PROPOSED RULES
Before an agency may permanently adopt a new or amended section or repeal an 
existing section, a proposal detailing the action must be published in the Texas 
Register at least 30 days before action is taken. The 30-day time period gives 
interested persons an opportunity to review and make oral or written comments on 
the section. Also, in the case of substantive action, a public hearing must be 
granted if requested by at least 25 persons, a governmental subdivision or 
agency, or an association having at least 25 members.
Symbology in proposed amendments. New language added to an existing section is 
indicated by the <nl> code. [Brackets] indicate deletion of existing material 
within a section.

TITLE 4. AGRICULTURE
PART I Texas Department of Agriculture
CHAPTER 3.Boll Weevil Eradication Program
The Texas Department of Agriculture (the department) proposes amendments to 
sec.sec.3.50. 3.51, 3.53, the repeal of sec.sec.3.54-3.57, and new sec.3.54, 
concerning the statewide boll weevil eradication program in Texas. The 
amendments, repeal, and new section are proposed in order to comply with 
statutory changes enacted by the 75th Legislature, Senate Bill 1814, and to make 
the sections more clear and concise. 
The proposed repeal deletes existing sections relating to notices and 
requirements for program participation and assessment of penalties and allows 
the department to incorporate those sections into Chapter 3, Subchapter D. The 
proposed amendment to sec.3.50 adds references to the Texas Boll Weevil 
Eradication Foundation, Inc., recognized by statute as the designated entity to 
carry out the eradication program in Texas, and reflects changes in statutory 
authority resulting from the enactment of Senate Bill 1814 by the 75th 
Legislature. The proposed amendment to sec.3.51 changes the definition of the 
foundation to reference the Texas Boll Eradication Weevil Foundation, Inc., and 
changes the definition of eradication zone to be consistent with statutory 
changes. The proposed amendment to sec.3.53 reflects a clerical change in the 
title of that section. Proposed new sec.3.54 states the consequences for failing 
to comply with a prohibition on planting of cotton, and states the procedures to 
be followed should a grower fail to comply with a planting prohibition. 
Katie Dickie Stavinoha, special assistant for producer relations, has determined 
that for the first five-year period the sections are in effect there will be no 
fiscal implications for state or local government as a result of enforcing or 
administering the sections.
Ms. Stavinoha also has determined that for each year of the first five years the 
sections are in effect, the public benefit anticipated as a result of enforcing 
the sections will be full participation and compliance by cotton producers in 
the boll weevil eradication program, resulting in a decrease in the use of 
pesticides for boll weevil control, compliance with statutory changes enacted by 
the 75th Legislature, and greater efficiency in the operation of the program. 
There will be no effect on small or large businesses.
It is not possible to determine the anticipated economic cost to persons who are 
required to comply with the sections as proposed, as such cost will be 
determined by several factors, including the amount of acreage that the cotton 
grower has in production in a prohibited area, and the level of compliance of 
the grower. 
Comments on the proposal may be submitted to Katie Dickie Stavinoha, special 
assistant for producer relations, Texas Department of Agriculture, P.O. Box 
12847, Austin, Texas 78711. Comments must be received no later than 30 days from 
the date of publication of the proposed amendments in the Texas Register. 

SUBCHAPTER C.Prohibition of Planting Cotton [and Requirements for Participation 
in the Eradication Program]
4 TAC sec.sec.3.50, 3.51, 3.53, 3.54
The amendments to sec.sec.3.50, 3.51, 3.53 and new sec.3.54 are proposed under 
the authority of the Texas Agriculture Code (the Code), sec.74.120, which 
provides the department with the authority to adopt reasonable rules to carry 
out the purposes of Subchapters A, B, and D of the Code, Chapter 74; the Code, 
sec.74.118 which provides the department with the authority to adopt rules 
regarding areas where cotton may not be planted in an eradication zone, 
prohibiting the planting of noncommercial cotton in eradication zones, and 
requiring that all growers of commercial cotton in eradication zones participate 
in the eradication program; the Code, sec.12.016, which provides the department 
with the authority to adopt rules as necessary for the administration of its 
powers and duties under the Code; and Texas Government Code, sec.2001.004, which 
requires that the department adopt rules of practice stating the nature and 
requirements of all available formal and informal procedures. 
Texas Agriculture Code, Chapter 74, is affected by the proposed amendments and 
new section. 

sec.3.50. Statement of Authority and Purpose. 
The Texas Agriculture Code (the Code), Chapter 74, Subchapter D, provides that 
it is a necessity to establish a cotton pest eradication program for Texas in 
order to suppress and eradicate the boll weevil and <nl>the pink bollworm<ol> 
[other cotton pests]. <nl>The Code, sec.74.1011, <ol> [As a vehicle for the 
implementation of the eradication program, Chapter 74, Subchapter D.] provides 
<nl>that<ol> [for the establishment of] the <nl>Texas<ol> Boll Weevil 
Eradication Foundation <nl>, Inc. <ol> (the foundation) <nl>shall be recognized 
by the Texas Department of Agriculture (the department) as the entity to plan, 
carry out, and operate eradication and diapause programs to eliminate the boll 
weevil and the pink bollworm from cotton in the state under the supervision of 
the department <ol>. [The foundation is charged with establishing eradication 
zones and assessments by referenda of eligible cotton growers.] The Code, 
sec.74.118, [also] provides the [Texas Department of Agriculture (the] 
department [)] with the authority to prohibit the planting of cotton in an 
eradication zone [and to require participation in an eradication program 
established by the foundation. These rules carry out the authority provided the 
department in the Code, sec.76.118]. <nl> The department is authorized to 
destroy cotton that is not in compliance with the department's rules regarding 
areas where cotton may not be planted, in accordance with the Code, 
sec.sec.74.118 and 74.119.<ol>

sec.3.51. Definitions. 
The following words and terms, when used in this subchapter, shall have the 
following meanings, unless the context clearly indicates otherwise.
(1)-(3) (No Change).
(4) Eradication zone - A geographic area <nl>established under the Code, 
sec.74.1021, or a geographic area designated by the commissioner in accordance 
with the Code, sec.74.105<ol> in which cotton growers by referendum approve 
their participation in a boll weevil or pink bollworm eradication program. 
(5) Foundation- <nl> The Texas Boll Weevil Eradication Foundation, Inc.<ol> [The 
organization designated by the commissioner of agriculture as the official Boll 
Weevil Eradication Foundation, in accordance with the Code, Chapter 74, 
Subchapter D].
(6) (No Change.)

sec.3.53. Notice of <nl>Prohibition<ol> [Prohibitions]. 
(a)-(c) (No change.) 

sec.3.54. Failure to Comply with Prohibition. 
(a) Upon notice by the foundation that a grower has failed to comply with a 
notice of prohibition provided in accordance with sec.3.53 of this title 
(relating to Notice of Prohibition), or has failed to obtain a permit for 
planting of noncommercial cotton in an eradication zone as required by 
sec.3.52(c) of this title (relating to Prohibition of Planting of Commercial and 
Noncommercial Cotton) the department shall take the following actions:
(1) Immediately upon identification of a field that is out of compliance, the 
department shall give written notice to the farm owner, to the grower, and, if 
known, to any lender having an interest in the field or the cotton, that the 
field and any cotton growing in the field are in violation of these rules. 
(2) The notice shall further instruct the owner and grower to destroy any cotton 
located in the field within seven days after the date the written notice is 
received. Destruction shall be performed in a manner to prohibit the presence of 
live cotton plants. 
(3) If the owner or grower cannot be located after reasonably diligent effort 
has been made by the department to locate such persons, the department shall 
publish the notice in a newspaper of general circulation in the county in which 
the land is located and post for a period of three consecutive days a copy of 
the notice on or in the immediate vicinity of the field in violation. 
(4) If no response is received by the department from either the owner or grower 
within four days after the date of posting of the notice at the field, or if the 
department considers the response inadequate, the department shall have the 
cotton destroyed. 
(b) The department may take any other action necessary to complete destruction 
of cotton in order to prevent the spread of boll weevils from the infested area. 
(c) All costs incurred by the department in the destruction of cotton in 
accordance with subsection (a) of this section shall be reimbursed by the 
grower. 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt. 
Filed with the Office of the Secretary of State, on February 19, 1998.
TRD-9802513
Dolores Alvarado Hibbs
Deputy General Counsel
Texas Department of Agriculture
Earliest possible date of adoption: April 12, 1998
For further information, please call: (512) 463-7541

4 TAC sec.sec.3.54-3.57
(Editor's note: The text of the following sections proposed for repeal will not 
be published. The sections may be examined in the offices of the Texas 
Department of Agriculture or in the Texas Register office, Room 245, James Earl 
Rudder Building, 1019 Brazos Street, Austin.)
The repeal of sec.3.54-3.57 is proposed under the authority of the Texas 
Agriculture Code (the Code), sec.74.120, which provides the department with the 
authority to adopt reasonable rules to carry out the purposes of Subchapters A, 
B, and D of the Code, Chapter 74; the Code, sec.12.016, which provides the 
department with the authority to adopt rules as necessary for the administration 
of its powers and duties under the Code; and Texas Government Code, which 
sec.2001.004, which requires that the department adopt rules of practice stating 
the nature and requirements of all available formal and informal procedures. 
Texas Agriculture Code, Chapter 74, is affected by the proposed repeal.
sec.3.54. Requirement for Program Participation. 
sec.3.55. Notice of Requirement for Participation. 
sec.3.56.Assessment of Penalties: Destruction of Cotton. 
sec.3.57. Appeal of Penalty Assessment. 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State, on February 19, 1998.
TRD-9802512
Dolores Alvarado Hibbs
Deputy General Counsel
Texas Department of Agriculture
Earliest possible date of adoption: April 5, 1998
For further information, please call: (512) 463-7541

SUBCHAPTER D.Requirements for Participation in the Eradication Program and 
Administrative Penalty Enforcement [Collection of Assessments and Assessment 
Penalties]
4 TAC sec.sec.3.70, 3.71
(Editor's note: The text of the following sections proposed for repeal will not 
be published. The sections may be examined in the offices of the Texas 
Department of Agriculture or in the Texas Register office, Room 245, James Earl 
Rudder Building, 1019 Brazos Street, Austin.)
The Texas Department of Agriculture (the department) proposes the repeal of 
sec.sec. 3.70-3.71, new sec.sec. 3.70-3.78, and amendments to sec.sec. 3.80-
3.81, concerning the statewide boll weevil eradication program in Texas. The 
repeal, new sections, and amendments are proposed in order to comply with 
statutory changes enacted by the 75th Legislature, Senate Bill 1814, and to make 
the sections more clear and concise. 
The repeal of sec.sec.3.70 and 3.71 deletes current provisions for exemption 
from assessment penalties and allows the department to reorganize this 
subchapter and existing sections of Chapter 3, Subchapter C, relating to 
assessment of administrative penalties. Proposed new sec.sec.3.70 and 3.71 
provide a statement of authority and purpose and definitions. Proposed new 
sec.3.72 provides requirements for participation in the boll weevil eradication 
program and proposed new sec.3.73 provides for public notice of participation 
requirements. Proposed new sec.3.74 provides for administrative penalties to be 
assessed for non- payment of assessments and failure to timely report acreage to 
the foundation. Proposed new sec.3.75 provides for an appeal of a penalty 
assessed under these rules. Proposed new sec.3.76 provides the procedure to be 
followed in seeking an exemption from an administrative penalty assessed under 
sec.3.74, and proposed new sec.3.77 states the criteria to be applied by the 
department in determining whether to grant a request for exemption. Proposed new 
sec.3.78 provides a method by which a grower may request the establishment of a 
payment plan for an administrative penalty for nonpayment of assessment. The 
proposed amendment to sec.3.80 reorganizes and clarifies the procedures for 
placement of a lien, including notice provisions and provisions for curing a 
delinquency. The proposed amendment to sec.3.81 provides for the retention by 
the department from lien foreclosure proceeds of any related administrative 
penalties due to the department. 
Katie Dickie Stavinoha, special assistant for producer relations, has determined 
that for the first five-year period the sections are in effect there will be no 
fiscal implications for state or local government as a result of enforcing or 
administering the sections. 
Ms. Stavinoha also has determined that for each year of the first five years the 
sections are in effect, the public benefit anticipated as a result of enforcing 
the sections will be full participation and compliance by cotton producers in 
the boll weevil eradication program, resulting in a decrease in the use of 
pesticides for boll weevil control, compliance with statutory changes enacted by 
the 75th Legislature, and greater efficiency in the operation of the program. 
There will be no effect on small or large businesses. It is not possible to 
determine the anticipated economic cost to persons who are required to comply 
with the sections as proposed, as such cost will be determined by several 
factors, including the amount of the assessment established for the zone in 
which the cotton is grown, the amount of acreage that the cotton grower has in 
production, and the level of compliance of the grower. 
Comments on the proposal may be submitted to Katie Dickie Stavinoha, special 
assistant for producer relations, Texas Department of Agriculture, P.O. Box 
12847, Austin, Texas 78711. Comments must be received no later than 30 days from 
the date of publication of the proposed amendments in the Texas Register.
The repeal of sec.sec.3.70-3.71 is proposed under the authority of the Texas 
Agriculture Code (the Code), sec.74.120, which provides the department with the 
authority to adopt reasonable rules to carry out the purposes of Subchapters A, 
B, and D of the Code, Chapter 74; the Code, sec.12.016, which provides the 
department with the authority to adopt rules as necessary for the administration 
of its powers and duties under the Code; and Texas Government Code, which 
sec.2001.004, which requires that the department adopt rules of practice stating 
the nature and requirements of all available formal and informal procedures. 
Texas Agriculture Code, Chapter 74, is affected by the proposed repeal. 
sec.3.70.Statement of Authority for Collection of Assessments and Assessment 
Penalties. 
sec.3.71. Exemption from Assessment Penalties. 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State, on February 19, 1998.
TRD-9802514
Dolores Alvarado Hibbs
Deputy General Counsel
Texas Department of Agriculture
Earliest possible date of adoption: April 5, 1998
For further information, please call: (512) 463-7541

4 TAC sec.sec.3.70-3.78, 3.80, 3.81
New sec.sec.3.70-3.78 and the amendments to sec.sec.3.80-3.81 are proposed under 
the authority of the Texas Agriculture Code (the Code), sec.74.120, which 
provides the department with the authority to adopt reasonable rules to carry 
out the purposes of Subchapters A, B, and D of the Code, Chapter 74; the Code, 
sec.74.115, which provides the department with the authority to assess 
administrative penalties for failure to pay an assessment; the Code, sec.74.118, 
which provides the department with the authority to assess administrative 
penalties for failure to meet the requirements of the rules regarding reporting 
of acreage; the Code, sec.74.116, which provides that the department by rule 
shall adopt criteria for exemption from payment of assessment penalties; the 
Code, sec.12.016, which provides the department with the authority to adopt 
rules as necessary for the administration of its powers and duties under the 
Code; and Texas Government Code, sec.2001.004, which requires that the 
department adopt rules of practice stating the nature and requirements of all 
available formal and informal procedures. 
Texas Agriculture Code, Chapter 74, is affected by the proposed new sections and 
amendments. 

sec.3.70. Statement of Authority and Purpose.
The Code, sec.74.113, provides the foundation with the authority to collect 
assessments for each eradication zone as part of the foundation's duties. The 
Code, sec.74.121, provides that each person within an active eradication zone 
growing cotton shall furnish to the foundation, upon request, information 
concerning the size and location of all commercial and noncommercial cotton. The 
Code, sec.74.118, provides the department with the authority to require 
participation in an established eradication program. The Code, sec.74.115, 
provides the department with the authority to place a lien on cotton produced 
and harvested that year from acreage that is subject to an assessment that is 
due and unpaid. The Code, sec.74.115, also provides the department with the 
authority to assess administrative penalties for failure to pay an assessment 
when due, and the Code, sec.74.118, provides the department with the authority 
to assess administrative penalties for failure to comply with department rules 
regarding participation in cost sharing and acreage reporting. The Code, 
sec.74.116, provides the department with the authority to establish criteria for 
exemption from penalties assessed under the Code, sec.74.115. 

sec.3.71. Definitions. 
The definitions contained in sec.3.51 of this title (relating to Definitions) 
are incorporated herein by reference. 

sec.3.72. Requirement for Program Participation. 
(a) All commercial cotton growers within an eradication zone are required to 
participate in the eradication program approved by grower referendum for that 
zone. 
(b) Participation in the eradication program includes: 
(1) timely reporting to the foundation, upon request, of information regarding 
acreage and location of all commercial cotton fields and of noncommercial 
patches of cotton grown for ornamental, research, or other purposes as provided 
in the Code, sec.74.121; 
(2) payment of the assessment in the amount and manner established and approved 
for that eradication zone; and, 
(3) compliance with any department rules, or procedures established by the 
department or the foundation, for implementation of the eradication program in 
that eradication zone. 

sec.3.73. Notice of Requirement for Participation. 
(a) Within 30 days after passage of a referendum establishing an eradication 
zone, a notice of the requirement to participate in the eradication program 
shall be published by the foundation in a newspaper having general circulation 
within the affected zone for one day each week for three successive weeks. 
(b) The notice required by subsection (a) of this section shall include the 
requirements for timely reporting of acreage and field location, if appropriate, 
compliance with regulations of the department, and payment of the assessment 
established and approved for that zone. 

sec.3.74. Penalties for Non-payment of Assessment and Failure to Timely Report 
Acreage. 
(a) Upon receiving notice from the foundation that a grower has failed to timely 
pay an assessment in the amount and manner established for that eradication 
zone, the department may assess an administrative penalty against the grower. 
(b) Upon receiving notice from the foundation that a grower has failed to timely 
report to the foundation information regarding acreage and location of all 
commercial cotton fields and of noncommercial patches of cotton grown for 
ornamental, research, or other purposes as provided by sec.3.72(b)(1) of this 
title (relating to Requirement for Program Participation), the department may 
assess an administrative penalty against the grower. A penalty assessed for 
failure to timely report acreage shall not exceed $50 per acre. 

sec.3.75. Appeal of Penalty Assessment.
(a) The department shall issue a Notice of Violation to each person against whom 
the department has proposed to assess a penalty under sec.3.74 of this title 
(relating to Penalties for Non-payment of Assessment and Failure to Timely 
Report Acreage). The Notice of Violation with attachments shall include a brief 
statement of the matters alleged, the amount of the recommended penalty, the 
date on which the penalty will be assessed, the dates and amounts of any penalty 
increases, in accordance with the department's penalty matrix, and the right of 
the person charged to request a hearing.
(b) A person against whom a penalty has been assessed may accept the 
determination of the department, including the recommended penalty, or may 
protest the determination and request a hearing. A notice of protest and request 
for hearing may be filed with the Texas Department of Agriculture, P.O. Box 
12847, Austin, Texas 78711. 
(c) If the person accepts the determination of the department, the commissioner 
shall issue an order approving the determination and ordering payment of the 
penalty.
(d) If the person protests the determination of the department and requests a 
hearing, or fails to respond to the Notice of Violation, a hearing on the matter 
shall be provided and conducted in accordance with the procedures provided for 
contested cases in the Texas Administrative Procedure Act, Government Code, 
Chapter 2001, Chapter 1 of this title (relating to General Procedures), and 
Chapter 155 of Title 1, T.A.C. (relating to Rules of Procedure of the State 
Office of Administrative Hearings). 

sec.3.76. Application for Exemption from Assessment Penalty. 
(a) If an administrative penalty is assessed by the department under the Code, 
sec.76.115, for failure to timely pay an assessment, the cotton grower may apply 
for an exemption from that administrative penalty in writing on a form 
prescribed by the commissioner within 20 days from receipt of the notice of 
violation, stating the conditions justifying such request. The conditions must 
be such that payment of the penalty would impose an undue financial burden upon 
the grower. 
(b) A grower who applies for an exemption from the penalty under this section 
must use a form prescribed by the commissioner. Forms may be obtained by 
contacting the Texas Department of Agriculture, P.O. Box 12847, Austin, Texas 
78711. A cotton grower must file a separate application with the department for 
each year for which an exemption is claimed. 
(c) A request for exemption from the penalty will be considered only upon 
submission of a completed application form and the following documentation:
(1) an income tax statement showing taxable net income for the previous year; 
and, 
(2) an assignment of deficiency payments for cotton or any other crop to cover 
the amount due for assessments and assessment penalties and a general crop lien 
for all crops and products of such crops if deficiency payments are 
insufficient; or, 
(3) a financial statement from a bank or other lending institution financing the 
farming operation indicating inability to pay.
(d) Additional information may be submitted by the cotton grower for 
consideration by the department. 
(e) The department shall promptly notify the applicant of its determination 
regarding the applicant's request for exemption by mail at the address provided 
by the applicant in the application for exemption.
(f) If the request for exemption from assessment penalties under this section is 
denied, assessments and penalties for the year for which the application is made 
are due on the later of: 
(1) the date on which they would be due in the absence of an application for 
exemption; or 
(2) 30 days after the date the applicant receives notice of the denial. 
(g) If warranted, the department may grant a full or partial exemption. 

sec.3.77. Criteria for Exemption from Penalty For Failure to Pay Assessment. 
(a) The department's determination regarding a request for exemption will be 
based upon whether the completed application and other satisfactory 
documentation establish that payment of the assessment penalty would impose an 
undue financial burden upon the grower. 
(b) In addition to the general financial condition of the grower, factors which 
may be considered by the department in determining whether the assessment 
penalty would impose an undue financial burden include: 
(1) adverse health conditions supported by a physician; 
(2) a natural or physical disaster resulting in at least 30% crop loss not 
covered by insurance; 
(3) a biological disaster such as severe insect or disease infestation not 
controllable by currently available pesticides or pest management strategies; 
(4) a financial disaster such as theft or fire; or 
(5) any other extraordinary circumstances. 
(c) Any factors which the grower wishes the department to consider must be 
supported by satisfactory documentation. The department may request additional 
information or documentation as necessary prior to making a determination. 

sec.3.78. Application for Payment Plan for Assessment Penalty.
A cotton grower, who applies for an exemption from assessment penalties under 
sec.3.76 of this title (relating to Application for Exemption from Assessment 
Penalty), may apply with the department, using a form prescribed by the 
commissioner, for permission to establish a payment plan for the assessment 
penalty. Forms may be obtained by contacting the Texas Department of 
Agriculture, P.O. Box 12847, Austin, Texas 78711. A separate application must be 
made for each year in which a payment plan is requested. 

sec.3.80. Placing Lien on Harvested Cotton.
(a) [Authority. In accordance with the Texas Agriculture Code Annotated (the 
Code), sec.74.115 (Vernon Supplement 1996), when a grower subject to an 
assessment established by the Texas Boll Weevil Eradication Foundation (the 
foundation) in accordance with the Code, Chapter 74, Subchapter D (Vernon 
Supplement 1996) fails to pay all assessments and penalties before the 10th day 
after receiving notice of a delinquency, the department may place and perfect a 
lien on cotton produced and harvested that year from the acreage subject to the 
assessment that is due and unpaid. "Grower," for purposes of these sections, has 
the same definition as that found at sec.3.1(a) of this title (relating to Voter 
Eligibility).] 
[(b) Notice of Delinquency.] Upon notice by the foundation that a cotton grower 
[following notice and opportunity to cure]has failed to <nl>timely<ol> pay an 
assessment, the departmentshall notify the grower by certified mail, return 
receipt requested, that:
(1) the assessment is delinquent and the notice is a demand for payment of the 
assessment; 
(2) the grower has seven days in which to cure the delinquency by paying the 
assessment to the foundation; and 
(3) if the grower fails to <nl>cure the delinquency by paying<ol> [pay] the 
assessment, the department will exercise its authority to place and perfect 
<nl>an assessment<ol> [a] lien on any cotton produced and harvested that year on 
acreage subject to the <nl>delinquent<ol> assessment [that is due and unpaid] 
and <nl> may<ol> take any other necessary action to collect the assessment.
<nl>(b)<ol> [(c) Notice of failure to cure and placement of lien.] [(1)] If a 
grower fails to <nl>cure the delinquency <ol> [pay the assessment] within seven 
days of receipt of the notice described in subsection <nl> (a)<ol> [(b)] of this 
section, the department shall notify the grower by certified mail, return 
receipt requested, that: 
<nl>(1) <ol> [(A)] the grower has failed to cure the delinquency; 
<nl>(2)<ol> [(B)] the department is placing a lien, effective immediately, on 
any cotton harvested that year from the land subject to the delinquent 
assessment [that is due and unpaid];
<nl>(3)<ol> [(C)] the department intends to enforce the debt and foreclose on 
the lien; and, 
<nl>(4)<ol> [(D)] the grower is to provide the department, within seven days of 
receipt of the notice, with a list of any known potential buyers of the cotton 
and of any lien holders on the cotton.
<nl>(c) <ol> <nl>In response to a request by the department under subsection (b) 
of this section, the grower shall provide the list of known potential buyers and 
lien holders of cotton harvested that year from land subject to the delinquent 
assessment. Failure to provide the list of known potential buyers of the cotton 
and lien holders may subject the grower to administrative penalties as provided 
in the Code, sec.74.118. This penalty would be in addition to any administrative 
penalties assessed under sec.3.74 of this title (relating to Penalties for Non-
payment of Assessment and Failure to Timely Report Acreage).<ol> [(2) Upon 
request by the department, a grower shall provide a list of any known potential 
buyers and lien holders of cotton grown on and harvested from land subject to 
the foundation's assessment. Administrative penalties may be assessed for 
failure to provide the information requested by the department in this section.] 
<nl>(d) <ol> [(3)] Upon receiving the grower's list of potential buyers and lien 
holders, the department shall provide written notice [of the placement of the 
lien] to each person or entity on the list, [. In addition, the department shall 
notify in writing] the foundation, any lender or lender organization that has 
requested notice, and the Consolidated Farm Service (CFSA), of any lien placed 
on <nl> the<ol> harvested cotton. A lender or lender organization [on behalf of 
its members ] having a financial interest in cotton grown within an [established 
] eradication zone may request <nl>to be notified if an assessment lien is 
placed against such cotton. Requests should be mailed <ol> [ notice by writing] 
to the Texas Department of Agriculture [.]<nl> , P.O. Box 12847, Austin, TX 
78711, and<ol> [Such request] should include the <nl>name of the cotton 
grower<ol> and the location of the cotton [within an eradication zone] in which 
the lender has an interest [and name of the cotton grower]. 
<nl>(e)<ol> <nl>Notice sent to a grower in accordance with subsection (a) and/or 
(b) of this section is deemed received when sent to the grower's last known 
address on record with the foundation, or when personally delivered to the 
grower or the grower's representative. Notice sent to a potential buyer in 
accordance with subsection (b) of this section is deemed received when sent to 
the potential buyer's last known address, as provided by the grower or on file 
with the foundation or the CFSA, and accepted by a person at that address who is 
over 18 years of age. A potential buyer is deemed to have received actual notice 
if such notice is provided by phone, by personal contact, by verifiable 
telecommunications contact, or by any other reasonable, verifiable means 
available to the department. <ol>
[(d) Opportunity to cure delinquency. Upon receiving a delinquency notice or 
notice of lien placement in accordance with this section, a lender may cure the 
delinquency by paying the full amount of the assessment and any penalties due by 
a grower. A lien placed by the department on harvested cotton in accordance with 
this section shall be released upon notice from the foundation that full payment 
of the assessment and penalties has been received. A lien released under this 
subsection shall be released within 15 days of notice by the foundation that 
full payment has been received.
<nl>(f)<ol> <nl> A grower or lender may cure the delinquency at any time by 
paying the full amount of the delinquent assessment and any penalties due in 
relation to that assessment.<ol>
[(e) Receipt of notice.]
[(1) Notice of delinquency and/or notice of failure to cure and of the 
department's placing of a lien sent to a grower in accordance with subsection 
(b) of this section is deemed received when sent to the grower's last known 
address on record with the CFSA or the foundation, or when personally delivered 
to a grower or a grower's representative.]
[(2) Written notice of placement of a lien in accordance with subsection (b) of 
this section to a potential buyer is deemed received when sent to the potential 
buyer's last known address, as provided by the grower or on file with the 
foundation or the CFSA, and accepted by a person at that address who is over the 
age of 18 years. A potential buyer is deemed to have received actual notice if 
such notice is provided by phone, by personal contact, by verifiable 
telecommunications contact (i.e. computer), or by any other reasonable, 
verifiable means available to the department.
<nl>(g) <ol> [(f) Status of Lien.] <nl>An assessment <ol> [A] lien placed in 
accordance with this section is not a priority lien, and does not have superior 
status to prior liens on the harvested cotton on which a lien is placed under 
this section. <nl>Any<ol> [Accordingly any] proceeds from the sale of harvested 
cotton on which an assessment lien is placed in accordance with &lt;*>3.81 of 
this title (relating to Judicial Action and Foreclosure of Lien) shall first be 
paid to any prior lien holders, with any proceeds remaining after other prior 
liens have been satisfied going to the foundation for payment of the delinquent 
assessment and to the department for any penalties due in relation to that 
assessment [and/or penalties due and unpaid].

sec.3.81. Judicial Action and Foreclosure of Lien.
(a) - (c) (No change.) 
(d) Any proceeds obtained by the department as a result of foreclosing on <nl>an 
assessment<ol> [a] lien on harvested cotton shall be forwarded to the 
foundation, minus <nl>any penalties due with relation to that assessment and<ol> 
any administrative expenses incurred by the department in enforcing and 
foreclosing the assessment lien. 
(e) (No change.) 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt. 
Filed with the Office of the Secretary of State, on February 19, 1998.
TRD-9802515
Dolores Alvarado Hibbs
Deputy General Counsel
Texas Department of Agriculture
Earliest possible date of adoption: April 5, 1998
For further information, please call: (512) 463-7541

TITLE 7. BANKING AND SECURITIES
PART I. Finance Commission of Texas
CHAPTER 4. Currency Exchange
7 TAC sec.4.6
The Finance Commission of Texas (the commission) proposes an amendment to 
sec.4.6, concerning currency exchange and transmission license exemptions. 
Section 4.6 is proposed to be amended by adding a new subsection (e) clarifying 
that check sellers licensed under Finance Code, Chapter 152, are exempt from the 
licensing requirements of Finance Code, Chapter 153, but are required to comply 
with the other provisions of Finance Code, Chapter 153, to the extent the 
licensed check sellers engage in currency exchange or currency transmission 
transactions. Repealed Texas Civil Statutes, Article 350, sec.3(b), provided 
that, "A person holding a license under the Sale of Checks Act (Texas Civil 
Statutes, Article 489d) (now Finance Code, Chapter 152, see Acts 1997, 75th 
Legislature, chapter 1008, sec.1), is not required to be licensed under this 
article but is required to comply with the other provisions of this article to 
the extent the person engages in currency exchange or currency transmission 
transactions." Effective September 1, 1997, Texas Civil Statutes, Article 350, 
sec.3(b), was recodified in Finance Code, sec.153.117(a)(2). The language 
contained in Finance Code, sec.153.117(a)(2), is ambiguous and differs from that 
contained in former Texas Civil Statutes, Article 350, sec.3(b). However, 
pursuant to Acts 1997, 75th Legislature, chapter 1008, sec.6, no substantive 
change in law was intended by the recodification.
Proposed sec.4.6(e)(1) clarifies that check sellers who also engage in currency 
exchange or transmission transactions are exempt from the licensing requirements 
of Finance Code, Chapter 153, if licensed under Finance Code, Chapter 152. 
However, these check sellers are required to comply with other provisions of 
Finance Code, Chapter 153, with respect to their currency exchange or currency 
transmission transactions. 
Proposed sec.4.6(e)(2) will clarify that exempt check sellers, licensed under 
Finance Code, Chapter 152, engaging in currency exchange or currency 
transmission, must comply with the net worth and bonding requirements under 
Finance Code, Chapter 153. If check selling license holders engage in the 
additional activities of currency exchange or currency transmission, public 
policy requires increased net worth and bonding requirements to protect both the 
safety and soundness of the license holder and the interests of the consumer. 
Moreover, net worth and bonding requirements constitute provisions of Finance 
Code, Chapter 153, other than licensing requirements, and compliance is required 
by the terms of exemption. 
Stephanie Newberg, Director, Special Audit Division, Texas Department of 
Banking, has determined that for each year of the first five-years the section 
as proposed will be in effect, there will be no fiscal implications for state or 
local government as a result of enforcing or administering the section. Ms. 
Newberg has also determined that for each year of the first five-year period the 
proposed amendment will be in effect, the public benefit anticipated as a result 
of the amendment will be clarification of net worth and bonding requirements for 
licensed check sellers engaged in currency exchange or transmission, and 
enhanced protection of the rights and interests of industry customers and the 
public at large. With respect to increased net worth requirements, for the first 
five-year period the rule will be in effect, no economic costs will be incurred 
by persons required to comply with the net worth requirements and there will be 
no effect on small businesses. An incremental increase in capital is not an 
expense or cost, but rather remains the property of the licensee. However, with 
respect to increased bonding requirements, Ms. Newberg estimates that for each 
year of the first five years that the rule will be in effect, each of the five 
licensees to be affected by increased bonding requirements will incur an 
additional bond premium cost of $1,000. The actual increase in bond premium for 
a specific licensee will depend on the surety's analysis of risk factors based 
on the licensee's financial strength and reputation. Two small-business 
licensees will be affected by the proposed amendment's bonding requirements. It 
is estimated that the increase in cost to a small business licensee for the 
additional bond premium will be $0.02 - $0.04 per $100 of sales compared with 
$0.007 per $100 of sales for large business licensees affected by the rule. 
Comments on the proposal may be submitted in writing to Stephanie Newberg, 
Director, Special Audit Division, Texas Department of Banking, 2601 North Lamar 
Boulevard, Austin, Texas 78705-4294, or by e-mail to 
stephanie.newberg@banking.state.tx.us. The amendment is proposed pursuant to the 
Finance Code, sec.153.002, which authorizes the commission to adopt rules 
"necessary to implement this chapter," and pursuant to the Finance Code, 
sec.153.109(b), which provides that, "the Commissioner shall determine the 
amount of the bond or letter of credit based on the dollar volume of the license 
holder's currency exchange, transportation, or transmission business and the 
number of locations from which the license holder operates." 
Finance Code, Chapter 153, is affected by the proposed amendments. 

sec.4.6. Exemptions. 
(a)-(d) (No change). 
<nl>(e)<ol> Check Sellers. 
<nl>(1)<ol> Former Texas Civil Statutes, Article 350, sec.3(b), provided that, 
"A person holding a license under the Sale of Checks Act (Article 489d, Vernon's 
Texas Civil Statutes) is not required to be licensed under this article but is 
required to comply with the other provisions of this article to the extent the 
person engages in currency exchange or currency transmission transactions." 
Effective September 1, 1997, Texas Civil Statutes, Article 350, sec.3(b), was 
codified in Finance Code, Section 153.117(a)(2). The language contained in 
Finance Code, sec.153.117(a)(2), is ambiguous and differs from that found in 
former Texas Civil Statutes, Article 350, sec.3(b). Pursuant to Acts 1997, 75th 
Legislature, Chapter 1008, sec.6, no substantive change in law was intended by 
the recodification. The purpose of this subsection is to clarify that check 
sellers licensed under Finance Code, Chapter 152, are exempt from the licensing 
requirements of Finance Code, Chapter 153, but are required to comply with the 
other provisions of Finance Code, Chapter 153, to the extent the licensed check 
sellers engage in currency exchange or currency transmission transactions. 
<nl>(2)<ol> Check sellers licensed under Finance Code, Chapter 152, which engage 
in currency exchange or currency transmission transactions, must comply with the 
net worth requirements under Finance Code, sec.152.203(a)(1) or Finance Code, 
sec.153.102(d)(5), whichever is greater. Check sellers licensed under Finance 
Code, Chapter 152, which engage in currency exchange or currency transmission 
transactions, must also post a bond or deposit in lieu of bond in accordance 
with Finance Code, sec.152.206 or Finance Code, sec.153.109, sec.153.110, and 
sec.4.7 of this chapter (relating to bond requirements and deposits in lieu of 
bond), whichever is greater. 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on February 20, 1998.
TRD-9802555
Everette D. Jobe
Certifying Official
Finance Commission of Texas
Proposed date of adoption: April 24, 1998
For further information, please call: (512) 475-1300

PART II. Texas Department of Banking
CHAPTER 17.Trust Company Regulation
SUBCHAPTER B.Examination and Call Reports
7 TAC sec.17.23
The Finance Commission of Texas (the commission) proposes new sec.17.23, 
concerning reports of financial condition and results of operations, more 
commonly referred to as "call reports," by trust companies subject to regulation 
by the Banking Commissioner of Texas (banking commissioner). As proposed, 
subsection (b) provides that all trust companies must file annual and other call 
reports with the banking commissioner by certain due dates in the form and 
manner specified by the banking commissioner. 
As proposed, subsection (c) requires a trust company to file special call 
reports as may be requested by the banking commissioner to permit discharge of 
the banking commissioner's duties to monitor the safety and soundness of the 
trust company. The pr ovision may be invoked, for example, to more frequently 
monitor the affairs of a problem trust company or require a detailed report on a 
particular line of business of concern to the banking commissioner. 
As proposed, subsection (d) requires that all call reports and special call 
reports contain certain declarations and attestations, and subsection (e) 
specifies that call reports (but not special call reports) must be posted in the 
lobby of the trust c ompany at a location accessible to the public. Subsection 
(f) provides that the public portion of call reports filed with the banking 
commissioner are public information. Special call reports and the non-public 
portions of all other call reports are co nfidential. Finally, subsection (g) 
requires the filing of corrected call reports if significant errors are 
discovered and sets out the penalties for late filings, failures to file, and 
false or misleading filings. 
Everette Jobe, General Counsel, Texas Department of Banking, has determined that 
for the first five-year period the section is in effect, there will be no fiscal 
implication for state or local government as a result of enforcing or 
administering the s ection. 
Mr. Jobe also has determined that for each year of the first five years the 
section is in effect, the public benefit anticipated as a result of enforcing 
this section are the clarification of complex statutory standard to aid the 
industry in complianc e. No net economic cost will result to persons required to 
comply with the proposed section. No difference will exist between the cost of 
compliance for small businesses and the cost of compliance for the largest 
businesses affected by this section. 
Comments on the proposed section may be submitted in writing to Jerry Sanchez, 
Assistant General Counsel, Texas Department of Banking, 2601 North Lamar 
Boulevard, Austin, Texas 78705-4294, or by e-mail to 
jerry.sanchez@banking.state.tx.us. The new section is proposed under Texas Civil 
Statutes, Article 342a-2.003(b), which authorizes the commission to adopt rules 
to specify the form of the statement of condition and income, including 
specified confidential and public information to be i n the statement; require 
public information in the statement to be published at the times and in the 
publications and locations the finance commission determines; and require the 
statement to be filed with the banking commissioner at the intervals the finance 
commission determines. The new section is also proposed under Texas Civil 
Statutes, Article 342a-3.011(e) which authorizes the commission to adopt rules 
establishing procedures and requirements for obtaining, maintaining, or revoking 
an exemption. Also, the new section is proposed under Texas Civil Statutes, 
Article 342-1.003(a)(1), (a)(2), which authorizes the commission to adopt rules 
necessary or reasonable to implement and clarify Texas Civil Statutes, Article 
342a-1.001 et seq, and to prese rve the safety and soundness of trust companies.
Texas Civil Statutes, Article 342a-2.003, and Article 342a-3.011, are affected 
by the proposal. 

