five terms be added to the proposed rules at 40 TAC sec.3.501(b)(3)(B). The commenter uses these terms in the comments provided. Inform - DHS affirmatively knows the idiom is understood by the person to whom the idiom is directed. Affirmatively know - DHS receives an acknowledgment, either orally or in writing, that the person understands the idiom used. Suitable employment - Employment that the person's education, training, experience, health status, access to child care and transportation, reasonably allow the person to perform, and which, on the basis of a forty-hour work week, will provide the person with an income at or above 185% of the federal poverty income level for the size of household of which the person is a member. Independent job search - Job search directed by the person seeking the job. If the person lacks telephone service, transportation or child care necessary to conduct independent job search, DHS addresses that lack either by allowing the person to use telephone services on DHS premises, or by providing the person with coins to make necessary telephone calls or with a voucher for telephone service, or by otherwise affording the person access to telephone service, and DHS makes arrangements for necessary transportation and necessary child care, to carry out independent job search. Contact - Contact may be either by telephone, in writing, or in person. Response: The department addresses the terms "inform," "affirmatively know," and "suitable employment" in the response to Comment Two. The department addresses the terms "independent job search" and "contact" in the response to Comment Five. Comment Two: The commenter suggests specific wording be added to the proposed rules at 40 TAC sec.3.501(b)(3)(B) so that compliance with employment services requirements is presumed during time-limited months unless: (1) DHS informs the person required to comply with employment services at the earliest time feasible and at each subsequent review of the case with the person (whether or not termed a redetermination) that failure to comply is considered an impediment to qualifying for a hardship exemption, (2) failure to comply was knowing and wilful, (3) there was not good cause at the time of the failure to comply, (4) at the time of the request for a hardship exemption there is not good cause to excuse the failure to comply, (5) DHS and other state agencies have provided all support services needed to prepare the person whose assistance is proposed to be terminated for suitable employment, and (6) DHS (i) informs the person whose compliance is questioned of exceptions stated in numbers (1) through (5) of this comment, at the time of considering a hardship exemption, and if that person requests a fair hearing concerning the alleged non-compliance, and (ii) carries the burden of proof regarding the matter at the fair hearing. A representative from the Association of Community Organizations for Reform Now (ACORN) agreed with this suggestion at the public hearing. Response: In response to exception (1) in Comment Two, the department considered the commenter's suggestion to inform the household that non-compliance with employment services requirements prevents the client from receiving a hardship exemption during the five-year freeze-out period. The department agrees to advise the household of this policy at each AFDC application and face-to-face interview. The commenter suggests that DHS "inform" clients in a way that DHS "affirmatively knows" the person understands what is explained. The department endeavors to ensure that every recipient understands all information the state provides to them. The recipient has the right to ask questions or request additional explanation. Therefore, the department declines to include the commenter's definitions of "inform" and "affirmatively know" in the proposed rules. In response to (2), (3), and (4) in Comment Two, the department is using the Job Opportunities and Basic Skills (JOBS) employment services process that is currently in place. This process has proven to protect the client and provides the client ample opportunity to respond before a JOBS sanction for failure to comply is imposed. In this process, the employment services worker sends the client two separate notices. If the client responds, the employment services worker may grant good cause for not participating. If good cause cannot be established, the employment services worker offers the client a period of conciliation to help the client participate. All of these activities are done prior to requesting that the eligibility worker impose a sanction. When the sanction is imposed on the AFDC case, the eligibility worker sends the client a notice of adverse action, during which time the client may appeal and receive continued benefits until a hearing decision is reached if the client believes this action is in error. Because JOBS procedures provide both good cause and conciliation opportunities prior to the sanction being imposed, the procedures do not allow a good cause exemption at the time a hardship exemption is sought. However, at the time the client requests a hardship exemption, or at any time the client expresses concern, the department will review any JOBS sanction that the client believes was incorrectly imposed. Therefore, the department declines the commenter's suggestion to change this process in the proposed rules. In response to (5), where the commenter suggests that the rules include a statement requiring the state to provide support services during the time-limited months to prepare the client for "suitable employment" and that the definition of the term "suitable employment" be added to the proposed rules at 40 TAC sec.3.501(b)(3)(B), state statute already prohibits the state from imposing a time limit on a client if support services are not available. In addition, neither the JOBS program rules nor the department's welfare reform waiver terms and conditions approved by the U.S. Department of Health and Human Services limit the state to only providing support services to prepare the client for "suitable employment" as defined by the commenter, especially in regard to the client earning income at or above 185% of the federal poverty income level for the household size. The department does not have the flexibility to make the change suggested by the commenter without modifying the welfare reform waiver terms and conditions. Modification would place the state in jeopardy of losing the protection the waiver provides from the federal welfare reform legislation requirements. Therefore, the department declines adding this suggestion and the commenter's definition of "suitable employment" to the proposed rules. Comment Three: The commenter suggests that the period at the end of 40 TAC sec.3.501(b)(3)(ii)(I) be replaced with a comma and the word "or" added after the comma. Response: The suggestion would clarify that local economic hardship is met either when the client lives in a hardship county or has done independent job search and cannot find employment. As this is the intent, the department revises the proposed rule to incorporate the suggestion. Comment Four: The commenter suggests that the "county" hardship exemption in 40 TAC sec.3.501(b)(3)(B)(ii)(I) be changed to "area" hardship exemption, and this exemption also be allowed when "the area has been determined by the U.S. Department of Labor to be a labor surplus area." A representative from ACORN agreed with these suggestions at the public hearing. Response: When developing the economic hardship exemption policy, the department used the same criterion that is used to determine the Food Stamp waiver counties; that is, counties in which the unemployment rate exceeds 10%. Therefore, the department declines to incorporate the commenter's suggestion in the proposed rules. Comment Five: The commenter suggests that the reference to "40 employers" in 40 TAC sec.3501(b)(3)(B)(ii)(II) be changed to "20 employers unless the client's circumstances are such that a lesser number is appropriate" and that employer contacts be counted toward meeting the client's employment hardship requirement whether they are made directly by the client or by authorized others, such as employment agencies. The commenter also suggests a client contact to an employment service, employment recruiter, labor hiring hall, or other location at which employment is offered through labor organizations constitute an employer contact. Response: Forty employer contacts are currently required by the Texas Workforce Commission (TWC) for JOBS participants who are engaged in job search activities. Based on input from TWC, this requirement was included in the welfare reform waiver. The commenter suggests that the definition of "contact" be included in 40 TAC sec.3.501(b)(3)(B). The department agrees to clarify the handbook and training material to state that "contact" is possible in person or by telephone, but does not agree it is necessary to be added to the proposed rules. The department intends to count a client's contact with an employment agency, a labor hiring hall, or other similar contact, and to count contacts made by the agency or group on behalf of the client. Comment Six: The commenter suggests that subparagraphs (iii) and (v) in TAC 40 sec.3.501(b)(3)(B) be deleted and that both the severe personal and employment hardship exemptions be included in the subparagraph (iii) with the county hardship exemption. This would allow each of the hardship exemptions to be requested at any time during the client's five-year freeze-out period. The commenter states that the beginning of an illness is difficult to determine and clients who try to remain self-sufficient for longer than 90 days during the time of an illness, loss of job, or reduction in hours would have a disincentive to remain self-sufficient. Response: The requirements to request an employment hardship exemption within 90 days of exhausting a time limit, losing a job or reduction in pay, or to request a severe personal hardship exemption within 90 days of the onset of an illness, injury or need for the individual to be responsible for providing care in the home were included in the welfare reform waiver. Comment Seven: The commenter suggests that a new