sec.17.23. Call Reports. 
(a) Call report. As used in this section, the term "call report" means a 
statement of condition and income and results of operations of a trust company 
as mandated by the banking commissioner pursuant to Texas Civil Statutes, 
Article 342a-2.003. 
(b) Reporting requirements of trust companies. Each trust company shall file 
annual call reports, on a calendar year basis, with the banking commissioner for 
the period ending on December 31 of the reporting year. Such call reports must 
be filed with the banking commissioner no later than January 31 of the 
subsequent year. Each trust company that transacts business with the public 
shall file three additional call reports annually with the banking commissioner. 
Such call reports must be filed with the banking commissioner no later than 
April 30, July 31, and October 31 of each year, and shall be for the periods 
ending on March 31, June 30, and September 30, respectively, of the annual 
reporting year. The call report forms, the instructions for com pleting the 
reports and the accompanying materials will be furnished by the banking 
commissioner to all trust companies subject to this subsection, or may be 
obtained upon request from the Texas Department of Banking, 2601 North Lamar 
Boulevard, Austin, Texas 78705-4294. The banking commissioner may make such 
modifications and additions to call report form and contents under this 
subsection as considered necessary in the discretionary discharge of the banking 
commissioner's duties. A trust company must submit all information requested on 
the call report form. 
(c) Special call reports. In addition to the requirements of subsections (b) of 
this section, the banking commissioner may require a trust company to file and 
submit a special call report, in such form and manner and containing such 
information as may be requested, on dates fixed, whenever in the banking 
commissioner's discretion the special call report is necessary in the 
performance of the banking commissioner's supervisory duties related to the 
safety and soundness of the trust company. Special ca ll reports must contain 
only such information as is specifically requested by the banking commissioner. 
(d) Call report declarations and attestations. Each call report or special call 
report required to be filed under subsections (b) and (c) of this section must 
contain a declaration by an executive officer, or by another officer designated 
by the board of directors of the trust company to make such declaration, that 
the report is true and correct to the best of such individual's knowledge and 
belief. The correctness of the call report or special call report must also be 
attested by the signatures of a t least two of the directors of the trust 
company other than the officer making the declaration. The declaration of the 
directors must state that the call report or special call report has been 
examined by them and is true and correct to the best of the ir knowledge and 
belief. 
(e) Lobby notice and publication. The latest call report filed with the banking 
commissioner pursuant to subsection (b) of this subsection or a Notice of Call 
Report Availability must be posted in the lobby of each trust company that 
transacts business with the public at a point accessible to the public. A trust 
company is not required to publish its call report in a newspaper or other media 
unless specifically directed to do so by the banking commissioner. A trust 
company required to publish its ca ll report by the banking commissioner shall 
publish the report in a newspaper or other medium of general circulation as 
directed by the banking commissioner. 
(f) Confidentiality. Pursuant to Texas Civil Statutes, Article 342a-2.101, call 
reports filed under subsection (b) of this section are public information to the 
extent that such reports are considered public records, and may be published or 
otherwise d isclosed to the public. Special call reports filed pursuant to 
subsection (c) of this section and non-public portions of call reports filed 
pursuant to subsection (b) of this section are confidential, subject only to 
such disclosure as may be permitted by Texas Civil Statutes, Article 342a-2.101 
et seq, or by sec.3.111 of this title (relating to Confidential Information). 
(g) Reports containing significant errors and penalties for failure to file or 
for filing a report with false or misleading information. A trust company that 
transacts business with the public which fails to make, file, or submit a call 
report or a spe cial call report or fails to timely file a call report or 
special call report as required by this section is subject to a penalty not 
exceeding $500 a day to be collected by the attorney general on behalf of the 
banking commissioner. Failure of a trust company that does not transact business 
with the public to make, file, or submit a call report or a special call report 
or fails to timely file a call report or special call report as required by this 
section is grounds for revocation of its exempt statu s. Any trust company which 
makes, files, submits or publishes a call report or special call report which 
contains a significant error, shall file a corrected call report within 20 days 
from the date of request. For purposes of this subsection, a signif icant error 
refers to any difference in the report of condition and/or supporting schedules 
equating to 5.0% or more of total assets, provided the amount is greater than 
$50,000, or any difference in the report of income and/or supporting schedules 
equat ing to 5.0% or more of total operating income, provided the amount is 
greater than $5,000. Any trust company which makes, files, submits or publishes 
a false or misleading call report or special call report is subject to an 
enforcement action pursuant t o Texas Civil Statutes, Article 342a-6.001 et seq. 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt. 
Filed with the Office of the Secretary of State, on 20, 1998.
TRD-9802562
Everette D. Jobe
General Counsel
Texas Department of Banking
Proposed date of adoption: April 24, 1998
For further information, please call: (512) 475-1300

CHAPTER 21.Trust Company Corporate Activities
SUBCHAPTER A.Fees and Other Provisions of General Applicability 
7 TAC sec.sec.21.4-21.8
The Finance Commission of Texas (the commission) proposes new sec.sec.21.4-21.8, 
regarding corporate application filings by trust companies, and sec.21.23, 
regarding withholding the identity of prospective officers.
Effective September 1, 1997, Texas Civil Statutes, Articles 342a-1.001 et seq, 
became the governing law for trust companies under the jurisdiction of the Texas 
Department of Banking (the department). New regulations implementing this law 
require proposal and adoption. As part of this process, rules are needed 
regarding filing and investigation fees and various corporate application 
filings applicable to trust companies. Proposed sec.sec.21.4-21.8 will comprise 
part of Subchapter A, entitled "Fees and Other Provisions of General 
Applicability." Proposed sec.21.23 will initially comprise all of Subchapter B, 
entitled "Trust Company Chartering and Powers." The proposed rules are drawn 
from existing banking rules in Chapter 15 that will continue to apply to trust 
companies until the new proposals are adopted and become effective. Proposed 
sec.21.4 pertains to information required for consideration of corporate filings 
made with the Texas Department of Banking, including time limits and abandoned 
filings. Proposed sec.21.4 is comparable to and drawn from existing sec.15.4. 
Proposed sec.21.5 pertains to publication of public notices required for certain 
corporate filings by trust companies, and is comparable to and drawn from 
existing sec.15.5. 
Proposed sec.21.6 concerns applications for trust company charters, including 
the contents of notices to applicants, application processing times, and 
appeals.
Proposed sec.21.6 is comparable to and drawn from existing sec.15.6. 
Proposed sec.21.7 permits the filing of reproductions of original documents by 
trust companies in lieu of original documents, provides for their treatment as 
original, and establishes limits regarding reproductions filed by telephonic 
document transmission. Proposed sec.21.7 is comparable to and drawn from 
existing sec.15.7. 
Proposed sec.21.8 specifies which corporate forms are to be filed with the 
banking commissioner and with the secretary of state, permits the utilization of 
modified versions of forms promulgated by the secretary of state if the banking 
commissioner has not promulgated forms, and specifies which corporate forms, 
inapplicable to trust companies, do not need to be filed with either the banking 
commissioner or the secretary of state. Proposed sec.21.8 is comparable to and 
drawn from existing sec.15.8. 
Proposed sec.21.23 permits applicants for trust company charters to withhold the 
identity of prospective officers until the banking commissioner issues a final 
order on the application, at which time the prospective officers' resumes must 
be submitted to the department for investigation. Proposed sec.21.23 is 
comparable to and drawn from existing sec.15.24. 
Everette Jobe, General Counsel, Texas Department of Banking, has determined that 
for the first five-year period the sections are in effect, there will be no 
fiscal implication for state or local government as a result of enforcing or 
administering the sections. 
Mr. Jobe also has determined that for each year of the first five years the 
sections are in effect, the public benefit anticipated as a result of enforcing 
these sections are the clarification of complex statutory standard to aid the 
industry in compliance. No net economic cost will result to persons required to 
comply with the proposed sections. No difference will exist between the cost of 
compliance for small businesses and the cost of compliance for the largest 
businesses affected by these sections. 
Comments on the proposed sections may be submitted in writing to Sharon 
Gillespie, Assistant General Counsel, Texas Department of Banking, 2601 North 
Lamar Boulevard, Austin, Texas 78705-4294, or by e-mail to 
sharon.gillespie@banking.state.tx.us. The new sections are proposed under Texas 
Civil Statutes, Articles 342a-1.003(a)(1), which authorizes the commission to 
adopt rules to implement and clarify Texas Civil Statutes, Articles 342a-1.001 
et seq. 
Texas Civil Statutes, Articles 342a-3.002, 342a-3.003, 342a-3.004, 342a-3.005, 
342a-3.006, 342a-3.008, 342a-3.012, 342a-3.101, 342a-3.102, 342a-3.103, 342a-
3.104, 342a-3.105, 342a-3.201, 342a-3.203, 342a-3.301, 342a-3.302, 342a-3.303, 
342a-3.401, 342a-3.402, 342a-3.405, 342a-3.501, 342a-4.002(a), 342a-4.107, 342a-
4.201, 342a-4.205, 342a-4.207, 342a-5.001(b), 342a-5.102, 342a-5.103, 342a-
5.201(a), 342a-6.202, 342a-7.101(a)(3), 342a-7.102, and 342a-7.105, are affected 
by the proposal. 

sec.21.4. Required Information and Abandoned Filings.
(a) Required information. The banking commissioner may investigate and evaluate 
facts related to a submitted filing or accepted filing to the extent necessary 
to reach an informed decision. The banking commissioner may require any person 
or entity connected with the matter to which the submitted or accepted filing 
pertains to submit additional information, including, but not limited to, an 
opinion of counsel with respect to a matter of law or an opinion, review or 
compilation prepared by a certified public accountant.
(b) Accepted for filing. On or before the 15th day after initial submission of 
an application, the banking commissioner shall issue a written notice informing 
the applicant either that all filing fees have been paid and the application is 
complete and accepted for filing, or that the application is deficient and 
specific additional information is required. 
(c) Time limit for providing required information. Unless otherwise provided for 
in Texas Civil Statutes, Articles 3421-1.001 et seq (the Trust Company Act), 
this chapter or rules and regulations adopted pursuant to the Trust Company Act, 
all required information necessary for the banking commissioner to declare that 
a submission is an accepted filing shall be provided to the department on or 
before the 61st day after the date of the initial submission of the filing. A 
person or entity may request an automatic 30-day extension of time to submit 
required information if the request is in writing and is received by the 
department prior to the end of the initial 60-day period provided for in this 
subsection. An additional extension may be requested in writing if such request 
is received prior to the expiration of the automatic extension. The additional 
extension shall be granted only if there is a finding of good and sufficient 
cause, in the banking commissioner's discretion, to grant an extension. Notice 
of the decision of the banking commissioner shall be mailed to the person or 
entity seeking the extension within ten days of the receipt of the request by 
the department. 
(d) Abandoned filing. The banking commissioner may determine any submitted or 
accepted filing to be abandoned, without prejudice to the right to refile, if 
the information required by the Trust Company Act, this chapter, or any rule or 
regulation adopted pursuant to the Trust Company Act, or additional requested 
information, is not furnished within the time period specified by subsection (c) 
of this section or as requested by the banking commissioner in writing to the 
person or entity making the submission. The banking commissioner may determine a 
submitted or accepted filing for which fees required by the Trust Company Act or 
by this chapter are not paid within 30 days of receipt of the initial submission 
to be abandoned. 
(e) Notice. The banking commissioner shall give written notice of any submitted 
or accepted filing considered to be abandoned. Notice of abandonment shall be 
effective upon mailing by the department. Fees paid related to an abandoned 
filing are nonrefundable. 

sec.21.5. Public Notice. 
(a) General. A person or entity required or authorized to file public notice in 
connection with a trust company notice or application, including a person or 
entity requesting authorization for a merger, purchase of assets, or another 
application requiring public notice, shall publish notice in a newspaper of 
general circulation in its specified community and in such other locations as 
may be required by the banking commissioner. 
(b) Contents. The public notice must state that a filing is being made; the date 
(or expected date) of the filing; sufficient information describing the proposed 
transaction, and other related information required by Texas Civil Statutes, 
Articles 342a-1.001 et seq (the Trust Company Act), this chapter or rules and 
regulations adopted pursuant to the Trust Company Act, and any other information 
as may required by the banking commissioner. In addition, the notice must 
include substantially the following text as a separately stated paragraph: "Any 
person wishing to comment on this application, either for or against, may file 
written comments with the Texas Department of Banking, 2601 North Lamar 
Boulevard, Austin, Texas 78705-4294 on or before the 14th day after the date of 
this publication. Such comments will be made a part of the record before and 
considered by the banking commissioner. Any person wishing to formally protest 
and oppose (describe type of application in general terms) and participate in 
the application process may do so by filing a written notice of protest with the 
Texas Department of Banking on or before the 14th calendar day after the date of 
this publication accompanied by a protest filing fee of $2,500. The protest fee 
may be reduced or waived by the banking commissioner upon a showing of 
substantial hardship." 
(c) Publisher's affidavit. A person or entity required to file public notice 
under this section shall file with the banking commissioner a copy of the notice 
and a publisher's affidavit attesting to the date of publication. 
(d) One publication sufficient. Unless otherwise required by the Trust Company 
Act or rules and regulations adopted pursuant to the Trust Company Act, one 
public notice publication per submitted or accepted filing in each community 
specified by the ban king commissioner is sufficient if in substantial 
compliance with this section and chapter and with the Trust Company Act, as 
determined by the banking commissioner. The banking commissioner reserves the 
right to require additional publication based on a determination that a 
particular publication is insufficient or is otherwise not in compliance.
(e) Other acceptable public notice. The banking commissioner may determine that 
public notice required by another regulatory agency of a trust company satisfies 
the public notice requirements of this section. For example, if a trust company 
converts, merges, or organizes into a financial institution that is no longer 
regulated by the banking commissioner and the banking commissioner determines 
that public notice requirements imposed by the successor regulatory authority 
satisfy the notice requirements of the Trust Company Act and this section, the 
banking commissioner may permit the notice required by the successor regulatory 
authority to serve as notice under this section.

sec.21.6. Applications for Trust Charter: Notices to Applicants; Application 
Processing Times; Appeals.
(a) Form of application. An application to engage in a business under Texas 
Civil Statutes, Article 342a-3.003, must be filed on a form prescribed by the 
banking commissioner. 
(b) Notice to applicant. The banking commissioner shall issue a written notice 
as required by sec.21.4 of this title (relating to Required Information and 
Abandoned Filings) informing the applicant either that all filing fees have been 
paid and the application is complete and accepted for filing, or that the 
application is deficient and specific additional information is required. 
(c) Action on applications. The banking commissioner shall approve or deny an 
application for a trust company charter on or before the 180th day after the 
date the application is accepted for filing, unless extended by written 
agreement between the applicant and the banking commissioner; provided that, if 
the application is protested, the banking commissioner shall convene a hearing 
on or before the 90th day after the date the protest is received and shall 
render a decision in accordance with Chapter 9 of this title (relating to Rules 
of Procedure for Contested Case Hearings, Appeals, and Rulemakings).
(d) Violation of processing times. If an application is not protested or a 
hearing is not convened, an applicant may appeal directly to the banking 
commissioner for a timely resolution of a dispute arising from a violation of a 
processing period set forth in this section. An applicant may appeal by filing a 
written request with the banking commissioner on or before the 30th day after 
the date the decision is made on the application, requesting review by the 
banking commissioner to determine whether the established period for the 
granting or denying of the application has been exceeded. The decision on the 
appeal shall be based on the written appeal filed by the applicant, any response 
by the department, and any agreements between the parties. The banking 
commissioner may convene a hearing to take evidence on the matter. 
(e) Decision on appeal. The banking commissioner shall decide the appeal in the 
applicant's favor if the banking commissioner determines that the time periods 
established in this section have been exceeded and the department has failed to 
establish goo d cause for the delay. The banking commissioner shall issue a 
written decision to the applicant on or before the 60th day after the filing of 
an appeal. If an appeal is decided in an applicant's favor, the department will 
reimburse the application fee paid by the applicant. A decision in favor of the 
applicant under this subsection does not affect a decision to grant or deny the 
application based on applicable substantive law without regard to whether the 
application was timely processed.

sec.21.7.Submission of Reproductions.
(a) Scope. This section governs submission of specified forms of copies of 
original documents to the Texas Department of Banking (the department) for 
processing by the corporate activities division of the department pursuant to 
this chapter, and does not permit, prohibit, or affect correspondence with or 
documents submitted to the department for another purpose, including: 
(1) applications submitted to the special audits division of the department; and 
(2) documents submitted to the department as required or permitted by Government 
Code, Chapter 2001, and chapter 9 of this title (relating to Rules of Procedure 
for Contested Case Hearings, Appeals, and Rulemaking). 
(b) Reproduction. For purposes of this section, the term reproduction means a 
photographic or photostatic copy or similar reproduction of an original document 
that is submitted to the department by mail, hand delivery, or telephonic 
document transmission to the telecopier machine specified by the department.
(c) Filings. Subject to the length limitations of subsection
(d) of this section, a document required or authorized to be filed with the 
department may be a reproduction, including an application or a supplement to or 
substitution for a portion of a previously filed and accepted application. 
Receipt of a reproduction by the department is not equivalent to accepted for 
filing. 
(d) Page limitations. A reproduction submitted by telephonic document 
transmission to the department's telecopier machine may not exceed 25 pages in 
total length, including the transmittal document required by subsection (e) of 
this section, or it will be rejected for filing. The transmission of portions of 
any particular filing at different times is treated as one reproduction for 
purposes of this subsection. 
(e) Transmittal document. A cover sheet or transmittal document must accompany 
every reproduction submitted under this section and must: 
(1) clearly identify the sender by name, address, and phone number, the 
documents being delivered or transmitted, and the number of pages in the 
submission; 
(2) contain clear and concise instructions concerning the sender's request with 
respect to the submission; and 
(3) contain complete and accurate information regarding the payment of required 
filing fees, if any. 
(f) Time of receipt. To be considered received by the department, a reproduction 
must be in clearly legible form. The date the submission is actually received by 
the department or the date and time imprinted by the department's telecopier on 
the last page of a reproduction submitted by telephonic document transfer will 
determine the time of receipt, provided that a reproduction received after 4:30 
p.m. is considered received at 8:00 a.m. on the next business day. A 
reproduction will not be considered received until the department receives the 
entire document and the required filing fee, if any. 
(g) Equivalent of original. For all purposes attendant to filing, a reproduction 
of a document filed with the department under this section, including 
reproduction of signatures thereon, is considered an original document.

sec.21.8.Corporate Filings.
(a) In accordance with the applicable provisions of Texas Civil Statutes, 
Articles 342a-1.001 et seq (the Trust Company Act), the following corporate 
forms regarding a trust company, along with the applicable filing fees, must be 
filed with the banking commissioner: 
(1) articles of correction as authorized by Texas Civil Statutes, Article 1302-
7.02; 
(2) articles of amendment under Texas Civil Statutes, Article 342a-3.101; 
(3) restated articles of association under the Texas Civil Statutes, Article 
342a-3.101; 
(4) restated articles of association with amendments under Texas Civil Statutes, 
Article 342a-3.101; 
(5) articles of merger under Texas Civil Statutes, Articles 342a-3.301 et seq, 
as supplemented by the Texas Business Corporation Act (TBCA), Article 5.04; 
(6) articles of share exchange under TBCA, Article 5.02;
(7) statements regarding delayed effective condition under TBCA, Article 10.03; 
(8) establishment of a series of shares by the board of directors under Texas 
Civil Statutes, Article 342a-3.101; 
(9) statement regarding a restriction on the transfer of shares under TBCA, 
Article 2.22(E); 
(10) statement of cancellation of redeemable shares under TBCA, Article 4.10(B); 
(11) statement of cancellation of treasury shares under TBCA, Article 4.11; 
(12) statement regarding the reduction of capital and surplus under TBCA, 
Article 4.12; and 
(13) abandonment of a merger or share exchange prior to its effective date under 
TBCA, Article 5.03(I). 
(b) For purposes of corporate filings with the banking commissioner under 
subsection (a) of this section, trust companies may utilize a modified version 
of forms promulgated by the secretary of state if the banking commissioner or 
the finance commission has not promulgated an appropriate corporate form; 
however, the banking commissioner may require the submission of additional 
information. The modified corporate forms must: 
(1) specifically reference the applicable provisions of the Trust Company Act; 
(2) change references from "corporation" to "association;" and 
(3) change the references to "stated capital" and similar terms defined in the 
TBCA to an appropriate reference to terms defined in the Trust Company Act. 
(c) In accordance with the applicable provisions of the TBCA, a trust company 
may file the following corporate forms with the secretary of state as instructed 
in the TBCA: 
(1) name registrations under TBCA, Article 2.07; and 
(2) assumed name certificates under TBCA, Article 2.05.
(d) The following corporate forms are inapplicable to trust companies and are 
not required to be filed by a trust company with either the secretary of state 
or the banking commissioner: 
(1) changes of registered office or agent under TBCA, Article 2.10 or Article 
2.10-1; 
(2) name reservations under TBCA, Article 2.06; 
(3) applications for reinstatement under TBCA, Article 10.01; 
(4) articles of dissolution under TBCA, Article 6.06; and 
(5) revocation of dissolution under TBCA, Article 6.05.
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State, on 20, 1998.
TRD-9802558
Everette D. Jobe
General Counsel
Texas Department of Banking
Proposed date of adoption: April 24, 1998
For further information, please call: (512) 475-1300

SUBCHAPTER B.Trust Company Chartering and Powers
7 TAC sec.21.23
The section is proposed under Texas Civil Statutes, Articles 342a-1.003(a)(1), 
which authorize the commission to adopt rules to implement and clarify Texas 
Civil Statutes, Articles 342a-1.001 et seq.
Texas Civil Statutes, Articles 342a-3.002, 342a-3.003, 342a-3.004, 342a-3.005, 
and 342a-3.006 are affected by the proposal.

sec.21.23. Option to Withhold Identity of Officers. 
An applicant for a trust company charter may, at its option, withhold the 
identity of prospective officers until such time as the banking commissioner 
issues a final order on the application. Approval of the application will be 
conditional upon the applicant's submitting resumes of qualified proposed 
officers to the banking commissioner. Upon receipt of the resumes, the banking 
commissioner shall review and investigate the qualification of the proposed 
officers and deliver the certificate of authority pursuant to Texas Civil 
Statutes, Article 342a-3.006, if the banking commissioner finds that the 
proposed officers meet the requirements of Texas Civil Statutes, Article 342a-
3.003(b)(4). 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt. 
Filed with the Office of the Secretary of State, on 20, 1998.
TRD-9802557
Everette D. Jobe
General Counsel
Texas Department of Banking
Proposed date of adoption: April 24, 1998
For further information, please call: (512) 475-1300

PART IV. Texas Savings and Loan Department
CHAPTER 79.Miscellaneous
SUBCHAPTER F.Fees and Charges
7 TAC sec.sec.79.109, 79.110
The Finance Commission of Texas proposes new 7 TAC sec.79.109 and sec.79.110 
regarding filing fees for applications received by the Department relating to 
charter, branch, merger, change of control, subsidiary corporations and other 
activities and investments requiring approval by the Savings and Loan 
Commissioner. 
Proposed sec.79.109 establishes a fee for protest of an application received by 
the Department. Administrative costs to process an application increase 
dramatically when a protest is filed. In such cases, a hearing is required to 
provide the protestant with the opportunity to present testimony supporting the 
protest. Costs are incurred by the Department such as administrative law judge 
fees and other administrative costs that would be unnecessary absent the 
protest. While the provisions of 7 TAC sec.9.15 authorize the administrative law 
judge to allocate hearing costs among the parties in a contested case, 
protestants are frequently beyond the jurisdiction of the Department and 
recovery of these funds without litigation can be difficult. The proposed fee 
amount is identical to that charged by the Department of Banking and provides 
greater assurance of collection of these costs from the protestant. 
Under the proposed rule, a member of the general public who is not considered a 
party may be allowed to testify without paying the protest fee. 
Proposed sec.79.110 concerns the nonrefundability of filing fees and discretion 
of the Commissioner to waive or reduce such fees. This rule is also identical to 
a Department of Banking rule on filing fees. It codifies Department policy on 
the nonrefundability of filing fees but also introduces some flexibility in 
applying filing fees in a way that fits the circumstances. For example, some 
transactions trigger multiple applications under the Department's rules. Such 
multiple applications may be combined at the Commissioner's discretion into a 
single application for simplicity and ease of processing. In such cases, 
information otherwise required for separate applications can be combined and 
requires less analytical work and processing time by Department staff. This 
often occurs in applications for merger or consolidation when multi-level 
mergers are required, in tax free reorganizations to form a holding company, for 
multi-tiered subsidiary acquisitions involving formation of a shell subsidiary 
corporation to acquire and own a joint venture, trust or limited partnership, 
etc. Current rules would require a separate fee for each element of an 
application of this type. 
The proposed rule permits discretion to the Commissioner to waive or reduce a 
filing fee if he finds appropriate justification. 
James L. Pledger, Savings and Loan Commissioner, has determined that for the 
first five year period the amended sections as proposed will be in effect, there 
will be no fiscal implications for state and local government as a result of 
enforcing or administering these sections. Mr. Pledger estimates that, for the 
first five years the proposed section is in effect, no economic costs will 
affect regulated entities as a result of complying with the proposed section. No 
difference will exist between the cost of compliance for small businesses and 
the cost of compliance for the largest businesses affected by these sections. 
As required by the Act, sec.1.012(b), in proposing these amendments, the 
commission considered the need to promote a stable banking environment, provide 
the public with convenient, safe, and competitive banking services, preserve and 
promote the competitive parity of state savings banks with federal savings banks 
and other depository institutions in this state consistent with the safety and 
soundness of state savings banks and the state thrift system, and allow for 
economic development within this state. 
Comments on the proposed sections may be submitted in writing to James L. 
Pledger, Commissioner, Savings and Loan Department, 2601 North Lamar Boulevard, 
Suite 201, Austin, Texas 78705-4294, or e-mailed to 
TSLD@mail.capnet.state.tx.us.
The sections are amended under Finance Code,sec.11.302, which requires the 
commission to adopt rules regarding enforcement and implementation of Subtitle C 
of the Finance Code. 
Subtitle C of the Finance Code, Vernon's Texas Annotated Civil Statutes, is 
affected by the new sections. 

sec.79.109.Fee for Protest Filing.
(a) A person or entity filing a protest to an application shall pay a fee of 
$2,500 simultaneously with such protest filing. The purpose of this fee is to 
partially offset the department's increased cost of processing an application 
and reduce costs incurred by the applicant that result solely from the protest. 
(b) Additionally, the Administrative Law Judge for a contested hearing may 
allocate costs incurred by the department to the parties pursuant sec.79.72. In 
such cases, the fee paid pursuant to paragraph (a) shall be applied toward 
payment of the protestant's allocation of hearing costs; however, no amount will 
be refunded and any additional amounts will be billed. 
(c) Notwithstanding the provisions of (a), a member of the general public 
allowed to testify under oath or affirmation in a contested case, who is not 
deemed a party by the Administrative Law Judge under the provisions incorporated 
by sec.79.72 is not subject to this fee. 

sec.79.110.Fees Nonrefundable. 
All filing fees must be paid at the time of filing and are nonrefundable. Except 
for fees established by statute, the Commissioner may exercise discretion to 
reduce or waive any filing fee and shall charge fees on a consistent and 
nondiscriminatory basis. 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt. 
Filed with the Office of the Secretary of State, on February 20, 1998.
TRD-9802575
James L. Pledger
Commissioner
Texas Savings and Loan Department
Earliest possible date of adoption: April 5, 1998
For further information, please call: (512) 475-1350

TITLE 22. EXAMINING BOARDS
PART VIII. Texas Appraiser Licensing and Certification Board
CHAPTER 153. Provisions of the Texas Appraiser Licensing and Certification Act
22 TAC sec.sec.153.1, 153.8, 153.13, 153.18
The Texas Appraiser Licensing and Certification Board proposes amendments to 
sec.sec.153.1, 153.13, and 153.18 and new sec.153.8, concerning provisions of 
the Texas Appraiser Licensing and Certification Act. 
Section 153.1 is being amended to incorporate new definitions for terms which 
are used in other sections being concurrently proposed. The new definitions 
should help eliminate confusion and misunderstandings about the meanings of the 
terms. 
Section 153.13 is being amended to: eliminate unnecessary and dated language; 
increase the number of hours of fundamental real estate appraisal courses as 
part of the unchanged total educational requirements; require that courses 
specifically must be approved by the board to be acceptable; provide that the 
board will accept only those Uniform Standards of Professional Practice (USPAP) 
courses which have been completed within two years of application submission; 
and add language similar to the Appraisal Qualifications Board (AQB) criteria 
and interpretations for distance education (formerly called correspondence 
courses). 
Section 153.18 is being amended to: require a seven-hour USPAP course each 
renewal rather than every other renewal; restructure the appraiser trainee 
renewal education; and add language similar to the AQB criteria and 
interpretations for distance education (formerly called correspondence courses).
New sec.153.8 is being proposed to add the scope of practice as adopted by the 
AQB criteria and interpretations, to assist Texas licensees in determining what 
types of real property they may appraise with various classifications of 
certifications and licenses. 
Renil C. Liner, Commissioner, Texas Appraiser Licensing and Certification Board, 
has determined that for the first five-year period the sections are in effect 
there will be no fiscal implications for state or local government. Mr. Liner 
also has determined that for each year of the first five years the sections are 
in effect the public benefit anticipated as a result of enforcing the sections 
will be the incorporation of new definitions; elimination of unnecessary and 
dated language; increased hours for fundamental real estate appraisal courses 
and added language similar to the AQB criteria and interpretations for distance 
education (formerly called correspondence courses). There will be no effect on 
small businesses. There is no anticipated economic cost to persons who are 
required to comply with the sections as proposed. 
Comments on the proposal may be submitted Renil C. Liner, Commissioner, Texas 
Appraiser Licensing and Certification Board, P.O. Box 12188 Austin, Texas 78711-
2188. 
The amendments and new section are proposed under the Powers and Duties of the 
Board, Texas Appraiser Licensing and Certification Act, sec.5, (a) (1), (2), 
(3), and (7) (Texas Civil Statutes, Article 6573a.2), and sec.14(c), Certificate 
and License Renewal. 
Section 9, Licensing and Certification Requirements; sec.9A , Alternate Methods 
of Licensing; sec.14, Certificate and Licence Renewal, and sec.17, Appraiser 
Trainees are affected by the proposal. 

sec.153.1. Definitions. 
The following words and terms, when used in this <nl> chapter<ol> [section], 
shall have the following meanings, unless the context clearly indicates 
otherwise. 
<nl>(1)<ol> Act - The Texas Appraiser Licensing and Certification Act. 
<nl>(2)<ol> Analysis - The act or process of providing information, 
recommendations, or conclusions on diversified problems in real estate other 
than estimating value. 
<nl>(3)<ol> Applicant - A person seeking to be certified or licensed as an 
appraiser or approved as an appraiser trainee. 
<nl>(4)<ol> Appraisal - The act or process of estimating value or an estimate of 
value. 
<nl>(5)<ol> Appraisal Standards Board - The Appraisal Standards Board (ASB) of 
the Appraisal Foundation or its successor. 
<nl>(6)<ol> Appraisal Subcommittee - The Appraisal Subcommittee of the Federal 
Financial Institutions Examination Council or its successor. 
<nl>(7)<ol> Appraiser Qualifications Board - The Appraiser Qualifications Board 
(AQB) of the Appraisal Foundation or its successor. 
<nl>(8)<ol> Appraiser trainee - A person approved by the Texas Appraiser 
Licensing and Certification Board to perform appraisals or appraiser services 
under the direction of a sponsoring certified appraiser.
<nl>(9)<ol> Board - The Texas Appraiser Licensing and Certification Board. 
<nl>(10)<ol> Classroom hour - Fifty minutes of actual classroom session time. 
<nl>(11)<ol> Client - Any party for whom an appraiser performs a service. 
<nl>(12)<ol> College - A junior or community college, senior college, 
university, or any other postsecondary educational institution established by 
the Texas Legislature, which is accredited by the Commission on Colleges of the 
Southern Association of Colleges and Schools or like commissions of other 
regional accrediting associations, or is a candidate for such accreditation.
<nl>(13)<ol> Commissioner - The commissioner of the Texas Appraiser Licensing 
and Certification Board. 
<nl>(14)<ol> Complete appraisal - An appraisal performed without invoking the 
departure provision. 
<nl>(15)<ol> Core real estate courses - Courses which are specified in the Real 
Estate Licensing Act, sec.7(a) (Texas Civil Statutes, Article 6573.a), of which 
the Texas Appraiser Licensing and Certification Board (TALCB) will accept 
principles of real estate, real estate appraisal, real estate law, real estate 
finance, real estate math, property management, and real estate investments for 
partially meeting the educational requirements for appraiser certification or 
licensure. 
<nl>(16)<ol> Council - The Federal Financial Institutions Examination Council 
(FFIEC) or its successor. 
<nl>(17)<ol> Departure provision - A limited departure from a requirement of the 
Uniform Standards of Professional Appraisal Practice that is: classified as a 
specific guideline rather than a binding requirement, and permitted only if the 
result of the departure is not confusing or misleading and the specific 
guideline from which the appraiser departs is reported.
<nl>(18)<ol> Distance education - Any educational process based on the 
geographical separation of learner and instructor (e.g., CD-ROM, online 
learning, correspondence courses, video conferencing, etc.), that provides 
interaction between the learner and instructor and includes testing. 
<nl>(19)<ol> Evaluation - An estimate of value that is not more than a limited 
appraisal, may be presented in a format that is less than a self-contained 
report, is prepared by a certified or licensed real estate appraiser or other 
lawfully authorized real estate professional, and includes an estimate of a 
property's market value, a certification and limiting conditions, and an 
analysis or the supporting information used in forming the estimate of value. 
<nl>(20)<ol> Feasibility analysis - A study of the cost-benefit relationship of 
an economic endeavor. 
<nl>(21)<ol> Federal financial institution regulatory agency - The board of 
governors of the Federal Reserve System, the Federal Deposit Insurance 
Corporation, the Office of the Comptroller of the Currency, the Office of Thrift 
Supervision, the National Credit Union Administration, or the successors of any 
of those agencies. 
<nl>(22)<ol> Federally related transaction - Any real estate-related transaction 
engaged in, contracted for, or regulated by a federal financial institution 
regulatory agency or the Resolution Trust Corporation that requires the services 
of an appraiser. 
<nl>(23)<ol> Foundation - The Appraisal Foundation or its successor. 
<nl>(24)<ol> Fundamental real estate appraisal course - Basic real estate 
appraisal courses which include the following topics, but are not limited to, 
principles of real estate appraisal, real estate appraisal practice, real estate 
appraisal procedures, highest and best use, report writing, rural appraisal, 
appraisal review, residential appraisal/valuation, agricultural property 
appraisal, sales comparison approach, cost approach, income capitalization, 
discounted cash flow analysis. real estate appraisal case studies, commercial 
appraisal, non-residential real estate appraisal, and other courses specifically 
determined by the board. 
<nl>(25)<ol> Limited appraisal - An appraisal in which the departure provision 
is invoked. 
<nl>(26)<ol> Non-residential course - A course with emphasis on the appraisal of 
non-residential real estate properties which include, but are not limited to, 
income capitalization, income property, commercial appraisal, rural appraisal, 
agricultural property appraisal, discounted cash flow analysis, subdivision 
analysis and valuation, or other courses specifically determined by the board. 
<nl>(27)<ol> Nonresidential property - A property which does not conform to the 
definition of residential property. 
<nl>(28)<ol> Person - An individual. 
<nl>(29)<ol> Personal property - Identifiable portable and tangible objects 
which are considered by the general public as being "personal," for example, 
furnishings, artwork, antiques, gems and jewelry collectibles, machinery and 
equipment. 
<nl>(30)<ol> Provisional license - A license issued under the Texas Appraiser 
Licensing and Certification Act, sec.9A, and sec.153.16 of this title (relating 
to Provisional License), to individuals who have met the educational and 
examination requirements for licensing but who have not met the experience 
requirements. 
<nl>(31)<ol> Real estate - An identified parcel or tract of land, including 
improvements, if any. 
<nl>(32)<ol> Real estate-related financial transaction - Any transaction 
involving: the sale, lease, purchase, investment in, or exchange of real 
property, including an interest in property or the financing of property; the 
financing of real property or an interest in real property; or the use of real 
property or an interest in real property as security for a loan or investment 
including a mortgage-backed security. 
<nl>(33)<ol> Real property - The interests, benefits, and rights inherent in the 
ownership of real estate. 
<nl>(34)<ol> Report - Any communication, written or oral, of an appraisal, 
review, or analysis; the document that is transmitted to the client upon 
completion of an assignment. 
<nl>(35)<ol> Residential property - Property that consists of at least one but 
not more than four residential units. 
<nl>(36)<ol> Review - The act or process of critically studying a report 
prepared by another. 
<nl>(37)<ol> Self-contained report - A report that includes sufficient 
information to indicate that the appraiser has complied with the requirements of 
Standards 1 and 2 of the Uniform Standards of Professional Appraisal Practice 
and that describes all data necessary for the user of the appraisal to follow 
the conclusions of the appraisal without referring to additional materials. 
<nl>(38)<ol> State certified real estate appraiser - A person certified under 
the Texas Appraiser Licensing and Certification Act. 
<nl>(39)<ol> State licensed real estate appraiser - A person licensed under the 
Texas Appraiser Licensing and Certification Act. <nl> <ol>

sec.153.8. Scope of Practice.
(a) Certified General Real Estate Appraisers: 
(1) may appraise of all types of real property without regard to transaction 
value or complexity; and 
(2) are bound by the Competency Provision and all other provisions of the 
Uniform Standards of Professional Appraisal Practice (USPAP) in effect at the 
time of the appraisal. 
(b) Certified Residential Real Estate Appraisers: 
(1) may appraise one-to-four residential units without regard to transaction 
value or complexity; 
(2) may appraise vacant or unimproved land that is utilized for one-to-four 
family purposes or for which the highest and best use is for one-to-four family 
purposes; 
(3) may not appraise subdivisions for which a development analysis/appraisal is 
necessary; 
(4) may appraise other properties as permitted by the Federal Financial 
Institutions Regulatory Agencies; and 
(5) are bound by the Competency Provision and all other provisions of the USPAP 
in effect at the time of the appraisal. 
(c) State Licensed Real Estate Appraisers: 
(1) may appraise non-complex one-to-four residential units having a transaction 
value less than $1 million and complex one-to-four residential units having a 
transaction value less than $250,000; 
(2) may appraise vacant or unimproved land that is utilized for one-to-four 
family purposes or for which the highest and best use is for one to four family 
purposes; 
(3) may not appraise subdivisions for which a development analysis/appraisal is 
necessary; 
(4) may appraise other properties as permitted by the Federal Financial 
Institutions Regulatory Agencies; and 
(5) are bound by the Competency Provision and all other provisions of the USPAP 
in effect at the time of the appraisal. 
(d) Provisional Licensed Real Estate Appraisers: 
(1) may appraise the same types of properties as a State Licensed Real Estate 
Appraiser; and 
(2) are bound by the Competency Provision and all other provisions of the USPAP 
in effect at the time of the appraisal. 
(e) Appraiser Trainees: 
(1) may appraise those properties which the supervising certified appraiser 
sponsor is permitted to appraise; and 
(2) shall be subject to the USPAP in effect at the time of the appraisal. 
(f) The scope of practice identified in subsections (a) - (e) of this section 
represents the consensus of the Appraiser Qualifications Board of the Appraisal 
Foundation. The Federal Financial Institutions Regulatory Agencies, as well as 
other agencies and regulatory bodies may permit licensed and certified 
appraisers to appraise properties other than those identified. Individuals 
should refer to federal agency regulations to determine the type of property 
that may be appraised. 