subparagraph (iv) be added to 40 TAC sec.3.501(b)(3)(B) to allow a hardship exemption for up to two years to allow a client to complete education or training begun before the time limit was reached. Response: The department believes that the need for this exemption would seldom, if ever, occur for someone participating in the JOBS program. A JOBS participant develops an initial plan with the employment services worker. The plan is to be designed so JOBS activities end when the time limit is exhausted. Comment Eight: The commenter suggests that a new subparagraph (v) be added to 40 TAC sec.3.501(b)(3)(B) to prevent a client from being disqualified due to time limit policies: (I) when there is a child under age two whose needs are included in the grant; (II) any sooner than when the person has reached age 18 plus the number of months of the client's time limit; (III) when the person is pregnant (at any time during the freeze-out period); (IV) when the person is a caretaker who has accepted the responsibility of caring for someone else's child(ren) (at any time during the freeze-out period); (V) unless DHS has affirmatively determined that the time limit was based on an accurate assessment of the person's actual functional education level. Response: The department declines the commenter's suggestions in numbers (I-IV) because the department does not have the flexibility to modify the welfare reform waiver. In number (V), the commenter expresses concern about whether the client's time limit is based on an accurate assessment of the person's functional level. TWC staff act to intensify the client's JOBS activities for the last few months or assess the client to determine if the time limit is correct, if an assessment has not already been completed. The law in House Bill 1863 states the client's assessment is connected to a time limit. The department feels there is no need to further clarify the proposed rule. Also during the public comment period, DHS received two requests for a public hearing from: Texas Legal Services Center, and ACORN. The hearing was held on May 12, 1997, in the Public Hearing Room of the John H. Winters Center, 701 West 51st Street, Austin, Texas. Eight individuals testified at the public hearing. The following represents comments received at the hearing which had not been previously received as written comments during the 30-calendar-day public comment period. Comment Nine: Request a second public hearing be held because the street number listed in the Texas Register is incorrect. Response: The department submitted the address with an incorrect street number. The address in the Texas Register is John H. Winters Center, 710 West 51st Street. The correct street address is 701 West 51st Street. The department has reviewed the error and determined that a second public hearing is not necessary. Comment Ten: Discouraged workers should be included in the 10% unemployment figure when determining county hardship exemptions. Response: When developing the economic hardship exemption policy, the department used the same criterion that is used to determine the Food Stamp waiver counties; that is, counties in which the unemployment rate exceeds 10%. Therefore, the department declines to incorporate the commenter's suggestion in the proposed rules. Comment Eleven: An important part of the job search process is a follow-up contact after an interview. DHS should make available to clients, typewriters, paper, envelopes, postage and secretarial help, as needed, at each office. Response: The department is not imposing a requirement on clients to make follow- up contact, and the department will provide clients with available resources, when possible. Comment Twelve: A representative from ACRON commented that there is a difference between a job and a good job. When requiring a client to look for work, consideration should be given to the availability of a job that will support the family at a level at least equal to AFDC. A mother of two earning $7.00 an hour, now paying child care plus other expenses, and losing benefits, will be in the same economic position as she was when receiving welfare. Also, there is evidence that even when the official unemployment rate is well below 10%, jobs for people with a high school diploma, GED, or less, and little work experience, are extremely limited. Response: Job search is a requirement of the waiver terms and conditions to obtain a hardship exemption. While the department agrees that some recipients may only be able to obtain relatively low-wage jobs initially, by gaining work experience and developing work skills, clients' opportunities to enhance their earning capabilities are improved. In addition, federal welfare reform restricts cash assistance to a five-year lifetime limit, so it is in the client's best interest to gain work experience as quickly as possible. Comment Thirteen: A representative from ACRON commented that clients should not be required to provide employment application forms as verification of job contacts because many employers are not hiring and will not give out applications. A client should not be required to provide verification that cannot be obtained. Response: The department agrees. Clients will only be required to provide information on employers contacted. Comment Fourteen: A representative from the Center for Public Policy Priorities commented that when the federal government approved the Texas waiver, it included the 40-employer contact provision. Of all the waivers submitted, the most frequently occurring exemption/exception is best effort to find work. Texas, unfortunately, has the most specifically onerous and detailed requirements and is stuck with the 40-employer requirement. Compounding the problem is the state's strict interpretation of an area's high unemployment rate. As a result, only a limited number of counties will qualify for this hardship exemption. This leaves many counties, or areas of counties, without enough jobs for the clients. In many rural areas, there might not even be 40 employers to contact. The sensitivities about changing the waiver are understood; however, we need to find a way to implement this policy, either through the recommendations made earlier, and by considering the client who tried to find work but could not. TWC should find a way to automate the employer contact process and assist clients more directly in making the contacts. We should utilize the TWC system when implementing this policy. Theoretically, we have a one-stop shopping system at TWC. Since trying to change the 40-employer contact requirement in the waiver may cause problems, perhaps we could coordinate our system with TWC to keep this requirement from becoming an onerous process. Response: The department agrees with the suggestion to encourage clients to utilize available resources to identify employer contacts. Comment Fifteen: A representative from East Houston Welfare Rights and Houston Welfare Rights stated that there are many people who need the benefits but won't come testify at a public hearing because they are afraid they will lose benefits. Response: The department wants to stress that no one will suffer a reduction of benefits as a result of testifying at a public hearing. It is every individual's right to make comments at these public hearings. Comment Sixteen: An individual commented that they support most of the comments except about the JOBS program. As an AFDC recipient, they participated in the JOBS program and felt it was a waste of the state's money. To receive day care for two small children that are not mine, I was required to attend from 1 p.m. to 5 p.m. and complete 20 job searches per day. Some of the requirements are impossible. Response: Concerns about the JOBS program will be forwarded to TWC. The department was required to implement hardship exemptions as part of House Bill 1863. In developing the waiver request and negotiating the waiver terms and conditions, the department considered alternatives regarding definitions of hardship and good cause exceptions. However, since the waiver terms and conditions are now specified, the department does not have flexibility to make modifications without jeopardizing the protection the waiver provides from federal welfare reform requirements. The amendment is adopted under the Human Resources Code, Title 2, Chapter 22, which provides the department with the authority to administer public assistance programs. The amendment implements the Human Resources Code sec.sec.22.001-22.030. sec.3.501. Household Determination. (a) (No change.) (b) Aid to Families with Dependent Children. The following persons are not included in an AFDC certified group: (1)-(2) (No change.) (3) Disqualified persons. (A) (No change.) (B) Once time limits are exhausted, the caretakers and second parents are not eligible to receive AFDC cash benefits for five years, unless they have complied with employment services requirements during their time-limited months and meet one of the following hardship criteria: (i) Severe personal hardship is met if the client: (I) has a terminal or permanently disabling illness or injury, (II) is incapacitated by illness or injury for a temporary period, or (III) is needed in the home for more than 30 days to provide care for a close family member in or out of the household who has a temporarily or permanently disabling illness or injury, or terminal illness. (ii) Local economic hardship is met if the client (I) lives in a county which is classified by DHS as economically depressed for purposes of AFDC time limits. DHS determines a county is economically depressed if the county's unemployment rate exceeds 10%; or (II) has done independent job search, contacting at least 40 employers within a 30-day period, and cannot find employment that replaces the sum of the individual's grant amount and the applicable work expense disregard. While exempt for employment hardship, the client must contact at least 40 employers during each month of the exemption period, unless good cause exists, or no subsequent employment hardship exemption is allowed during the client's five- year freeze-out period. (iii) Severe personal hardship must be requested within 90 days after the illness or injury begins or the client is needed in the home to care for a close family member. (iv) County hardship may be requested at any time during the client's five-year freeze-out period. (v) Employment hardship must be requested within 90 days after exhausting the AFDC time limit, loss of a job, or the reduction of the number of work hours. (C) (No change.) (4)-(7) (No change.) (c)-(d) (No change.) This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on May 29, 1997. TRD-9707024 Glenn Scott General Counsel, Legal Services Texas Department of Human Services Effective date: July 1, 1997 Proposal publication date: March 14, 1997 For further information, please call: (512) 438-3765 CHAPTER 19.Nursing Facility Requirements for Licensure and Medicaid Certification SUBCHAPTER V. Enforcement Licensing Remedies 40 TAC sec.19.2106 The Texas Department of Human Services (DHS) adopts an amendment to sec.19.2106, without changes to the proposed text as published in the April 25, 1997, issue of the Texas Register (22 TexReg 3706). The text will not be republished. Justification of the amendment is to protect the residents of Texas nursing facilities by allowing the revocation of licenses of providers who do not consistently provide high quality service to the residents of their facilities. The amendment will function by adding "failure to maintain compliance on a continuous basis" to the circumstances for which DHS can revoke a license. This provision already exists in the rules regarding the denial of a license. The amendment is necessary to provide consistency between the licensure denial and the licensure revocation rules. The department received a comment from the Texas Health Care Association. Comment: The rules will have an economic impact on state and local governments and nursing facilities (NFs). Extra expense could be incurred by state government with the state being responsible to move residents out of a NF when the license is revoked. There could be an impact on the Texas Workforce Commission's unemployment wages if employees lose their jobs. In a rural area, the NF may be the largest employer and the loss of the NF license could effect the entire economy of the city, meaning the loss of school taxes, property taxes, state franchise taxes, and even state and local sales taxes if payroll is no longer being guaranteed and paid to employees. A NF could be forced to default on loans or leases and its liability insurance could be affected. Response: In calculating the potential fiscal impact, the department considered that the number of NFs likely to be affected by these rules to be extremely small; therefore, there would be no fiscal implications. The amendment is adopted under the Health and Safety Code, Chapter 242, which provides the department with the authority to license nursing facilities; and the Human Resources Code, Title 2, Chapter 22, which authorizes the department to administer public assistance programs. The amendment implements the Health and Safety Code, sec.sec.242.001 - 242.268, and the Human Resources Code, sec.sec.22.001-22.030. 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 May 29, 1997. TRD-9707025 Glenn Scott General Counsel, Legal Services Texas Department of Human Services Effective date: July 1, 1997 Proposal publication date: April 25, 1997 For further information, please call: (512) 438-3765 TITLE 43. TRANSPORTATION PART I. Texas Department of Transportation CHAPTER 2. Environmental Policy SUBCHAPTER C. Environmental Review and Public Involvement for Transportation Projects 43 TAC sec.2.41, sec.2.45 The Texas Department of Transportation adopts amendments to sec.2.41, concerning Definitions, and sec.2.45, concerning Gulf Intracoastal Waterway Projects. Section 2.41 and section 2.45 are adopted with changes to the proposed text as published in the February 11, 1997, issue of the Texas Register (22 TexReg 1606). Transportation Code, Chapter 51, charges the commission, through the department, with the responsibility of administering the state's nonfederal sponsorship of the Gulf Intracoastal Waterway, including coordination with the U.S. Army Corps of Engineers for matters relating to the operation and maintenance of the Gulf Intracoastal Waterway. House Bill 1536, 74th Legislature, 1995, amended Chapter 51 of the Transportation Code to allow the commission, through the department, to enter into agreements with the Department of the Army to participate in the cost of projects to beneficially use material dredged from the Gulf Intracoastal Waterway. House Bill 1536 directed the commission to adopt rules establishing eligibility criteria for proposed beneficial use projects. Section 2.41 is amended to provide a definition for beneficial use projects, to provide a definition for jurisdiction in order to specify which governing body has jurisdiction over a proposed beneficial use project area, and amends the definition of the Gulf Intracoastal Waterway Advisory Committee to add a provision concerning beneficial use projects. Section 2.45 is amended to specify that the department is authorized to participate in beneficial use projects for material dredged from the Gulf Intracoastal Waterway; to include beneficial use projects in the environmental review and public involvement requirements of Gulf Intracoastal Waterway projects; to specify broad use categories in which the department will participate in beneficial use projects; to specify the information required to be sent in a proposal from the U.S. Army Corps of Engineers for a proposed beneficial use project; to specify that if a proposed beneficial use project requires the acquisition of an interest in property, the commission will conduct a public hearing on the desirability of the project before authorizing participation; to specify the criteria for the commission's approval of department participation in a beneficial use project, including the statutory requirements that the project can be accomplished without unjustifiable waste of publicly or privately owned natural resources and without permanent substantial adverse impact on the environment, wildlife, or fisheries; and to specify the extent of the department's financial participation in a beneficial use project. The sections as amended are consistent with the Texas Coastal Management Program goal of protecting, preserving, restoring, and enhancing coastal natural resource areas as material dredged from the Gulf Intracoastal Waterway may be beneficially used for purposes such as beach nourishment, shoreline stabilization and erosion control, and habitat development. The amended sections are also consistent with the Coastal Management Program policy of requiring information necessary to make an informed decision on a proposed action subject to the Coastal Management Program and the policy of using dredged material from dredging projects in commercially navigable waterways beneficially. The section requires the U.S. Army Corps of Engineers to submit proposals for beneficial use projects for material they dredge from the Gulf Intracoastal Waterway, which include a description of the proposed project and its anticipated benefits, a detailed estimate of project cost, and a plan addressing the operation and maintenance of the facility created by or benefiting from the project. A hearing was held on February 25, 1997, for the purpose of receiving comments relating to the amended sections. No oral comments were received on the proposed amended sections. However, written comments were received from the Texas General Land Office (GLO), made on behalf of the Permanent School Fund, and on behalf of the GLO as a member agency of the Texas Coastal Coordination Council to address consistency of the proposed amended sections with the Texas Coastal Management Program. Written comments were also received from the Port of Corpus Christi and the National Marine Fisheries Service. The department has also determined that certain revisions should be made to the proposed amended sections. The National Marine Fisheries Service (NMFS) stated it fully supports the department's proposed amendments. The NMFS stated that it was its belief that most of the sediment dredged from the GIWW is a resource that should be utilized for beneficial uses where appropriate and that most beneficial use projects planned to date will create emergent marsh habitats utilized by NMFS' trust resources. The Port of Corpus Christi (Port) stated it had some concerns regarding the potential composition of the task force (Gulf Intracoastal Waterway Advisory Committee [GIWAC] task force) appointed by the department to investigate disposal alternatives and proposed beneficial use projects. The Port requested the makeup of the task force include representatives of local government or political subdivisions with economic and natural resource interests that directly or indirectly will be affected by decisions of the GIWAC. The Port also requested the definition of GIWAC in sec.2.41 be amended to include members representing state and local government agencies, and that sec.2.45(d)(1) be amended to include representatives of local government agencies in the composition of the task force. In response, the department notes that the GIWAC charter limits membership to state agencies which have jurisdiction in the protection of the state's natural, historic, and economic resources to enable the state to function as a unit in addressing problems and recommending solutions for the needs of the GIWW. A GIWAC task force is of necessity limited to members of the GIWAC and federal agencies with similar resource protection responsibilities. However, the department sends notices to numerous environmental groups, resource agencies, and the waterway industry, inviting them to attend meetings of the GIWAC and provide input. Therefore, the definition of GIWAC and the composition of the task force will not be changed. In order to provide notice of, and information about, proposed beneficial use projects, the department is adopting sec.2.45(d)(4) with a change to provide notice and a description of the project and anticipated benefits to other governmental bodies as well as the governing bodies of cities and counties. Additionally, to provide additional opportunities for various entities to provide input