sec.153.13. Educational Requirements.
(a) General Real Estate Appraiser Certification. 
(1) Applicants for General Real Estate Appraiser Certification must have 
successfully completed [165 (] 180 [, effective January 1, 1998)] classroom 
hours in courses approved by the board which meet the requirements as set out in 
subsections (d)-(n) of this section.
(2) Of these [165 (] 180 [, effective January 1, 1998)] classroom hours, at 
least <nl>90<ol> [30] classroom hours must be in fundamental real estate 
appraisal courses <nl> specifically approved by the board,<ol> and at least 15 
classroom hours must be in a class devoted to the Uniform Standards of 
Professional Appraisal Practice <nl>completed within two years prior to 
submission of the application. At least 30 classroom hours of the fundamental 
real estate appraisal course requirement must be in courses with emphasis on the 
appraisal of non-residential real estate properties.<ol> 
(b) Residential Real Estate Appraiser Certification. 
(1) (No change.) 
(2) Of these 120 classroom hours, at least <nl>60<ol> [30] classroom hours must 
be in fundamental real estate appraisal courses <nl>specifically approved by the 
board,<ol> and at least 15 classroom hours must be in a class devoted to the 
Uniform Standards of Professional Appraisal Practice <nl>completed within two 
years prior to submission of the application.<ol> 
(c) Real Estate Appraiser License or Provisional License.
(1) Applicants for a Real Estate Appraiser License or Provisional License must 
have successfully completed [75 )] 90 [, effective January 1, 1998)] classroom 
hours in courses approved by the board which meet the requirements as set out in 
subsections (d)- <nl> (n)<ol> [(p)] of this section. 
(2) Of these [75 (] 90 [, effective January 1, 1998)] classroom hours, at least 
<nl>40<ol> [30] classroom hours must be in fundamental real estate appraisal 
courses <nl>specifically approved by the board,<ol> and at least 15 classroom 
hours must be in a class devoted to the Uniform Standards of Professional 
Appraisal Practice <nl> completed within two years prior to submission of the 
application.<ol>
(d)-(g) (No change.) 
(h) Course providers may obtain prior approval of a course by filing form TALCB 
5.0<nl>, or its successor,<ol> and submitting the following items <nl>listed in 
paragraphs (1)-(3) of this subsection<ol> to the board: 
(1)-(3) (No change.) 
(i) (No change.) 
(j) Teachers of appraisal courses may receive credit for <nl> meeting the 
educational<ol> [either] classroom hours <nl>requirement. <ol> [or experience, 
but not for both. After January 1, 1998, teaching] <nl>Teaching<ol> of appraisal 
courses <nl>is not<ol> [will not be] acceptable for meeting the experience 
requirement. Applicants must provide documentation as requested by the board to 
establish credit for teaching appraisal courses. Education credit for teaching a 
particular course may be claimed only once in each three year period.
(k) <nl>Distance education<ol> [Correspondence] courses may be acceptable <nl>to 
meet the classroom hour requirement, or its equivalent, provided that the course 
is approved by the board and meets one of <ol> [in] the following 
conditions<nl>listed in paragraphs (1)-(3) of this subsection.<ol> [:] 
(1) The course must have been presented by an accredited college or university 
<nl>that<ol> [which] offers <nl>distance education <ol> [correspondence] 
programs in other disciplines<nl>, and: <ol> [;] 
<nl>(A)<ol> [(2)] <nl>the person<ol> [an individual] has successfully completed 
a written examination administered to <nl>the<ol> positively identified 
<nl>person<ol> [examinees] at a location and by an official approved by the 
college or university; <nl> and<ol> 
<nl>(B)<ol> [(3)] the content and length of the course must meet the 
requirements for real estate appraisal related courses established by 
<nl>this<ol> [the] chapter and by the Appraiser Qualifications Board of the 
Appraisal Foundation[;] and <nl> is equivalent to a minimum of 15 classroom 
hours.<ol> 
<nl> (2)<ol> [(4)] <nl>The course <ol> [a correspondence course also may be 
acceptable provided the course] has received the American Council on Education's 
Program on Non-collegiate Sponsored Instructions (PONSI) approval for college 
credit<nl>, or has been approved under the AQB Course Approval program: and<ol>
<nl>(A)<ol> the person successfully completes a written examination proctored by 
an official approved by the presenting entity; 
<nl>(B)<ol> the course meets the requirements for qualifying education 
established by the Appraiser Qualifications Board and is equivalent to the 
minimum of 15 classroom hours. 
<nl>(3)<ol> A minimum time equal to the number of hours of credit must elapse 
from the date of course enrollment until its completion. 
(l)-(n) (No change.) 

sec.153.18. Appraiser Continuing Education. 
(a) Renewing a Certification or License. An appraiser must successfully complete 
the equivalent of at least [20 (] 28 [, effective January 1, 1998)] classroom 
hours of appraiser continuing education (ACE) courses approved by the board 
during the two year period preceding the expiration of the certification or 
license. <nl>Renewals due after January 1, 1999, shall include a minimum of 
seven classroom hours devoted to the Uniform Standards of Professional Practice 
(USPAP).<ol> The courses must comply with the requirements set out in subsection 
(d) of this section. 
(b) Renewing an Appraiser Trainee <nl>Authorization<ol> [Approval]. As a 
condition for renewing an appraiser trainee <nl> authorization<ol> [approval], a 
trainee must successfully complete [the following] educational courses 
<nl>during the one-year period preceding the expiration of the appraiser trainee 
authorization being renewed. <ol> [which meet requirements for application for 
licensing and certification during the two year period preceding the expiration 
of the appraiser trainee approval being renewed.] The courses must comply with 
the requirements <nl> for application for licensing and certification<ol> set 
out in <nl>sec.153.13 (e) - (n) of this title (relating to Educational 
Requirements) <ol> [subsection (d) of this section.]<nl>:<ol> 
(1) for the first annual renewal, 15 classroom hours devoted to the 
<nl>USPAP<ol> [Uniform Standards of Professional Appraisal Practice (USPAP)] 
<nl>which shall include the successful completion of an examination;<ol> 
(2) for the <nl>subsequent<ol> [third] annual <nl>renewals<ol> , [renewal] 30 
classroom hours of <nl> fundamental<ol> [actual] real estate appraisal courses 
<nl> specifically approved by the board;<ol> 
(3) <nl>Beginning with the third annual renewal, every other annual renewal 
(third, fifth, seventh, etc.) must include a minimum of 7 classroom hours 
devoted to the USPAP as part of the 30 classroom hours. <ol> [for the fifth 
annual renewal, 30 classroom hours of actual real estate appraisal or appraisal 
related courses;] 
[(4) for the sixth annual renewal, 15 classroom hours devoted to the USPAP; and 
[(5) for each annual renewal thereafter, 30 classroom hours of actual real 
estate appraisal or appraisal related courses.] 
(c) (No change.) 
(d) In approving <nl>ACE<ol> [appraiser continuing education (ACE)] courses, the 
board shall base its review and approval of appraiser continuing education 
courses upon the then current appraiser qualification criteria of the Appraiser 
Qualifications Board (AQB). 
(1) (No change.) 
(2) The following types of educational offerings may be accepted for meeting the 
ACE requirements <nl>listed in subparagraphs (A)-(L) of this paragraph<ol>:
(A)-(C) (No change.) 
(D) a course that meets the Texas Real Estate Commission mandatory continuing 
education (MCE) requirements, provided it is devoted to one or more of the 
appraisal related topics of the then current appraiser qualifications criteria 
of the AQB for continuing education<nl>, and which specifically has been 
approved by the board<ol> ; 
(E) (No change.) 
(F) <nl>distance education<ol> [Correspondence] courses [may be acceptable for 
meeting ACE requirements] <nl> provided that the course is approved by the board 
and meets one of <ol> [in] the following conditions <nl>listed in clauses (i)-
(iv) of this subparagraph<ol>: 
<nl>(i)<ol> the course is presented to an organized group in an instructional 
setting with a person qualified and available to answer questions, provide 
information, and monitor student attendance, and is a minimum of two classroom 
hours and meets the requirements for continuing education courses established by 
the AQB; or 
<nl>(ii)<ol> [(i)] <nl>the course either has <ol> [the course must have] been 
presented by an accredited college or university <nl>that<ol> [which] offers 
<nl>distance education <ol> [correspondence] programs in other disciplines<nl>, 
or has received either the American Council on Education's Program on Non-
collegiate Sponsored Instruction (ACE/PONSI) approval for college credit or the 
AQB's approval through the AQB Course Approval Program; and the course meets the 
following requirements listed in subclauses (I)-(II) of this clause:<ol>
<nl>(I)<ol> the course is equivalent to a minimum of two classroom hours in 
length and meets the requirements for real estate appraisal-related courses 
established by the Apprisal Qualifications Board; and 
<nl>(II)<ol> the student successfully completed a written examination proctored 
by an official approved by the presenting college or university or by the 
sponsoring organization consistent with the requirements of the course 
accreditation; or if a written examination is not required for accreditation, 
the student successfully completes the course mechanisms required for 
accredition with demonstrated mastery and fluency (said mechanisms must be 
present in a course without an exam in order to be acceptable). 
[(ii) an individual has successfully completed a written examination 
administered to positively identified examinees at a location and by an official 
approved by the college or university;] 
(iii) (No change.) 
(iv) <nl>a minimum time equal to the number of hours of credit must elapse from 
the date of course enrollment until its completion.<ol> [a correspondence course 
also may be acceptable provided the course has received the American Council on 
Education's Program on Non-collegiate Sponsored Instructions (PONSI) approval 
for college credit.] 
(G)-(I) (No change.) 
(J) <nl>Effective January 1, 1999, as,<ol> [As] part of the [20] 28[, effective 
January 1, 1998)] classroom hour ACE requirement, an appraiser must successfully 
complete a minimum of seven classroom hours of instruction <nl>devoted to<ol> 
[covering] the <nl>USPAP<ol> [Uniform Standards of Professional Appraisal 
Practice (USPAP)] before <nl>each renewal.<ol> [the appraiser's second renewal 
of certification or licensure, and for every even numbered renewal thereafter 
(fourth, sixth, eighth, etc.)] 
(K)-(L) (No change.) 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on February 23, 1998.
TRD-9802631
Renil C. Liner
Commissioner
Texas Appraiser Licensing and Certification Board
Earliest possible date of adoption: April 5, 1998
For further information, please call: (512) 465-3950

PART IX. Texas State Board of Medical Examiners
CHAPTER 163.Licensure
22 TAC sec.sec.163.3, 163.5-163.7, 163.12, 163.14, 163.15,
The Texas State Board of Medical Examiners proposes amendments to sec.sec.163.3, 
163.5-163.7, 163.12, 163.14, and 163.15, concerning licensure. The amendments 
are proposed to ensure continuity with the Medical Practice Act and to be 
consistent with current terminology. The amendments are also proposed to change 
the name of an organization throughout Chapter 163, to be consistent with the 
new name. The Advisory Board of Osteopathic Specialists has changed to the 
Bureau of Osteopathic Specialists. 
Tony Cobos, general counsel, has determined that for the first five-year period 
the sections are in effect there will be no fiscal implications to state or 
local government as a result of enforcing or administering the sections as 
proposed. 
Mr. Cobos also has determined that for each year of the first five years the 
sections as proposed are in effect the public benefit anticipated as a result of 
enforcing the sections will be to ensure continuity with the Medical Practice 
Act. There will be no effect on small businesses. There is no anticipated 
economic cost to persons who are required to comply with the sections as 
proposed. 
Comments on the proposal may be submitted to Pat Wood, P.O. Box 2018, MC-901, 
Austin, Texas 78768-2018. A public hearing will be held at a later date. The 
amendments are proposed under the Medical Practice Act, Texas Civil Statutes, 
Article 4495b, sec.2.09(a), which provides the Texas State Board of Medical 
Examiners with the authority to make rules, regulations and bylaws not 
inconsistent with this Act as may be necessary for the governing of its own 
proceedings, the performance of its duties, the regulation of the practice of 
medicine in this state, and the enforcement of this Act.
The Medical Practice Act, Texas Civil Statutes, Article 4495b, sec.sec.3.03, 
3.04, and 3.05 are affected by the proposed amendments.

sec.163.3.Licensure by Examination for Graduates of Unapproved [Foreign] Medical 
Schools.
(a)-(b) (No change.)

sec.163.5.Licensure by Endorsement for Graduates of Unapproved [Foreign] Medical 
Schools.
An applicant, to be eligible for licensure by endorsement, must: 
(1)-(14) (No change.)

sec.163.6.Procedural Rules for Licensure Applicants.
(a)-(b) (No change.)
(c) Applicants for licensure by endorsement: 
(1) (No change.)
(2) who have not been examined for licensure in a ten-year period prior to the 
filing date of the application must pass Day III or Component II of the FLEX 
prior to June 1988, or SPEX, with a grade of 75 or higher, unless the applicant 
has: 
(A) passed a specialty certification examination or formal evaluation, 
recertification examination or formal evaluation, or an examination of continued 
demonstration of qualifications by a board that is a member of the American 
Board of Medical Specialties or the <nl>Bureau of Osteopathic Specialists<ol> 
[Advisory Board for Osteopathic Specialists] within the preceding ten years; or 
(B) (No change.)

sec.163.7.Licensure Documentation.
(a)-(b) (No change.)
(c) Applicants for licensure by endorsement must satisfy the appropriate 
requirements listed in subsections (a) and (b) of this section and the 
following. 
(1)-(2) (No change.)
(3) Specialty board certification. Each applicant that has obtained 
certification by a board that is a member of the American Board of Medical 
Specialties or the <nl>Bureau of Osteopathic Specialists<ol> [American 
Osteopathic Association] must submit a copy of the certificate issued by the 
member showing board certification. 
(4)-(5) (No change.)
(d) Applicants for licensure by examination who are graduates of unapproved 
[foreign] medical schools must furnish all appropriate documentation listed in 
this subsection, as well as that listed in subsections (a) and (b) of this 
section. Applicants for licensure by endorsement who are graduates of unapproved 
[foreign] medical schools must furnish all appropriate documentation listed in 
this subsection, as well as that listed in subsections (a)-(c) of this section. 
The required documents are as follows.
(1) Educational Commission for Foreign Medical Graduates (ECFMG) certificate. 
Applicants must submit a copy of a valid ECFMG certificate <nl> unless they have 
completed a Fifth Pathway program. All Fifth Pathway applicants must submit a 
copy of their ECFMG interim certificate.<ol>. 
(2)-(4) (No change.)
(e)-(f) (No change.)

sec.163.12.Relicensure.
(a) If a physician's license has been expired for one year, it is considered to 
have been canceled, and the physician may not renew the license. The physician 
may obtain a new license by submitting to reexamination and complying with the 
requirements and procedures for obtaining an original license. 
(1) The examinations required by this section are: 
(A) (No change.)
(B) SPEX, unless the applicant: 
(i) has passed a licensure examination or has obtained specialty certification, 
recertification, or passed an examination of continued demonstration of 
qualifications by a board that is a member of the American Board of Medical 
Specialties or the <nl>Bureau of Osteopathic Specialists<ol> [Advisory Board for 
Osteopathic Specialists] within the preceding ten years; or
(ii) (No change.)
(2) The additional requirements for this new license shall be as required within 
the following sections: 
(A) (No change.)
(B) sec.163.3 of this title (relating to Licensure by Examination for Graduates 
of Unapproved [Foreign] Medical Schools); 
(C) (No change.)
(D) sec.163.5 of this title (relating to Licensure by Endorsement for Graduates 
of Unapproved [Foreign] Medical Schools); 
(E)-(F) (No change.)
(b) (No change.)

sec.163.14.Temporary Licensure of Primary Care Physicians for Practice in Rural 
Counties or Medically Underserved Areas in Texas.
(a)-(b) (No change.)
(c) Any temporary license issued under this section shall be valid for a 
continuous one-year period; however, such a temporary license may be renewed for 
up to two additional one-year periods, at the discretion of the executive 
director, only if necessary for the temporary licensee to meet any requirement 
relating to continuous unsupervised medical practice set as a prerequisite for 
specialty board examination for the specific medical specialty in which the 
temporary licensee is seeking specialty board certification [and to obtain a 
valid certificate issued by the Educational Commission for Foreign Medical 
Graduates]. 
(d)-(e) (No change.)

sec.163.15.Active Practice of Medicine.
(a)-(b) (No change.)
(c) Applicants who do not meet the requirements of subsections (a) and (b) of 
this section may, in the discretion of the board, be eligible for an 
unrestricted license or a restricted license subject to one or more of the 
following conditions or restrictions: 
(1) current certification or recertification by the American Board of Medical 
Specialties or <nl>Bureau of Osteopathic Specialists<ol> [Advisory Board for 
Osteopathic Specialties]; 
(2)-(6) (No change.)
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State, on February 23, 1998.
TRD-9802628
Bruce A. Levy, M.D., J.D.
Executive Director
Texas State Board of Medical Examiners
Earliest possible date of adoption: April 5, 1998
For further information, please call: (512) 305-7016

CHAPTER 165.Medical Records
22 TAC sec.165.2
The Texas State Board of Medical Examiners proposes an amendment to sec.165.2, 
concerning medical record release and charges. The amendment is proposed to 
revise the schedule of charges that physicians may assess for copies of medical 
records. 
Tony Cobos, general counsel, has determined that for the first five-year period 
the section is in effect there will be no fiscal implications to state or local 
government as a result of enforcing or administering the change. There will be 
an increased cost to the public; however, the exact cost cannot be determined at 
this time, since it is dependent upon the number of pages included in the 
individual medical record. 
Mr. Cobos also has determined that for each year of the first five years the 
section as proposed is in effect the public benefit anticipated as a result of 
enforcing the section will be updated charges for copies of medical records. 
There will be no effect on small businesses. There is no anticipated economic 
cost to persons who are required to comply with the section as proposed. 
Comments on the proposal may be submitted to Pat Wood, P.O. Box 2018, MC-901, 
Austin, Texas 78768-2018. A public hearing will be held at a later date. 
The amendment is proposed under the Medical Practice Act, Texas Civil Statutes, 
Article 4495b, sec.2.09(a), which provides the Texas State Board of Medical 
Examiners with the authority to make rules, regulations and bylaws not 
inconsistent with this Act as may be necessary for the governing of its own 
proceedings, the performance of its duties, the regulation of the practice of 
medicine in this state, and the enforcement of this Act. 
The Medical Practice Act, Texas Civil Statutes, Article 4495b, sec.5.08 is 
affected by the proposed amendment. 

sec.165.2.Medical Record Release and Charges.
(a)-(d) (No change.)
<nl>(e)<ol> <nl>The physician responding to a request for information shall be 
entitled to receive a reasonable fee for providing the requested information to 
any and all entities. A reasonable fee shall be a charge of no more than and not 
to exceed the following listed in paragraphs (1)-(3) of this subsection:<ol> 
<nl>(1)<ol> <nl> a basic retrieval or processing fee, which must include the fee 
for providing the first 10 pages of the copies and which may not exceed $30, and 
<ol>
<nl>(A)<ol> <nl> a charge for each page of: <ol>
<nl>(i)<ol> <nl>$1.00 for the 11th through 60th page of the provided copies; 
<ol>
<nl>(ii)<ol> <nl> $0.50 for the 61st through 400th page of the provided copies; 
and <ol>
<nl>(iii)<ol> <nl> $0.25 for any of the remaining pages of the provided copies; 
and <ol>
<nl>(B)<ol> <nl> the actual cost of mailing, shipping, or otherwise delivering 
the copies; or <ol> 
<nl>(2)<ol> <nl> if the requested records are stored on microfilm or other 
electronic medium, a retrieval or processing fee, which must include the fee for 
providing the first 10 pages of the copies and which may not exceed $45; and 
<ol>
<nl>(A)<ol> <nl>$1.00 per page thereafter; and <ol>
<nl>(B)<ol> <nl>the actual cost of mailing, shipping or otherwise delivering the 
provided copies.<ol> 
<nl>(3)<ol> <nl> for a summary of medical records, a charge not to exceed a 
Medicare Code of Procedural Terminology ("CPT") new patient evaluation and 
management charge. <ol>
[(e) The physician responding to a request for such information shall be 
entitled to receive a reasonable fee for providing the requested information. A 
reasonable fee shall be a charge of no more than $25 for the first twenty pages 
and $.15 per page for every copy thereafter. In addition, a reasonable fee may 
include actual costs for mailing, shipping, or delivery.] 
(f)-(i) (No change.)
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt. 
Filed with the Office of the Secretary of State, on February 23, 1998.
TRD-9802629
Bruce A. Levy, M.D., J.D.
Executive Director
Texas State Board of Medical Examiners
Earliest possible date of adoption: April 5, 1998
For further information, please call: (512) 305-7016

CHAPTER 183.Acupuncture
22 TAC sec.sec.183.2, 183.4, 183.8, 183.18, 183.20, 183.22
The Texas State Board of Medical Examiners proposes amendments to sec.sec.183.2, 
183.4, 183.8, 183.18, 183.20, and 183.22, concerning acupuncture. The amendments 
are proposed to change the name of two organizations throughout Chapter 183, to 
be consistent with their new names. The National Commission for the 
Certification of Acupuncturists (NCCA) has changed to the National Certification 
Commission for Acupuncture and Oriental Medicine (NCCAOM). The National 
Accreditation Commission for Schools and Colleges of Acupuncture and Oriental 
Medicine (NACSCAOM) has changed to the Accreditation Commission for Acupuncture 
and Oriental Medicine (ACAOM). The definitions in sec.183.2 have been numbered 
to comply with current Texas Register requirements. The Professional Liability 
Claims Report found in sec.183.8(g)(9) is amended to reflect a change of 
address. The figure found in sec.183.20(b) is also amended to reflect the name 
change of the two organizations.
Tony Cobos, general counsel, has determined that for the first five-year period 
the sections are in effect there will be no fiscal implications to state or 
local government as a result of enforcing or administering the sections as 
proposed. 
Mr. Cobos also has determined that for each year of the first five years the 
sections as proposed are in effect the public benefit anticipated as a result of 
enforcing the sections will be updated regulations. There will be no effect on 
small businesses. There is no anticipated economic cost to persons who are 
required to comply with the sections as proposed. 
Comments on the proposal may be submitted to Pat Wood, P.O. Box 2018, MC-901, 
Austin, Texas 78768-2018. A public hearing will be held at a later date.
The amendments are proposed under the Medical Practice Act, Texas Civil 
Statutes, Article 4495b, sec.2.09(a), which provides the Texas State Board of 
Medical Examiners with the authority to make rules, regulations and bylaws not 
inconsistent with this Act as may be necessary for the governing of its own 
proceedings, the performance of its duties, the regulation of the practice of 
medicine in this state, and the enforcement of this Act.
The Medical Practice Act, Texas Civil Statutes, Article 4495b, Subchapter F is 
affected by the proposed amendments. 

sec.183.2.Definitions.
The following words and terms, when used in this chapter, shall have the 
following meanings, unless the content clearly indicates otherwise. 
<nl>(1)<ol> Ability to communicate in the English language--An applicant who has 
passed the <nl>National Certification Commission for Acupuncture and Oriental 
Medicine (NCCAOM)<ol> [National Commission for the Certification of 
Acupuncturists (NCCA)] examination in English within three attempts. The 
executive director will review on a case-by-case basis the application of any 
applicant who did not pass the <nl>NCCAOM<ol> [NCCA] examination within three 
attempts and it will be at his discretion to evaluate the applicant's 
eligibility for licensure. 
<nl>(2)<ol> Acceptable approved acupuncture school--Effective January 1, 1996, 
(A) a school of acupuncture located in the United States or Canada which, at the 
time of the applicant's graduation, was a candidate for accreditation by the 
<nl>Accreditation Commission for Acupuncture and Oriental Medicine (ACAOM)<ol> 
[National Accreditation Commission for Schools and Colleges of Acupuncture and 
Oriental Medicine (NACSCAOM)], offered no more than a certificate upon 
graduation, and had a curriculum of 1,800 hours with at least 450 hours of 
herbal studies which at a minimum included the following: 
(i) basic herbology including recognition, nomenclature, functions, temperature, 
taste, contraindications, and therapeutic combinations of herbs;
(ii) herbal formulas including traditional herbal formulas and their 
modification/variations based on traditional methods of herbal therapy; 
(iii) patent herbs including the names of the more common patent herbal 
medications and their uses; and 
(iv) clinical training emphasizing herbal uses; or 
(B) a school of acupuncture located in the United States or Canada which, at the 
time of the applicant's graduation, was accredited by <nl> ACAOM<ol> [NACSCAOM], 
offered a masters degree upon graduation, and had a curriculum of 1,800 hours 
with at least 450 hours of herbal studies which at a minimum included the 
following: 
(i) basic herbology including recognition, nomenclature, functions, temperature, 
taste, contraindications, and therapeutic combinations of herbs;
(ii) herbal formulas including traditional herbal formulas and their 
modifications or variations based on traditional methods of herbal therapy; 
(iii) patent herbs including the names of the more common patent herbal 
medications and their uses; and 
(iv) clinical training emphasizing herbal uses; or 
(C) a school of acupuncture located outside the United States or Canada that is 
determined by the board to be substantially equivalent to a school defined in 
subparagraph (B) of this paragraph through an evaluation by a board-approved 
credential evaluation service; and 
(D) the requirements of this section shall be in addition to the requirements of 
the Medical Practice Act, sec.6.07, subsection (c), and shall be construed and 
applied so as to be consistent with the Act. 
<nl>(3)<ol> Acceptable unapproved acupuncture school--A school or college 
located outside the United States or Canada that was not approved by the board 
at the time the degree was conferred but whose curriculum meets the requirements 
for an unapproved medical school as determined by a committee of experts 
selected by the Texas State Board of Acupuncture Examiners, subject to approval 
by the Texas State Board of Medical Examiners.
<nl>(4)<ol> Acupuncture-- 
(A) the insertion of an acupuncture needle and the application of moxibustion to 
specific areas of the human body as a primary mode of therapy to treat and 
mitigate a human condition; and 
(B) the administration of thermal or electrical treatments or the recommendation 
of dietary guidelines, energy flow exercise, or dietary or herbal supplements in 
conjunction with the treatment described by subparagraph (A) of this paragraph. 
<nl>(5)<ol> Acupuncture board--The Texas State Board of Acupuncture Examiners. 
<nl>(6)<ol> Acupuncturist--A licensee of the Texas State Board of Acupuncture 
Examiners. 
<nl>(7)<ol> APA--The Administrative Procedure Act, Government Code, sec.2001.001 
et seq. 
<nl>(8)<ol> Applicant or petitioner--A party seeking a license or rule from the 
board. 
<nl>(9)<ol> Application--An application is all documents and information 
necessary to complete an applicant's request for licensure including the 
following: 
(A) forms furnished by the board, completed by the applicant:
(i) all forms and addenda requiring a written response must be printed in ink or 
typed; 
(ii) photographs must meet United States government passport standards; 
(B) a fingerprint card, furnished by the acupuncture board, completed by the 
applicant, that must be readable by the Texas Department of Public Safety; 
(C) all documents required under sec.183.4(f) of this title (relating to 
Licensure Documentation); and 
(D) the required fee, payable by check through a United States bank. 
<nl>(10)<ol> Assistant presiding officer--A member of the acupuncture board 
elected by the acupuncture board to fulfill the duties of the presiding officer 
in the event the presiding officer is incapacitated or absent, or the presiding 
officer's duly qualified successor under Robert's Rules of Order Newly Revised 
or board rules. 
<nl>(11)<ol> Board--The Texas State Board of Acupuncture Examiners. 
<nl>(12)<ol> Board member--One of the members of the acupuncture board, 
appointed and qualified pursuant to the Act, sec.6.04.
<nl>(13)<ol> Chiropractor--A licensee of the Texas State Board of Chiropractic 
Examiners. 
<nl>(14)<ol> Contested case--A proceeding, including but not restricted to, 
licensing, in which the legal rights, duties, or privileges of a party are to be 
determined by the board after an opportunity for adjudicative hearing. 
<nl>(15)<ol> Documents--Applications, petitions, complaints, motions, protests, 
replies, exceptions, answers, notices, or other written instruments filed with 
the medical board or acupuncture board in a licensure proceeding or by a party 
in a contested case. 
<nl>(16)<ol> Eligible for legal practice and/or licensure in country of 
graduation--An applicant who has completed all requirements for legal practice 
and/or licensure in the country in which the school is located except for any 
citizenship requirements. 
<nl>(17)<ol> Equivalent registration--An applicant for licensure by endorsement 
must apply for licensure based upon another state or provincial license that 
requires as part of its registration: 
(A) the full <nl>NCCAOM<ol> [NCCA] examination;
(B) an English competency test, if the <nl>NCCAOM<ol> [NCCA] examination was 
taken in a language other than English;
(C) the Council of Colleges of Acupuncture and Oriental Medicine (CCAOM) CNT 
(Clean Needle Technique) course and practical examination; 
(D) a fee; and 
(E) periodic renewal of an acupuncturist's license. 
<nl>(18)<ol> Executive director--The executive director of the Texas State Board 
of Medical Examiners. 
<nl>(19)<ol> Full force--Applicants for licensure by endorsement must possess a 
license in another jurisdiction which is in full force and not restricted, 
canceled, suspended, or revoked. 
<nl>(20)<ol> Full <nl>NCCAOM<ol>[NCCA] examination--The <nl>National 
Certification Commission for Acupuncture and Oriental Medicine<ol> [National 
Commission for the Certification of Acupuncturists'] examination, consisting of 
the Comprehensive Written Exam (CWE), the Clean Needle Technique Portion (CNTP), 
and the Practical Examination of Point Location Skills (PEPLS), and, effective 
January 1, 1998, the Chinese Herbology Exam. 
<nl>(21)<ol> Good professional character--An applicant for licensure must not be 
in violation of or have committed any act described in the Act, sec.6.11. 
<nl>(22)<ol> Hearings examiner, examiner, administrative law judge, or ALJ--An 
administrative law judge, duly employed by the State Office of Administrative 
Hearings. 
<nl>(23)<ol> License--Includes the whole or part of any board permit, 
certificate, approval, registration, or similar form of permission required by 
law; specifically, a license and a registration. 
<nl>(24)<ol> Licensing--Includes the medical board's and acupuncture board's 
process respecting the granting, denial, renewal, revocation, suspension, 
annulment, withdrawal, or amendment of a license.
<nl>(25)<ol> Medical board--The Texas State Board of Medical Examiners. 
<nl>(26)<ol> Misdemeanors involving moral turpitude--Any misdemeanor of which 
fraud, dishonesty, or deceit is an essential element, any criminal violation of 
the Medical Practice Act, burglary, robbery, sexual offense, theft, child 
molesting, and substance diversion or substance abuse, or an offense involving 
baseness, vileness, or depravity in the private social duties one owes to others 
or to society in general, or an offense committed with knowing disregard for 
justice or honesty. 
<nl>(27)<ol> Party--Each person named or admitted as a party whether an 
applicant, protestant, petitioner, complainant, respondent or intervenor, and 
the board. 
<nl>(28)<ol> Person--Any individual, partnership, corporation, association, 
governmental subdivision, or public or private organization of any character. 
<nl>(29)<ol> Physician--A licensee of the Texas State Board of Medical 
Examiners. 
<nl>(30)<ol> Pleading--Written documents filed by parties concerning their 
respective claims. 
<nl>(31)<ol> Presiding officer--The member of the acupuncture board appointed by 
the governor to preside over acupuncture board proceedings or the presiding 
officer's duly qualified successor in accordance with Robert's Rules of Order 
Newly Revised or board rules, a hearings examiner, administrative law judge, or 
other person presiding over the board. 
<nl>(32)<ol> Register--The Texas Register. 
<nl>(33)<ol> Requisite qualifications--An endorsement applicant who is a 
graduate of an unapproved acceptable acupuncture school who: 
(A) has for the preceding five years been a licensee of another state or a 
Canadian province; 
(B) is not the subject of a sanction imposed by or disciplinary matter pending 
in any state or Canadian province in which the applicant is licensed to practice 
acupuncture. 
<nl>(34)<ol> Rule--Any agency statement of general applicability that 
implements, interprets, or prescribes law or policy, or describes the procedures 
or practice requirements of this board. The term includes the amendment or 
repeal of a prior section but does not include statements concerning only the 
internal management or organization of any agency and not affecting private 
rights or procedures. This definition includes substantive regulations. 
<nl>(35)<ol> Secretary--The secretary-treasurer of the Texas State Board of 
Acupuncture Examiners. 
<nl>(36)<ol> Substantially equivalent to a Texas acupuncture school--A school or 
college of acupuncture located outside the United States or Canada must be an 
institution of higher learning designed to select andeducate acupuncture 
students; provide students with the opportunity to acquire a sound basic 
acupuncture education through training; to develop programs of acupuncture 
education to produce practitioners, teachers, and researchers; and to afford 
opportunity for postgraduate and continuing medical education. The school must 
provide resources, including faculty and facilities, sufficient to support a 
curriculum offered in an intellectual and practical environment that enables the 
program to meet these standards. The faculty of the school shall actively 
contribute to the development and transmission of new knowledge. The school of 
acupuncture shall contribute to the advancement of knowledge and to the 
intellectual growth of its students and faculty through scholarly activity, 
including research. The school of acupuncture shall include, but not be limited 
to, the following characteristics: 
(A) the facilities for didactic and clinical training (i.e., laboratories, 
hospitals, library, etc.) shall be adequate to ensure opportunity for proper 
education; 
(B) the admissions standards shall be substantially equivalent to a Texas school 
of acupuncture; 
(C) the basic curriculum shall include courses substantially equivalent to those 
delineated in the <nl>Accreditation Commission for Acupuncture and Oriental 
Medicine (ACAOM)<ol> [National Accreditation Commission for Schools and Colleges 
of Acupuncture and Oriental Medicine (NACSCAOM)] core curriculum at the time of 
applicant's graduation; 
(D) the curriculum shall be of at least 1,800 hours in duration.
<nl>(37)<ol> The Act--The Medical Practice Act, Texas Civil Statutes, Article 
4495b, and its amendments. 