concerning proposed projects, the proposed rules require the department to conduct its own public involvement process. The Port also asked who predevelops the proposals for a beneficial use project submitted by the Corps to the department. Section 2.45(b)(2)(B) requires the Corps to submit proposals for beneficial use projects to the department. The rules do not restrict who may predevelop a project proposal. Concepts for proposals may be submitted to the Corps by any interested party, including political subdivisions of the state. However, interested parties would need to work with the Corps to develop the proposal. The Port further requests sec.2.45(b)(2)(B)(iv) be amended to require that a proposal submitted by the Corps for a beneficial use project include a detailed estimate of the total project cost, including an estimate of the federal and non-federal contributions to the project. In response, the department notes that sec.2.45(b)(2)(B)(iv) states that the Corps' proposals must include a detailed estimate of the project cost, including an estimate of the Corps' financial contributions to the project. By knowing the project cost and the Corps' financial contributions to the project, the non- federal sponsor's share may be estimated. The section will not be revised. The Port also states that any determination of significant impact caused by a beneficial use project should include a financial analysis, and believes that whether or not a proposed project can be accomplished in an environmentally acceptable manner should not be the only consideration. The Port states that sec.2.45(g)(1)(A) should be amended to include as a criterion for department participation in a dredged material disposal plan, a requirement that it can be accomplished without unjustifiable waste of publicly or privately owned natural and fiscal resources. The department disagrees. As previously mentioned, sec.2.45(b)(2)(B)(iv) requires a proposal submitted by the Corps to include a detailed estimate of the project cost. Additionally, sec.2.45(g)(2) requires funds to be available in order for the commission to approve department participation in a project, and also provides a cap on financial participation. This cap may only be exceeded if the participation results in extraordinary environmental or economic benefits or the costs are reasonably comparable to the costs of providing property to accommodate traditional upland disposal. In the department's opinion, these sections provide an adequate financial analysis of a proposed project and an appropriate use of fiscal resources. The Port finally suggests it may be appropriate to amend sec.2.45(f) to make the department's participation in its own public involvement process permissive. The department disagrees. Transportation Code, Chapter 51 requires the commission to conduct public hearings before approving a disposal plan or beneficial use project involving the acquisition of an interest in property. Acting as the state's nonfederal sponsor of the GIWW, and pursuant to state law, the department is required to conduct its own public involvement process in all GIWW projects, including disposal plans and beneficial use projects. The General Land Office (GLO) states that the terms "landowner" and "land use agreement" are used consistently throughout the revised rules and therefore should be defined. The GLO recommends that landowner be defined in sec.2.41 as "an owner of land on which, or adjacent to which, the U.S. Corps of Engineers or the department plans to conduct a beneficial use project. Landowner includes private and public owners of real property." In response, the department notes that it has certain responsibilities relating to preliminary involvement of the public in disposal plans and beneficial use projects outlined in sec.2.45(f)(1). Department responsibilities include notifying a landowner of a parcel's environmental and operational suitability for a proposed disposal plan or beneficial use project, offering to meet with the landowner, and notifying the landowner of any public meeting or hearing. Under that paragraph, meetings, as one form of public involvement, with affected property owners will be held when the proposed disposal plan or beneficial use project does not involve any adjacent landowners or the landowner requests a meeting. Accordingly, "landowner," as used in that subsection, does not include adjacent landowners. If a plan or project involves adjacent landowners, a public meeting will be held under sec.2.45(f)(2). However, the department has revised sec.2.45(f)(1)(A) to clarify that the term "landowner," as used in this section, includes public as well as private landowners. The GLO requests that "land use agreements" be defined as "an easement, lease, or other instrument, approved by the School Land Board, authorizing the use of Permanent School Fund (PSF) land, or instrument authorizing the use of private or non-PSF public land." The department does not agree that a definition is necessary. The department notes that the term "land use agreements" is not used in the proposed beneficial use rules. Additionally, appropriate agreements will be obtained from affected property owners, if necessary, to develop a proposal for a proposed beneficial use project, and to implement a project once commission approval of department participation is received. These agreements include agreements obtained for projects in which a lease or easement is not required. The GLO states that the department may be required to obtain numerous approvals for a project, including Section 404 and Section 401 permits, Endangered Species Act Section 10 permits, or a lease or easement from the GLO or School Land Board (SLB). The GLO further states that since a local sponsor cannot use landowner property under the navigational servitude, any state owned tidelands dedicated to the PSF that the department plans to use in association with the GIWW must be acquired by the department under the Texas Coastal Waterway Act (Act). In the GLO's opinion, under the Act, the department must obtain a lease or easement from the GLO or SLB if dredged material will either be placed directly, or slump or migrate, onto PSF land. In response, the department reiterates that these rules provide for department participation in the cost of developing and constructing a beneficial use project. The actual construction of the project will be the responsibility of the Corps. Accordingly, the department is not required to obtain the referenced permits. Additionally, in the department's opinion, leases and easements will not be needed for many beneficial use projects. Department participation in beneficial use projects may include the acquisition, under the Coastal Waterway Act and these rules, of an interest in property. If a new site is used, and the acquisition of an interest in property is required for a disposal plan or a beneficial use project, requirements in the rules related to public hearings and obtaining any necessary leases, easements, and agreements will be carried out. However, the Coastal Management Program (CMP) and Coastal Coordination Council (CCC) rules do not require the department to obtain a lease or easement from the SLB for any incidental slumping or migration of dredged material onto PSF land. The CCC rules require, in 31 TAC sec.501.14(j)(6), for dredged material disposed of or placed directly on the boundaries of submerged lands or at such a location so as to slump or migrate across the boundaries of submerged land, an agreement between the affected public owner and the adjoining private owner or owners that defines the location of the boundary or boundaries affected by the deposition of the dredged material. It is anticipated that any proposed beneficial use project will involve deposition of dredged material at such locations, or will involve the use of devices such as geotextual tubes, so as to not result in any slumping or migration. However, again, as part of commission approval of department participation in a beneficial use project under sec.2.45(g), the department will obtain any necessary agreements or will ensure they are obtained. The GLO, in conjunction with the last comment, states the time and resources of the department, the Corps, GIWAC, and others is limited and should be focused only on those projects that are reasonably certain of receiving all required permits and approvals. The GLO believes that, before approving a project, the department should clearly ascertain whether any agency that must permit or approve the project believes there is any fundamental problem that would prevent the project from being permitted or approved. With respect to PSF land, such problems could include actual or potential alterations of boundaries that could divest the PSF of title, cloud PSF title, or alter water levels, thereby precluding or impacting the development of PSF minerals or commercially valuable PSF acreage. The GLO requests that sec.2.45(g) of the rules, relating to conditions for commission approval of participation, be amended to require that each agency responsible for permitting or approval has indicated that the project presents no fundamental problems that will prevent its ultimate approval and that cannot be resolved. The GLO further states that projects that may not require a lease or easement from the GLO or SLB because it is not on PSF land, may nevertheless have indirect impacts on PSF land, which is directly relevant to whether the department can participate in the project. In the GLO's opinion, a project has wasted public resources, and thus does not meet the criteria under the Coastal Waterway Act, if it diminishes the value of PSF land under the aforementioned circumstances. The GLO requests that for projects for which a lease or easement is not required, sec.2.45(g) should condition department participation on a finding by the GLO or SLB that the project will not diminish the value of any PSF land. The GLO believes these tideland issues relate directly to consistency with the goals and policies of the CMP, and that the CMP dredging and dredged material disposal and placement policy addresses alteration of submerged land boundaries. Based on the foregoing, the GLO states that sec.2.45(a) should be revised to specify that the commission should coordinate with the SLB. In response, the department notes that the language in sec.2.45(a) reflects the mandate of the Coastal Waterway Act in Transportation Code, sec.51.004, which requires coordination with various entities, including the Corps and all other appropriate state and federal agencies, including the GLO and the SLB, and will remain unchanged. The GLO further suggests that sec.2.45(c) be amended to specify that early coordination will be conducted by the department with the SLB, as well as appropriate state and federal agencies, to develop a proposal for a disposal plan or beneficial use project. In response, the department again notes that the section as written requires coordination with appropriate state and federal agencies, including the GLO and the SLB and will remain unchanged. The GLO requests that sec.2.45(d)(4) be amended to require the department to notify the SLB, as well as the governing bodies of any city or county with jurisdiction over the proposed project area of a proposed beneficial use project, provide a description of the project and anticipated benefits, and request these entities provide an adopted resolution or other official document if they support the proposed project. In response, the department agrees that the SLB and governmental bodies other than those listed may have jurisdiction over a proposed project area, and has revised that section to include other governmental bodies. The GLO requests that sec.2.45(g)(1)(A) be amended to include as one of the criteria for commission approval of department participation in a proposed dredged material disposal plan, that the plan can be accomplished without adversely affecting ownership or use of PSF land. In response, the proposed rules state in sec.2.45(c) that there will be early coordination with appropriate state and federal agencies to develop a proposal for a disposal plan and in sec.2.45(d)(3) state that proposed disposal plans will be reviewed by the GIWAC. During both the early coordination process and the GIWAC investigation and review process, the GLO will have the opportunity to determine whether the proposed disposal plan or beneficial use project adversely impacts ownership or use of PSF land, and subsequently provide input concerning a proposed project. Additionally, the GLO may also provide input concerning a proposed disposal plan or beneficial use project when the Corps conducts its public involvement process in accordance with the requirements of the Corps' implementing regulations for the National Environmental Policy Act. Furthermore, as previously mentioned, it is anticipated that proposed beneficial use projects will be constructed in such a way as to prevent any slumping or migration. The section will remain unchanged. The GLO further requests that sec.2.45(g)(2)(B) be amended to require that the commission obtain all required land use agreements and determine that the proposed plan meet all of the criteria specified in subparagraph (A) of that paragraph before authorizing department participation. In response, as previously noted, under this paragraph, after the commission approves department participation in a project, the department will obtain any agreements necessary to implement the project or ensure they are obtained. The GLO also requests that sec.2.45(g)(2)(A), relating to criteria for commission approval of participation in a beneficial use project, be amended to require the commission to obtain all required land use agreements, and that the section specify that funds must be available for the beneficial use project. In response, the department reiterates it will ensure any necessary agreements to implement a project are obtained. The department does agree it is appropriate to specify that funds must be available for the beneficial use project. Section 2.45(g)(2)(A) has been revised to include that language. The GLO also states that the criterion relating to a project being accomplished with no substantial adverse impact on the environment, wildlife, or fisheries should include a requirement that it be accomplished without adverse impact on ownership or use of PSF land, as determined by the SLB. For the reasons stated in the department's response to the GLO's comments concerning sec.2.45(g)(1)(A), the department disagrees. The GLO further recommends adding a new sec.2.45(g)(2)(A)(vi), to include as a criterion for participation, that if the SLB has determined the beneficial use project will or may adversely impact ownership of Permanent School Fund land, the project is performed pursuant to a land use agreement protecting such ownership. In response, the department reiterates that the proposed rules provide for early coordination with appropriate state and federal agencies to develop a proposal for a beneficial use project and provide for review by the GIWAC. During both the early coordination process and the GIWAC investigation and review process, the GLO will have the opportunity to determine whether the proposed beneficial use project adversely impacts ownership or use of PSF land, and subsequently provide input. Additionally, all required agreements necessary for department participation will be obtained. The section will not be revised. The GLO next states that sec.2.45(b)(2)(B) should include a monitoring plan, as they believe that the future of beneficial use as a dredged material management technique depends heavily on generating quality data. The GLO recommends that sec.2.45(b)(2)(B)(vi) be added as follows: "a post monitoring plan, designed by a coastal geologist, including an annual report to the SLB if the beneficial use project is conducted on or adjacent to PSF land." The department disagrees. The Coastal Waterway Act, as amended by Section 3, Chapter 505, Acts of the 74th Legislature, Regular Session, provides for the commission, through the department, to enter into an agreement with the Department of the Army to participate in the cost of a beneficial use project using material dredged from the GIWW. The department interprets this to mean participating in the cost of developing or constructing a beneficial use project. The CCC rules describe the use of dredged material as dredged material disposal and placement. In the department's opinion, the placement of dredged material means constructing a beneficial use project, not any subsequent maintenance or monitoring of a project site. The GLO next states that the department's rules place no categorical cap or percentage limits upon funding of traditional disposal. However, proposed sec.2.45(g)(2)(B)(i) and (ii) would place such limits on funding of beneficial use projects. In the GLO's opinion, if a beneficial use project will cost the department about the same as non-beneficial disposal of the material, there should be no barrier to full funding. The GLO states that the rule should provide that the department will pay all costs, and if a beneficial use project would cost substantially more than non-beneficial disposal, the rule could provide that the department pays only in proportion to the benefits realized from the beneficial use project. In the GLO's opinion, this proposal would be consistent with the beneficial use requirements set forth in the CMP. In response, the department notes that under the Transportation Code, sec.51.005(a), the commission is authorized to acquire by gift, purchase, or condemnation any property or interest in property of any kind or character deemed necessary by the commission for dredged material disposal sites, referred to here as traditional disposal. The funded amount for the department's upland site acquisitions is a set budget, based upon historical fair market values of cost/acre and a projected number of acres to be acquired per biennium and, therefore, is not an unlimited amount. The Coastal Waterway Act allows the commission, through the department, to enter into agreements with the Department of the Army to participate in the cost of a project to beneficially use material dredged from the GIWW. The cap of $125,000 per beneficial use project, set in sec.2.45 (g)(2)(B)(i) of the proposed rules, was also based upon historical information provided by the Corps concerning an average beneficial use project size and cost of 25 acres and approximately $250,000. State dollars can be maximized by utilizing available federal funds through agreements under the Corps's existing federal programs, requiring a fifty percent or less cost- sharing participation. Cost-sharing arrangements with other entities can also provide the opportunity for interested parties to participate in beneficial use projects where the benefits realized are partially funded by the entities realizing the benefits. The cap also serves to promote better management of program funds by encouraging multiple project opportunities within available funds. However, to further the policy of the state, concerning taking measures required to resolve identified coastal and transportation problems when the costs of the project are reasonably proportionate to the benefits that will result, the department has provided an exception to the cap on financial participation in sec.2.45(g)(2)(B)(ii) of the proposed rules. If the commission determines that additional participation will result in extraordinary environmental or economic benefits or the costs are reasonably comparable to the costs of providing property to accommodate upland disposal, the financial cap may be exceeded. The commission will take this policy into consideration when determining whether to authorize department participation at levels exceeding the cap. The section will not be revised. The GLO further states that to promote beneficial use, agencies must leave themselves enough flexibility to do what is best under the circumstances of each individual case. The GLO notes that sec.2.45(g)(2)(B)(iv) categorically prohibits the department from using funds for the operation and maintenance of beneficial use projects. The GLO believes the use of department funds for operation and maintenance should be allowed because: the department, for scientific and other reasons, should monitor the effects of its actions; and, it may be appropriate for some projects, as in