sec.183.4.Licensure.
(a) Qualifications. An applicant must present satisfactory proof to the 
acupuncture board that the applicant: 
(1)-(3) (No change.)
(4) is a graduate of an acceptable acupuncture school that was a candidate for 
accreditation or had accreditation through the <nl>Accreditation Commission for 
Acupuncture and Oriental Medicine (ACAOM) <ol> [National Accreditation 
Commission for Schools and Colleges of Acupuncture and Oriental Medicine 
(NACSCAOM)] at the time of applicant's graduation, or received and completed 
training which, in the opinion of the acupuncture board, was substantially 
equivalent to training provided by such a school; 
(5) has taken and passed, within three attempts, the full <nl>National 
Certification Commission for Acupuncture and Oriental Medicine (NCCAOM)<ol> 
[NCCA] examination; 
(6) (No change.)
(7) is able to communicate in English as demonstrated by one of the following: 
(A) passage of the <nl>(NCCAOM)<ol> [NCCA] examination taken in English; or 
(B)-(F) (No change.)
(b) Procedural rules for licensure applicants. The following provisions shall 
apply to all licensure applicants. 
(1) Applicants for licensure: 
(A)-(B) (No change.)
(C) will be allowed to sit for the <nl>NCCAOM<ol> [NCCA] examination only three 
times;
(D)-(H) (No change.) 
(2)-(3) (No change.)
(c)-(d) (No change.)
(e) Distinguished professor temporary license. 
(1) Issuance. The acupuncture board may issue a distinguished professor 
temporary license to an acupuncturist who: 
(A) (No change.)
(B) agrees to and limits any acupuncture practice in this state to acupuncture 
practice for demonstration or teaching purposes for acupuncture students and/or 
instructors, and in direct affiliation with an acupuncture school that is a 
candidate for accreditation or has accreditation through the <nl>Accreditation 
Commission for Acupuncture and Oriental Medicine (ACAOM) <ol> [National 
Accreditation Commission for Schools and Colleges of Acupuncture and Oriental 
Medicine (NACSCAOM)] at which the students are trained and/or the instructors 
teach; and 
(C)-(D) (No change.) 
(2)-(3) (No change.)
(f) Relicensure. 
(1) If an acupuncturist's license has been expired for one year, it is 
considered to have been canceled, and the acupuncturist may not renew the 
license. The acupuncturist may obtain a new license by submitting to 
reexamination and complying with the requirements and procedures for obtaining 
an original license. The examination required by this section is the full <nl> 
NCCAOM<ol> [NCCA] examination. 
(2) (No change.)
(g) Approved schools. A <nl>ACAOM<ol> [NACSCAOM] approved acupuncture school may 
use the word college as a means of representation to the public as long as it 
maintains <nl>ACAOM<ol> [NACSCAOM] accreditation. An approved school may not 
represent itself as a university.

sec.183.8.Investigations.
(a)-(f) (No change.)
(g) Reporting professional liability claims. 
(1)-(8) (No change.)
(9) The reporting form shall be as follows. 
Figure: 22 TAC sec.183.8(g)(9) 

sec.183.18.Automatic Licensure.
(a)-(b) (No change.)
(c) If an applicant can document consecutive acupuncture practice in Texas for 
at least the five years immediately preceding September 1, 1993, and can 
document 500 patient visits for each of the three years immediately preceding 
September 1, 1993, the applicant shall be eligible for automatic licensure by 
submitting the following: 
(1)-(2) (No change.)
(3) verification by February 2, 1996, in the manner provided for in subsection 
(f) of this section, that the applicant has taken and passed the <nl>National 
Certification Commission for Acupuncture and Oriental Medicine (NCCAOM)<ol> 
[National Commission for the Certification of Acupuncturists (NCCA)] or the 
Council of Colleges of Acupuncture and Oriental Medicine (CCAOM) Clean Needle 
Technique (CNT) course and practical examination. 
(d) If the applicant can document consecutive acupuncture practice in Texas for 
more than the three years, but less than five years, immediately preceding 
September 1, 1993, and can document 500 patient visits for each of the three 
years immediately preceding September 1, 1993, the applicant shall be eligible 
for automatic licensure by submitting the following: 
(1)-(2) (No change.)
(3) verification by February 2, 1996, in the manner provided for in subsection 
(f) of this section, that the applicant has taken in his language of choice and 
passed the full <nl>National Certification Commission for Acupuncture and 
Oriental Medicine<ol> [National Commission for the Certification of 
Acupuncturists] <nl>NCCAOM<ol> [(NCCA)] examination as defined in sec.183.2 of 
this title (relating to Definitions); and 
(4) verification by February 2, 1996, in the manner provided for in subsection 
(f) of this section, that the applicant has taken and passed the <nl> National 
Certification Commission for Acupuncture and Oriental Medicine (NCCAOM)<ol> 
[National Commission for the Certification of Acupuncturists (NCCA)] or the 
Council of Colleges of Acupuncture and Oriental Medicine (CCAOM) Clean Needle 
Technique (CNT) course and practical examination. 
(e) If the applicant can document consecutive acupuncture practice in Texas for 
less than three years immediately preceding September 1, 1993, the applicant 
shall be eligible for automatic licensure by submitting the following: 
(1)-(2) (No change.)
(3) verification by February 2, 1996, in the manner provided for in subsection 
(f) of this section, that the applicant has taken in his language of choice and 
passed the full <nl> National Certification Commission for Acupuncture and 
Oriental Medicine (NCCAOM)<ol> [National Commission for the Certification of 
Acupuncturists (NCCA)] examination as defined in sec.183.2 of this title 
(relating to Definitions); 
(4) verification by February 2, 1996, in the manner provided for in subsection 
(f) of this section, that the applicant has taken and passed the <nl> National 
Certification Commission for Acupuncture and Oriental Medicine (NCCAOM)<ol> 
[National Commission for the Certification of Acupuncturists (NCCA)] or the 
Council of Colleges of Acupuncture and Oriental Medicine (CCAOM) Clean Needle 
Technique (CNT) course and practical examination; and
(5) has completed 1,350 instructional (didactic and clinical) hours in 
acupuncture or the number of similar hours required by <nl>NCCAOM <ol> [NCCA] at 
the time the examination was taken by the applicant.
(f)-(g) (No change.)
(h) If the applicant was practicing acupuncture in Texas on September 1, 1993, 
under the supervision of a licensed Texas physician who was registered to 
supervise the applicant, and can document two years of acupuncture practice, the 
applicant shall be eligible for automatic licensure upon submission of the 
following documents: 
(1)-(3) (No change.)
(4) verification by February 2, 1996, in the manner provided for in subsection 
(f) of this section, that the applicant has taken and passed the <nl> National 
Certification Commission for Acupuncture and Oriental Medicine (NCCAOM)<ol> 
[National Commission for the Certification of Acupuncturists (NCCA)] or the 
Council of Colleges of Acupuncture and Oriental Medicine (CCAOM) Clean Needle 
Technique (CNT) course and practical examination. 

sec.183.20.Texas Acupuncture Schools.
(a) A licensed Texas acupuncturist operating an acupuncture school in Texas 
which has not yet been accredited by the <nl>Accreditation Commission for 
Acupuncture and Oriental Medicine (ACAOM)<ol> [National Accreditation Commission 
for Schools and Colleges of Acupuncture and Oriental Medicine (NACSCAOM)] or 
reached candidate status for accreditation by <nl> ACAOM<ol> [NACSCAOM], a 
licensed Texas acupuncturist with any ownership interest in such a school, or a 
licensed Texas acupuncturist who teaches in or operates such a school, shall 
ensure that students of the school and applicants to the school are made aware 
of the provisions of the Medical Practice Act governing acupuncture practice, 
the rules and regulations adopted by the Texas State Board of Acupuncture 
Examiners, and the educational requirements for obtaining a Texas acupuncture 
license to include the rules and regulations establishing the criteria for an 
approved acupuncture school for purposes of licensure as an acupuncturist by the 
Texas State Board of Acupuncture Examiners as set forth in subsection (b) of 
this section. 
(b) Compliance with the provisions of subsection (a) of this section shall be 
accomplished by providing students and applicants with a copy of Subchapter F of 
the Medical Practice Act, a copy of Chapter 183 (Acupuncture) contained in the 
Rules of the Texas State Board of Medical Examiners, and the following typed 
statement: 
Figure: 22 TAC sec.183.20(b) 
(c) A licensed Texas acupuncturist who operates, teaches at, or owns, in whole 
or in part, a Texas acupuncture school which is not accredited by 
<nl>ACAOM<ol>[NACSCAOM] or is not a candidate for <nl> ACAOM <ol> [NACSCAOM] 
accreditation shall not state directly or indirectly, explicitly or by 
implication, orally or in writing, either personally or through an agent of the 
acupuncturist or the school, that the school is endorsed, accredited, registered 
with, affiliated with, or otherwise approved by the Texas State Board of 
Acupuncture Examiners for any purpose. 
(d) Failure to comply with the requirements or abide by the prohibitions of this 
section shall be grounds for disciplinary action against a licensed Texas 
acupuncturist who operates, teaches at, or owns, in whole or in part, a Texas 
acupuncture school which is not accredited by <nl>ACAOM <ol> [NACSCAOM] or is 
not a candidate for <nl>ACAOM<ol> [NACSCAOM] accreditation. Such disciplinary 
action shall be based on the violation of a rule of the Texas State Board of 
Acupuncture Examiners as provided for in the Medical Practice Act, 
sec.6.11(a)(5). 
(e) For purpose of licensure and regulation of acupuncturists practicing in 
Texas, <nl>ACAOM<ol> [NACSCAOM] approved acupuncture schools in Texas meeting 
the criteria set forth in sec.183.2 of this title (relating to Definitions) may 
issue masters of science in oriental medicine degrees in a manner consistent 
with the laws of the State of Texas. The Texas State Board of Acupuncture 
Examiners shall recognize any such lawfully issued degrees. For purposes of 
licensure and regulation of acupuncturists practicing in Texas, acupuncture 
schools in Texas which are <nl>ACAOM<ol> [NACSCAOM] candidates for masters level 
programs in acupuncture and oriental medicine and who have issued diplomas or 
degrees during the period of candidacy, may upgrade such degrees to masters 
degrees upon obtaining full <nl>ACAOM <ol> [NACSCAOM] accreditation. The Texas 
State Board of Acupuncture Examiners shall recognize any such lawfully upgraded 
degrees. 

sec.183.22.Continuing Acupuncture Education.
(a)-(g) (No change.)
(h) Approval of Continuing Acupuncture Education. Continuing Acupuncture 
Education (CAE) credit hours shall be approved by the Texas State Board of 
Acupuncture Examiners based on the recommendation of the Education Committee of 
the Board in regard to courses, programs, and activities submitted by licensees 
to satisfy the CAE requirements of this section. Approval shall be based on a 
showing by the education provider that: 
(1)-(5) (No change.)
(6) the course, program, or activity is provided by an acupuncture school which, 
at the time the education is provided, is accredited by or a candidate for 
accreditation by the <nl>Accreditation Commission for Acupuncture and Oriental 
Medicine (ACAOM)<ol> [National Accreditation Commission for Schools and Colleges 
of Acupuncture and Oriental Medicine (NACSCAOM) ]. 
(i)-(r) (No change.) 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt. 
Filed with the Office of the Secretary of State, on February 23, 1998.
TRD-9802630
Bruce A. Levy, M.D., J.D.
Executive Director
Texas State Board of Medical Examiners
Earliest possible date of adoption: April 5, 1998
For further information, please call: (512) 305-7016

PART XIV. Texas Optometry Board
CHAPTER 277.Practice and Procedure
22 TAC sec.277.1
The Texas Optometry Board proposes the adoption of an amendment to sec.277.1 to 
inform licensees of specific instrumentation and procedures which will satisfy 
two specific requirements of the basic competency examination required by 
Section 5.12 of the Texas Optometry Act (Article 4552, V.A.C.S.).
Lois Ewald, executive director of the Texas Optometry Board, has determined that 
for the first five-year period the amended rule is in effect, there will be no 
fiscal implications for state and local governments as a result of enforcing or 
administering the rule. 
Lois Ewald also has determined that for each of the first five years the amended 
rule is in effect, the public benefit anticipated as a result of enforcing the 
amended rule is that the general public will receive a basic eye health 
examination with specific and acceptable instrumentations being used. It has 
also been determined that there will be no cost to the public over the first 
five years as a result of enforcing or administering the rule. 
Comments on the proposal may be submitted to Lois Ewald, Executive Director, 
Texas Optometry Board, 333 Guadalupe Street, Suite 2-420, Austin, Texas 78701-
3942. The deadline for furnishing comments is April 1, 1998. 
The amendment is proposed under the Texas Optometry Act, Texas Civil Statutes, 
Article 4552, sec. 2.14, sec.5.12, and sec. 4.04. 
The Texas Optometry Board interprets sec.2.14 as authorizing the adoption of 
procedural and substantive rules for the regulation of the optometric 
profession. The Board interprets sec.5.12 as authorizing the interpretation of 
what constitutes the specific basic competence steps of an initial examination 
as required by the Act. The Board interprets sec.4.04 as authorizing action to 
be taken against the licensee for violations of the Act. 

sec.277.1 Complaint Procedures. 
(a)-(b) (No change.) 
(c) Investigation-Enforcement Committee. 
(1)-(3) (No change.) 
(4) Basic Competence Violations. 
(A) The omission of a single, essential finding shall be reason for an 
investigational hearing or informal conference. The following findings are 
essential in the initial examination of a patient:
(i) Biomicroscopy [slit lamp] examination (lids, cornea, sclera, etc.)<nl>, 
using a binocular microscope<ol>; 
(ii) Internal ophthalmoscopic examination (media, fundus, etc.) <nl>, using an 
ophthalmoscope or biomicroscope with fundus condensing lenses; videos and 
photographs may be used only for documentation and consultation purposes but do 
not fulfill the internal ophthalmoscopic examination <ol>; 
(iii) - (iv) (No change.) 
(B) - (D) (No change.) 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State, on February 18, 1998.
TRD-9802432
Lois Ewald
Executive Director
Texas Optometry Board
Earliest possible date of adoption: April 5, 1998
For further information, please call: (512) 305-8500

CHAPTER 279.Interpretations
22 TAC sec.279.1
The Texas Optometry Board proposes the adoption of an amendment to sec.279.1 to 
inform licensees and dispensers of contact lenses of how the Board interprets a 
fully-written contact lens prescription for compliance with the Texas Optometry 
Act (Article 4552, V.A.C.S.) and the new Texas Contact Lens Prescription Act 
adopted by the 75th Legislature. 
Lois Ewald, executive director of the Texas Optometry Board, has determined that 
for the first five-year period the amended rule is in effect, there will be no 
fiscal implications for state and local governments as a result of enforcing or 
administering the rule. 
Lois Ewald also has determined that for each of the first five years the amended 
rule is in effect, the public benefit anticipated as a result of enforcing the 
amended rule is that the general public will be able to obtain a complete 
written contact lens prescription for purposes of obtaining contact lenses, and 
licensees and ophthalmic dispensers will have sufficient guidance in the writing 
and accepting of such valid prescriptions. It has also been determined that 
there will be no cost to the public over the first five years as a result of 
enforcing or administering the rule. 
Comments on the proposal may be submitted to Lois Ewald, Executive Director, 
Texas Optometry Board, 333 Guadalupe Street, Suite 2-420, Austin, Texas 78701-
3942. The deadline for furnishing comments is April 1, 1998. 
The amendment is proposed under the Texas Optometry Act, Texas Civil Statutes, 
Article 4552, sec.2.14 and sec.1.02. 
The Texas Optometry Board interprets sec.2.14 as authorizing the adoption of 
procedural and substantive rules for the regulation of the optometric 
profession. The Board interprets sec.1.02 as authorizing the interpretation of a 
fully-written contact lens prescription as required by the Act. 

sec.279.1Board Interpretation Number One 
A fully written contact lens prescription as referred to in the Texas Optometry 
Act, Section 1.02(3)(a), concerning the dispensing of contact lenses by 
ophthalmic dispensers must include the following: 
(1) <nl>Rigid <ol> [hard] contacts 
<nl>(A) <ol> <nl>base curve, unless set by manufacturer <ol>
<nl>(B)<ol> <nl>power <ol>
<nl>(C)<ol> <nl>diameter, unless set by manufacturer <ol>
<nl>(D)<ol> <nl> optical zone, unless set by manufacturer <ol>
<nl>(E)<ol> <nl>peripheral curve, unless set by manufacturer <ol>
<nl>(F)<ol> <nl> peripheral curve width, unless set by manufacturer <ol>
<nl>(G)<ol> <nl>secondary curve, unless set by manufacturer <ol>
<nl>(H)<ol> <nl>secondary curve width, unless set by manufacturer <ol>
<nl>(I)<ol> <nl> blend, unless set by manufacturer <ol>
<nl>(J)<ol> <nl> thickness, unless set by manufacturer <ol>
<nl>(K)<ol> <nl>color, unless set by manufacturer <ol>
<nl>(L)<ol> <nl>brand name <ol>
<nl>(M)<ol> <nl> material, unless set by manufacturer <ol>
<nl>(N)<ol> <nl>prescription date <ol>
<nl>(O)<ol> <nl>expiration date <ol>
<nl>(P)<ol> <nl>optometrist's signature <ol>
<nl>(Q)<ol> <nl>number of lenses <ol>
<nl>(R)<ol> <nl>substitution language <ol>
[(A) base curve 
(B) power 
(C) diameter 
(D) optical zone 
(E) peripheral curve and width 
(F) secondary curve and width 
(G) blend 
(H) thickness 
(I) color 
(J) manufacturer, when needed 
(K) type of lens and material 
(L) expiration date 
(M) optometrist's signature] 
(2) Soft contacts 
<nl>(A)<ol> <nl>base curve, unless set by manufacturer<ol>
<nl>(B)<ol> <nl> power <ol>
<nl>(C)<ol> <nl>diameter, unless set by manufacturer <ol>
<nl>(D)<ol> <nl> color, if needed <ol>
<nl>(E)<ol> <nl> brand name <ol>
<nl>(F)<ol> <nl> prescription date <ol>
<nl>(G)<ol> <nl> expiration date <ol>
<nl>(H)<ol> <nl>optometrist's signature <ol>
<nl>(I)<ol> <nl> number of lenses <ol>
<nl>(J)<ol> <nl>substitution language <ol>
<nl>(K)<ol> <nl>recommended lens replacement interval<ol>
[(A) base curve 
(B) power 
(C) diameter when needed 
(D) manufacturer 
(E) water content, when needed 
(F) type 
(i) spherical 
(ii) toric 
(iii) extended wear 
(G) color 
(H) manufacturers' suggested sterilization or as specified by doctor 
(I) expiration date (J) optometrist's signature
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State, on February 18, 1998.
TRD-9802433
Lois Ewald
Executive Director
Texas Optometry Board
Earliest possible date of adoption: April 5, 1998
For further information, please call: (512) 305-8500

22 TAC sec.279.3
The Texas Optometry Board proposes the adoption of an amendment to sec.279.3 to 
inform licensees of how the Board interprets Section 5.07 (relating to 
prescribing without examination), to clarify that the duplication of lenses 
within that context means a patient's spectacle lenses in order to comply with 
the Texas Optometry Act (Article 4552, V.A.C.S.) 
Lois Ewald, executive director of the Texas Optometry Board, has determined that 
for the first five-year period the amended rule is in effect, there will be no 
fiscal implications for state and local governments as a result of enforcing or 
administering the rule. 
Lois Ewald also has determined that for each of the first five years the amended 
rule is in effect, the public benefit anticipated as a result of enforcing the 
amended rule is that licensees will be able to duplicate a patient's spectacle 
lenses without being in violation of the Texas Optometry Act, and the general 
public will be informed that duplication of lenses would apply only to 
spectacles and not contact lenses. It has also been determined that there will 
be no cost to the public over the first five years as a result of enforcing or 
administering the rule. 
Comments on the proposal may be submitted to Lois Ewald, Executive Director, 
Texas Optometry Board, 333 Guadalupe Street, Suite 2-420, Austin, Texas 78701-
3942. The deadline for furnishing comments is April 1, 1998. 
The amendment is proposed under the Texas Optometry Act, Texas Civil Statutes, 
Article 4552, sec. 2.14 and sec.5.07. 
The Texas Optometry Board interprets sec. 2.14 as authorizing the adoption of 
procedural and substantive rules for the regulation of the optometric 
profession. The Board interprets sec. 5.07 as authorizing the interpretation of 
what a licensee can do regarding duplicating lenses. 

sec.279.3Board Interpretation Number Three 
The Texas Optometry Act, Section 5.07, relates to prescribing without 
examination. It is the interpretation of this board that nothing in this section 
would prohibit a licensed optometrist from: 
(1) duplicating a patient's <nl> spectacle <ol> lenses [or existing 
prescription]; 
(2) - (4) (No change.) 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State, on February 18, 1998.
TRD-9802434
Lois Ewald
Executive Director
Texas Optometry Board
Earliest possible date of adoption: April 5, 1998
For further information, please call: (512) 305-8500

22 TAC sec.279.5
The Texas Optometry Board proposes the adoption of an amendment to sec.279.5 to 
inform licensees of specific instrumentation and procedures which will satisfy 
two specific requirements of the basic competency examination required by 
Section 5.12 of the Texas Optometry Act (Article 4552, V.A.C.S.
Lois Ewald, executive director of the Texas Optometry Board, has determined that 
for the first five-year period the amended rule is in effect, there will be no 
fiscal implications for state and local governments as a result of enforcing or 
administering the rule. 
Lois Ewald also has determined that for each of the first five years the amended 
rule is in effect, the public benefit anticipated as a result of enforcing the 
amended rule is that the general public will receive a basic eye health 
examination with specific and acceptable instrumentations being used. It has 
also been determined that there will be no cost to the public over the first 
five years as a result of enforcing or administering the rule. 
Comments on the proposal may be submitted to Lois Ewald, Executive Director, 
Texas Optometry Board, 333 Guadalupe Street, Suite 2-420, Austin, Texas 78701-
3942. The deadline for furnishing comments is April 1, 1998.
The amendment is proposed under the Texas Optometry Act, Texas Civil Statutes, 
Article 4552, sec. 2.14 and sec.5.12.
The Texas Optometry Board interprets sec. 2.14 as authorizing the adoption of 
procedural and substantive rules for the regulation of the optometric 
profession. The Board interprets sec. 5.12 as authorizing the interpretation of 
what constitutes the specific basic competence steps of an initial examination 
as required by the Act.

sec.279.5 Board Interpretation Number Five 
(a)-(d) (No change.) 
(e) The optometrist or therapeutic optometrist shall, in the initial examination 
of the patient, make and record, if possible, the following findings of the 
condition of the patient, but not necessarily limited to the following findings:
(1) biomicroscopy [slit lamp] examination (lids, cornea, sclera, etc.)<nl>using 
a binocular microscope<ol>
(2) internal ophthalmoscopic examination (media, fundus, etc.)<nl>, using an 
ophthalmoscope or biomicroscope with fundus condensing lenses; videos and 
photographs may be used only for documentation and consultation purposes but do 
not fulfill the internal ophthalmoscopic examination <ol>
(3) - (6) (No change.) 
(f) (No change.)
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt. 
Filed with the Office of the Secretary of State, on February 18, 1998.
TRD-9802435
Lois Ewald
Executive Director
Texas Optometry Board
Earliest possible date of adoption: April 5, 1998
For further information, please call: (512) 305-8500

22 TAC sec.279.7
The Texas Optometry Board proposes the adoption of an amendment to sec.279.7 to 
inform licensees of specific instrumentation and procedures which will satisfy 
two specific requirements of the basic competency examination required by 
Section 5.12 of the Texas Optometry Act (Article 4552, V.A.C.S.) and to clarify 
language regarding the release of contact lens prescriptions as required under 
the new Texas Contact Lens Prescription Act (Article 4552-A, Texas Civil 
Statutes.) 
Lois Ewald, executive director of the Texas Optometry Board, has determined that 
for the first five-year period the amended rule is in effect, there will be no 
fiscal implications for state and local governments as a result of enforcing or 
administering the rule. 
Lois Ewald also has determined that for each of the first five years the amended 
rule is in effect, the public benefit anticipated as a result of enforcing the 
amended rule is that the general public will receive a basic eye health 
examination with specific and acceptable instrumentations being used. The 
general public will also be informed regarding the release of contact lens 
prescriptions. It has also been determined that there will be no cost to the 
public over the first five years as a result of enforcing or administering the 
rule. 
Comments on the proposal may be submitted to Lois Ewald, Executive Director, 
Texas Optometry Board, 333 Guadalupe Street, Suite 2-420, Austin, Texas 78701-
3942. The deadline for furnishing comments is April 1, 1998. 
The amendment is proposed under the Texas Optometry Act, Texas Civil Statutes, 
Article 4552, sec. 2.14 and sec.5.12. 
The Texas Optometry Board interprets sec.2.14 as authorizing the adoption of 
procedural and substantive rules for the regulation of the optometric 
profession. The Board interprets sec.5.12 as authorizing the interpretation of 
what constitutes the specific basic competence steps of an initial examination 
as required by the Act. 

sec.279.7 Board Interpretation Number Seven 
(a) In order to insure an adequate examination of a patient for whom an 
optometrist or therapeutic optometrist prescribes contact lenses, in the initial 
examination of the patient, the optometrist or therapeutic optometrist shall 
make and record, if possible, the following findings of the condition of the 
patient:
(1)- (2) (No change.)
(3) biomicroscopy [slit lamp] examination (lids, cornea, sclera, etc.) <nl> 
using a binocular microscope. <ol>
(4) internal ophthalmoscopic examination (media, fundus, etc.)[;] <nl>, using an 
ophthalmoscope or biomicroscope with fundus condensing lenses; videos and 
photographs may be used only for documentation and consultation purposes but do 
not fulfill the internal ophthalmoscopic examination <ol>.
(5) - (10) (No change.) 
(b) - (e) (No change.) 
(f) <nl>When a fully written contact lens prescription is issued or released to 
a patient, the prescription must be written in compliance with: <ol>
<nl>(1)<ol> <nl>Section 1.02 of the Texas Optometry Act;<ol>
<nl>(2)<ol> <nl> Section 279.1 of this title (relating to Board Interpretation 
Number One); and <ol>
<nl>(3)<ol> <nl>the Texas Contact Lens Prescription Act, Article 4552-A, Texas 
Civil Statutes.<ol> [If a fully written contact lens prescription is issued to a 
patient, the prescription must contain an expiration date and must be a fully 
written contact lens prescription as required under the Act, Section 1.02, and 
Section 279.1 of this title (relating to Board Interpretation Number One).] 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State, on February 18, 1998.
TRD-9802436
Lois Ewald
Executive Director
Texas Optometry Board
Earliest possible date of adoption: April 5, 1998
For further information, please call: (512) 305-8500

22 TAC sec.279.16
The Texas Optometry Board proposes the adoption of a new rule to be known as 
sec.279.16 to inform licensees and dispensers of contact lenses of how the Board 
interprets the use of contact lenses to determine a final contact lens 
prescription and charges therefor within the fitting fee to comply with the 
Texas Optometry Act (Article 4552, V.A.C.S.) and the new Texas Contact Lens 
Prescription Act adopted by the 75th Legislature (Article 4552-A, Texas Civil 
Statutes). 
Lois Ewald, executive director of the Texas Optometry Board, has determined that 
for the first five-year period the rule is in effect, there will be no fiscal 
implications for state and local governments as a result of enforcing or 
administering the rule. 
Lois Ewald also has determined that for each of the first five years the rule is 
in effect, the public benefit anticipated as a result of enforcing the rule is 
that the general public will be informed about the use of lenses to determine a 
final contact lens prescription and the ability of the optometrist to charge for 
those lenses within the fitting fee, prior to the issuance of a contact lens 
prescription to the patient. It has also been determined that there will be no 
cost to the public over the first five years as a result of enforcing or 
administering the rule.
Comments on the proposal may be submitted to Lois Ewald, Executive Director, 
Texas Optometry Board, 333 Guadalupe Street, Suite 2-420, Austin, Texas 78701-
3942. The deadline for furnishing comments is April 1, 1998. 
The rule is proposed under the Texas Optometry Act, Texas Civil Statutes, 
Article 4552, sec. 2.14 and sec.1.02. 
The Texas Optometry Board interprets sec. 2.14 as authorizing the adoption of 
procedural and substantive rules for the regulation of the optometric 
profession. The Board interprets sec. 1.02 as authorizing the interpretation of 
requirements for release of contact lens prescriptions as required by the Act. 

sec.279.16. Board Interpretation Number Sixteen 
Section 3(a) of the Texas Contact Lens Prescription Act (Act), Article 4552-A, 
Texas Civil Statutes, prohibits an optometrist or therapeutic optometrist from 
charging the patient a fee in addition to the examination fee and the fitting 
fee as a condition for giving a contact lens prescription to the patient. The 
Board does not interpret the Act to prohibit charges in the fitting fee for 
lenses used to determine a final contact lens prescription.
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt. 
Filed with the Office of the Secretary of State, on February 18, 1998.
TRD-9802437
Lois Ewald
Executive Director
Texas Optometry Board
Earliest possible date of adoption: February 18, 1998
For further information, please call: (512) 305-8500

CHAPTER 280.Therapeutic Optometry
22 TAC sec.280.4
The Texas Optometry Board proposes the adoption of an amendment to sec.280.4 to 
comply with Texas Government Code Annotated Sections 2110.001 - 2110.008 
(Formerly Article 6252-33, Revised Statutes) which abolished advisory committees 
established on or before September 1, 1993, where no other adopted abolishment 
date was established. Since the fourth anniversary of the statute's effective 
date has passed, the technical advisory committee as referenced in Rule 280.4 is 
abolished, requiring that sections (a) through (c) of Rule 280.4 be removed, and 
subsections (d) and (e) be renumbered. 
Lois Ewald, executive director of the Texas Optometry Board, has determined that 
for the first five-year period the amended rule is in effect, there will be no 
fiscal implications for state and local governments as a result of enforcing or 
administering the rule. 
Lois Ewald also has determined that for each of the first five years the amended 
rule is in effect, the public benefit anticipated as a result of enforcing the 
rule is that an advisory committee with a limited period of duration is properly 
abolished. It has also been determined that there will be no cost to the public 
over the first five years as a result of enforcing or administering the rule. 
Comments on the proposal may be submitted to Lois Ewald, Executive Director, 
Texas Optometry Board, 333 Guadalupe Street, Suite 2-420, Austin, Texas 78701-
3942. The deadline for furnishing comments is April 1, 1998. 
The amendment is proposed under the Texas Optometry Act, Texas Civil Statutes, 
Article 4552, sec. 2.14 and sec.1.03. 
The Texas Optometry Board interprets sec. 2.14 as authorizing the adoption of 
procedural and substantive rules for the regulation of the optometric 
profession. The Board interprets sec. 1.03 as authorizing the interpretation of 
the therapeutic optometry requirements established by the Act. 

sec.280.4 Utilization of Pharmaceutical Agents. 
<nl> (a) <ol> [(d)] As provided in section 1.03(b) of the Act, the following is 
applicable concerning the use of topical steroids. 
(1) If a therapeutic optometrist utilizes topical steroids of a strength of one 
percent (1%) concentration to treat a condition and the condition has not in the 
professional judgment of the therapeutic optometrist substantially improved 
within seven (7) days of the initial topical steroid application, the 
therapeutic optometrist shall consult with an ophthalmologist and the 
ophthalmologist shall then establish the treatment regimen.
(2) If a therapeutic optometrist utilizes topical steroids of a strength of less 
than one percent (-1%) concentration to treat a condition and the condition has 
not in the professional judgment of the therapeutic optometrist substantially 
improved within fourteen (14) days of the initial topical steroid application, 
the therapeutic optometrist shall consult with an ophthalmologist and the 
ophthalmologist shall then establish the treatment regimen. 
<nl> (b) <ol> [(e)] Use by a therapeutic optometrist of pharmaceutical agents 
not authorized under this section shall constitute a violation under the Act, 
Section 4.04. 
[(a) To determine the list of pharmaceutical agents to be used by a therapeutic 
optometrist, the board shall seek assistance of a five-member technical advisory 
committee. The five-member technical advisory committee will be consulted and 
meet as the need arises, in order to update the list of pharmaceutical agents. A 
majority of the committee shall constitute a quorum for the transaction of 
business. A majority of the quorum may act. Final determination of the list will 
be that of the Texas Optometry Board.
(b) In accordance with Section 1.03(f) of the Texas Optometry Act (Act), the 
five-member advisory committee shall be composed of the following: 
(1) one optometrist or therapeutic optometrist licensed and practicing in this 
state, appointed by members of the Texas Optometry Board by majority vote; 
(2) one faculty member of a college of optometry at a state institution of 
higher education appointed by the members of the Texas Optometry Board by 
majority vote; 
(3) one physician licensed and practicing in this state whose practice is 
limited to ophthalmology, appointed by the Texas State Board of Medical 
Examiners; 
(4) one faculty member at a state medical institution of higher education with 
expertise in pharmacology, appointed by the Texas State Board of Medical 
Examiners; and 
(5) one pharmacist licensed and practicing pharmacy in this state, appointed by 
the Texas State Board of Pharmacy.
(c) Expenses incurred by the technical advisory committee shall be paid by the 
Texas Optometry Board and shall include actual costs of meals and lodging, not 
to exceed the amount payable to a member of the Texas Optometry Board, and 
actual transportation costs. No per diem or any other allowances will be paid.] 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt. 
Filed with the Office of the Secretary of State, on February 18, 1998.
TRD-9802438
Lois Ewald
Executive Director
Texas Optometry Board
Earliest possible date of adoption: April 5, 1998
For further information, please call: (512) 305-8500

PART XXV. Structural Pest Control Board
CHAPTER 595.Compliance and Enforcement
22 TAC sec.595.17
The Structural Pest Control Board proposes new sec.595.17, concerning Incidental 
Use for Schools; the proposed new section will allow school employees to make 
incidental applications of green list products with training by the IPM 
Coordinator and in compliance with the school districts IPM policy. 
Benny M. Mathis, Executive Director has determined that there will not be fiscal 
implications as a result of enforcing or administering the rule. There will be 
no estimated additional cost, estimated reduction in cost or estimated loss or 
increase in revenue to state or local government for the first five-year period 
the new rule will be in effect. 
Roger B. Borgelt, General Counsel has determined that for each year of the first 
five years the rule as proposed is in effect, the public benefits anticipated as 
a result of enforcing the rule as proposed will be better pest control in school 
districts due to the ability of districts to have more personnel available to 
address pest problems. There will be no effect on small businesses. There is no 
anticipated economic cost to individuals who are required to comply with the 
rule as proposed. 
Comments on the proposal may be submitted to Roger B. Borgelt, General Counsel, 
Texas Structural Pest Control Board, 1106 Clayton Lane #100 LW, Austin, Texas 
78723. 
The new rule is proposed under Article 135b-6, which provides the Structural 
Pest Control Board with the authority to license and regulate persons who 
provide structural pest control services. 
Texas Civil Statutes, Article 135b-6, sec.595.11 is affected by this proposed 
new rule. 

sec.595.17.Incidental Use For Schools.
(a) The Structural Pest Control Board Incidental Use Situation For Schools Fact 
Sheet must contain the following text: "This fact sheet must be distributed to 
all employees of school districts who apply general use Green List pesticides 
and are not licensed by the Texas Department of Agriculture and do not have a 
Structural Pest Control Board Noncommercial Applicator's or Technician License. 
The fact sheet, instruction and training shall be provided upon initial 
employment by the school district's IPM Coordinator, and thereafter shall be 
available as needed. These general use Green List pesticides include 
insecticides and rodenticides only and involve applications made both inside and 
outside of structures. Incidental Use is not intended for long term or extensive 
pest control measures. Where long term pest control is required, a trained, 
licensed person is to make the applications. Incidental Use for Schools is 
defined as "A pesticide application of a green list product on an occasional, 
isolated, site-specific basis that is incidental to the primary duties of an 
employee and involves the use of general use pesticides after instruction and 
training as provided by rules adopted by the Structural Pest Control Board". 
Examples of Incidental Use situations are treating fire ants in a transformer 
box or treatments for bees or wasps as a non- routine application to protect 
children or personnel. Incidental is defined as site-specific and incidental to 
the employee's primary duties. If it is a part of the employee's primary duty to 
make applications of pesticides, that employee is required, by law, to obtain 
either a Structural Pest Control Board license or Texas Department of 
Agriculture license, depending on the location and/or type of application. In 
all cases of incidental use, the employee should use the least hazardous, 
effective method of controlling pests. All applications to schools or school 
grounds must be in compliance with school district IPM policies. If chemicals 
are to be utilized, they must be applied in strict accordance with manufacturer 
labels of "General Use" products on the Green List being used. Applications made 
inconsistent with the Structural Pest Control Board Law and Regulations, or 
applications made inconsistent with the label requirements of the general use 
product may result in penalties being assessed against the individual and/or the 
Certified Noncommercial Applicator or Technician responsible. "Incidental Use 
Situation" applications of pesticides are regulated by the Structural Pest 
Control Board. If you have any questions or comments, contact the Board at (512) 
451-7200; written inquiries may be addressed to the Structural Pest Control 
Board, 1106 Clayton Lane, Suite 100LW, Austin, Texas 78723. Copies are available 
from the Structural Pest Control Board.
(b) The incidental use fact sheet shall be provided during pesticide instruction 
and training by the IPM Coordinator to each employee of the school district 
whose primary duty is not pest control, and whose work may include tasks subject 
to the incidental use exception. The IPM Coordinator must keep records of the 
training which is conducted. 
(c) Primary duty is defined as a job duty that is part of a written job 
description or is a regularly assigned task of the employee.
(d) Pest control use records must be kept for all incidental use applications. 
(e) Incidental use in school districts is limited to insecticides and 
rodenticides on the green list. 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt. 
Filed with the Office of the Secretary of State, on February 18, 1998.
TRD-9802378
Benny M. Mathis, Jr.
Executive Director
Structural Pest Control Board
Earliest possible date of adoption: April 5, 1998
For further information, please call: (512) 451-7200