cases where the funds could be a crucial factor in the department's ability to perform the project. The GLO also believes that the proposed rule may prevent necessary post-project monitoring and may create disincentives to beneficial use. Instead of prohibiting department funding for operation and maintenance, the GLO recommends that department funds be allowed for this purpose, including monitoring, subject to a case-by-case analysis and approval, and recommends that sec.2.45(g)(2)(B)(iv) be revised as follows: "department funding may be used for maintenance or operation, including monitoring, of a beneficial use project if it is determined by the department that the funding is essential to the performance of the proposed project." For the reasons stated in the department's response to the GLO's comments concerning sec.2.45(b)(2)(B), relating to a monitoring plan, the department's cost participation is limited to participating in the cost of developing and constructing a beneficial use project. The section will not be revised. The GLO next notes that the Texas Coastal Waterway Act requirement that a project "can be accomplished without unjustifiable waste of publicly or privately owned resources" is not reflected in sec.2.45(g). Instead, that section provides that the project must "represent a prudent and justifiable use of publicly or privately owned resources." The GLO states that if the rule is intended to reflect the statutory criterion, the statutory language should be used. If not, the department needs to explain how and why the rule varies from the statutory criterion. In response, the department agrees that it is more appropriate to use the statutory language and has revised the section. The GLO finally states that with respect to the requirement for a hearing referenced in Section 2.45(f)(3), use of PSF land "requires the acquisition of an interest in property" (i.e., a lease or easement from the GLO or SLB). Therefore, in the GLO's opinion, the rule should acknowledge that the department's use of PSF land for a project triggers the requirement in the Texas Coastal Waterway Act for a public hearing. In response, the department agrees that a beneficial use project constructed on PSF land will require the acquisition of an interest in that land. Section 2.45(f)(3) requires a public hearing under Transportation Code, Chapter 51 if a disposal plan or a beneficial use project requires the acquisition of an interest in property. The section will not be revised. The department has determined that sec.2.45(g)(2)(A)(v), relating to the evidence of substantial local support required for commission approval of department participation in a proposed beneficial use project, is unacceptably vague in relation to which governing body must provide a resolution or other official document in support of a project. In order to clarify the department's intentions in that regard, sec.2.41 and sec.2.45 have both been revised. The sections have been revised to clarify the department's original intent and to ensure that the city or county with jurisdiction over a project area is in support of a proposed beneficial use project. Regarding sec.2.41, a definition for jurisdiction has been added to clarify when a city or county has jurisdiction over a project area. Regarding sec.2.45, subsection (g)(2)(A)(v) of that section has been revised to specify that a resolution or other official document from the governing body of the city or county with jurisdiction over the project area must be provided. For project areas involving multiple jurisdictions, the resolution or other official document must come from the governing body of the city or county within which the majority of the project area is located, in consultation with the other involved jurisdictions. The amendments are adopted under Transportation Code, sec.201.101, which provides the Texas Transportation Commission with the authority to promulgate rules for the conduct of the work of the Texas Department of Transportation, and Transportation Code, Chapter 51, which authorizes the commission to enter into agreements with the Department of the Army to participate in the cost of projects to beneficially use material dredged from the Gulf Intracoastal Waterway and directs the commission to adopt rules establishing the eligibility criteria for proposed beneficial use projects. The amendments are subject to the Texas Coastal Management Program and must be consistent with all applicable Coastal Management Program policies. sec.2.41. Definitions. The following words and terms, when used in this subchapter shall have the following meanings, unless the context clearly indicates otherwise. Beneficial use project - The productive and positive use of dredged material as proposed by the United States Army Corps of Engineers. Gulf Intracoastal Waterway Advisory Committee (GIWAC) - An interagency committee, made of members appointed by the department to represent state agencies having jurisdiction in the protection of the state's natural, historic, and economic resources. The GIWAC is created for the purpose of advising and assisting the department: (A) in developing a unified method to address problems and recommend solutions for the needs of the GIWW, for the protection of the environment and the state's natural and historic resources affected by the waterway, and for the promotion of the economic welfare of the state's interest in the GIWW; (B) in developing proposals for a disposal plan or a beneficial use project that will address dredged material disposal involving a segment of the GIWW identified by the U.S. Army Corps of Engineers as in need of maintenance dredging; and (C) on the acquisition of disposal sites in an environmentally sensitive and operationally suitable manner. Jurisdiction - For purposes of sec.2.45 of this title (relating to Gulf Intracoastal Waterway Projects), this term shall mean: (A) for a city, the area within the incorporated city limits and a city's extraterritorial jurisdiction; and (B) for a county, any area within the boundaries of that county, excluding incorporated areas and areas within a city's extraterritorial jurisdiction. sec.2.45. Gulf Intracoastal Waterway Projects. (a) Non-federal sponsorship. The commission, pursuant to Transportation Code, Chapter 51, is charged with the responsibility of administering the state's nonfederal sponsorship of the Gulf Intracoastal Waterway (GIWW), including coordination with the U.S. Army Corps of Engineers, all other appropriate federal and state agencies, navigation districts and port authorities, counties, and other appropriate persons. (b) Disposal of dredged material. (1) Disposal plan. The department may participate in the development of a disposal plan for dredged material. (2) Beneficial use project. The department may participate in the development of a beneficial use project for dredged material. (A) Proposals. The department will accept from the U.S. Army Corps of Engineers proposals for beneficial use projects in the following broad use categories: (i) habitat development; (ii) beach nourishment; (iii) aquaculture; (iv) parks and recreation; (v) agriculture, forestry and horticulture; (vi) strip mine reclamation and solid waste management; (vii) shoreline stabilization and erosion control; (viii) construction and industrial use; (ix) material transfer (fill, dikes, levees, parking lots, roads); and (x) multiple purposes (the combination of categories on a single dredging project). (B) Submittal of proposals. The U.S. Army Corps of Engineers shall submit proposals in writing to the executive director or his or her designee. The proposals shall include: (i) a description of the proposed beneficial use project and anticipated benefits; (ii) a map delineating the location or locations of the proposed beneficial use project; (iii) a proposed project schedule including an anticipated completion date; (iv) a detailed estimate of the project cost, including an estimate of the U.S. Army Corps of Engineers' financial contributions to the project; and (v) a plan addressing the operation and maintenance of the facility created by or benefitting from the beneficial use project. (c) Early coordination. Early coordination with appropriate state and federal agencies will be conducted by the department to develop a proposal for a disposal plan or a beneficial use project involving a segment of the GIWW identified by the U.S. Army Corps of Engineers as in need of maintenance dredging. Any proposed plan shall address the dredged material disposal needs of maintaining the GIWW in Texas. The department is responsible for initiating and overseeing early coordination. (d) Investigation of disposal alternatives. (1) The department will appoint a task force of the GIWAC to investigate disposal alternatives and beneficial use projects involving a segment of the GIWW identified by the U.S. Army Corps of Engineers as in need of maintenance dredging and evaluate the environmental and operational suitability of each. The task force will include representatives from state and federal agencies having jurisdiction in the protection of the state's natural, historic, and economic resources. (2) The department will lead any field investigations. The task force agencies will be requested to participate in field investigations and to provide to the department written evaluations of the disposal alternatives and beneficial use projects investigated. (3) The GIWAC will review the investigations and discuss with the department any proposed disposal plans or beneficial use projects. (4) After review by the GIWAC, the department will notify the governing bodies of any city or county or any other governmental body with jurisdiction over a proposed project area of a proposed beneficial use project. The department will provide the governing bodies a description of the proposed project and anticipated benefits and will request that the governing bodies provide an adopted resolution or other official document if the governing body supports the proposed project. (e) Federal coordination. (1) After review by the GIWAC, the department will request the U.S. Army Corps of Engineers to coordinate the environmental analysis pursuant to 42 United States Code sec.sec.4321 et seq. (2) If the U.S. Army Corps of Engineers' environmental analysis determines a finding of no significant impact for the proposed disposal plan or beneficial use project, the division will then review the environmental document and findings. If the division determines that the proposed disposal plan or beneficial use project can be accomplished in an environmentally acceptable manner, the department will then proceed with public involvement. (f) Public involvement. Public involvement will be accomplished primarily through the U.S. Army Corps of Engineers' environmental and public involvement procedures; however, the department will conduct its own public involvement process. (1) Preliminary involvement. (A) The department will notify a public or private landowner of a parcel's environmental and operational suitability for the proposed disposal plan or beneficial use project, and offer to meet with the landowner to answer any questions about the proposed disposal plan or beneficial use project. (B) The department will also notify the landowner of any public meeting or public hearing on the proposed disposal plan or beneficial use project. (C) Meetings, as one form of public involvement, with affected property owners and residents will be held pursuant to sec.2.43(b)(2)(A) of this title (relating to Highway Construction Projects - State Funds), when the proposed disposal plan or beneficial use project does not involve any adjacent landowners or the landowner requests a meeting. (D) Public meetings, as another form of public involvement may be held pursuant to sec.2.43(b)(2)(B) of this title (relating to Highway Construction Projects - State Funds). (2) Public Meetings. A notice of public meeting will be advertised through legal notices published once a week for three successive weeks in a newspaper of general circulation, published in the county seat of each county in which any such proposed dredged material disposal plan or beneficial use project is located. (3) Public Hearings. A public hearing, when required, will be conducted by the commission pursuant to Transportation Code, Chapter 51. A hearing is required under Transportation Code, Chapter 51 if a disposal plan or beneficial use project requires the acquisition of an interest in property. (A) Prior to the hearing, the commission shall publish notice of a public hearing, indicating date, time, and place of such hearing, at least once a week for three successive weeks in a newspaper of general circulation published in the county seat of each county in which any such proposed dredged material disposal plan or beneficial use project is located. (B) The commission shall also publish notice of such hearing in at least one edition of the Texas Register. (C) The U.S. Army Corps of Engineers' environmental documents and findings will be on display at the public hearing. (D) Comments, testimony, or evidence shall be given in person or in writing during the public hearing or may be submitted in writing to the commission during the prescribed public comment period. (g) Commission action. (1) Disposal plans. (A) After the public hearing and receipt of all evidence and testimony, the commission will determine whether such proposed dredged material disposal plan can be accomplished without unjustifiable waste of publicly or privately owned natural resources and without permanent substantial adverse impact on the environment, wildlife, or fisheries. (B) If the commission determines that the proposed plan meets the criteria described in subparagraph (A) of this paragraph, it will authorize the department to proceed with the necessary actions to accomplish the disposal plan. (2) Beneficial use projects. (A) Approval. After any required public involvement, and receipt of all evidence and testimony, the commission will approve department participation in a beneficial use project provided funds are available for the beneficial use project, the applicable requirements of NEPA have been satisfied by the U.S. Army Corps of Engineers, and the project: (i) is proposed by the U.S. Army Corps of Engineers; (ii) proposes one or more beneficial use activities having a direct relationship of function or impact to the GIWW; (iii) can be accomplished without permanent substantial adverse impact on the environment, wildlife, or fisheries; (iv) can be accomplished without unjustifiable waste of publicly or privately owned natural resources; (v) has substantial local support, as evidenced through the public involvement process and documentation, including, at a minimum, a resolution or other official document from the governing body of the city or county with jurisdiction over the project area (for project areas involving multiple jurisdictions, the governing body of the city or county within which the majority of the project area is located, in consultation with the other involved jurisdictions, must provide the resolution or other official document); (vi) is limited to a logical unit of work and is capable of being implemented and completed within a reasonable time as determined by the department; and (vii) is consistent with the Texas Coastal Management Program. (B) Financial participation. (i) Except as provided in clause (ii) of this subparagraph, the commission will establish an eligible cost of the proposed beneficial use project by calculating the total estimated cost of the project in excess of the established federal standard for dredged material disposal. The department's financial participation in the project will not exceed 50% of eligible cost (up to a maximum of $125,000 per beneficial use project). (ii) The commission may authorize participation at levels exceeding 50% (and/or $125,000) if the commission determines the additional participation will result in extraordinary environmental or economic benefits or the costs are reasonably comparable to the costs of providing property to accommodate traditional upland disposal. (iii) If approved under this paragraph the commission will enter into an agreement with the Department of the Army to participate in the cost of a project to beneficially use material dredged from the GIWW. (iv) Department funding shall not be used for maintenance or operation of a beneficial use project. (v) All project expenditures must conform to applicable provisions of state and federal law. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 2, 1997. TRD-9707103 Bob Jackson Deputy General Counsel Texas Department of Transportation Effective date: June 23, 1997 Proposal publication date: February 11, 1997 For further information, please call: (512) 463-8630 CHAPTER 18. Motor Carriers SUBCHAPTER G. Vehicle Storage Facilities 43 TAC sec.sec.18.80-18.82, 18.84, 18.86-18.89, and 18.91-18.93 The Texas Department of Transportation adopts amendments to sec.sec.18.80-18.82, 18.84, 18.86-18.89 and 18.91-18.93, concerning vehicle storage facilities. Section 18.87 and section 18.93 are adopted with changes to the proposed text as published in the March 11, 1997, issue of the Texas Register (22 TexReg 2593). Sections 18.80-18.82, 18.84, 18.86, 18.88, 18.91 and 18.92 are adopted without changes and will not be republished. Texas Civil Statutes, Article 6687-9a (Vehicle Storage Facility Act), requires the department to adopt rules establishing requirements for the licensing of persons to operate vehicle storage facilities to ensure that licensed storage facilities maintain adequate standards for the care of stored vehicles. These sections are amended to: reorganize for uniformity; provide greater protection to owners of stored vehicles and ensure customer access to information relating to storage facilities; provide greater protection to licensees, simplify licensee requirements, decrease licensee paperwork, and facilitate licensee compliance; expedite the department's auditing and penalty assessment processes; and, provide greater protection for the integrity of department records. Section 18.80 is amended to confirm the department's commitment to provide vehicle storage facility procedures and policies which protect parties from unfair, unreasonable and deceptive practices. Section 18.81 is amended to clarify a vehicle storage facility's responsibilities for maintaining a current license issued by the department and for providing proof regarding the consent status of a towed vehicle. Section 18.82 is amended by adding new definitions for "Affidavit of Right of Possession and Control," "immediate family," and "main entrance," and also amending the definition of "preservation." Section 18.84 is amended to specify that vehicle storage facility licenses are non-transferrable and non-assignable between persons or entities, and clarifies when and how license applications, renewals, fees, and name/address changes must be submitted. Section 18.86 is amended to outline responsibilities for filing proper insurance forms with the department and describe coverage requirements using conventional insurance industry terminology. Section 18.87 is amended to clarify notification requirements and specify information to be included in customer notifications. In addition, the proposed amendments will simplify notification requirements. Section 18.88 is amended to clarify licensee record retention requirements, to allow for the consolidation of documents in order to meet these requirements, and to require that a licensee maintain records regarding the type of identification and identification number provided by an individual to whom a vehicle is released. Section 18.89 is amended to specify that written complaint procedure information provided to the customer be legible, and further specifies that the required complaint procedure notification sign comply with sec.18.91(d) of this subchapter. To protect owners of stored vehicles and expedite the department's audit process, sec.18.91 is amended to specify that no two vehicle storage facilities may operate within the same fenced area. To ensure that customers have access to vital information and to facilitate the department's audit procedures, proposed amendments specify sign requirements. To protect customers and licensees and ensure that customers have access to vital information, the proposed amendment to sec.18.92 specifies identification requirements for