TITLE 28. INSURANCE
PART I. Texas Department of Insurance
CHAPTER 9.Title Insurance
SUBCHAPTER A.Basic Manual of Rules, Rates and Forms for the
Writing of Title Insurance in the State of Texas
28 TAC sec.9.1
The Texas Department of Insurance has received a petition proposing an amendment 
to sec.9.1, which concerns the adoption by reference of certain amendments to 
the Basic Manual of Rules, Rates and Forms for the Writing of Title Insurance in 
the State of Texas (the Basic Manual). The Department also proposes an amendment 
to sec.9.1 which deletes unnecessary wording from the section. The amendments 
are necessary to reflect changes to the Basic Manual which would be adopted by 
reference. The 75th Legislature adopted House Joint Resolution 31 proposing a 
constitutional amendment allowing home equity liens and reverse mortgages on 
Texas homestead property. By voter approval on November 4, 1997, Section 50, 
Article XVI, Texas Constitution was amended to provide for the extension of 
credit secured by a lien against the title of Texas homestead property. Stewart 
Title Guaranty Company has petitioned the Department to propose new procedural 
rules to the Basic Manual to facilitate the issuing of mortgagee title policies 
insuring home equity liens on homestead property. The proposed procedural rules 
will enable title insurance companies to issue limited coverage mortgagee title 
policies for home equity Texas homestead property. The only available mortgagee 
policies at present are full coverage mortgagee title policies at full rates. 
Stewart Title Guaranty Company has also petitioned the Department to propose a 
new rate rule that will provide for rates substantially less than the basic 
rates for the Mortgagee Policy of Title Insurance (T-2) (the full coverage 
policy). In considering the new rate rule, the commissioner will also consider 
alternatives to the rate formulations proposed in the petition. The proposed 
rules are as follows: Proposed Procedural Rule P-46, relating to the Texas 
Residential Limited Coverage Junior Mortgagee Policy (T-44); Texas Residential 
Limited Coverage Junior Mortgagee Policy Down Date Endorsement (T-45); Texas 
Residential Limited Coverage Junior Mortgagee Policy Variable Rate Endorsement 
(T-46); and Texas Residential Limited Coverage Junior Mortgagee Policy 
Additional Coverage Endorsement. These rules provide the scope of coverage and 
the restrictions required by the constitutional amendment. 
The proposal also includes the following forms: Proposed Texas Residential 
Limited Coverage Junior Mortgagee Policy Combined Schedule (T-44). This is the 
form of the schedule that states the recording information, the exceptions to 
coverage, and the disclosures regarding the status of the title insurance agent. 
Proposed Texas Residential Limited Coverage Junior Mortgagee Policy Down Date 
Endorsement (T-45). This form outlines the coverage and exceptions based on the 
date of the policy. Proposed Texas Residential Limited Coverage Junior Mortgagee 
Policy Variable Rate Endorsement (T-46). This form outlines the coverage and 
exceptions due to changes in the rate of interest of the insured's mortgage 
loan. 
The proposed rate rule is as follows: Proposed Rate Rule R-27, Premium For Texas 
Residential Limited Coverage Junior Mortgagee Policy (T-44); Texas Residential 
Limited Coverage Junior Mortgagee Policy Down Date Endorsement (T-45); Texas 
Residential Limited Coverage Junior Mortgagee Policy Variable Rate Endorsement 
(T-46); Texas Residential Limited Coverage Junior Mortgagee Policy Additional 
Coverage Endorsement. This rule sets forth standardized premiums based on the 
amount of insurance provided by the junior mortgagee policy. 
Consideration of the amendments to sec.9.1, including alternatives to the rates 
proposed, will occur in a public hearing under Docket Numbers 2335 and 2336, 
scheduled for 9:00 a.m. on April 8, 1998 in Room 100 of the William P. Hobby, 
Jr. Building, 333 Guadalupe Street in Austin, Texas. 
Robert R. Carter, Jr., deputy commissioner for the title insurance division, has 
determined that, for each year of the first five years the amendment is in 
effect, there will be no fiscal impact on state or local government as a result 
of enforcing or administering the amendment. Mr. Carter also has determined that 
there will be no effect on local employment or the local economy.
Mr. Carter also has determined that for each year of the first five years the 
proposed amendments are in effect, the public benefit anticipated as a result of 
administering and enforcing the amendments will be to ensure the appropriate 
policy and endorsement language on title insurance policies covering home equity 
loans. The department expects the public to benefit from the introduction of 
this new limited coverage policy compared to the purchase of a full title 
insurance policy. For insurance coverages ranging from $1 to $150,000 an average 
policyholder premium on a full title insurance policy would cost a potential 
average policyholder $1,009. A new limited coverage policy is expected to cost 
the average policyholder $200 for insurance coverages ranging from $1 to 
$150,000. The potential savings to an average policyholder is expected to be 
$809. The department expects the premium for a limited coverage policy to fully 
compensate the costs of producing such policies. The sale of such policies is 
voluntary and imposes no additional regulatory costs on companies that decide to 
participate in the market. Furthermore, the department anticipates that the 
premium schedule will fully compensate both small and large businesses and, 
therefore, expects no differential impact between small and large businesses 
that decide to participate in such sales. Accordingly, there is no anticipated 
economic cost to individuals or business entities who are required to comply 
with the section as amended. 
Comments on the proposed amendment must be submitted within 30 days after 
publication in the Texas Register to Caroline Scott, Chief Clerk, Texas 
Department of Insurance, P.O. Box 149104, Mail Code 113-1C, Austin, Texas 78714-
9104. An additional copy of the comment should be submitted to Robert R. Carter, 
Jr., Deputy Commissioner of Title, Mail Code 103-1T, Texas Department of 
Insurance, P.O. Box 149104, Austin, Texas 78714-9104. The department has filed a 
copy of the proposed amendment to the Basic Manual with the Secretary of State's 
Texas Register Section. Persons desiring copies can obtain them from the Texas 
Department of Insurance, Title Insurance Section, Mail Code 103-1T, P.O. Box 
149104, Austin, Texas 78714-9104.
This amended section is proposed pursuant to the Insurance Code, Articles 9.07, 
9.21, and 1.03A and Section 50, Article XVI, Texas Constitution. Article 9.07 
authorizes and requires the commissioner to promulgate or approve rules and 
policy forms of title insurance and otherwise to provide for the regulation of 
the business of title insurance. Article 9.21 authorizes the commissioner to 
promulgate and enforce rules and regulations prescribing underwriting standards 
and practices, and to promulgate and enforce all other rules and regulations 
necessary to accomplish the purposes of Chapter 9, concerning regulation of 
title insurance. Article 1.03A authorizes the commissioner to adopt rules and 
regulations for the conduct and execution of the duties and functions of the 
department as authorized by statute. By voter approval on November 4, 1997, 
Section 50, Article XVI, Texas Constitution was amended to permit an encumbrance 
against homestead property for certain extensions of equity credit. The 
Government Code, sec.sec.2001.04-2001.038 et seq. (Administrative Procedure Act) 
authorizes and requires each state agency to adopt rules of practice setting 
forth the nature and requirements of available procedures and to prescribe the 
procedure for adoption of rules by a state administrative agency. 
The following statutes are affected by this proposal: Insurance Code, Articles 
9.07 and 9.21

sec.9.1.Basic Manual Of Rules, Rates, and Forms for the Writing of Title 
Insurance in the State of Texas. 
The Texas Department of Insurance adopts by reference the Basic Manual of Rules, 
Rates, and Forms for the Writing of Title Insurance in the State of Texas as 
amended effective <nl>April 30, 1998<ol> [January 12, 1998 ]. The document [is 
published by and] is available from [Hart Information Services, 11500 Metric 
Boulevard, Austin, Texas 78758, and is available from] and on file at the Texas 
Department of Insurance, Title Insurance Section, Mail Code 103-1T, 333 
Guadalupe Street, Austin, Texas 78701-1998.
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt. 
Filed with the Office of the Secretary of State, on February 19, 1998.
TRD-9802476
Caroline Scott
General Counsel and Chief Clerk
Texas Department of Insurance
Earliest possible date of adoption: April 5, 1998
For further information, please call: (512) 463-6327

TITLE 30. ENVIRONMENTAL QUALITY
PART I. Texas Natural Resource Conservation Commission 
CHAPTER 321. Control of Certain Activities by Rule
SUBCHAPTER B. <nl>Concentrated Animal Feeding<ol> [
Commercial Livestock and Poultry Production] Operations
30 TAC sec.sec.321.31-321.46
The Texas Natural Resource Conservation Commission (Commission) proposes 
amendments to sec.sec.321.31-321.46, concerning the updating of technical 
requirements and simplifying administrative procedures related to authorizations 
of concentrated animal feeding operations (CAFOs). 
At the same time as these amendments to this subchapter are being proposed, the 
commission is proposing the issuance of a general permit for CAFOs in accordance 
with the amended provisions of sec.26.040 of the Texas Water Code (75th 
Legislative Session, 1997). A general permit is not required to adopted by rule. 
Rather, a general permit may be issued, amended, revoked, renewed or canceled as 
provided by sec.26.040 of the Texas Water Code. Additionally, sec.26.040 
provides specific procedural requirements for the issuance of a general permit, 
including special notice, comment and public hearing provisions.
The commission has made the preliminary findings required by sec.26.040(a) that 
this category of discharges meets the requirements necessary to qualify for a 
general permit. Such preliminary findings are discussed in more detail in the 
Notice of a Proposed General Permit published concurrently with this rulemaking. 
The proposed general permit will provide a medium for authorization for CAFOs 
that discharge not more than 500,000 gallons into surface water in any twenty-
four hour period, if operated in accordance with the provisions of the general 
permit. The amended provisions of this subchapter will provide alternate means 
for authorization for all CAFOs, including those that cannot gain coverage under 
the proposed general permit. 
The purpose of the proposed rules is to create, together with the proposed 
general permit, a variety of vehicles available for the regulation and 
authorization of air emissions and water discharges by CAFOs, tailored according 
to regulatory needs including the sizes and natures of the facilities and their 
discharges, statutory requirements, and the necessary administrative burdens 
both on the commission and on the dischargers. As amended, this subchapter will 
offer or require, as appropriate, authorization by individual permit or by 
registration under a permit by rule. In combination with the general permit, 
these regulatory options will provide a full spectrum of options for the 
commission to regulate CAFOs by suitable and efficient means. 
The commission has taken into consideration the following state and federal 
actions in proposing these amendments to Subchapter B: 
1)Senate Bill 2, 72nd Texas Legislature, First Called Session (1991): 
Consolidation of the Texas Air Control Board, Texas Water Well Drillers Board, 
Texas Board of Irrigators, Texas Water Commission and selected programs from the 
Texas Health Department into the Texas Natural Resource Conservation Commission 
with the express purpose and instruction that the new TNRCC streamline permit 
procedures and promote more comprehensive and more expeditious review of 
proposed facilities. 
2)Senate Bill 503, 73rd Texas Legislature (1993), that allows the Texas State 
Soil and Water Conservation Board to assist small agricultural and silvicultrual 
facilities in meeting water quality requirements in the state through financial 
assistance and the development of certified water quality management plans. 
3)EPA Region VI General Permit for CAFOs (March, 1993), which establishes 
technical and procedural requirements substantially identical to those contained 
in these proposed amendments for CAFOs to meet in order to receive federal 
authorization to discharge under the National Pollutant Discharge Elimination 
System (NPDES). 
4)Section 26.040 of the Texas Water Code, under which Subchapter B was 
originally adopted and which directed that the commission may by rule regulate 
and set requirements and conditions for discharges of waste whenever the 
commission determines that requiring individual permits is unnecessarily 
burdensome both to the waste discharger and to the commission. 
5)House Bill 1542, 75th Texas Legislature (1997), which amended sec.26.040 of 
the Texas Water Code to allow the TNRCC to authorize the discharge of 
wastewaters through the issuance of general permits. Discharges under such 
general permits are limited to no more than 500,000 gallons in a 24-hour period. 
This bill further specifies that all current rules adopted by the TNRCC under 
sec.26.040 as it read prior to the effective date of the HB 1542 should remain 
in effect, as they may be amended by the commission from time to time as 
appropriate, and provides that the commission's authority for subsequent 
amendments or modifications is not affected by the changes made by the bill. 
6)The General Appropriation Acts of 73rd, 74th and 75th Sessions of the Texas 
Legislature which have limited the number of employees and funds allocated to 
the various programs of the TNRCC. 
Under this proposal to amend Subchapter B, the commission is considering a 
change to the existing technical and procedural requirements for some CAFOs. The 
permitting procedure as it operates under current Subchapter B requires the 
agency to invest significant resources and manpower performing repetitive 
technical reviews and evaluations in order to develop individual draft permits 
for all CAFOs, even though federal and state experience establishes that permits 
for most CAFO facilities should contain basically uniform technical 
requirements. The agency has been criticized by applicants, local economic 
development organizations, agricultural commodity groups, local chambers of 
commerce, and legislators for taking too long to process applications under the 
existing Subchapter B process. Such criticism indicated that the long timeframe 
for processing applications under existing Subchapter B, and the differing 
technical requirements from the existing EPA Region VI general permit, were 
combining to force potential CAFO facilities to locate in other states, 
depriving our state of economic development opportunities. 
The TNRCC as well as other state agencies has been required through the 
appropriations process in the last several legislative sessions to reduce the 
number of their employees and overall costs of conducting their various 
programs. 
Since its consolidation in 1993, the TNRCC has continued to evaluate its 
programs to find ways to reduce its overall human resources costs and associated 
expenses, while providing for the continued protection of the quality of the 
state's resources under its jurisdiction. The commission identified CAFOs as one 
of the number of types of facilities for which it is appropriate to modify the 
commission's authorization procedure from entirely a individual permitting 
process to one that at least partly utilizes permits-by-rule, so as to provide a 
performance-based system with a less time-consuming and labor-intensive 
administrative process while maintaining a high level of protection for the 
environment. 
It would clearly lead to a backlog of such permitting actions, similar to 
occurrences before the implementation of permits by rule through the former 
Subchapter K. The commission believes its resources would be better spent 
conducting individual permitting actions for those facilities that regularly 
discharge waste into surface waters, and thereby have a greater potential for 
pollution, while regulating by uniform rule or permit most facilities that are 
not allowed to discharge into a stream or water body unless there is a rainfall 
greater than a 25-year, 24-hour event. Such action is consistent with the 
provisions and philosophy of the EPA Region VI General Permit for CAFOs. The 
proposed amendments to Subchapter B and the concurrent proposed general permit 
provide for a process of gaining authorization similar in nature and structure 
to that used by EPA Region VI. They also bring the technical requirements of the 
state program up to the those of the federal program, allowing the CAFOs in the 
state to achieve a single set of standards and providing the basis for the state 
to quickly and efficiently assume administration of the NPDES CAFO program upon 
authorization of the program from EPA. 
In addition to the existing provisions of Subchapter B, an applicant wanting to 
construct a new CAFO facility or amend or renew an authorization for an existing 
facility must also obtain a separate air quality authorization from the 
Commission through a separate and distinct process under Chapter 116 of this 
title (relating to Control of Air Pollution by Permits for New Construction or 
Modification). The proposed amendments to Subchapter B and the concurrent 
proposed general permit are consistent with the provisions of the EPA Region VI 
General Permit for CAFOs and go even further by providing additional 
requirements which address the commission's concerns and responsibilities for 
protection of both groundwater resources and air quality. 
As indicated in previous paragraphs, under current rules CAFOs are required to 
seek authorizations under two separate processes at the TNRCC. The proposed 
amendments to Subchapter B and the concurrent proposed general permit provide 
for a process where a CAFOs will gain coverage or authorization fully protective 
of both air and water quality through a single process. This will give TNRCC the 
ability to combine processes and save limited resources and manpower. Amendments 
to Subchapter B are being proposed, in part, to replace the judicially nullified 
Subchapter K and to make state (commission) requirements for new facilities 
consistent with existing federal (Environmental Protection Agency or "EPA") 
requirements contained in 40 CFR Part 122, relating to concentrated animal 
feeding operations. In addition to providing more consistency with federal 
requirements, the proposed amendments to this subchapter would enable the 
commission to regulate these facilities in a manner that conserves scarce 
resources, and will relieve burdens on the commission and the CAFOs by 
consolidating air and water quality authorization requirements into a single 
process.
Proposed amendments to Subchapter B would allow a CAFO to obtain an air quality 
standard permit through the procedures identified in this amended subchapter, 
regardless of whether its water quality authorization takes the form of an 
individual permit, registration under the permit by rule or coverage under the 
general permit. This standard permit would satisfy the Texas Clean Air Act 
requirements so that a separate air quality authorization would not be 
necessary. The air quality requirements of this subchapter reflect the 
application of best available control technology for CAFOs, and address the 
protection of air quality through the implementation of goodhousekeeping 
practices. If an applicant cannot meet the air quality criteria of this amended 
subchapter, or if the CAFO is a major source or major modification as defined in 
Chapter 116 of this title, then a separate air quality permit will be required.
The amended registration or permit by rule is intended to relieve the commission 
of the unproductive burden of processing individual permit applications for 
those CAFOs that either do not qualify for, or choose not to be, covered by the 
proposed general permit, but are nevertheless appropriately regulated if they 
comply with the requirements of the permit by rule. These amendments also 
preserve the commission's flexibility to require any facility to apply for and 
obtain an individual permit, for any reason that within the commission's 
judgment makes it necessary or appropriate that they do so. In this way, the 
commission will be able to use its resources efficiently to concentrate 
individual attention more directly where it is needed. This type of efficiency 
is possible in the regulation of CAFOs because, as reflected both in the 
proposed general permit and in this proposed permit by rule, most CAFOs, if 
designed and operated properly in conformity with uniform standards, will avoid 
discharging into surface water except under exceptional circumstances. Those 
that fall outside of that group will still receive individually tailored permits 
and provisions.
For registrations, these amendments would adopt a public participation procedure 
similar to that the commission uses for registrations under Chapter 312 of this 
title, (relating to Sludge Use, Disposal and Transportation). These include 
notice of technically complete applications both published in the locality of 
the proposed operation and mailed to potentially affected landowners and other 
interested persons and governmental authorities, opportunity for public comment, 
consideration by the executive director of such comment timely received, and 
procedures for commenters or the applicant to ask the commission for 
reconsideration of the executive director's action on a registration 
application. For those who have exhausted their administrative remedies and 
otherwise have standing, there is then the ability to appeal the commission's 
final decision to state district court under Texas Water Code sec.5.351. Thus, 
these amendments would provide for full public notice, scrutiny and input, as 
well as commission and judicial review, while reserving for those cases where an 
individual permit is appropriate the full contested case hearing provided for 
under sec.26.028 of the Water Code. Mindful that even the most simple contested 
case hearing costs the agency several thousand dollars in staff time alone, the 
commission proposes these amendments, in part, as a way to devote such resources 
only to those cases where circumstances make an individual permit necessary for 
effective regulation. 
EXPLANATION OF PROPOSED RULE 
Proposed changes to sec.321.31, Waste and Wastewater Discharge and Air Emission 
Limitations, provides the general restrictions or limitations to the discharge 
of wastewater from a CAFO. These limitations are consistent with existing 
federal requirements for CAFOs. The proposed changes also provides that 
facilities must be operated in such a manner as to prevent a public health 
nuisance or a condition of air pollution as provided by Texas Health and Safety 
Code, Chapters 341 and 382. 
Proposed changes to sec.321.32, Definitions, reflects a significant number of 
additional terms being defined, a small number being deleted and a few existing 
definitions being modified to reflect the consistency between state and federal 
programs. 
Proposed changes to sec.321.33, Applicability, provide that any existing feedlot 
holding an individual permit issued either under Subchapter B or under other 
authority prior to the effective date of these amendments shall continue to be 
regulated under such individual permit. It also provides that any animal feeding 
operation may be required by the executive director to file an application to 
obtain an individual permit under circumstances identified in this amended 
section. Any CAFO which does not gain coverage under the proposed CAFO general 
permit or does not hold an existing individual permit must file an application 
for registration in accordance with the provisions of sec.321.35 of this title, 
(relating to Procedures for Making Application for Registration). CAFOs in the 
Dairy Outreach Program Areas having greater than or equal to 300 animal units 
but less than 1000 animal units are required to file an application for 
registration under this subchapter and meet the education requirements of 
sec.321.41 of this title, (relating to Other Requirements). Any CAFOs which are 
not required to file an application for registration or an individual permit 
under the provisions of this subchapter shall comply with all the requirements 
under sec.sec.321.38-321.42 of this title, (relating to Proper CAFO Operation 
and Maintenance, Pollution Prevention Plans, Best Management Practices, Other 
Requirements, and Monitoring and Reporting Requirements). 
This amended section also prohibits new facilities on the Edward's Aquifer 
recharge zone. The proposed changes would also allow certain CAFOs to obtain an 
air quality standard permit authorization by meeting air quality criteria 
contained in this amended subchapter. Qualification for the air quality standard 
permit authorization would be determined in the consolidated review and 
authorization process provided by sec.321.34, Procedures for Making Application 
for an Individual Permit or sec.321.35, Procedures for Making Application for 
Registration. However, certain CAFO's are prohibited from using the standard 
permit authorization and must obtain a separate air quality permit. Any CAFO 
which cannot meet the air quality criteria in this amended subchapter must 
obtain a separate air quality authorization under Chapter 116 of this title. Any 
CAFO which is a new major source or major modification as defined in Chapter 116 
of this title must obtain an air quality permit under Chapter 116 of this title. 
Additionally, animal feeding operations that are not required to obtain a CAFO 
permit under this amended subchapter may be required to obtain air quality 
authorization under Chapter 116 of this title (certain operations may qualify 
for an exemption from air quality permitting requirements). Finally, the 
commission is investigating whether CAFOs of a particular size or greater would 
present nuisance odor problems that would require individual analysis or special 
conditions beyond those provided under the air quality standard permit or the 
provisions of the proposed amendment to this subchapter. Therefore the 
commission invites the public and regulated community to comment on these 
issues. 
Regardless of any authorization granted pursuant to this amended subchapter, 
CAFOs must comply with any applicable federal air quality regulations including, 
but not limited to, National Emission Standards for Hazardous Air Pollutants 
("NESHAPs") or New Source Performance Standards ("NSPS"). Additionally, any CAFO 
that constitutes a major source as defined in Chapter 122 of this title must 
obtain a federal operating permit under that chapter. 
The proposed changes would also exempt from this amended subchapter any existing 
CAFO which is operating under a certified water quality management plan or any 
facility which qualifies and obtains such a plan from the Texas State Soil and 
Water Conservation Board, unless the CAFO or facility is referred by the Board 
to the commission for non-compliance pursuant to Texas Agriculture Code 
sec.201.026. 
Finally, the proposed changes to this section would provide that by written 
request of the owner/operator a facility currently authorized by an individual 
permit may request a transfer of authorization from an individual permit to 
coverage under an application for registration. However, such request and 
application would be processed in accordance with the provisions of sec.321.35 
of this title, (relating to Procedures for Making Application for Registration). 
Proposed changes to sec.321.34, Procedures for Making Application for an 
Individual Permit, provides application content requirements and associated 
fees. Applications filed under this section will be processed in accordance with 
the applicable provisions of Chapter 305 of this title (relating to Consolidated 
Permits), unless specified otherwise in this amended section. It also provides 
that individual permits issued under this amended subchapter shall not exceed a 
term of five years, unless stated otherwise in the permit or extended by order 
of the commission. Finally, it provides that new CAFOs must provide, at the time 
of the initial application a minimum air quality buffer of one-quarter mile from 
any occupied residence or business structure, school, church, or public park 
unless the owner of such affected property provides written consent, in order to 
qualify for consolidated air quality standard permit and a water quality permit. 
In accordance with Texas Water Code sec.26.028(e), the proposed amendment to 
sec.321.34, Procedure for Making Application for an Individual Permit, provides 
that an application to renew a permit for a confined animal feeding operation 
which was issued between July 1, 1974, and December 31, 1977, may be renewed by 
the commission at a regular meeting without holding a public hearing if the 
applicant does not seek to discharge into or adjacent to waters in the state and 
does not seek to change materially the pattern or place of disposal. 
In addition, the proposed changes to this section provide that an application 
for renewal of an individual permit must be filed not later than the 180th day 
prior to the date the permit is to expire. It also provides required content 
requirements and associated fees. Finally, an application for renewal for an 
individual permit may be granted without a public notice if no change to the 
facility is being proposed and no formal major enforcement action has been 
brought against the facility during the previous 36-month period. In order to 
qualify for the renewal process identified in the previous sentence and in 
addition to the provisions described in this paragraph, any application for 
renewal of an individual permit within a Dairy Outreach Program Area, an annual 
compliance inspection will have to have been completed within 12 months of the 
date the executive director processes the application for permit renewal. Any 
application for renewal of an individual permit failing to meet the above 
provisions will be processed as if it was a new application in accordance with 
the procedures specified in this amended section. 
Proposed changes to sec.321.35, Procedures for Making Application for 
Registration, provides application content requirements and associated fees. It 
also provides that registrations authorized under this amended subchapter shall 
not exceed a term of five years, unless extended by order of the commission. 
Finally, it provides that new CAFOs must provide, at the time of the initial 
application a minimum air quality buffer of one-half mile from any occupied 
residence or business structure, school, church, or public park unless the owner 
of such affected property provides written consent, in order to qualify for 
consolidated air quality and water quality authorization. In these proposed 
amendments, the commission is proposing up to a one-half mile air quality buffer 
and a provision which requires an applicant to develop and implement a plan to 
abate odors and control air contaminants. The commission will consider these 
additional requirements, any similar options, alternatives or possible 
reductions to these requirements that are proposed through the public comment 
and public hearing process and solicits public comments thereto. 
In addition, the proposed changes to this section provide that an application 
for renewal of a registration must be filed not later than the 180th day prior 
to the date the authorization is to expire. It also provides required content 
requirements and associated fees for the renewal process. Finally, an 
application for renewal of a registration may be granted without a public notice 
if no change to the facility is being proposed and no formal major enforcement 
action has been brought against the facility during the previous 36-month 
period. In order to qualify for the renewal process identified in the previous 
sentence and in addition to the provisions described in this paragraph, any 
application for renewal of an existing registration within a Dairy Outreach 
Program Area, an annual compliance inspection will have to have been completed 
within 12 months of the date the executive director processes the application 
for renewal. Any application for renewal of a registration failing to meet the 
above provisions will be processed as if it was a new application in accordance 
with the procedures specified in this amended section. 
Proposed changes to sec.321.36, Notice of Application for Registration, 
applications for registration must be reviewed by the executive director for 
administrative and technical completeness within 30 working days of receipt of 
the application. If the application is not complete, the executive director must 
notify the applicant within this review period and allow the applicant a maximum 
30-day period to provide the necessary information. If the applicant does not 
timely submit such information, the application shall be returned. In addition, 
proposed amendments to this section, provide notice content requirements, a 30-
day public comment period, published notice in a local newspaper, and mailed 
notice to affected persons including adjoining landowners, county judges, river 
authorities in the Dairy Outreach Program Areas, and where applicable, ground 
water districts. These provisions are consistent with those applicable to other 
types of applications provided by Chapter 305 of this title. 
Proposed changes to sec.321.37, Action on Applications for Registration, 
provides that the public may provide comments to the executive director on 
applications for registration which are received within 30 days of the mailed 
notice. Comments will be considered by the executive director in determining 
what action to take on the application. In addition, the executive director 
shall determine whether to grant or deny the application, in whole or in part, 
deny with prejudice, suspend an activity or modify a proposed activity requested 
by the applicant. Further, the amendments to this section require the executive 
director to provide a copy of the determination in writing to the applicant and 
any persons submitting written information on the application. Finally, this 
amended section provides that any affected persons submitting written comments 
or the applicant may file a motion with the chief clerk in accordance with 
sec.50.39(b)-(f) of this title (relating to Motions for Reconsideration) 
requesting the commission to reconsider the final determination of the executive 
director. 
Proposed changes to sec.321.38, Proper CAFO Operation and Maintenance, requires 
the owner/operator of any CAFO authorized by this amended subchapter to 
implement and document all best management practices provided by amended 
sec.321.40 of this title as well as other necessary measures contained in the 
facility's pollution prevention plan as provided by proposed amendments to 
sec.321.39 of this title or a Natural Resources Conservation Service (NRCS) 
plan, as applicable. Copies of such records and plans shall be provided to the 
executive director upon request. 
Proposed changes to sec.321.39, Pollution Prevention Plans, requires each 
facility, authorized under this amended subchapter, to develop and implement a 
Pollution Prevention Plan (PPP) providing pollution prevention and abatement 
measures as specified in the rule. Provisions contained in a NRCS plan may be 
substituted or referenced for those in the PPP. 
Proposed changes tosec.321.40, Best Management Practices, provides a list of 
best management practices that must be utilized by all CAFOs authorized under 
this amended subchapter, where reasonable and appropriate, and based upon 
existing physical conditions. Where provisions in a NRCS plan are equivalent or 
more protective than those provided by this amended section, such provisions may 
be used in lieu of corresponding BMPs in this section. 
In accordance with sec.26.048 of the Texas Water Code, a CAFO authorized to 
discharge agricultural waste into a playa or to use a playa as a wastewater 
retention facility for agricultural waste before the adoption of these rules may 
continue such discharge provided water samples from wells at the site are tested 
for chlorides and nitrates. If the test results indicate a significant increase 
in the levels of these contaminants, the commission shall investigate the cause 
and require necessary corrective action. 
Proposed changes to sec.321.41, Other Requirements, provides additional 
conditions on any authorization or individual permit granted under this amended 
subchapter including those relating to education and training (Dairy Outreach 
Program Areas only), inspections and recordkeeping, internal reporting 
procedures, and visual and site inspections. Any owners/operators of CAFOs with 
greater than or equal to 300 animal units in the Dairy Outreach Program Areas 
and covered by the provisions of this amended subchapter are required to obtain 
authorization under this amended subchapter and do the following: 1) within 12 
months of coming under the provisions of this amended subchapter, complete an 
eight hour course in animal waste management; and 2) complete an additional 
eight hours of continuing animal waste management education within each 24 month 
period of the initial course. 
Proposed changes to sec.321.42, Monitoring and Reporting Requirements, requires 
an owner or operator of any facility authorized under this amended subchapter to 
report to the executive director any discharge from the CAFO to waters or 
adjacent to waters in the state. Such report must be done orally within 24 hours 
and in writing within five working days of the discharge. These provisions are 
consistent with those contained in Chapter 305 of this title. In addition, the 
proposed changes provide what types of data and information shall be maintained 
on-site and/ or submitted to the executive director.
Proposed changes to sec.321.43, Notification, requires all new animal feeding 
operations which plan or propose to confine 300 animal units or 300 head of any 
species not specifically listed under the definition of a CAFO in this amended 
subchapter to notify the executive director of the location and size of their 
operation. No fees will be imposed as the result of this notification. Any 
facilities which have no potential to discharge into waters in the state are not 
required to notify the executive director. 
Proposed changes to sec.321.44, Dairy Outreach Program Areas, describes those 
counties in the state which are involved in the Dairy Outreach Program as of the 
effective date of these rules. The areas include all of the following counties: 
Erath, Bosque, Hamilton, Comanche, Johnson, Hopkins, Wood and Rains. Such areas 
must be delineated by rule. This section of the rules shall be reviewed by the 
commission on at least a triennial basis to determine whether counties should be 
added or deleted from designation. 
Proposed changes to sec.321.45, Effect of Conflict or Invalidity of Rule, 
contains a standard severability clause providing that the invalidity of any one 
provision shall not affect the validity of any of the remaining provisions. 
Additionally, to the extent of any irreconcilable conflict between the 
provisions of this amended subchapter and those outside the subchapter, the 
former shall control. 
Proposed changes to sec.321.46, Air Standard Permit Authorization for a CAFO 
General Permit provides that a facility that locates and is managed in 
compliance with an authorization under a CAFO general permit obtained in 
accordance with the notice of intent requirements of the general permit is 
entitled to an air quality standard permit rather than apply for a separate air 
quality permit. 
FISCAL NOTE 
Stephen Minick, Strategic Planning and Appropriations Division, has determined 
that for the first five years these sections as proposed are in effect, there 
will be fiscal implications as a result of enforcement and administration of the 
sections. The effects on state government will be an estimated decrease in 
revenue of approximately $1,500 in permit fees for each facility eligible for a 
consolidated permit under these rules. Due to the relatively small number of 
facilities potentially affected and the availability of fund balances in the 
affected accounts, these reductions are not anticipated to adversely affect the 
commission's ability to meet workload demands under existing budget authority. 
There are no effects anticipated for local governments. 
The amended rule as proposed will increase costs of engineering and 
certification of waste management facilities at affected livestock and poultry 
operations. Most of these costs are also required for compliance with the 
federal EPA general permit for concentrated animal feeding operations and are 
not completely attributed to the amendments as proposed here. These costs will 
vary on a case-by-case basis with the size, location and type of affected 
facility, but are anticipated to average approximately $2,000 for most 
operations. Because the proposed authorizations would be a consolidated permit, 
affected operators will also realize a cost savings due to the elimination of 
requirements associated with application for separate water quality and air 
quality authorizations. These cost savings cannot be determined exactly, but are 
anticipated to mitigate to some extent the potential cost increases attributed 
to additional engineering and certification requirements. For new facilities, 
additional costs will be related to the proposed one-half mile distance 
limitation for the facility location relative to certain existing development. 
This proposed requirement will not affect existing facilities, but will 
potentially increase the site acquisition and development costs of new 
facilities. Cost estimates will vary on a case-by-case basis with the size, 
location and description of a proposed facility and will be dependent on 
existing land uses, property costs and site configurations. Additional costs may 
also be related to any proposals to require additional nuisance odor abatement 
provisions for certain facilities beyond those contained in existing air quality 
standard permits or proposed amendments to these sections. Public comment on 
such proposals is requested in this rulemaking, but no specific requirements are 
included in these proposed amendments and no cost estimates have been developed. 
For all affected facilities collectively, the total costs are estimated to 
approach or exceed the total savings; however, the net affect on any individual 
operator cannot be determined exactly. Affected operators may be defined as 
small businesses and the fiscal implications identified will vary for these 
businesses on a case-by-case basis. 
PUBLIC BENEFIT 
Mr. Minick has also determined that for each of the first five years these 
amended sections as proposed are in effect, the public benefit anticipated as a 
result of enforcement of and compliance with the sections will be: 
simplification and more cost-effective administration of the permitting program 
for concentrated animal feeding operations, increased focus of water quality 
protection efforts on more critical areas of potential degradation, more 
comprehensive management of both air and water quality issues, and enhanced 
coordination of state and federal water quality control programs. There are no 
fiscal effects anticipated for any person required to comply with the sections 
as proposed except as identified above. 
REGULATORY IMPACT ANALYSIS 
The commission has reviewed the proposed rulemaking in light of the regulatory 
analysis requirement of Texas Government Code sec.2001.0225 and has determined 
that the rulemaking is not subject to sec.2001.0225 because it does not meet the 
definition of a "major environmental rule" as defined in the act, and it does 
not meet any of the four applicability requirements listed in sec.2001.0225(a). 
TAKINGS IMPACT ANALYSIS 
The commission has prepared a Takings Impact Assessment for these rules pursuant 
to Texas Government Code Annotated, sec.2007.043. The following is a summary of 
that Assessment. The specific purpose of the proposed amendments is to create, 
together with the proposed general permit, a variety of vehicles available for 
the regulation and authorization of air emissions and wastewater discharges by 
CAFOs, tailored according to regulatory needs including the sizes and natures of 
the facilities and their dischargers, statutory requirements and the burdens 
both on the commission and on the discharges. Promulgation and enforcement of 
these proposed amendments will not affect private real property which is the 
subject of the rules. 
PUBLIC HEARING 
A public hearing on the proposal will be held April 7, 1998 at 2:00 p.m. in Room 
201S of the Commission Building E, located at 12100 Park 35 Circle, Austin. The 
hearing is structured to receive oral or written comments by interested persons. 
Individuals may present oral statements, when called upon, in the order of 
registration. Open discussion will not occur during the hearing; however, a 
commission staff member will be available to discuss the proposal 30 minutes 
prior to the hearing and will answer questions before and after the hearing. 
PUBLIC COMMENTS 
Written comments on the proposal should refer to Rule Log No. 97152-321-WT and 
may be submitted to Lutrecia Oshoko, Texas Natural Resource Conservation 
Commission, Office of Policy and Regulatory Development, MC 205, P.O. Box 13087, 
Austin, Texas 78711-3087, (512) 239-4640. Comments may be faxed to (512) 239-
5687, but must be followed up with the submission and receipt of the written 
comments within three working days of when they were faxed. Written comments 
must be received by 5:00 p.m., April 13, 1998. For further information 
concerning this proposal, please contact Darrell Williams, Texas Natural 
Resource Conservation Commission, Water Quality Division, (512) 239-5768. 
COASTAL MANAGEMENT PLAN 
Under 31 TAC sec.505.11 permits for a new CAFO within one mile of a coastal 
natural resource area (CNRA) must be consistent with the applicable goals and 
polices of the CMP contained in Chapter 501, Subchapter B of Title 31. These 
proposed rules would specifically require CAFOs within one mile of a CNRA to 
obtain an individual permit for the specific purpose of ensuring consistency 
with applicable CMP goals and policies. 
Preliminary Consistency Determination: The commission has preformed a 
preliminary consistency determination for the proposed rules pursuant to 31 TAC 
sec.505.22 and has found the proposed rulemaking is consistent with the 
applicable CMP goals and policies. The following is a summary of that 
determination. CMP goals applicable to the proposed rule include the protection, 
restoration and enhancement of the diversity, quality, quantity, functions and 
values of Coastal Natural Resource Areas (CNRA) and to ensure sound management 
of all coastal resources by allowing for compatible economic development and 
multiple human uses of the coastal zone. CMP policies applicable to the proposed 
rule include the following: 1) discharges shall comply with water- quality-based 
effluent limits; 2) discharges that increase pollutant loadings to coastal 
waters shall not impair designated uses of coastal waters and shall not 
significantly degrade coastal water quality unless necessary for important 
economic or social development; and 3) to the greatest extent practicable, new 
wastewater outfalls shall be located where they will not adversely affect 
critical areas. Promulgation and enforcement of these rules will not violate 
(exceed) any standards identified in the applicable CMP goals and policies 
because any new proposed CAFO located within one mile of a CNRA will be required 
to pursue an individual permit which will allow the commission to consider the 
effects of such a facility on the CNRA, establish effluent limits, if necessary, 
on any discharges from the proposed facility to maintain applicable water 
quality standards and allow opportunity for notice, public comment and public 
hearing. 
Request for Public Comment: The commission seeks public comment on the 
consistency of the proposed rule amendment. 
STATUTORY AUTHORITY 
These amendments are proposed under the Texas Water Code, sec.5.102, which 
provides the commission with the authority to carry out duties and general 
powers of the commission under its jurisdictional authority as provided by Texas 
Water Code sec.5.103. These amendments are also proposed under sec.26.028(c), 
26.040 and 26.041 of the Texas Water Code and sec.382.017 of the Texas Health 
and Safety Code. 
There are no other codes, statutes, or rules that will be affected by this 
proposal. 

sec.321.31. <nl>Waste and Wastewater Discharge and Air Emission Limitations <ol> 
[Statement of No Discharge Policy].
<nl>(a)<ol> It is the policy of the Texas <nl>Natural Resource Conservation<ol> 
[Water] Commission that there shall be no discharge <nl>or disposal<ol> of waste 
and/or wastewater from [concentrated] animal feeding operations into <nl>or 
adjacent to<ol> [the] waters in the state, <nl>except in accordance with 
subsection (b) of this section, any individual permits issued under this 
subchapter prior to the effective date of these rules, any CAFO general permits, 
or sec.305.1 of this title (relating to Scope and Applicability)<ol> [but rather 
that these materials shall be retained and utilized or disposed of on 
agricultural land]. <nl> Waste and/or wastewater generated by a concentrated 
animal feeding operation under this subchapter shall be retained and utilized or 
disposed of in an appropriate and beneficial manner as provided by commission 
rules, orders, registrations, authorizations, CAFO general permits or individual 
permits. <ol> 
<nl>(b)<ol> Wastewater may be discharged to waters in the state whenever 
rainfall events, either chronic or catastrophic, cause an overflow of process 
wastewater from a facility designed, constructed and operated to contain process 
generated wastewaters plus the runoff (storm water) from a 25-year, 24-hour 
rainfall event for the location of the point source (facility authorized under 
this subchapter). There shall be no effluent limitations on discharges from 
retention structures constructed and maintained to contain the 25-year, 24-hour 
storm event if the discharge is the result of a rainfall event which exceeds the 
design capacity and the retention structure has been properly maintained. 
Retention structures shall contain process wastewaters plus the 25-year, 24-hour 
storm event in accordance with sec.321.39 of this title (relating to Pollution 
Prevention Plans). 
<nl>(c)<ol> Facilities shall be operated in such a manner as to prevent the 
creation of a nuisance or a condition of air pollution as mandated by Texas 
Health and Safety Code, Chapters 341 and 382. 

sec.321.32. Definitions. 
The following words and terms, when used in this subchapter, shall have the 
following meanings, unless the context clearly indicates otherwise:
<nl>(1)<ol> Agronomic rates - The land application of animal wastes and/or 
wastewater at rates of application which provide the crop or forage growth with 
needed nutrients for optimum health and growth. 
<nl>(2)<ol> Air contaminant - Particulate matter, radioactive material, dust, 
fumes, gas, mist, smoke, vapor, or odor or any combination thereof produced by 
processes other than natural. Water vapor is not an air contaminant. 
<nl>(3)<ol> Animal feeding operation - A lot or facility (other than an aquatic 
animal production facility) where animals have been, are, or will be stabled or 
confined and fed or maintained for a total of 45 days or more in any 12-month 
period, and the animal confinement areas do not sustain crops, vegetation, 
forage growth, or post harvest residues in the normal growing season. Two or 
more animal feeding operations under common ownership are a single animal 
feeding operation if they adjoin each other, or if they use a common area or 
system for the disposal of wastes.
<nl>(4)<ol> Animal unit - A unit of measurement for any animal feeding operation 
calculated by adding the following numbers: the number of slaughter and feeder 
cattle and dairy heifers multiplied by 1.0, plus the number of mature dairy 
cattle multiplied by 1.4, plus the number of swine weighing over 55 pounds 
multiplied by 0.4, plus the number of sheep multiplied by 0.1, plus the number 
of horses/mules multiplied by 2.0. 
<nl>(5)<ol> Aquifer - A saturated permeable geologic unit that can transmit, 
store and yield to a well, the quality and quantities of ground water sufficient 
to provide for a beneficial use. An aquifer can be composed of unconsolidated 
sands and gravels, permeable sedimentary rocks such as sandstones and 
limestones, and/or heavily fractured volcanic and crystalline rocks. Ground 
water within an aquifer can be confined, unconfined or perched. 
[Auction market - Any person engaged in the business of buying or selling 
livestock on a commission basis; or furnishing stockyard services for livestock 
producers, feeders, market agencies, and buyers. Stockyard services include pens 
or other enclosures and their appurtenances, in which live cattle, sheep, goats, 
swine, horses or mules are received, held, or kept for sale or shipment. For the 
purposes of this subchapter, the term auction market is synonymous with the 
terms sale ring, auction barn, livestock commission companies and livestock sale 
barn, as these terms are commonly used in the agriculture industry.] 
[Average daily basis - The arithmetic mean for the number of animals in a 
feedlot operation during any period of 90 consecutive days (e.g. the total 
number of animals on the premises added daily for a 90 consecutive day period 
divided by 90).
<nl>(6)<ol> Best Management Practices ("BMPs") - The schedules of activities, 
prohibitions of practices, maintenance procedures , and other management 
practices to prevent or reduce the pollution of waters in the state. Best 
Management Practices also include treatment requirements, operating procedures, 
and practices to control site runoff, spillage or leaks, sludge or waste 
disposal, or drainage from raw material storage. 
<nl>(7)<ol> CAFO general permit - A general permit issued by the commission in 
accordance with Texas Water Code, sec.26.040 for the express purpose to regulate 
discharges from concentrated animal feeding operations on a statewide or 
geographic basis. 
<nl>(8)<ol> Chronic or catastrophic rainfall event - For the purposes of these 
rules, these terms shall mean a series of rainfall events which would not 
provide opportunity for dewatering and which would be equivalent to or greater 
than the 25-year, 24-hour storm event or any single event which would be 
equivalent to or greater than the 25-year, 24-hour storm event. Catastrophic 
conditions could include tornados, hurricanes, or other catastrophic conditions 
which could cause overflow due to the high winds or mechanical damage. 
<nl>(9)<ol> Concentrated animal feeding operation ("CAFO") - Any animal feeding 
operation which the executive director designates as a significant contributor 
of pollution or any animal feeding operation defined as follows: 
<nl>(A)<ol> Any new and existing operations which stable and confine and feed or 
maintain for a total of 45 days or more in any 12-month period more than the 
numbers of animals specified in any of the following categories: 
<nl>(i)<ol> 1000 slaughter or feeder cattle; 
<nl>(ii)<ol> 700 mature dairy cattle (whether milkers or dry cows); 
<nl>(iii)<ol> 2500 swine weighing over 55 pounds; 
<nl>(iv)<ol> 500 horses; 
<nl>(v)<ol> 10,000 sheep; 
<nl>(vi)<ol> 55,000 turkeys; 
<nl>(vii)<ol> 100,000 laying hens or broilers when the facility has unlimited 
continuous flow watering systems; 
<nl>(viii)<ol> 30,000 laying hens or broilers when facility has a liquid waste 
handling system; 
<nl>(ix)<ol> 5000 ducks; or 
<nl>(x)<ol> 1000 animal units from a combination of slaughter steers and 
heifers, mature dairy cattle, swine over 55 pounds and sheep. 
<nl>(B)<ol> Any new and existing operations covered under this subchapter which 
discharge pollutants into waters in the state either through a man-made ditch, 
flushing system, or other similar man-made device, or directly into the waters 
in the state, and which stable or confine and feed or maintain for a total of 45 
days or more in any 12-month period more than the numbers or types of animals in 
the following categories: 
<nl>(i)<ol> 300 slaughter or feeder cattle; 
<nl>(ii)<ol> 200 mature dairy cattle (whether milkers or dry cows); 
<nl>(iii)<ol> 750 swine weighing over 55 pounds; 
<nl>(iv)<ol> 150 horses; 
<nl>(v)<ol> 3000 sheep; 
<nl>(vi)<ol> 16,000 turkeys; 
<nl>(vii)<ol> 30,000 laying hens or broilers when the facility has unlimited 
continuous flow watering systems; 
<nl>(viii)<ol> 9000 laying hens or broilers when facility has a liquid waste 
handling system; 
<nl>(ix)<ol> 1500 ducks; or 
<nl>(x)<ol> 300 animal units from a combination of slaughter steers and heifers, 
mature dairy cattle, swine over 55 pounds and sheep. 
<nl>(C)<ol> Poultry facilities that have no discharge to waters in the state 
normally are not considered a concentrated animal feeding operation. However, 
poultry facilities that use a liquid waste handling system or stockpile litter 
near watercourses or dispose of litter on land such that stormwater runoff or 
flooding can wash it into surface water or ground water may be considered a 
concentrated animal feeding operation. For the purposes of air quality, the term 
CAFO, as used in this subchapter, includes any associated feed handling and/or 
feed milling operations located on the same site as the CAFO. 
<nl>(10)<ol> Control facility - Any system used for the retention of wastes on 
the premises until their ultimate disposal. This includes the collection and 
retention of manure, liquid waste, process wastewater and runoff from the 
feedlot area. 
<nl>(11)<ol> Dairy Outreach Program Areas - The areas include all of the 
following counties: Erath, Bosque, Hamilton, Comanche, Johnson, Hopkins, Wood 
and Rains. 
<nl>(12)<ol> Edwards Aquifer - That portion of an arcuate belt of porous, 
waterbearing <nl>predominantly carbonate rocks known as the Edwards (Balcones 
Fault Zone) Aquifer<ol> [limestones composed of the Comanche Peak, Edwards, and 
Georgetown formations] trending from west to east to northeast <nl>in<ol> 
[through] Kinney, Uvalde, Medina, Bexar, Comal, Hays, <nl>Travis<ol> and 
Williamson Counties<nl>; and composed of the Salmon Peak Limestone, McKnight 
Formation, West Nueces Formation, Devils River Limestone, Person Formation, 
Kainer Formation, Edwards Group and Georgetown Formation. The permeable aquifer 
units generally overlie the less-permeable Glen Rose Formation to the south, 
overlie the less-permeable Comanche Peak and Walnut formations north of the 
Colorado River, and underlie the less-permeable Del Rio Clay regionally<ol> 
[(See Chapter 313 of this title relating to Edwards Aquifer)]. 
<nl>(13)<ol> Edwards Aquifer recharge zone - Generally, that area where the 
stratigraphic units constituting the Edwards Aquifer crop out, including the 
outcrops of other geologic formations in proximity to the Edwards Aquifer, where 
caves, sinkholes, faults, fractures, or other permeable features would create a 
potential for recharge of surface waters into the Edwards Aquifer. The recharge 
zone is identified as that area delineated as such on official maps located in 
the appropriate regional office and groundwater conservation districts. 
<nl>(14)<ol> Feedlot [/concentrated animal feeding operation] - A concentrated, 
confined livestock or poultry facility operated for meat, milk or egg 
production, growing, stabling, or housing, in pens or houses wherein livestock 
or poultry are fed at the place of confinement and crop or forage growth or 
production of feed is not sustained in the area of confinement. 
<nl>(15)<ol> Flushwater waste handling system - A system in which <nl>freshwater 
or<ol> [clarified] wastewater is recycled <nl>or used<ol> [for use] in 
transporting waste.
[Free stall barn - Specialized buildings wherein producing livestock are 
permitted free movement between resting and feeding areas.] 
<nl>(16)<ol> Ground water - Subsurface water that occurs below the water table 
in soils and geologic formations that are saturated, and is other than underflow 
of a stream or an underground stream. 
[Houses or housed lot - Totally roofed buildings with open or enclosed sides 
wherein livestock or poultry are housed on solid concrete or dirt floors, 
slotted (partially open) floors over pits or waste collection areas in pens, 
stalls or cages, with or without bedding materials and mechanical ventilation. 
For the purposes of this subchapter, the term housed lot is synonymous with the 
terms slotted floor building, barn, stable, or house, for livestock or poultry, 
as these terms are commonly used in the agriculture industry.] 
<nl>(17)<ol> Hydrologic connection - The interflow and exchange between control 
facilities or surface impoundments and waters in the state through an 
underground corridor or connection. 
<nl>(18)<ol> Lagoon - An earthen structure for the biological treatment for 
liquid organic wastes. Lagoons can be aerobic, anaerobic, or facultative 
depending on their design and can be used in series to produce a higher quality 
effluent. 
<nl>(19)<ol> Land application - The removal of wastewater and waste solids from 
a control facility and distribution to, or incorporation into the soil mantle 
primarily for beneficial reuse purposes. 
<nl>(20)<ol> Liner - Any barrier in the form of a layer, membrane or blanket, 
naturally existing, constructed or installed to prevent a significant hydrologic 
connection between liquids contained in retention structures and waters in the 
state.
[Milking center - A separate milking area with milk storage and cooling facility 
adjacent to a free stall barn or cowyard dairy operation.] 
[Milkroom - Milk storage and cooling rooms normally used for stall barn 
dairies.] 
<nl>(21)<ol> Natural Resources Conservation Service ("NRCS") - An agency of the 
United States Department of Agriculture which includes the agency formerly known 
as the Soil Conservation Service ("SCS"). 
<nl>(22)<ol> New concentrated animal feeding operation - A concentrated animal 
feeding operation which was not authorized either under this subchapter as of 
the effective date of these rules or under an individual permit issued by the 
commission prior to the original adoption of this subchapter. 
<nl>(23)<ol> No discharge - The absence of flow of waste, process generated 
wastewater, contaminated rainfall runoff or other wastewater from the premises 
of the <nl>animal feeding operation<ol> [feedlot], except for overflows which 
result from <nl>chronic or catastrophic <ol> rainfall events [greater than the 
25-year, 24-hour maximum rainfall event]. 
<nl>(24)<ol> Nuisance - Any discharge of air contaminant(s), including but not 
limited to odors, of sufficient concentration and duration that are or may tend 
to be injurious to or which adversely affects human health or welfare, animal 
life, vegetation, or property, or which interferes with the normal use and 
enjoyment of animal life, vegetation, or property.
<nl>(25)<ol> Open lot - Pens or similar confinement areas with dirt, concrete, 
or other paved or hard surfaces wherein animals or poultry are substantially or 
entirely exposed to the outside environment except for small portions of the 
total confinement area affording protection by windbreaks or small shed-type 
shade areas. For the purposes of this subchapter, the term open lot is 
synonymous with the terms [yard, pasture lot,] dirt lot, <nl>or<ol> [and] dry 
lot, for livestock or poultry, as these terms are commonly used in the 
agricultural industry. 
<nl>(26)<ol> Operator - The owner <nl>or one who is responsible for the 
management<ol> of a <nl>concentrated animal feeding <ol> [feedlot] operation 
<nl>or an animal feeding operation subject to the provisions of this 
subchapter<ol> . 
<nl>(27)<ol> Permanent odor sources - those odor sources which may emit odors 24 
hours per day. For the purposes of this subchapter, permanent odor sources 
include but are not limited to pens, confinement buildings, lagoons, retention 
facilities, manure stockpile areas and solid separators. For the purposes of 
this subchapter, permanent odor sources shall not include any feed handling 
facilities, land application equipment or land application areas. 
<nl>(28)<ol> Permittee - Any person <nl>issued an individual permit or granted 
authorization under<ol> [whose feedlot operation is subject to] the [permit] 
requirements of this subchapter. 
<nl>(29)<ol> Pesticide - A substance or mixture of substances intended to 
prevent, destroy, repel, or mitigate any pest, or any substance or mixture of 
substances intended for use as a plant regulator, defoliant, or desiccant. 
<nl>(30)<ol> Process generated wastewater - <nl> Any process generated 
wastewater directly or indirectly used in the operation of a CAFO (such as 
spillage or overflow from animal or poultry watering systems which comes in 
contact with waste); washing, cleaning or flushing pens, barns, manure pits, 
direct contact swimming, washing, or spray cooling of animals; and dust 
control), and precipitation which comes into contact with any manure or litter, 
bedding, or any other raw material or intermediate or final material or product 
used in or resulting from the production of animals or poultry or direct 
products (e.g. milk, meat or eggs).<ol> [Water directly or indirectly resulting 
from a feedlot operation for any or all of the following:
[(A) spillage or overflow from animal or poultry watering systems;] 
[(B) washing, cleaning or flushing pens, barns, manure pits or other feedlot 
facilities; ] 
[(C) direct contact swimming, washing or spray cooling of animals;] 
[(D) dust control; and] 
[(E) any other use in which water may contact animals, or wastes produced from 
feedlot operations or facilities].
<nl>(31)<ol> Qualified ground water scientist - A scientist or engineer who has 
received a baccalaureate or post-graduate degree in natural sciences or 
engineering and has sufficient training and experience in ground water hydrology 
and related fields as may be demonstrated by state registration, professional 
certification, or completion of accredited university programs that enable that 
individual to make sound professional judgements regarding ground water 
monitoring, contamination fate and transport, and corrective action. 
<nl>(32)<ol> Recharge <nl>feature<ol> [zone] - <nl>Those natural or artificial 
features either on or beneath the ground surface at the site under evaluation 
where, due to artificial means or surface and/or geologic features, a 
significant pathway exists between the ground surface and the underlying ground 
water within an aquifer. Examples include, but are not limited to: a permeable 
and porous soil material that directly overlies a weakly cemented or fractured 
limestone, sandstone, or similar type aquifer; fractured or karstified limestone 
or similar type formation that crops out on the surface, especially near a water 
course; excavations or active, abandoned, or dry wells.<ol> [Generally, that 
area where the Edwards and associated limestones crop out in Kinney, Uvalde, 
Medina, Bexar, Comal, Hays, and Williamson Counties and the outcrops of other 
formations in proximity to the Edwards limestone, where faulting and fracturing 
may allow recharge of the surface waters to the Edwards Aquifer, and the area in 
Uvalde County within 500 feet of the Nueces, Dry Frio, Frio, and Sabinal Rivers 
downstream from the northern Uvalde County line to the recharge zone as 
otherwise defined. The recharge zone is specifically that geological area 
delineated on official maps located in the offices of the commission and the 
Edwards Underground Water District. (See Chapter 313 of this title relating to 
Edwards Aquifer.)
<nl>(33)<ol> Retention facility or retention structure - All collection ditches, 
conduits and swales for the collection of runoff and wastewater, and all basins, 
ponds, pits, tanks and lagoons used to store wastes, wastewaters and manures. 
[Stall barn - Specialized buildings wherein producing cows and replacement cows 
are milked and fed in a fixed location.] 
<nl>(34)<ol> 25-Year<nl>, 24-Hour<ol> rainfall event<nl>/25-Year event<ol> - The 
maximum rainfall event with a probable recurrence interval of once in 25-years, 
with a duration of 24 hours, as defined by the National Weather Service in 
Technical Paper Number 40, "Rainfall Frequency Atlas of the United States", May 
1961, and subsequent amendments, or equivalent <nl> regional or state 
rainfall<ol> information developed therefrom. [(Note: Refer to Exhibit 1 of 
sec.321.41 of this title (relating to Appendix A) to obtain an appropriate value 
for the 25-year rainfall event.)] 
<nl>(35)<ol> Waste - Manure (feces and urine), litter, bedding, or feedwaste 
from <nl>animal feeding<ol> [feedlot] operations. 
<nl>(36)<ol> Wastewater - Water containing waste or contaminated by waste 
contact, including process-generated and contaminated rainfall runoff. 
<nl>(37)<ol> Waters in the state - Ground water, percolating or otherwise, 
lakes, bays, ponds, impounding reservoirs, springs, rivers, streams, creeks, 
estuaries, marshes, inlets, canals, the Gulf of Mexico inside the territorial 
limits of the state, and all other bodies of surface water, natural or 
artificial, inland or coastal, fresh or salt, navigable or nonnavigable, and 
including the beds and banks of all watercourses and bodies of surface water, 
that are wholly or partially inside or bordering the state or inside the 
jurisdiction of the state. 
<nl>(38)<ol> Well - A water well, injection well, dewatering well, monitoring 
well, oil well, gas well, recharge well, exploratory hole, test hole or other 
artificial penetration into the ground surface. 

sec.321.33. Applicability. 
(a) <nl>Any existing feedlot as defined and authorized under this subchapter on 
the effective date of these rules shall continue to be regulated in accordance 
with the terms and conditions of an individual permit issued under this 
subchapter. Any application for permit renewal, amendment or transfer for any 
permit issued under this subchapter prior to the effective date of these rules 
shall be reviewed and/or issued under the provisions of sec.321.34 of this title 
(relating to Procedures for Making Application for an Individual Permit).<ol> 
[All feedlot operations may be regulated by rule, subject to subsections (b)-(d) 
of this section, provided such operations comply with sec.321.35 of this title 
(relating to Surface Water Protection), sec.321.36 of this title (relating to 
Groundwater Protection), sec.321.37 of this title (relating to Feedlot Waste 
Utilization or Disposal By Land Spreading), sec.321.38 of this title (relating 
to Other Waste Disposal Methods) and sec.321.39 of this title (relating to 
Pesticide Use). The provisions of this subsection are applicable to all feedlot 
operations, either housed or open lots, including beef cattle, dairy cattle or 
milk production areas; swine; sheep; goats; horses; chickens, including 
broilers, layers and/or breeders; turkeys, including breeders and/or feeders; 
and auction markets.] 
(b) The executive director may require any <nl>animal feeding <ol> [feedlot] 
operation to comply with <nl>any of<ol> the requirements of this subchapter<nl>, 
including those to apply for, receive and comply with an individual permit under 
sec.321.34 of this title (relating to Procedures for Making Application for an 
Individual Permit),<ol> in order to achieve the policy and purposes enumerated 
in the Texas Water Code, sec.sec.5.120 and 26.003; the <nl>Health and Safety 
Code, Chapters 341, 361 and 382<ol> [Texas Solid Waste Disposal Act, Revised 
Texas Civil Statutes, Article 4477-7, sec.1]; and sec.321.31 of this title 
(relating to <nl> Waste and Wastewater Discharge and Air Emission Limitations 
<ol> [Statement of No Discharge Policy]). [The executive director may require 
the operator of any feedlot operation to apply for and obtain a permit.] Cases 
for which <nl>an individual<ol> [a] permit may be required include, but are not 
limited to, situations where: 
(1) (No change.) 
(2) compliance with standards in addition to those listed in this subchapter is 
necessary in order to protect fresh water from pollution; [or] 
(3) the operation is not in compliance with the standards of this subchapter 
<nl>;<ol> [.] 
<nl>(4)<ol> the operation is under formal commission enforcement or has been 
referred to the commission for enforcement by the Texas State Soil and Water 
Conservation Board; or 
<nl>(5)<ol> the owner and/or operator has submitted an application for 
registration or for a major amendment to a registration which does not comply 
with the requirements for administrative and technical completeness in 
sec.321.36(a)(1) of this title (relating to Notice of Application for 
Registration). 
(c) <nl>New CAFOs are prohibited on the Edwards Aquifer recharge zone<ol>. 
[Notwithstanding the provisions of subsections (b) and (d) of this section, 
feedlots which are regulated by permit on the effective date of these rules 
shall continue to be regulated by permit] 
(d) <nl>Any facility which qualifies for, obtains and is operating under a 
certified water quality management plan from the Texas State Soil and Water 
Conservation Board is not a CAFO for purposes of this subchapter and is not 
covered by the provisions of this subchapter, unless referred to the commission 
in accordance with the Texas Agriculture Code, sec.201.026 <ol> [Operators of 
feedlot operations with more than the specified numbers of animals on an average 
daily basis in housed or open lots shall be regulated by permit issued by the 
commission:] 
[(1) dairy cattle - 250 milking head;] 
[(2) beef cattle - 1,000 head;] 
[(3) swine - 1,500 head;]
[(4) sheep and goats - 6,000 head;] 
[(5) horses - 600 head;]
[(6) chickens, including broilers, breeders and layers - 30,000 birds with 
liquid waste handling system; or 100,000 birds with continuous overflow watering 
system and dry waste handling system;] 
[(7) turkeys, including breeders and feeders - 9,000 birds with liquid waste 
handling systems; or 32,000 birds with continuous overflow watering systems; or 
35,000 birds in open lots].
(e) Operators of <nl>animal feeding<ol> [feedlot] operations not required to 
<nl>submit an application for either a registration or an individual<ol> [obtain 
a] permit under <nl>this subchapter or authorized by a CAFO general permit in 
accordance with the notice of intent requirements of the general permit<ol> 
[subsections (b) or (d) of this section] must locate, construct and manage waste 
control facilities <nl> and land application areas<ol> to protect surface and 
groundwaters <nl> and prevent nuisance conditions and minimize odor 
conditions<ol> in accordance with the technical requirements of 
sec.sec.<nl>321.38-321.40 of this title (relating to Proper CAFO Operation and 
Maintenance, Pollution Prevention Plan and Best Management Practices).<ol> 
[sec.321.35 of this title (relating to Surface Water Protection), sec.321.36 of 
this title (relating to Groundwater Protection), sec.321.37 of this title 
(relating to Feedlot Waste Utilization or Disposal By Land Spreading), 
sec.321.38 of this title (relating to Other Waste Disposal Methods) and 
sec.321.39 of this title (relating to Pesticide Use)] 
<nl>(f)<ol> Any existing, new or expanding CAFO which is neither authorized by a 
CAFO general permit in accordance with the notice of intent requirements of the 
general permit or authorized pursuant to subsections (a) or (b) of this section 
and which is designed to stable or confine and feed or maintain for a total of 
45 days or more in any 12-month period more than the numbers of animals 
specified in the definition of CAFO in sec.321.32(9)(A) of this title (relating 
to Definitions) shall apply for registration in accordance with sec.321.35 of 
this title (relating to Procedures for Making Application for Registration). 
<nl>(g)<ol> Any existing, new or expanding animal feeding operation which is 
neither authorized by a CAFO general permit in accordance with the notice of 
intent requirements of the general permit or authorized pursuant to subsections 
(a) or (b) of this section, is located in areas specified in the definition of 
Dairy Outreach Program Areas in sec.321.32 of this title, and that is designed 
to stable or confine and feed or maintain for a total of 45 days or more in any 
12-month period more than the number of animals specified in the definition of 
CAFO in sec.321.32(9)(B) of this title, but less than or equal to the number of 
animals specified in the definition of CAFO in sec.321.32(9)(A) of this title 
shall apply for <nl>registration in accordance with sec.321.35 of this 
title.<ol> 
<nl>(h)<ol> Any CAFO authorized under this subchapter must develop and implement 
a pollution prevention plan in accordance with the provisions of this 
subchapter. 
<nl>(i)<ol> Any existing, new or expanding CAFO, which is required to submit an 
application for registration or an application for an individual permit in 
accordance with this subchapter, may not commence operation of any waste 
management facilities or any facility that has the potential to emit air 
contaminants without first receiving authorization in accordance with this 
subchapter. 
<nl>(j)<ol> Any CAFO which has existing authority under the Texas Clean Air Act 
(TCAA) does not have to meet the air quality criteria of this subchapter. Upon 
request, pursuant to the TCAA, sec.382.051, any new CAFO which meets all of the 
requirements of this subchapter is hereby entitled to an air quality standard 
permit authorization under this subchapter in lieu of the requirement to obtain 
an air quality permit under Chapter 116 of this title (relating to Control of 
Air Pollution by Permits for New Construction or Modification). Those CAFOs 
which would otherwise be required to obtain an air quality permit under Chapter 
116 of this title, which cannot satisfy all of the requirements of this 
subchapter shall apply for and obtain an air quality permit pursuant to Chapter 
116 of this title in addition to any authorization required under this 
subchapter. Those animal feeding operations which are not required to obtain 
authorization under this subchapter may be subject to requirements under Chapter 
116 of this title. Any change in conditions such that a person is no longer 
eligible for authorization under this section requires authorization under 
Chapter 116 of this title. No person may concurrently hold an air quality permit 
issued under Chapter 116 of this title and an authorization with air quality 
provisions under this subchapter for the same site. Any application for a permit 
renewal, amendment or transfer for any permit issued under the TCAA shall be 
reviewed and/or issued under the provisions of Chapter 116 of this title. 
<nl>(k)<ol> Any animal feeding operation authorized under this subchapter which 
is a new major source, or major modification as defined in Chapter 116 of this 
title shall obtain a permit under Chapter 116 of this title. 
<nl>(l)<ol> By written request to the executive director, the owner/operator of 
any facility authorized under this subchapter prior to the effective date of 
these rules may request a transfer of authorization from an individual permit to 
an application for registration. Such transfer shall be processed in accordance 
with the provisions of sec.sec.321.35-321.37 of this title (relating to 
Procedures for Making Application for Registration, Notice of Application for 
Registration and Actions on Applications for Registration). If approved, such 
transfer under this subsection shall include all special conditions/provisions 
from the existing permit, and in addition, shall not impose any additional 
conditions or other requirements unless there is substantial modification to the 
facility constituting a major amendment as defined by sec.305.62 of this title 
(relating to Amendment) or to address compliance problems with the facility or 
its operations in accordance with a commission order or amendment. If approved, 
transfer of authorization under this subsection will require compliance with the 
appropriate provisions of sec.sec.321.38-321.42 of this title (relating to 
Proper CAFO Operation and Maintenance, Pollution Prevention Plans, Best 
Management Practices, Other Requirements, and Monitoring and Reporting 
Requirements). If approved, such transfer shall not require any changes to 
existing structural measures which are documented to meet design and 
construction standards in effect at the time of installation. 
<nl>(m)<ol> No person may concurrently hold an individual permit or approved 
registration under this subchapter and an authorization under a CAFO general 
permit in accordance with the notice of intent requirements of the general 
permit for the same site. 
<nl>(n)<ol> Any new CAFO located within one mile of Coastal Natural Resource 
Areas as defined by sec.33.203(1) of the Texas Natural Resources Code shall 
apply for and obtain an individual permit in accordance with sec.321.34 of this 
title (relating to Procedures for Making Application for an Individual Permit). 
Any owner/operator who is required to obtain an individual permit under this 
subsection may not commence physical construction and/or operation of any waste 
management facilities without first having submitted an application and received 
a final effective permit. 

sec.321.34. Procedures for Making Application for <nl> an Individual<ol> [a] 
Permit. 
(a) Any person whose <nl>CAFO is not authorized by a CAFO general permit in 
accordance with the notice of intent requirements of the general permit or does 
not hold an authorization for registration under this subchapter <ol> [feedlot 
operation does not conform to the criteria for regulation by rule set forth 
under sec.321.33 of this title (relating to Applicability)] shall apply for 
<nl>an individual<ol> [a] permit <nl>in accordance with the provisions of this 
section<ol>. Application for<nl> an individual<ol> [a] permit shall be made on 
forms provided by the executive director. The applicant shall provide such 
additional information in support of the application as may be necessary for an 
adequate technical review of the application. At a minimum, the application 
shall demonstrate compliance with the technical requirements set forth in <nl> 
sec.321.38-321.42 <ol> [sec.321.35] of this title (relating to <nl>Proper CAFO 
Operation and Maintenance, Pollution Prevention Plan, Best Management Practices, 
Other Requirements and Monitoring and Reporting Requirements<ol> [Surface Water 
Protection), sec.321.36 of this title (relating to Ground Water Protection), 
sec.321.37 of this title (relating to Feedlot Waste Utilization or Disposal by 
Land Spreading), sec.321.38 of this title (relating to Other Waste Disposal 
Methods) and sec.321.39 of this title (relating to Pesticide Use), or other 
equivalent technical requirements ] <nl>and shall demonstrate compliance with 
the requirements specified in sec.321.35(c)(1)-(13) of this title (relating to 
Procedures for Making Application for Registration)<ol> . Applicants shall 
comply with sec.sec.305.41<nl> , 305.43-305.44 and 305.46-305.47<ol> [305.45] of 
this title (relating to Applicability; Who Applies; Signatories to Applications; 
<nl> Designation of Material as Confidential and Retention of Application Data 
<ol> ). Each applicant shall pay an application fee as required by sec.305.53 of 
this title (relating to Application Fees). An annual waste treatment inspection 
fee is also required of each permittee as required by sec.305.503 <nl> and 
sec.305.504<ol> of this title (relating to Fee Assessments<nl> and Fee 
Payments<ol> ). Except as provided in subsections (b)-(e) of this section, each 
permittee shall comply with sec.sec.305.61-305.68 of this title (relating to 
Applicability, Amendment, Renewal, Transfer of Permits, Permit Denial, 
Suspension and Revocation; Revocation and Suspension Upon Request or Consent; 
and Action and Notice on Petition for Revocation or Suspension). Each permittee 
shall comply with sec.305.125 of this title (relating to Standard Permit 
Conditions). <nl>Individual p<ol> ermits <nl> granted under this subchapter 
shall be effective for a term not to exceed five years, unless stated otherwise 
in the permit or extended by order of the commission<ol> [authorized under this 
subchapter may be effective for the life of the project as determined by 
sec.305.127(1)(C) of this title (relating to Conditions to be Determined for 
Individuals Permits)].
(b) Permit renewal will be according to the following procedure<nl>:<ol> [.] 
(1) An application to renew a permit for <nl>an<ol> [a confined] animal feeding 
operation which was issued between July 1, 1974, and December 31, 1977, may be 
renewed by the commission at a regular meeting without holding a public hearing 
if the applicant does not seek to discharge into or adjacent to waters in the 
state and does not seek to change materially the pattern or place of disposal. 
(2) Except as provided by sec.305.63 <nl>(a)<ol> (3) of this title (relating to 
[Consolidated Permits --] Renewals), an application for a permit renewal which 
does not propose any other change to the permit and where there has been no 
related formal major enforcement action against the permitted facility during 
the last 36 months of the term of the permit may be granted by the executive 
director without a public hearing. As used in this subchapter, the term "major 
enforcement action" shall apply to those enforcement actions in which the 
executive director or the commission has determined that a violation which would 
contribute to pollution of surface or ground water or an unauthorized discharge 
has occurred <nl>or that a violation of sec.101.4 of this title (relating to 
Nuisance) has occurred<ol>; such discharge <nl>or nuisance violation<ol> was 
within the reasonable control of the permittee; and such discharge or nuisance 
violation could have been reasonably foreseen by the permittee. In addition to 
the provisions listed in this section, for any application for renewal of a 
permit within an area <nl> specified in the definition of Dairy Outreach Program 
Areas in sec.321.32(11) of this title (relating to Definitions)<ol> [designated 
under sec.321.197 of this title (relating to Dairy Outreach Program Areas)], an 
annual compliance inspection shall have been completed within the 12 months 
prior to the executive director processing the application. 
(c) <nl>Each applicant shall pay an application fee as required by sec.305.53 of 
this title (relating to Application Fees)<ol> . [A fee of $315 to be applied 
toward processing of the application.]
(d)-(f) (No change.) 
<nl>(g)<ol> A facility owner/operator shall submit a complete application within 
90 days of notification from the executive director that a permit is required. 