persons claiming stored vehicles, specifies that the licensee must provide the owner of a stored vehicle the name, address, and telephone number of the justice of the peace or magistrate from whose jurisdiction the vehicle was removed, requires licensees to provide customers with the facility's insurance information upon request, prohibits the use of stored vehicles without the vehicle owner's written permission, and differentiates "reasonable storage efforts" from "preservation" efforts. Section 18.93 is amended to specify when a notification fee may not be charged, and requires that the written bill for services explain the exact services performed if the licensee assesses a preservation fee. One individual commented that sec.18.87(a) and sec.18.93(1)(C) could be clarified by changing that a towing or vehicle storage operator is not required to send notice to the vehicle owner if the vehicle is removed by the owner within 24 hours "after the date" the operator receives the vehicle to 24 hours "from the time" the vehicle is received. The department concurs and has revised those sections to reflect the change. The amended sections are adopted under Transportation Code, sec.201.101, which provides the Texas Transportation Commission with the authority to establish rules for the conduct of the work of the Texas Department of Transportation, and more specifically Texas Civil Statutes, Article 6687-9a (Vehicle Storage Facility Act), which authorizes the department to establish requirements for the licensing and operation of vehicle storage facilities. sec.18.87. Notifications Regarding Towed Vehicles. (a) Applicability. If a vehicle is removed by the owner within 24 hours from the time the operator receives the vehicle, notification as described in subsections (b)-(e) of this section does not apply. (b) Notification to owners of registered vehicles. Registered owners of towed vehicles shall be notified in the following manner. (1) Vehicles registered in Texas. After accepting for storage a vehicle registered in Texas, the VSF must notify the vehicle's last registered owner and all recorded lienholders by certified/registered mail within five days, but in no event sooner than within 24 hours of receipt of the vehicle. (2) Vehicles registered outside of Texas. After accepting for storage a vehicle registered outside of Texas, or outside of the United States, the VSF must notify the vehicle's last registered owner and all recorded lienholders by certified/ registered mail within 14 days, but in no event sooner than within 24 hours of receipt of the vehicle. It shall be a defense to an action initiated by the department for violation of this section that the facility has attempted, in writing, but been unable to obtain information from the governmental entity where the vehicle is registered. (3) Vehicle registrant unknown. If the identity of the last registered owner cannot be determined, if the registration contains no address for the owner, or if it is impossible to determine with reasonable certainty the identity and address of all lienholders, notice in one publication in one newspaper of general circulation in the area where the vehicle was towed from is sufficient. (c) Unclaimed or undeliverable notices. Regardless of place of vehicle registration, if the certified/registered letter is returned unclaimed, refused, or moved, left no forwarding address, publication in a newspaper is not required. (d) Date of notification. Notification will be considered to have occurred when the United States Postal Service places its postmark upon the written notice. (e) Form of notifications. All notifications shall state: (1) the full registered name of the VSF where the motor vehicle is located, its street address and telephone number, and the hours the vehicle can be released to the vehicle owner; (2) the daily storage rate, the type and amount of all other charges assessed, and the statement, "Total storage charges cannot be computed until vehicle is claimed. The storage charge will accrue daily until vehicle is released." (3) the date the vehicle will be transferred from the VSF and the address to which the vehicle will be transferred, if the operator will be transferring a vehicle to a second lot due to the vehicle not being claimed within a certain time period; (4) the date the vehicle was accepted for storage and from where, when, and by whom the vehicle was towed; (5) the VSF number preceded by the words "Texas Department of Transportation Vehicle Storage Facility License Number" or "TxDOT VSF Lic. No."; (6) a notice of the towed vehicle owner's right under Transportation Code, Chapter 685, to challenge the legality of the tow involved; and (7) the name, mailing address, and toll-free telephone number of the Motor Carrier Division for purposes of directing questions or complaints. (f) Non-consent towed vehicle towed from private property. A VSF accepting a non-consent towed vehicle towed from private property must report that tow to the local law enforcement agency from the area where the vehicle was towed. This report must be made within two hours of receiving the vehicle, giving the vehicle's license plate number and issuing notification of state, vehicle identification number, and location from which it was towed. Facility records must indicate specifically to whom the stated information was reported and in what manner, as well as the time and date of the report. sec.18.93. Storage Fees/Charges. The fees outlined in this section have precedence over any conflicting municipal ordinance or charter provision. (1) Notification fee. (A) A VSF operator may not charge an owner more than $25 for notification under sec.18.87 of this title (relating to Notification Regarding Towed Vehicles). (B) If a vehicle is removed by the owner within 24 hours after the date the operator receives the vehicle, notification is not required under sec.18.87 of this title (relating to Notification Regarding Towed Vehicles). (C) If a vehicle is removed by the owner before notification is sent, or within 24 hours from the time the operator receives the vehicle, a notification fee may not be charged to the owner by the VSF operator. (2) Daily storage fee. A VSF operator may not charge less than $5.00 or more than $15 for each day or part of a day for storage of a vehicle. A daily storage fee may be charged for a day regardless of whether the vehicle is stored for 24 hours of the day, except that a daily storage fee may not be charged for more than one day if the vehicle remains at the VSF less than 12 hours. For the purposes of this paragraph, a day is considered to begin and end at midnight. (3) Preservation fee. A VSF operator may charge an owner no more than $10 for preservation of a stored motor vehicle, if such preservation is performed in accordance with sec.18.92(g) of this title (relating to Technical Requirements). If the VSF operator charges a fee for preservation, the written bill for services must specify the exact services performed for that fee and the dates such services were performed. (4) Additional fees. A VSF operator may not charge any additional fees that are similar to notification, preservation, or administrative fees. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 2, 1997. TRD-9707105 Bob Jackson Deputy General Counsel Texas Department of Transportation Effective date: June 23, 1997 Proposal publication date: March 11, 1997 For further information, please call: (512) 463-8630 CHAPTER 22. Use of State Property SUBCHAPTER B. Use of State Highway Right-of-Way 43 TAC sec.22.11, sec.22.16 The Texas Department of Transportation adopts an amendment to sec.22.11, concerning Definitions, and new sec.22.16, concerning Memorial Markers, without changes to the proposed text as published in the March 11, 1997, issue of the Texas Register (22 TexReg 2599) and will not be republished. Transportation Code, sec.201.103, requires the commission to plan and make policies for the location, construction, and maintenance of a comprehensive system of state highways and public roads. Transportation Code, sec.203.002, empowers the commission to construct, maintain, and operate a modern state highway system. Pursuant to that authority, the commission has adopted rules governing certain private uses of state highway right-of-way which serve a public purpose and are consistent with the safety and convenience of the traveling public. The Department of Public Safety is charged by statute with policing the state highway system and administering state laws relating to traffic and safety on the public roads. Pursuant to that responsibility, a number of Department of Public Safety troopers have lost their lives in the line of duty. The commission determines it to be in the public interest to allow the placement, along state highway right-of-way, of privately funded memorials honoring Department of Public Safety troopers killed in the line of duty. Section 22.11 is amended to provide definitions relating to Department of Public Safety memorials. New sec.22.16 describes who may erect memorials; provisions and terms of the agreement; details of filing a request with the department; the department's action in responding to a request; appeal of a decision; specifications of the memorial; and location, installation, and termination of an agreement. No comments were received on the proposed amendments. The amended and new sections are adopted under Transportation Code, sec.201.101, which provides the Texas Transportation Commission with the authority to promulgate rules for the conduct of the work of the Texas Department of Transportation; Transportation Code, sec.201.103, which requires the Texas Transportation Commission to plan and make policies for the location, construction, and maintenance of a comprehensive system of state highways and public roads; and Transportation Code, sec.203.002, which empowers the Texas Transportation Commission to lay out, construct, maintain, and operate a modern state highway system. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 2, 1997. TRD-9707104 Bob Jackson Deputy General Counsel Texas Department of Transportation Effective date: June 23, 1997 Proposal publication date: March 11, 1997 For further information, please call: (512) 463-8630