sec.321.35. <nl>Procedures for Making Application for Registration <ol> [Surface 
Water Protection].
(a) <nl>Any person whose CAFO is neither authorized by a CAFO general permit in 
accordance with the notice of intent requirements of the general permit nor 
holds an existing individual permit under the provisions of this subchapter is 
required to apply for and receive registration under this section. A person who 
requests a registration or an amendment, modification, or renewal of such 
registration granted under this subchapter shall submit a complete and accurate 
application to the executive director, according to the provisions of this 
section <ol> [Waste control facilities shall be managed so as to retain all 
feedlot rainfall runoff from open lots and associated areas resulting from a 25-
year or lesser rainfall event, process generated wastewater, and waste, as 
provided in this subchapter. ] 
[(1) Off-site drainage diversion: When feedlot wastes must be isolated from 
outside surface drainage by ditches, dikes, berms, terraces or other such 
structures, these diversion structures shall be designed to carry peak flows 
expected at times when the 25-year rainfall event occurs.] 
[(2) Waste and wastewater retention facilities: Dikes, pits, ponds, lagoons, or 
other structures relied on to hold waste materials and rainfall runoff shall 
have capacity sufficient to retain:] 
[(A) all runoff from open lots and associated areas resulting from the 25-year 
rainfall event; and] 
[(B) all waste and process generated wastewater produced during a period of time 
not less than the minimum storage period value obtained from Exhibit 2 of 
sec.321.41 of this title (relating to Appendix A).] 
(b) <nl>Applicants shall comply with the applicable provisions of 
sec.sec.305.43, 305.44, 305.46, and 305.47 of this title (relating to Who 
Applies; Signatories to Applications; Designation of Material as Confidential; 
and Retention of Application Data).<ol> [Adequate equipment shall be available 
for removal of such waste and wastewater as required for compliance with the 
provisions of subsection (a) of this section or the provisions of the operator's 
permit. Prescribed capabilities of diversion and containment structures shall be 
maintained at all times] 
(c) <nl>Application for registration under this section shall be made on forms 
prescribed by the executive director. The applicant shall submit an original 
completed application with attachments to the executive director at the 
headquarters in Austin, Texas, and one additional copy of the application with 
attachments to the appropriate Texas Natural Resource Conservation Commission 
regional office. The completed application shall be submitted to the executive 
director signed and notarized and with the following information:<ol> [Runoff 
volume from the feedlot surface shall be determined from soil cover complex 
curve number 90 for unpaved lots, or soil cover complex curve number 95 for 
paved lots, as defined by the United States Department of Agriculture (U.S.D.A.) 
Soil Conservation Service and as depicted in Exhibit 3 of sec.321.41 of this 
title (relating to Appendix A). The executive director may approve the use of a 
different soil cover complex curve number with regard to unpaved lots on a case-
by-case basis] <nl> <ol>
<nl>(1)<ol> The verified legal status of the applicant. 
<nl>(2)<ol> The payment of applicable fees. 
<nl>(3)<ol> The signature of the applicant, in accordance with subsection (b) of 
this section. 
<nl>(4)<ol> The maximum number of animals for which the facilities have been 
designed. 
<nl>(5)<ol> A final site plan for the facility showing the boundaries of land 
owned, operated or controlled by the applicant and to be used as a part of a 
CAFO, the locations of all pens, lots, ponds, disposal areas, and any other 
types of control or retention facilities, and all adjacent landowners within 500 
feet of the property line of all tracts containing facilities and all on-site or 
off-site waste disposal areas, including their name, address and telephone 
number. As used in this subchapter, the term "disposal area" does not apply to 
any lands not owned, operated or controlled by the CAFO operator for the purpose 
of off-site land application of manure, wherein the manure is given or sold to 
others for beneficial use. 
<nl>(6)<ol> A County General Highway Map (with graphic scale clearly shown) to 
identify the relative location of the CAFO and at least a one mile area 
surrounding the facility. 
<nl>(7)<ol> One original (remainder in copies) United States Geological Survey 7 
1/2 minute quadrangle topographic map or an equivalent high quality copy showing 
the boundaries of land owned, operated, or controlled by the applicant and to be 
used as a part of a CAFO, and within 500 feet of the outer boundary of the land 
application area(s), open lots and control facilities, the location of all 
private water wells (abandoned or in use) and public wells and all springs, 
lakes, or ponds within one mile of the outer boundary of the retention facility 
and downstream of the facility. 
<nl>(8)<ol> A copy of the pollution prevention plan for the CAFO for which the 
application is filed. Prior to utilization of wastewater retention facilities, 
documentation of liner certifications by a licensed professional engineer must 
be submitted (if applicable). 
<nl>(9)<ol> A copy of a recorded deed or tax records showing ownership, or a 
copy of a contract or lease agreement between the applicant and the owner of any 
lands to be utilized under the proposed CAFO. This requirement does not apply to 
any lands not owned, operated, or controlled by the applicant for the purpose of 
off-site land application of manure wherein the manure is given or sold to 
others for beneficial use.
<nl>(10)<ol> A certification by a NRCS engineer, licensed professional engineer 
or qualified ground water scientist that no recharge features exist on any 
tracts owned, operated or controlled by the applicant and utilized under the 
application. 
<nl>(11)<ol> Where the applicant can not document the absence of recharge 
features on the tracts for which an application is being filed, the final site 
plan shall also indicate the specific location of any and all recharge features 
on any property owned, operated or controlled by the applicant under the 
application as certified by a NRCS engineer, licensed professional engineer, or 
qualified ground water scientist. The applicant shall also submit a plan, 
developed by a NRCS engineer or licensed professional engineer, to prevent 
impacts on the recharge feature and associated ground water formation which may 
include the following: 
<nl>(A)<ol> Installation of the necessary and appropriate protective measures 
such as impervious cover, berms or other equivalent protective measures covering 
all affected facilities and disposal areas; or 
<nl>(B)<ol> Submission of a detailed ground water monitoring plan covering all 
affected facilities and disposal areas. At a minimum, the ground-water 
monitoring plan shall specify procedures to annually collect a ground-water 
sample from representative wells, have each sample analyzed for chlorides, 
nitrates and total dissolved solids and compare those values with background 
values for each well; or 
<nl>(C)<ol> Any other similar method or approach demonstrated by the applicant 
to be protective of any associated recharge feature. 
<nl>(12)<ol> Area land use map (Air quality only). This map should identify the 
property line, the permanent odor sources and the distance and direction to any 
residences, animal feeding operations, businesses or occupied structures within 
a one mile radius of the permanent odor sources. The map shall include the north 
arrow and scale of map. 
<nl>(13)<ol> The applicant shall indicate in the application the location and 
times where the application may be inspected by the public. Within 48 hours of 
receiving notice of administrative and technical completeness, the applicant 
shall either make a copy of the application available for public inspection at 
the applicant's place of business during normal business hours, Monday through 
Friday, or shall provide a copy of the application to a public place within the 
county where the proposed facility is to be located so that the copy may be made 
available for inspection at a public place during regular business hours. Such 
places may include, but are not limited to, public libraries; district, county, 
or municipal court offices; community recreation centers; or public schools.
(d) <nl>Each applicant shall pay an application fee as required by sec.305.53 of 
this title (relating to Application Fees). An annual waste treatment inspection 
fee is also required of each permittee as required by sec.305.503 and 
sec.305.504 of this title (relating to Fee Assessment and Fee Payment). No fees 
under Chapter 116 of this title (relating to Control of Air Pollution by Permits 
for New Construction or Modification) shall be required of an applicant for an 
authorization issued under this section<ol> [Retention facilities as required in 
subsection (a) of this section shall be equipped with either irrigation or 
evaporation systems capable of dewatering the retention facilities.] 
[(1) For irrigation disposal systems, except as provided in paragraph (3) of 
this subsection, whenever 50% of the design runoff storage capacity is exceeded 
by accumulated runoff, sediment, manure, and/or process generated wastewater, 
the retention facility shall be dewatered to a level that restores the full 
runoff storage capacity and the dewatering process shall be completed within a 
21-day period. If the irrigation system is not capable of dewatering the 
retention facilities as required herein, sufficient additional storage capacity 
shall be provided in lieu of dewatering capabilities upon written approval of 
the executive director, and under such terms and conditions as the executive 
director may specify.] 
[(2) Evaporation systems shall be designed to withstand a 10-year period of 
maximum recorded rainfall, as determined by a water budget analysis, and 
freeboard shall be maintained to dispose of rainfall and rainfall runoff from 
the 25-year rainfall event without overflow.] 
[(3) Operators using pits, ponds, or lagoons for storage and treatment of manure 
and process generated wastewater, including flushwater waste handling systems, 
shall maintain in their wastewater retention facility sufficient freeboard to 
contain rainfall and rainfall runoff from a 25-year rainfall event. The operator 
shall restore normal freeboard within 21 days of any rainfall event or 
accumulation of manure or process generated wastewater which reduces such 
freeboard.] 
[(4) Retention facilities shall not be located within the 100-year floodplain 
unless protective measures are designed and constructed.] 
<nl>(e)<ol> Each permittee shall comply with sec.sec.305.61, 305.64 and 305.66-
305.68 of this title (relating to Applicability, Transfer of Permits, Permit 
Denial, Revocation and Suspension, Revocation and Suspension Upon Request or 
Consent, Action and Notice on Petition for Revocation or Suspension). 
<nl>(f)<ol> Registrations approved under this subchapter shall be effective for 
a term not to exceed five years, unless extended by order of the commission. 
<nl>(g)<ol> At the time of initial application, any new facility or expansion of 
an existing facility designed to confine livestock in numbers equal to or 
greater than 1000 animal units, or confine poultry at numbers greater than 
30,000 with a liquid waste handling system shall not locate any permanent odor 
sources within 0.50 miles of any occupied residence or business structure, 
school, church, or public park without written consent and approval from the 
landowner. For the purposes of this section, any measurement of a buffer 
distance shall be from the nearest edge of the permanent odor source to the 
nearest edge of an occupied structure or designated recreational area listed 
under this subsection. 
<nl>(h)<ol> Renewal of a registration under this section will be according to 
the following procedures: 
<nl>(1)<ol> Except as provided by sec.305.63 (a)(3) of this title (relating to 
Renewals), an application for a renewal of a registration which does not propose 
any other change to the registration as approved and where there has been no 
related formal major enforcement action against the facility during the last 36 
months of the term of the registration may be granted by the executive director 
without a public hearing. As used in this subchapter, the term "major 
enforcement action" shall apply to those enforcement actions in which the 
executive director or the commission has determined that a violation which would 
contribute to pollution of surface or ground water or an unauthorized discharge 
has occurred or that a violation of sec.101.4 of this title (relating to 
Nuisance) has occurred; such discharge or nuisance violation was within the 
reasonable control of the permittee; and such discharge or nuisance violation 
could have been reasonably foreseen by the permittee. In addition to the above 
provisions, for any application for renewal of a registration within an area 
specified in the definition of Dairy Outreach Program Areas in sec.321.32(11) of 
this title (relating to Definitions), an annual compliance inspection shall have 
been completed within the 12 months prior to the executive director processing 
the application. 
<nl>(2)<ol> Each applicant shall pay an application fee as required by 
sec.305.53 of this title (relating to Application Fees).
<nl>(3)<ol> A permittee submitting an application for renewal of a registration 
satisfying the criteria in paragraph (1) of this subsection will automatically 
be issued a notice of renewal for the existing registration by the executive 
director. 
<nl>(4)<ol> If the application for renewal of a registration cannot meet all of 
the criteria in paragraph (1) of this subsection, then an application for 
renewal of the registration shall be filed in accordance with subsection (a) of 
this section and processed in accordance with sec.sec.321.36-321.37 of this 
title (relating to Notice of Application for Registration and Action on 
Applications for Registration). 
(5) Any permittee with an effective registration shall submit an application for 
renewal at least 180 days before the expiration date of the effective 
registration, unless permission for a later date has been granted by the 
executive director. The executive director shall provide the permittee notice of 
deadline for the application for renewal at least 240 days before the 
registration expiration date. The executive director shall not grant permission 
for applications to be submitted later than the expiration date of the existing 
registration.

sec.321.36. <nl>Notice of Application for Registration <ol> [Groundwater 
Protection].
(a) <nl>Administrative and Technical Review. <ol>[All wastewater retention 
facilities shall be constructed of compacted or in-situ earthen materials which 
meet the following particle size gradation and Atterberg limits: ] 
(1) <nl>Applications for registration or major amendments to such registrations 
under this subchapter shall be reviewed by the executive director for 
administrative and technical completeness within 30 working days of receipt of 
the application by the executive director. Upon determination that the 
application contains the information and attachments required under this 
subchapter, the executive director shall declare that the application is 
administratively and technically complete.<ol> [30% or more passing a number 200 
mesh sieve;] 
(2) <nl>Within five working days of declaration of administrative completeness, 
the executive director shall assign the application a number for identification 
purposes, and prepare a statement of the receipt of the application and 
declaration of administrative and technical completeness which is suitable for 
publishing or mailing, under the requirements of sec.321.186(b) of this title 
(relating to Notice of Application), and shall forward that statement to the 
applicant<ol> . [ liquid limit of 30% or greater; and ] 
[(3) a plasticity index of 15 or greater.] 
(b) <nl>Notice of application. The notice of application for registration and 
administrative/ technical completeness shall contain the following 
information:<ol> [If the wastewater retention facilities are not constructed in 
suitable materials as described in subsection (a) of this section, then an 
alternate lining shall be required. Suitable linings include earthen blankets 
and impervious materials.] 
(1) <nl>the identifying number given the application for registration by the 
commission; <ol> [Earthen blankets shall consist of suitable materials as 
described in subsection (a) of this section and shall have a minimum compacted 
thickness of 12 inches.] 
(2) <nl>the type of authorization being sought under the application;<ol> 
[Impervious materials include flexible membrane linings, asphalt-sealed fabric 
liners, and bentonite sealants. Installation of impervious materials shall be in 
accordance with a detailed plan which meets the USDA Soil Conservation Service 
conservation practice standard and specification code 521 "Pond Sealing or 
Lining".] 
(3) <nl>the name and address of the applicant;<ol> [The permittee shall furnish 
suitable evidence that a completed lining, as described in subsection (b)(1) and 
(2) of this section, meets the appropriate criteria.] 
<nl>(4)<ol> the date on which the application for registration was submitted; 
<nl>(5)<ol> a brief summary of the information included in the application for 
registration, including but not limited to the general location of facilities 
and disposal areas associated with the application, and the location where a 
copy of the application for registration may be reviewed by interested persons; 
<nl>(6)<ol> the format for submission of a comment in accordance with this 
subchapter to the executive director regarding the application for registration; 
and 
<nl>(7)<ol> the date, time, and place where all comments are to be received by 
the executive director in relation to the numbered application for registration, 
such comment period shall not be less than 30 days from the actual date of 
publication 
(c) <nl>Publication.<ol> [Alternative methods of lining, other than those 
described in subsections (a) and (b) of this section, require prior written 
approval of the executive director] 
<nl>(1)<ol> The applicant shall cause the notice of application for registration 
and administrative/technical completeness approved by the executive director to 
be published once in a newspaper regularly published, and generally circulated 
within the county and area wherein the proposed facility is to be located, and 
within an adjoining county wherein any potential affected person may reside. 
<nl>(2)<ol> The date of publication for notice of application for registration 
and administrative/technical completeness shall not be later than the date set 
by the chief clerk. 
<nl>(3)<ol> The applicant is responsible for the cost of publication. The 
applicant shall notify the chief clerk verbally or by facsimile within 24 hours 
of the first available working day after the publication of the notice, and 
shall provide the chief clerk a certified copy of the publication, within 20 
calendar days of the date established by the chief clerk for publication. If the 
applicant does not provide the chief clerk with the appropriate publisher's 
affidavit within 20 days of the date established by the executive director, the 
executive director shall cease processing and return the application . 
(d) <nl>Application returned. If an application for registration is received 
which is not administratively/technically complete, the executive director shall 
notify the applicant of the deficiencies prior to expiration of the review 
period (30 working days) by certified mail return receipt requested. If the 
additional requested information is received within 30 days of receipt of the 
deficiency notice, the executive director will evaluate the information within 
eight working days and, where applicable, shall prepare a statement of receipt 
of the application for registration and declaration of administrative/technical 
completeness in accordance with subsection (a) of this section. If the requested 
information is not submitted by the applicant within 30 days of the date of 
receipt of the deficiency notice, the executive director shall return the 
incomplete application to the applicant.<ol> [Earthen retention facilities in 
existence on the date this subchapter becomes effective shall be exempt from the 
requirements of subsections (a) and (b) of this section provided the owner or 
operator prevents the discharge of wastes into surface and groundwaters. This 
exemption does not affect previously issued permits having permit terms and 
conditions which specifically require the lining of retention facilities. 
Whenever the discharge of waste or wastewater into surface and groundwater 
occurs, or threatens to occur, the executive director may require compliance 
with the provisions of subsection (a) and (b) of this section]. 
<nl>(e)<ol> Notice by mail. 
<nl>(1)<ol> The chief clerk will transmit the notice of application for 
registration and administrative/technical completeness by first-class mail to 
persons listed in paragraph (2) of this subsection and to other persons who, in 
the judgment of the executive director, may be affected. The applicant is 
responsible for the cost of required notice. A record on file with the chief 
clerk which includes the list of persons to whom notice was mailed and the date 
of mailing, signed by a person with personal knowledge that the mailout 
occurred, shall create a presumption that notice was mailed in accordance with 
this section. 
<nl>(2)<ol> the notice shall be mailed by the chief clerk to the following: 
<nl>(A)<ol> the potentially affected landowners named on the final site plan 
submitted with the application; 
<nl>(B)<ol> the mayor and health officials of the city or town in which the 
facility is or will be located or in which waste is or will be disposed of; 
<nl>(C)<ol> the county judge and health authorities of the county in which the 
facility is located or in which waste is or will be disposed of; 
<nl>(D)<ol> the Texas Department of Health; 
<nl>(E)<ol> the Texas Parks and Wildlife Department; 
<nl>(F)<ol> the applicant; 
<nl>(G)<ol> persons who request to be put on the mailing list, including 
participants in past commission proceedings for the facility who have submitted 
a written request to be put on the mailing list; 
<nl>(H)<ol> state and federal agencies for which notice is required in 40 Code 
of Federal Regulations sec.124.10(c); 
<nl>(I)<ol> for applications regarding operations located in an area specified 
in the definition of Dairy Outreach Program Areas in sec.321.32 of this title 
(relating to Definitions), notice shall be mailed to the river authority whose 
jurisdictional watershed includes that location; and 
<nl>(J)<ol> for applications regarding operations located in an area within the 
jurisdiction of a ground water district, notice shall be mailed to such 
district. 
<nl>(3)<ol> the date of mailing for a notice of application for registration and 
administrative/technical completeness shall be established by the chief clerk. 
<nl>(4)<ol> The notice shall include instructions regarding the requirements 
contained in sec.321.37(a) of this title (relating to Public Comment on 
Applications for Registration) providing the manner and timeframe for the 
submission of comments to the proposed application for registration.

sec.321.37. <nl>Actions on Applications for Registration. <ol> [Feedlot Waste 
Utilization or Disposal By Land Application]
(a) <nl>Public Comment on Applications for Registrations. A person may provide 
the commission with written comments on any applications for registration for 
which notice has been issued under this subchapter. The executive director shall 
review any written comments when they are received within 30 days of mailing the 
notice. Only written comments received within the 30 day period are considered 
timely. The written information received will be utilized by the executive 
director in determining what action to take on the application for registration, 
pursuant to subsection (b) of this section <ol> [If land application is utilized 
for disposal of waste and/or wastewater, the following requirements shall 
apply:] 
[(1) Utilization and disposal methods. ] 
[(A) Liquid and solid feedlot waste shall be distributed on agricultural lands 
so that neither the waste nor rainfall runoff will adversely affect the quality 
of receiving waters. ] 
[(B) When irrigation disposal of wastewater is used, tailwater facilities shall 
be provided as necessary to prevent the release of applied wastewater. ] 
[(C) Disposal of waste and wastewater shall be done in such a manner as to 
prevent nuisance conditions such as odors and flies.] 
[(D) Wastewater shall not be irrigated when the ground is frozen or saturated or 
during rainfall events.] 
[(2) Application rates. Except as may be required by permit, liquid and solid 
waste, and/or wastewater, shall be applied in such concentrations, and 
application shall be made at such intervals, as to not inhibit the growth of 
crops or forage or result in wastewater runoff.] 
[(3) Management of wastes. Collection, storage, and disposal of liquid and solid 
waste shall be managed in accordance with recognized practices of good 
agricultural management.]
(b) <nl>The executive director shall determine, after review of any application 
for registration, if he will approve or deny an application for registration in 
whole or in part, deny with prejudice, suspend the authority to conduct an 
activity for a specified period of time, or amend or modify the proposed 
activity requested by the applicant. The determination of the executive director 
shall include review and action on any new applications or changes, renewals, 
and requests for major amendment of any existing application. In consideration 
of such an application for registration, the executive director will consider 
all relevant requirements of this subchapter and consider all information 
pertaining to those requirements received by the executive director regarding 
the application for registration. The written determination on any application 
for registration, including any authorization granted, shall be mailed to the 
applicant upon the decision of the executive director. At the same time the 
executive director's decision is mailed to the applicant, a copy or copies of 
this decision shall also be mailed to all persons who submitted written 
information on the application, as described in subsection (a) of this 
section.<ol> [All solid waste materials stockpiled or retained onsite shall be 
isolated from all run-on storm waters by dikes, terraces, berms, ditches, or 
other similar structures and shall be maintained so as to retain all rainfall 
which comes in contact with the stockpiled solid waste material] 
<nl>(c)<ol> Motion for reconsideration. The applicant or any person submitting 
timely comments may file with the chief clerk a motion for reconsideration, 
under the procedures of sec.50.39(b)-(f) of this title (relating to Motion for 
Reconsideration), of the executive director's final approval of an application. 

sec.321.38. <nl>Proper CAFO Operation and Maintenance.<ol> [Other Waste Disposal 
Methods].
<nl>The facilities covered under this subchapter are required to document all 
Best Management Practices (BMPS) used to comply with all applicable waste and 
wastewater discharge and air emission limitations in this subchapter. Such 
documentation shall be included in the Pollution Prevention Plan (PPP) outlined 
in this subchapter and shall be made available to the executive director upon 
request. Where applicable, equivalent and applicable measures contained in a 
site specific animal waste management plan prepared by the Natural Resource 
Conservation Service (NRCS), may be substituted for the BMPs and PPP 
requirements in this subchapter. Where provisions in the NRCS plan are 
substituted for applicable BMPS or portions of the PPP, the PPP must refer to 
the appropriate section of the NRCS plan. If the PPP contains reference to the 
NRCS Plan, a copy of the NRCS plan must be kept on site.<ol> [If the operator 
proposes to use methods of disposal other than land application, he must first 
obtain prior written approval from the executive director]. 

sec.321.39. <nl>Pollution Prevention Plans.<ol> [Pesticide Use] 
<nl>(a)<ol> <nl>A pollution prevention plan shall be developed for each facility 
covered under this subchapter. Pollution prevention plans shall be prepared in 
accordance with good engineering practices and should include measures necessary 
to limit the discharge of pollutants to waters in the state and nuisance and 
odor conditions. The plan shall describe and ensure the implementation of 
practices which are to be used to assure compliance with the limitations and 
conditions of this subchapter. The plan shall identify a specific individual(s) 
at the facility who is responsible for development, implementation, maintenance, 
and revision of the pollution prevention plan. The activities and 
responsibilities of the pollution prevention personnel should address all 
aspects of the facility's pollution prevention plan. <ol> [The operator shall 
prevent the discharge of waters which have been contaminated by pesticides and 
shall notify the executive director immediately if such discharge occurs] 
<nl>(b)<ol> Where a NRCS plan has been prepared for the facility, the pollution 
prevention plan may refer to the NRCS plan when the NRCS plan documentation 
contains equivalent requirements for the facility. When the permittee uses a 
NRCS plan as partial completion of the pollution plan, the NRCS plan must be 
kept on site. Design and construction criteria developed by the NRCS can be 
substituted for the documentation of design capacity and construction 
requirements (see subsection (f) of this section) of the pollution prevention 
plan provided the required inspection logs and water level logs in subsection 
(f)(3) and (11) of this section are kept with the NRCS Plan. Waste management 
plans developed by the NRCS can be substituted for the documentation of 
application rate calculations in subsection (f) (19) and (24) of this section. 
NRCS Waste Management Plans which have been prepared since January 1, 1989 are 
considered by the Natural Resources Conservation Service to contain adequate 
management practices. To insure the protection of water quality, the Natural 
Resources Conservation Service has determined that NRCS plans prepared prior to 
1989 must be submitted for renewal with the Natural Resources Conservation 
Service or a waste management professional before December 1995. NRCS has 
determined that all plans should be reviewed every five (5) years to insure 
proper management of wastes. 
<nl>(c)<ol> The plan shall be signed by the owner or other signatory authority 
in accordance with sec.305.44 of this title (relating to Signatories to 
Applications), and be retained on site. The plan shall be updated as 
appropriate. 
<nl>(d)<ol> Upon completion of a plan review, the executive director may notify 
the permittee at any time that the plan does not meet one or more of the minimum 
requirements of this subchapter. After such notification from the executive 
director, the permittee shall make changes to the plan within 90 days after such 
notification unless otherwise provided by the executive director. 
<nl>(e)<ol> The permittee shall amend the plan prior to any change in design, 
construction, operation, or maintenance, which has a significant effect on the 
potential for the discharge of pollutants to waters in the state or if the 
pollution prevention plan proves to be ineffective in achieving the general 
objectives of controlling pollutants in discharges or creating a nuisance 
condition from concentrated animal feeding operations.
<nl>(f)<ol> The plan shall include, at a minimum, the following items: 
<nl>(1)<ol> Each plan shall provide a description of potential pollutant 
sources. Potential pollutant sources include any activity or material that may 
reasonably be expected to add pollutants to waters in the state or create a 
nuisance condition from the facility. An evaluation of potential pollutant 
sources should identify the types of pollutant sources, provide a description of 
the pollutant sources, and indicate all measures that will be used to prevent 
contamination from the pollutant sources. The type of pollutant sources found at 
any particular site varies depending upon a number of factors including site 
location, historical land use, proposed facility type, waste disposal practices, 
etc. The evaluation should encompass all land that will be used as part of the 
CAFO as indicated in the site plan. Each potential pollutant source must be 
identified in the plan. A thorough site inspection of the facility is 
recommended to ensure that all sources have been identified. Potential pollutant 
sources found at CAFO facilities include, but are not limited to, the following: 
manure; sludge; wastewater; dust; silage stockpiles; fuel storage tanks; 
pesticide storage and applications; lubricants; disposal of any dead animals 
associated with production at the CAFO; land application of waste and 
wastewater; manure stockpiling; pond clean-out; vehicle traffic; and pen clean-
out. Each plan shall include: 
<nl>(A)<ol> A site plan/map, or topographic map indicating, an outline of the 
property that will be used in the waste generation and disposal activities of 
the concentrated animal feeding area; each existing structural control measure 
to reduce pollutants in wastewater and precipitation runoff; and surface water 
bodies. 
<nl>(B)<ol> The plan shall identify the specific location of any recharge 
zones/features located on any tracts of land planned to be utilized under the 
provisions of this subchapter. In addition, the plan should also locate and 
describe the function of all measures installed to prevent impacts to identified 
recharge features. 
<nl>(C)<ol> A list of any significant spills of these materials at the facility 
after the effective date of these rules, or for new facilities, since date of 
operation. 
<nl>(D)<ol> All existing sampling data. 
<nl>(2)<ol> The pollution prevention plan for each facility shall include a 
description of management controls appropriate for the facility, and the 
permittee must implement such controls. The appropriateness and priorities of 
any controls shall reflect the identified sources of pollutants or nuisance at 
the facility. 
<nl>(3)<ol> The plan shall include the location and a description of structural 
controls. Structural controls shall be inspected at least four times per year 
for structural integrity and maintenance. The plan shall include dates for 
inspection of the retention facility, and a log of the findings of such 
inspections. The appropriateness of any controls shall reflect the identified 
sources of pollutants or nuisance at the facility.
<nl>(4)<ol> The plan must include documentation of the assumptions and 
calculations used in determining the appropriate volume capacity of the 
retention facilities. In addition to the 25-year, 24-hour rainfall, the volume 
capacity of the retention facility shall be designed to meet the demands of a 
hydrologic needs analysis (water balance) which demonstrates the irrigation 
water requirements for the cropping system maintained on the wastewater 
application site(s). Precipitation inputs to the hydrologic needs analysis 
(water balance) shall be the average monthly precipitation taken from an 
official source such as the "Climatic Atlas of Texas", LP-192, published by the 
Texas Department of Water Resources, dated December, 1983, or the most recent 
edition, or successor publication. The consumptive use requirements of the 
cropping system shall be developed on a monthly basis, and shall be calculated 
as a part of the hydrologic needs analysis (water balance). The following 
volumes shall be considered in determining the analysis: 
<nl>(A)<ol> the runoff volume from all open lot surfaces;
<nl>(B)<ol> the runoff volume from all areas between open lot surfaces that is 
directed into the retention facilities; 
<nl>(C)<ol> the rainfall multiplied by the area of the retention and waste 
basin; 
<nl>(D)<ol> the volume of rainfall from any roofed area that is directed into 
the retention facilities; 
<nl>(E)<ol> all waste and process generated wastewater produced during a twenty-
one (21) day, or greater, period; 
<nl>(F)<ol> the estimated storage volume for a minimum one (1) year of sludge 
accumulation; 
<nl>(G)<ol> the storage volume required to contain all wastewater and runoff 
during periods of low crop demand; 
<nl>(H)<ol> the evaporation volume from retention facility surfaces; 
<nl>(I)<ol> the volume applied to crops in response to crop demand; 
<nl>(J)<ol> the minimum treatment volume required for waste treatment, if 
treatment lagoon; and/or 
<nl>(K)<ol> any additional storage volume required as a safety measure as 
determined by the system designer. 
<nl>(5)<ol> The maximum required storage value calculated by the hydrologic 
analysis requirements should not encroach on the storage volume required for the 
25-year, 24-hour rainfall event. Wastewater application rates utilized in the 
hydrologic needs analysis (water balance) should not induce runoff or create 
tailwater. 
<nl>(6)<ol> In addition, the retention facility should include a top freeboard 
of two feet and in no case less than one foot. 
<nl>(7)<ol> A lagoon in a single lagoon system and a primary lagoon in a multi-
stage lagoon system shall be designed to maintain the necessary treatment volume 
or surface area as calculated using the manure production data (mean plus one 
standard deviation) published by American Society of Agricultural Engineers 
(ASAE) standards D384.1, dated June, 1988, and applicable updates to comply with 
anaerobic lagoon design criteria as established by ASAE standards EP-403.2, 
dated December, 1992, and applicable updates, or other site-specific data 
documented in the PPP. 
<nl>(8)<ol> Evaporation systems shall be designed to withstand a 10-year 
(consecutive) period of maximum recorded monthly rainfall (other than 
catastrophic), as determined by a hydrologic needs analysis (water balance), and 
sufficient freeboard (not less than one foot) shall be maintained to dispose of 
rainfall and rainfall runoff from the 25-year, 24-hour rainfall event without 
overflow. In the hydrologic needs analysis determination, any month in which a 
catastrophic event occurs the analysis shall replace such an event with not less 
than the long term average rainfall for that month.
<nl>(9)<ol> Site specific information should be used to determine retention 
capacity and land application rates. All site specific information used must be 
documented in the pollution prevention plan. 
<nl>(10)<ol> The plan shall include a description of the design standards for 
the retention facility embankments. The following minimum design standards are 
required for construction and/or modification of a retention facility: 
<nl>(A)<ol> Soils used in the embankment shall be free of foreign material such 
as trash, brush, and fallen trees; 
<nl>(B)<ol> The embankment shall be constructed in lifts or layers no more than 
six inches thick and compacted at optimum moisture content; 
<nl>(C)<ol> Site specific variation in embankment construction must be 
accompanied by compaction testing, certification by a licensed professional 
engineer, or certified to be in accordance with NRCS design standards. 
Compaction tests must be certified by a licensed professional engineer; and 
<nl>(D)<ol> All embankment walls shall be stabilized to prevent erosion or 
deterioration. 
<nl>(11)<ol> The plan must include a schedule for liquid waste removal. A date 
log indicating weekly inspection of wastewater level in the retention facility, 
including specific measurement of wastewater level will be kept with the plan. 
Retention facilities shall be equipped with either irrigation or evaporation or 
liquid removal systems capable of dewatering the retention facilities. Operators 
using pits, ponds, tanks or lagoons for storage and treatment of storm water, 
manure and process generated wastewater, including flush water waste handling 
systems, shall maintain in their wastewater retention facility sufficient 
available capacity to contain rainfall and rainfall runoff from a 25-year, 24-
hour rainfall event. The operator shall restore such capacity to store all 
runoff from a 25-year, 24-hour rainfall event after any rainfall event or 
accumulation of wastes or process generated wastewater which reduces such 
capacity , weather permitting. Equipment capable of dewatering the wastewater 
retention structures of waste and/or wastewater shall be available whenever 
needed to restore the capacity required to accommodate the rainfall and runoff 
resulting from the 25-year, 24-hour rainfall event. 
<nl>(12)<ol> A permanent marker (measuring device) shall be maintained in the 
wastewater retention facilities to show the following: the volume required for a 
25-year, 24-hour rainfall event; and the predetermined minimum treatment volume 
within any treatment pond. The marker shall be visible from the top of the 
levee. At no time shall a treatment lagoon at a CAFO that is operated under an 
air quality authorization be dewatered to a level below the predetermined 
treatment volume, except for cleanout periods or periods where the net effect of 
evaporation and rainfall render it impractical to maintain the treatment volume 
without pumping fresh ground water from an aquifer.
<nl>(13)<ol> The primary lagoon in a multi-stage lagoon system shall be designed 
and operated so that the lagoon maintains a constant level at all times unless 
prohibited by climatic conditions. Where practical, any contaminated runoff 
should be routed around the primary lagoon into the secondary lagoon. 
<nl>(14)<ol> A rain gauge shall be kept on site and properly maintained. A log 
of all measurable rainfall events shall be kept with the pollution prevention 
plan. 
<nl>(15)<ol> Concentrated animal feeding operations constructing a new or 
modifying an existing wastewater retention facility shall insure that all 
construction and design is in accordance with good engineering practices. Where 
site specific variations are warranted, the permittee must document these 
variations and their appropriateness to the plan. Existing facilities which have 
been properly maintained and show no signs of structural breakage or leakage 
will be considered to be properly constructed. Structures built in accordance 
with site specific Natural Resources Conservation Service plans and 
specifications will be considered to be in compliance with the design and 
capacity requirements of this subchapter if the site specific conditions are the 
same as those used by the NRCS to develop the plan (numbers of animals, runoff 
area, wastes generated, etc.) All retention structure design and construction 
shall, at a minimum, be in accordance with the technical standards developed by 
the NRCS. The permittee must use those standards that are current at the time of 
construction. 
<nl>(16)<ol> The permittee shall include in the plan, site specific 
documentation that no significant hydrologic connection exists between the 
contained wastewater and waters in the state. Where the permittee cannot 
document that no significant hydrologic connection exists, the ponds, lagoons 
and basins of the retention facilities must have a liner which will prevent the 
potential contamination of surface waters and ground waters. 
<nl>(A)<ol> The permittee can document lack of hydrologic connection by either: 
documenting that there will be no significant leakage from the retention 
structure; or documenting that any leakage from the retention structure would 
not migrate to waters in the state. This documentation shall be certified by a 
NRCS engineer, licensed professional engineer or qualified groundwater scientist 
and must include information on the hydraulic conductivity and thickness of the 
natural materials underlying and forming the walls of the containment structure 
up to the wetted perimeter. 
<nl>(B)<ol> For documentation of no significant leakage, in-situ materials must, 
at a minimum, meet the minimum criteria for hydraulic conductivity and thickness 
described below. Documentation that leakage will not migrate to waters in the 
state must include maps showing ground water flow paths, or that the leakage 
enters a confined environment. A written determination by a NRCS engineer, or a 
licensed professional engineer that a liner is not needed to prevent leakage of 
significant amounts of pollutants into waters in the state will be considered 
documentation that no significant hydrologic connection exists. 
<nl>(17)<ol> Site-specific conditions shall be considered in the design and 
construction of liners. NRCS liner requirements or liners constructed and 
maintained in accordance with NRCS design specifications in Technical Note 716 
(or its current equivalent) shall be considered to prevent hydrologic 
connections which could result in the contamination of waters in the state. 
Liners for retention structures should be constructed in accordance with good 
engineering practices. Where no site specific assessment has been done by a NRCS 
engineer, licensed professional engineer, or qualified groundwater scientist the 
liner shall be constructed to have hydraulic conductivities no greater than 1 X 
10<sup>-7 cm/sec, with a thickness of 1.5 feet or greater or its equivalency in 
other materials.
<nl>(18)<ol> Where a liner is installed to prevent hydrologic connection the 
permittee must maintain the liner to inhibit infiltration of wastewaters. Liners 
shall be protected from animals by fences or other protective devices. No trees 
shall be allowed to grow within the potential distance of the root zone. Any 
mechanical or structural damage to the liner will be evaluated by a NRCS 
engineer or a licensed professional engineer within 30 days of the damage. 
Documentation of liner maintenance shall be kept with the pollution prevention 
plan. The permittee shall have a NRCS engineer, licensed professional engineer, 
or qualified groundwater scientist review the documentation and do a site 
evaluation every five years. If notified by the executive director that 
significant potential exists for the contamination of waters in the state or 
drinking water, the permittee shall install a leak detection system or 
monitoring well(s) in accordance with that notice. Documentation of compliance 
with the notification must be kept with the pollution prevention plan, as well 
as all sampling data. In the event monitoring well(s) are required, the 
permittee must sample each monitor well annually for nitrate as nitrogen, 
chloride, and total dissolved solids using the methods outlined in the PPP, and 
compare the analytical results to the baseline data. If a ten percent deviation 
in concentration of any of the sampled constituents is found, the permittee must 
notify the executive director within 30 days of receiving the analytical 
results. Data from any monitoring wells must be kept on site for three years 
with the pollution prevention plan. The first year's sampling shall be 
considered the baseline data and must be retained on site for the life of the 
facility. 
<nl>(19)<ol> Retention facilities shall be equipped with either irrigation or 
evaporation systems capable of dewatering the retention facilities, or a regular 
schedule of wastewater removal by contract hauler. The pollution prevention plan 
must include all calculations, as well as, all factors used in determining land 
application rates, acreage, and crops. Land application rates must take into 
account the nutrient contribution of any land applied manures. If land 
application is utilized for disposal of wastewater, the following requirements 
shall apply: 
<nl>(A)<ol> The discharge or drainage of irrigated wastewater is prohibited 
where it will result in a discharge to waters in the state.
<nl>(B)<ol> When irrigation disposal of wastewater is used, application rates 
shall not exceed the nutrient uptake of the crop coverage or planned crop 
planting with any land application of wastewater and/or manure. Land application 
rates of wastewaters should be based on the available nitrogen content, however, 
where local water quality is threatened by phosphorus, the permittee shall limit 
the application rate to the recommended rates of available phosphorus for needed 
crop uptake and provide controls for runoff and erosion as appropriate for site 
conditions. 
<nl>(C)<ol> Wastewater shall not be irrigated when the ground is frozen or 
saturated or during rainfall events (unless in accordance with subparagraph (E) 
of this paragraph. 
<nl>(D)<ol> Irrigation practices shall be managed so as to reduce or minimize 
ponding or puddling of wastewater on the site, contamination of waters in the 
state, and the occurrence of nuisance conditions. 
<nl>(E)<ol> It shall be considered proper operation and maintenance for a 
facility which has been properly operated in accordance with this subchapter, 
and that is in danger of imminent overflow due to chronic or catastrophic 
rainfall, to discharge wastewaters to land application sites for filtering prior 
to discharging to waters in the state. Only that portion of the total retention 
facility wastewater volume necessary to prevent overflow due to chronic or 
catastrophic rainfall shall be land applied for filtering prior to discharging 
to waters in the state. Monitoring and reporting requirements for such 
discharges shall be consistent with sec.321.42 of this title (relating to 
Monitoring and Reporting Requirements). 
<nl>(F)<ol> Facilities including ponds, pipes, ditches, pumps, diversion and 
irrigation equipment shall be maintained to insure ability to fully comply with 
the terms of this subchapter and the pollution prevention plan. 
<nl>(G)<ol> Adequate equipment or land application area shall be available for 
removal of such waste and wastewater as required to maintain the retention 
capacity of the facility for compliance with this subchapter.
<nl>(H)<ol> Where land application sites are isolated from surface waters and 
ground waters and no potential exists for runoff to reach any waters in the 
state, application rates may exceed nutrient crop uptake rates only upon written 
approval of the executive director. No land application under this subsection 
shall cause or contribute to a violation of water quality standards or create a 
nuisance. 
<nl>(20)<ol> Solids shall be removed in accordance with a pre-determined 
schedule for cleanout of all treatment lagoons to prevent the accumulation of 
solids from exceeding 50 percent of the original treatment volume. Removal of 
solids shall be conducted during favorable wind conditions that carry odors away 
from nearby receptors and the operator shall notify the regional office of the 
commission as soon as the lagoon cleaning is scheduled, but not less than 10 
days prior to cleaning, and verification shall be reported to the same regional 
office within five days after the cleaning has been completed. At no time shall 
emissions from any activity create a nuisance. Any increase in odors associated 
with a properly managed cleanout under this subsection will be taken into 
consideration by the executive director when determining compliance with the 
provisions of this subchapter. 
<nl>(21)<ol> Manure and Pond Solids Handling and Land Application. Storage and 
land application of manure shall not cause a discharge of significant pollutants 
to waters in the state, cause a water quality violation in waters in the state 
or cause a nuisance condition. At all times, sufficient volume shall be 
maintained within the control facility to accommodate manure, other solids, 
wastewaters and contaminated storm waters (rainwater runoff) from the 
concentrated animal feeding areas. 
<nl>(22)<ol> Where the permittee decides to land apply manures and pond solids 
the plan shall include: a description of waste handling procedures and equipment 
availability; the calculations and assumptions used for determining land 
application rates; and any nutrient analysis data. Land application rates of 
wastes should be based on the available nitrogen content of the solid waste. 
However, where local water quality is threatened by phosphorus, the application 
rate shall be limited to the recommended rates of available phosphorus for 
needed crop uptake and provide controls for runoff and erosion as appropriate 
for site conditions. 
<nl>(23)<ol> If the waste (manure) is sold or given to other persons for 
disposal, the permittee must maintain a log of: date of removal from the CAFO; 
name of hauler; and amount, in wet tons, dry tons or cubic yards, of waste 
removed from the CAFO. (Incidental amounts, given away by the pick-up truck 
load, need not be recorded.) Where the wastes are to be land applied by the 
hauler, the permittee must make available to the hauler any nutrient sample 
analysis from that year. 
<nl>(24)<ol> The procedures documented in the pollution prevention plan must 
ensure that the handling and disposal of wastes as defined in sec.321.32 of this 
title (relating to Definitions) comply with the following requirements: 
<nl>(A)<ol> Adequate manure storage capacity based upon manure and waste 
production and land availability shall be provided. Storage and/or surface 
disposal of manure in the 100-year flood plain, near water courses or recharge 
feature is prohibited unless protected by adequate berms or other structures. 
The land application of wastes at agricultural rates shall not be considered 
surface disposal in this case and is not prohibited.
<nl>(B)<ol> When manure is stockpiled, it shall be stored in a well drained area 
with no ponding of water, and the top and sides of stockpiles shall be 
adequately sloped to ensure proper drainage. Runoff from manure storage piles 
must be retained on site. 
<nl>(C)<ol> Waste shall not be applied to land when the ground is frozen or 
saturated or during rainfall events. 
<nl>(D)<ol> Waste manure shall be applied to suitable land at appropriate times 
and rates. Discharge (run-off) of waste from the application site is prohibited. 
Timing and rate of applications shall be in response to crop needs, assuming 
usual nutrient losses, expected precipitation and soil conditions. 
<nl>(E)<ol> All necessary practices to minimize waste manure transport to waters 
in the state shall be utilized and documented to the plan.
<nl>(F)<ol> Edge-of-field, grassed strips shall be used to separate water 
courses from runoff carrying eroded soil and manure particles. Land subject to 
excessive erosion shall be avoided. 
<nl>(G)<ol> Where land application sites are isolated from surface waters and no 
potential exists for runoff to reach waters in the state, application rates may 
exceed nutrient crop uptake rates only upon written approval by the executive 
director. No land application under this subchapter shall cause or contribute to 
a violation of surface water quality standards, contaminate ground water or 
create an nuisance condition. 
<nl>(H)<ol> Nighttime application of liquid and/or solid waste shall only be 
allowed in areas with no occupied residence(s) within 0.25 mile from the outer 
boundary of the actual area receiving waste application. In areas with an 
occupied residence within 0.25 mile from the outer boundary of the actual area 
receiving waste application, application shall only be allowed from one hour 
after sunrise until one hour before sunset, unless the current occupants of such 
residences have in writing agreed to such nighttime applications. 
<nl>(I)<ol> Accumulations of solids on concrete cow lanes at dairies and 
concrete swine pens, without slotted floors, shall be scraped or flushed at 
least once per week or in accordance with proper design and maintenance of the 
facility. Farrowing pens at swine facilities which are not scraped or flushed 
once per week shall be scraped/flushed after each group of sows have been 
removed from the facility. 
<nl>(J)<ol> Buildings designed with mechanical flush/scrape systems shall be 
flushed/scraped at least once per week or as often as necessary to maintain the 
design efficiency. This provision would include, but would not be limited to 
swine and caged poultry operations. 
<nl>(K)<ol> Earthen pens shall be designed and maintained to ensure good 
drainage and to prevent ponding. 
<nl>(L)<ol> Facilities that utilize a solid settling basin(s) shall remove 
solids from the basin as often as necessary to maintain the design efficiency. 
<nl>(25)<ol> The plan shall include an appropriate schedule for preventative 
maintenance. Operators will provide routine maintenance to their control 
facilities in accordance with a schedule and plan of operation to ensure 
compliance with this subchapter. The permittee shall keep a maintenance log 
documenting that preventative maintenance was done. A preventive maintenance 
program shall involve inspection and maintenance of all runoff management 
devices (mechanical separators, catch basins) as well as inspecting and testing 
facility equipment and containment structures to uncover conditions that could 
cause breakdowns or failures resulting in discharge of pollutants to waters in 
the state or the creation of a nuisance condition. 
<nl>(26)<ol> The plan shall identify areas which, due to topography, activities, 
or other factors, have a high potential for significant soil erosion. Where 
these areas have the potential to contribute pollutants to waters in the state 
the pollution prevention plan shall identify measures used to limit erosion and 
pollutant runoff. 
<nl>(27)<ol> The permittee shall document to the pollution prevention plan as 
soon as possible, any planned physical alterations or additions to the permitted 
facility. The permittee must insure that any change or facility expansion will 
not result in a discharge in violation of the provisions of this subchapter or 
will require an amendment to an existing authorization in force at the time of 
modification.
<nl>(28)<ol> Prior to commencing wastewater irrigation and/or waste application 
on land owned or operated by the permittee, and annually thereafter, the 
permittee shall collect and analyze representative soil samples of the 
wastewater and waste application sites according to the following procedures:
<nl>(A)<ol> Sampling procedures shall employ accepted techniques of soil science 
for obtaining representative and analytical results. 
<nl>(B)<ol> Samples should be taken within the same 45 day time-frame each year. 
<nl>(C)<ol> Obtain one composite sample for each soil depth zone per land 
management unit and per uniform (soils with the same characteristics and 
texture) soil type within the land management unit. For the purposes of this 
subchapter, a land management unit shall be considered to be an area associated 
with a single center pivot system or a tract of land on which similar soil 
characteristics exist and management practices are being used. 
<nl>(D)<ol> Composite samples shall be comprised of 10 - 15 randomly sampled 
cores obtained from each of the following soil depth zones: 
<nl>(i)<ol> Zone 1: 0-6 inches for land application areas where the waste is 
incorporated directly into the soil or 0-2 inches for land application areas 
where the waste is not incorporated into the soil; if a 0-2 inch sample is 
required under this subsection, then an additional sample from the 2-6 inch soil 
depth zone shall be obtained in accordance with the provisions of this section 
<nl>(ii)<ol> Zone 2: 6 - 24 inches 
<nl>(E)<ol> Soil samples shall be submitted to a soil testing laboratory along 
with a previous crop history of the site, intended crop use and yield goal. Soil 
reports should include nutrient recommendations for the crop yield goal. 
<nl>(F)<ol> Chemical/nutrient parameters and analytical procedures for 
laboratory analysis of soil samples from wastewater and waste application sites 
shall include the following: 
<nl>(i)<ol> Nitrate reported as nitrogen in parts per million (ppm), 
<nl>(ii)<ol> Phosphorus (extractable, ppm) - Texas Agricultural Extension 
Service Soil Testing Laboratory - TAMU extractant, 
<nl>(iii)<ol> Potassium (extractable, ppm), 
<nl>(iv)<ol> Sodium (extractable, ppm), (v) Magnesium (extractable, ppm), 
<nl>(vi)<ol> Calcium (extractable, ppm), 
<nl>(vii)<ol> Soluble salts/electrical conductivity (dS/m) - determined from 
extract of 2:1 (v/v) water/soil mixture, 
<nl>(viii)<ol> Soil water pH, 
<nl>(G)<ol> When results of the annual soil analysis for extractable phosphorus 
in subparagraph (F) of this paragraph indicates a level greater than 200 ppm of 
extractable phosphorus (reported as P) in Zone 1 for a particular waste and/or 
wastewater disposal field or if ordered by the commission to do so in order to 
protect the quality of waters in the state, then the permittee shall limit waste 
and/or wastewater application on that site to the recommended P rates based on 
crop uptake. Waste and/or wastewater application shall remain limited to 
recommended P rates until soil analysis indicates extractable phosphorus levels 
have been reduced below 200 ppm P, or to a lower level as ordered by the 
commission. 
<nl>(29)<ol> The permittee shall annually analyze at least one representative 
sample of irrigation wastewater and one representative sample of solid waste for 
total nitrogen, total phosphorus and total potassium.
<nl>(30)<ol> Results of initial and annual soils, wastewater and solid waste 
analyses shall be maintained on-site as part of the pollution prevention plan. 
<nl>(31)<ol> Permittees submitting applications for renewal or expansion of 
existing facilities authorized under this subchapter to utilize a playa lake as 
a wastewater retention structure shall within ninety (90) days of the effective 
date of the renewal, submit a ground water monitoring plan to the Agriculture 
Section, Water Quality Division of the Texas Natural Resource Conservation 
Commission. At a minimum, the ground water monitoring plan shall specify 
procedures to annually collect a ground water sample from each well providing 
water for the facility, have each sample analyzed for chlorides and nitrates and 
compare those values to background values for each well. 
<nl>(32)<ol> Permittee shall develop and implement a plan to abate odors at the 
CAFO. Such plan shall identify all structural and/or management practices that 
the owner/operator will employ to minimize odor conditions and control air 
contaminants at the facility. 

sec.321.40. <nl>Best Management Practices.<ol> [Edwards Aquifer] 
<nl>The following Best Management Practices (BMPs) shall be utilized by 
concentrated animal feeding operations owners/ operators, as appropriate, based 
upon existing physical and economic conditions, opportunities and constraints. 
Where the provisions in a NRCS plan are equivalent or more protective the 
permittee may refer to the NRCS plan as documentation of compliance with the 
BMPs required by this subchapter. <ol> [New feedlot/concentrated animal feeding 
operations are prohibited on the recharge zone.] 
<nl>(1)<ol> Control facilities must be designed, constructed, and operated to 
contain all process generated wastewaters and the contaminated runoff from a 25-
year, 24-hour rainfall event for the location of the point source. Calculations 
may also include allowances for surface retention, infiltration, and other site 
specific factors. Waste control facilities must be constructed, maintained and 
managed so as to retain all contaminated rainfall runoff from open lots and 
associated areas, process generated wastewater, and all other wastes which will 
enter or be stored in the retention structure. 
<nl>(2)<ol> Facilities shall not expand operations, either in size or numbers of 
animals, prior to amending or enlarging the waste handling procedures and 
structures to accommodate any additional wastes that will be generated by the 
expanded operations. 
<nl>(3)<ol> Open lots and associated wastes shall be isolated from outside 
surface drainage by ditches, dikes, berms, terraces or other such structures 
designed to carry peak flows expected at times when the 25-year, 24-hr. rainfall 
event occurs. 
<nl>(4)<ol> New or expanding facilities shall not be built in any stream, river, 
lake, wetland, or playa lake (except as defined by and in accordance with the 
Texas Water Code sec.26.048). 
<nl>(5)<ol> No waters in the state shall come into direct contact with the 
animals confined on the concentrated animal feeding operation. Fences and other 
methods may be used to restrict such access. 
<nl>(6)<ol> Wastewater retention facilities or holding pens may not be located 
in the 100-year flood plain unless the facility is protected from inundation and 
damage that may occur during that flood event. 
<nl>(7)<ol> There shall be no water quality impairment to public and neighboring 
private drinking water wells due to waste handling at the permitted facility. 
Facility wastewater retention facilities, holding pens or waste/wastewater 
disposal sites shall not be located closer than 500 feet of a public water 
supply well or 150 of a private water wells, except in accordance with Chapter 
238 of this title (relating to Water Well Drillers). 
<nl>(8)<ol> Waste handling, treatment, and management shall not create a 
nuisance condition or an environmental or a public health hazard; shall not 
result in the contamination of drinking water; shall conform with State 
guidelines and/or regulations for the protection of surface and ground water 
quality. 
<nl>(9)<ol> Solids, sludges, manure, or other pollutants removed in the course 
of treatment or control of wastewaters shall be disposed of in a manner such as 
to prevent significant pollutants from being discharged into waters in the state 
or creation of a nuisance condition.
<nl>(10)<ol> The operator shall prevent the discharge of pesticide contaminated 
waters into waters in the state. All wastes from dipping vats, pest and parasite 
control units, and other facilities utilized for the application of potentially 
hazardous or toxic chemicals shall be handled and disposed of in a manner such 
as to prevent any significant pollutants from entering the waters in the state 
or create a nuisance condition.
<nl>(11)<ol> Dead animals shall be properly disposed of within three days unless 
otherwise provided for by the executive director. Animals shall be disposed of 
in a manner to prevent contamination of waters in the state or create a nuisance 
or public health hazard. 
<nl>(12)<ol> Collection, storage, and disposal of liquid and solid waste should 
be managed in accordance with recognized practices of good agricultural 
management. The economic benefits derived from agricultural operations carried 
out at the land disposal site shall be secondary to the proper disposal of waste 
and wastewater. 
<nl>(13)<ol> Appropriate measures necessary to prevent spills and to clean up 
spills of any toxic pollutant shall be taken. Where potential spills can occur 
materials, handling procedures and storage shall be specified. Procedures for 
cleaning up spills shall be identified and the necessary equipment to implement 
a clean up shall be available to personnel. [New feedlot/concentrated animal 
feeding operations are prohibited on the recharge zone.] 

sec.321.41. <nl>Other Requirements.<ol> [Appendix A] 
<nl>(a)<ol> <nl>Education and Training.<ol> [Appendix A is a collection of 
exhibits which describe certain design requirements for waste control systems. 
[Figures 1-3: 30 TAC sec.321.41).] 
<nl>(1)<ol> Any CAFO owner/operator with greater than 300 animal units and 
located within an area specified in the definition of Dairy Outreach Program 
Areas in sec.321.32 of this subchapter (relating to Definitions) shall file an 
application for registration and obtain authorization under this subchapter and, 
within twelve months of receiving such authorization, the owner/operator or his 
designee with operational responsibilities shall complete an eight hour course 
or its equivalent on animal waste management. In addition, that owner/operator 
shall also complete at least eight additional hours of continuing animal waste 
management education for each two year period after the first twelve months. The 
minimum criteria for the initial eight hours and the subsequent eight hours of 
continuing animal waste management education shall be developed by the executive 
director and the Texas Agricultural Extension Service. Verification of the date 
and time(s) of attendance and completion of required training shall be 
documented to the pollution prevention plan. 
<nl>(2)<ol> Where the employees are responsible for work activities which relate 
to compliance with provisions of this subchapter, those employees must be 
regularly trained or informed of any information pertinent to the proper 
operation and maintenance of the facility and waste disposal. Employee training 
shall inform personnel at all levels of responsibility of the general components 
and goals of the pollution prevention plan. Training shall include topics as 
appropriate such as land application of wastes, proper operation and maintenance 
of the facility, good housekeeping and material management practices, necessary 
recordkeeping requirements, and spill response and clean up. The permittee is 
responsible for determining the appropriate training frequency for different 
levels of personnel and the pollution prevention plan shall identify periodic 
dates for such training.
<nl>(b)<ol> Inspections and Recordkeeping. The operator or the person named in 
the pollution prevention plan as the individual responsible for drafting and 
implementing the plan shall be responsible for inspections and recordkeeping. 
<nl>(c)<ol> Recordkeeping and Internal Reporting Procedures. Incidents such as 
spills, other discharges or nuisance conditions, along with other information 
describing the pollution potential and quality of the discharge shall be 
included in the records. Inspections and maintenance activities shall be 
documented and recorded. These records must be kept on site for a minimum of 
three years. 
<nl>(d)<ol> Visual Inspections. The authorized person shall inspect designated 
equipment and facility areas. Material handling areas shall be inspected for 
evidence of, or the potential for, pollutants entering the drainage system or 
the creation of a nuisance. A follow-up procedure shall be used to ensure that 
appropriate action has been taken in response to the inspection. 
<nl>(e)<ol> Site Inspection. A complete inspection of the facility shall be done 
and a report documenting the findings of the inspection made at least once/year. 
The inspection shall be conducted by the authorized person named in the 
pollution prevention plan, to verify that the description of potential pollutant 
sources is accurate; the site plan/map has been updated or otherwise modified to 
reflect current conditions; and the controls outlined in the pollution 
prevention plan to reduce pollutants and avoid nuisance conditions are being 
implemented and are adequate. Records documenting significant observations made 
during the site inspection shall be retained as part of the pollution prevention 
plan. Records of inspections shall be maintained for a period of three (3) 
years. 
<nl>(f)<ol> Additional Requirements. No condition of this authorization shall 
release the permittee from any responsibility or requirements under other 
statutes or regulations, Federal, State or Local.

sec.321.42. <nl>Monitoring and Reporting Requirements <ol> [Registration]. 
<nl>(a)<ol> <nl>If, for any reason, there is a discharge to waters in the state, 
the permittee is required to notify the executive director orally within 24 
hours and in writing within 14 working days of the discharge from the retention 
facility or any component of the waste handling or disposal system. In addition, 
the permittee shall document the following information to the pollution 
prevention plan within 14 days of becoming aware of such discharge:<ol> [All 
dairies operating as concentrated animal feeding operations shall notify the 
executive director of their business name, physical location including a map or 
hand drawn sketch, mailing address and number of milking head. Such notification 
shall be in writing and signed by the owner/operator. Additionally, should a 
dairy concentrated animal feeding operation change substantially in the number 
of milking head, that dairy shall submit an amended notification.] 
<nl>(1)<ol> A description and cause of the discharge, including a description of 
the flow path to the receiving water body. Also, an estimation of the flow and 
volume discharged. 
<nl>(2)<ol> The period of discharge, including exact dates and times, and, if 
not corrected the anticipated time the discharge is expected to continue, and 
steps being taken to reduce, eliminate and prevent recurrence of the discharge. 
<nl>(3)<ol> If caused by a precipitation event(s), information from the on site 
rain gauge concerning the size of the precipitation event. 
<nl>(4)<ol> Unless otherwise directed by the executive director, facilities 
authorized under this subchapter shall sample and analyze all discharges from 
retention facilities. Sample analysis shall be documented to the pollution 
prevention plan. 
<nl>(5)<ol> Samples shall consist of grab samples taken from the over-flow or 
discharges from the retention structure. A minimum of one sample shall be taken 
from the initial discharge (within 30 minutes). The sample shall be taken and 
analyzed in accordance with EPA approved methods for water analysis listed in 40 
CFR 136. Measurements taken for the purpose of monitoring shall be 
representative of the monitored discharge. 
<nl>(6)<ol> Sample analysis of the discharge must, at a minimum, include the 
following: Fecal Coliform bacteria; 5-day Biochemical Oxygen Demand (BOD5); 
Total Suspended Solids (TSS); ammonia nitrogen; and any pesticide which the 
operator has reason to believe could be in the discharge. 
<nl>(7)<ol> In lieu of discharge sampling data, the permittee must document 
description of why discharge samples could not be collected when the discharger 
is unable to collect samples due to climatic conditions which prohibit the 
collection of samples including weather conditions that create dangerous 
conditions for personnel (such as local flooding, high winds, hurricane, 
tornadoes, electrical storms, etc.). Once dangerous conditions have passed, the 
permittee shall collect a sample from the retention structure pond or lagoon. 
The sample shall be analyzed in accordance with paragraph (6) of this 
subsection. 
<nl>(b)<ol> All discharge information and data will be made available to the 
executive director upon request. Signed copies of monitoring reports shall be 
submitted to the executive director if requested at the address specified in the 
request. 
<nl>(c)<ol> Any person who knowingly makes any false statement, representation, 
or certification in any record or other document submitted or required to be 
maintained under the provisions of this subchapter, including reports of 
compliance or noncompliance shall be subject to administrative penalties not to 
exceed $10,000 per violation. Such person(s) may also be subject to civil and 
criminal penalties pursuant to the Texas Water Code, sec.26.122 and sec.26.213. 
<nl>(d)<ol> The permittee shall retain copies of all records required by this 
subchapter for a period of at least three years from the date reported. This 
period may be extended by request of the executive director at any time. 
<nl>(e)<ol> The permittee shall furnish to the executive director, within a 
reasonable time, any information which the executive director may request to 
determine compliance with the provisions of this subchapter. The permittee shall 
also furnish to the executive director, upon request, copies of records required 
to be kept by the provisions of this subchapter. 
<nl>(f)<ol> When the permittee becomes aware that they failed to submit any 
relevant facts or submitted incorrect information in any report to the executive 
director, they shall promptly submit such facts or information. 
<nl>(g)<ol> All reports or information submitted to the executive director shall 
be signed and certified in accordance with sec.305.44 of this title (relating to 
Signatories to Applications).
<nl>(h)<ol> The permittee shall maintain ownership, operation or control over 
the retention facilities, disposal areas and control facilities identified in 
the final site plan submitted with the application under sec.321.34 or 321.35 of 
this title (relating to Procedures for Making Application for an Individual 
Permit or Procedures for Making Application for Registration). In the event 
permittee loses ownership, operation or control of any of these areas, the 
permittee shall notify the executive director prior to such loss of control and 
immediately request and file an application to amend the existing authorization, 
an application for a new authorization under this subchapter or present the 
executive director with a plan to cease all concentrated animal feeding 
operations at that site. 
<nl>(i)<ol> Any permittee required to obtain authorization under sec.321.33 of 
this title (relating to Applicability) shall locate and maintain all facilities 
in accordance with the final site plan submitted with the application as 
required under sec.321.34 or 321.35 of this title (relating to Procedures for 
Making Application for an Individual Permit or Procedures for Making Application 
for Registration). In the event the permittee does not properly locate and 
maintain such facilities in accordance with the final site plan they shall be 
deemed in noncompliance with the provisions of this subchapter. 
<nl>(j)<ol> Permittee shall furnish to the executive director soil testing 
laboratory results of all soil samples within 60 days of the date the samples 
were taken in accordance with the requirements of this subsection. 

sec.321.43. <nl>Notification.<ol> [Best Management Practices] 
<nl>All new animal feeding operations which confine more than 300 animal units 
and/or any animal feeding operation which confines more than 300 head of a 
species or combination of species not specifically listed under the definition 
of CAFO as stated in sec.321.32 of this title (relating to Definitions) and have 
a potential to discharge into the waters in the state shall notify the executive 
director of their business name, physical location including a map or hand drawn 
sketch, mailing address and number of head in confinement. Such notification 
shall be in writing and signed by the owner/operator and shall be submitted not 
later than 180 days of the effective date of these rules or commencement of 
operation, whichever is later. Additionally, should an animal feeding operation 
covered by this section change ownership or substantially change the number of 
head in confinement, that operator shall submit an amended notification. No fees 
are associated with notification under this section. <ol> [The following Best 
Management Practices (BMPs) shall be utilized by concentrated animal feeding 
dairy owners/operators, as appropriate based upon existing physical and economic 
conditions, opportunities and constraints, until a finally effective permit or 
other authorization is issued by the commission or until a waste management plan 
is approved by the executive director.]
[(1) Practices to decrease lot runoff volume:] 
[(A) divert runoff from clean areas above lot:]
[(i) construct ditches, terraces and waterways above an open lot;] 
[(ii) install gutters, downspouts and buried conduits to divert roof drainage; 
and] 
[(iii) provide more roofed area.] 
[(B) decrease open lot surface area:] 
[(i) increase animal density to reduce lot size;]
[(ii) improve lot surfacing to support increased animal density; ] 
[(iii) provide more roofed area;] 
[(iv) collect manure more frequently; and] 
[(v) eliminate areas that slope in directions such that wastewater/rainfall 
cannot be collected.] 
[(2) Practices to decrease water volume:] 
[(A) repair or adjust waterers and water systems to minimize water wastage.] 
[(B) use practical amounts of water for cooling.]
[(C) use practical amounts of water for cleaning equipment.] 
[(D) recycle water to flush manure from paved surfaces outside the milking 
parlor if practical and applicable.] 
[(3) Practices to decrease lot runoff and wastewater discharges to 
watercourses:] 
[(A) collect and allow wastewater to evaporate.]
[(B) collect and evenly apply wastewater to land.]
[(4) Practices to minimize solid manure transport to watercourses:] 
[(A) do not stockpile manure near watercourses.]
[(B) provide adequate manure storage capacity based upon manure and waste 
production and land availability.] 
[(C) apply solid manure to suitable land at appropriate times and rates:] 
[(i) adjust timing and rate of applications to crop needs, assuming usual 
nutrient losses, expected precipitation and soil conditions;] 
[(ii) avoid applications on frozen or saturated soils; and] 
[(iii) avoid land subject to excessive erosion.]
[(D) use edge-of-field, grassed strips to separate eroded soil and manure 
particles from the field runoff.] 
[(E) utilize off-site areas for manure application in a manner consistent with 
paragraphs (1) through (4) of this section.] 
[(5) Practices to Protect Groundwater.] 
[(A) locate waste management facilities a minimum horizontal distance of 150 
feet from all water wells if practical.] 
[(B) when applying waste/wastewater to land, utilize a buffer area around water 
wells to prevent the possibility of waste transport to groundwater via the well 
or well casing.] 

sec.321.44. <nl>Dairy Outreach Program Areas.<ol> [Wastewater Retention] 
[(a)] <nl>For the purposes of this subchapter the Dairy Outreach Program Areas 
involve all of the following counties: Erath, Bosque, Comanche, Hamilton, 
Johnson, Hopkins, Wood and Rains. The commission shall review the areas 
designated under this section on at least a triennial basis to determine whether 
counties should be deleted or other areas should be added. Areas under this 
section shall be added or deleted in accordance with the rulemaking process.<ol> 
[Until issuance of a permit, a dairy owner/operator shall manage any waste 
control facilities so as to contain 70% of the rainfall and rainfall runoff 
collected from a 25-year, 24-hour rainfall event. If multiple rainfalls occur 
within a seven day period, an owner/operator shall contain rainfall and rainfall 
runoff equivalent to 50% of the 25-year, 24-hour rainfall event.] 
[(b) Until issuance of a permit, a dairy owner/operator shall manage any waste 
control facilities to retain all waste and process generated wastewater produced 
during a time not less than 75% of the minimum storage period value obtained 
from Exhibit 2 of sec.321.41 of this title (relating to Appendix A).] 

sec.321.45. &lt;new>Effect of Conflict or Invalidity of Rule. [Permit or 
Commission Authorization Required] 
<nl>(a)<ol> <nl>If any provision of this subchapter or its application to any 
person or circumstances is held invalid, the invalidity does not affect other 
provisions or applications of the provisions contained in this subchapter which 
can be given effect without the invalid provision or application, and to this 
end the provisions of this subchapter are severable. <ol> [For new dairies, no 
dairy owner/operator who is required to obtain a permit may commence physical 
construction and/or operation of any waste management facilities without first 
having submitted a permit application and receiving a finally effective permit 
or other commission authorization.
<nl>(b)<ol> To the extent of any irreconcilable conflict between provisions of 
this subchapter and other rules of the commission, the provisions of this 
subchapter shall supersede. 

sec.321.46. <nl>Air Standard Permit Authorization for a CAFO General Permit.<ol> 
[Permit Application within 90 days of Commission Notification] 
<nl>Pursuant to Texas Clean Air Act Section 382.051, any CAFO which meets all of 
the requirements for operating under a CAFO general permit is hereby entitled to 
an air quality standard permit authorization in lieu of the requirement to 
obtain an air quality permit under Chapter 116 of this title (relating to 
Control of Air Pollution by Permits for New Construction or Modification).<ol> 
[The dairy owner/operator shall submit a complete permit application within 90 
days of notification from the executive director that a permit is required.] 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt. 
Filed with the Office of the Secretary of State on February 23, 1998.
TRD-9802620
Kevin McCalla
Director, Legal Services
Texas Natural Resource Conservation Commission
Proposed date of adoption: April 13, 1998
For further information, please call: (512) 239-4640

CHAPTER 330. Municipal Solid Waste
The Texas Natural Resource Conservation Commission (commission) proposes 
amendments to sec.330.4, and new sec.330.26, concerning municipal solid waste 
management. 
EXPLANATION OF PROPOSED RULE. The purpose of these rules is to establish 
additional general rules for the storage and disposal of litter generated and 
disposed of on an individual's property. The statutory basis for the rules is 
found in House Bill (HB) 717, 75th Legislature, which amended the Texas Health 
and Safety Code, Chapter 365, the Texas Litter Abatement Act, sec.365.011 and 
sec.365.012; Senate Bill (SB) 1782, 75th Legislature, which amended the Texas 
Health and Safety Code, Chapter 361, the Solid Waste Disposal Act, sec.361.116; 
and the Texas Health and Safety Code, Chapter 361, the Solid Waste Disposal Act, 
sec.361.011. HB 717 directs the commission to establish rules to regulate 
temporary storage for future disposal of litter or other solid waste by a person 
on land owned by the person or the person's agent. These proposed rules 
establish a permit exemption following the directive from HB 717 that a 
landowner may dispose of litter or other solid waste on his own land without 
commission authorization if the litter or other solid waste is generated and 
disposed of on land the individual owns, and the disposal is not for commercial 
purposes. The term "commercial purpose" is defined in Texas Health and Safety 
Code, Chapter 365, the Texas Litter Abatement Act, sec.365.011, and will be 
included in a future rule writing action. Commercial purpose as quoted from the 
Texas Litter Abatement Act means the purpose of economic gain. The permit 
exemption for disposal of litter or other waste by an individual has an added 
standard of 2000 pounds per individual per year. The 2000 pound per year 
standard is taken from an existing standard established in existing 
sec.330.55(a)(4) which establishes the general amount of waste generated by an 
individual as five pounds per day. Additionally, these rules follow direction 
from SB 1782 by adding a permit exemption to new sec.330.4(u) regarding the 
disposal of animal carcasses for roadway maintenance. New sec.330.26 establishes 
rules regulating the temporary storage for future disposal of litter or other 
solid waste as required by HB 717. New sec.330.26 simply requires waste from 
this source to be stored in the normal manner currently established in existing 
sec.330.22 for similar wastes. 
FISCAL NOTE. Stephen Minick, Strategic Planning and Appropriations Division, has 
determined that for the first five-year period the sections as proposed are in 
effect there will be fiscal implications as a result of administration and 
enforcement of the sections. The effect on state government will be a reduction 
in the costs of processing municipal solid waste permits or registrations. These 
savings are prospective and cannot be determined at this time, but are not 
anticipated to reflect reductions in operating costs. Generally, there are no 
significant fiscal implications anticipated for state or local governments as a 
result of enforcement or administration of the section. 
PUBLIC BENEFIT. Mr. Minick also has determined that for the first five-year 
period the sections as proposed are in effect the public benefit anticipated as 
the result of enforcement of and compliance with the sections will be more cost-
effective regulation and control of litter and solid waste. The effect of the 
sections as proposed will be to reduce the potential costs of obtaining 
authorization to operate extremely small facilities for solid waste disposal. 
The additional costs of preparation of an application have not been estimated, 
but these cost savings could be even greater. There are no economic costs 
identified for any person subject to the sections as proposed. 
REGULATORY IMPACT ANALYSIS. The commission has reviewed the rulemaking in light 
of the regulatory analysis requirements of Texas Government Code sec.2001.0225 
and has determined that the rulemaking is not subject to sec.2001.0225 because 
it does not meet the definition of a "major environmental rule" as defined in 
the act, and it does not meet any of the four applicability requirements listed 
in sec.2001.0225(a). 
TAKINGS IMPACT ASSESSMENT. The commission has prepared a Takings Impact 
Assessment for these rules pursuant to Texas Government Code Annotated 
sec.2007.043. The following is a summary of that Assessment. The specific 
purpose of the proposed rules is to regulate activities associated with 
temporary storage and future disposal of litter and other solid waste by a 
person on land owned by that person. The rules will establish that agency 
authorization in the form of a registration or the previously required permit 
are not required for the disposal of litter or other solid waste generated by an 
individual and disposed of by that individual on land owned by that individual. 
The rules will provide the specific standards for storage of such waste. The 
proposed rules are necessary to advance the agency's mission of providing 
adequate public health and safety relative to the management of municipal solid 
waste. The proposed rules will establish exemptions from authorization standards 
and will establish storage standards which currently do not exist under Chapter 
330. The proposed rules will provide significant clarification regarding the 
procedures and criteria to be used by the TNRCC and the regulated community in 
the requirements for the review and approval of permit applications for 
regulated activities under this chapter. The commission has prepared a Takings 
Impact Assessment for this rule according to Texas Government Code, 
sec.2007.043, and has determined that this rule will not create a burden on 
private real property. The Texas Health and Safety Code, Chapter 365, the Texas 
Litter Abatement Act, sec.365.012, states that a landowner may only dispose of 
litter or other solid waste on his own land if the litter is or waste is 
generated on land the individual owns, and the disposal is not for or resulting 
from a commercial purpose. New sec.330.26 establishes rules regulating the 
temporary storage for future disposal of litter or other solid waste as required 
by HB 717. Additionally, these rules follow direction from SB 1782 by adding a 
permit exemption regarding the disposal of animal carcasses for roadway 
maintenance. Through the creation of permit exemptions for this kind of 
disposal, the commission is not creating a regulatory burden, but is simplifying 
compliance with an statutory requirement. 
COASTAL MANAGEMENT PROGRAM CONSISTENCY REVIEW. The commission has determined 
that this rulemaking action is subject to the Texas Coastal Management Program 
(CMP) in accordance with the Coastal Coordination Act of 1991, as amended (Texas 
Natural Resources Code, sec.sec.3.201 et. seq.), the rules of the Coastal 
Coordination Council (31 TAC Chapters 501-506), and the commission's rules in 30 
TAC Chapter 281, Subchapter B, concerning consistency with the Texas Coastal 
Management Program. As required by 31 TAC sec.505.11(b)(4) and 30 TAC 
sec.281.45(a)(3) relating to actions and rules subject to the CMP, agency rules 
regarding solid waste management must be consistent with the goals and policies 
of the CMP to protect the coastal area. Therefore, in compliance with 31 TAC 
sec.505.22(e), the commission affirms that this rule is consistent with CMP 
goals and policies, in that the permit exemption will have a negligible impact 
upon the coastal area. 
PUBLIC HEARING. A public hearing on this proposal will be held on March 26, 1998 
at 2:00 p.m. in Room 2210 of Texas Natural Resource Conservation Commission 
(TNRCC) Building F, located at 12100 Park 35 Circle, Austin. The hearing is 
structured for the receipt of oral and/or written comments by interested 
persons. Individuals may present oral statements when called upon in order of 
registration. Open discussion within the audience will not occur during the 
hearing; however, an agency staff member will be available to discuss the 
proposal 30 minutes prior to the hearing and will answer questions before and 
after the hearing. 
SUBMITTAL OF COMMENTS. Written comments regarding this proposal may be mailed to 
Bettie Bell, TNRCC Office of Policy and Regulatory Development, MC 205, P.O. Box 
13087, Austin, Texas 78711-3087 or faxed to (512) 239-4808. All comments should 
reference Rule Log Number 97153-330-WS. Comments must be received by 5:00 p.m., 
April 5, 1998. For further information, please contact Wayne Lee, Waste Policy 
and Regulations Division, (512) 239-6815. 
Persons with disabilities who have special communication or other accommodation 
needs who are planning to attend the hearing should contact the agency at (512) 
239-4900. Requests should be made as far in advance as possible. 

SUBCHAPTER A. General Information
30 TAC sec.330.4
STATUTORY AUTHORITY. The section is proposed under the authority of the Texas 
Water Code, sec.5.103, which provides the commission with the authority to adopt 
any rules necessary to carry out the powers and duties under the provisions of 
the Texas Water Code and other laws of this state, and under House Bill 717, as 
passed by the 75th Legislature amending the Texas Litter Abatement Act, 
sec.365.012, Texas Health and Safety Code, Chapter 365; Senate Bill 1782, as 
passed by the 75th Legislature, which amended the Texas Health and Safety Code, 
Chapter 361, the Solid Waste Disposal Act, sec.361.116; and pursuant to the 
Texas Solid Waste Disposal Act, Texas Health and Safety Code sec.361.024, which 
provides the commission with the authority to regulate municipal solid waste and 
adopt rules as necessary to regulate the operation, management, and control of 
solid waste under its jurisdiction. 
The proposed amendment implements Texas Health and Safety Code, sec.365.012, and 
sec.361.116. 

sec.330.4. Permit Required. 
(a)-(u) (No change.) 
<nl>(v)<ol> A permit, registration, or other authorization is not required for 
the disposal of litter or other solid waste, generated by an individual, on that 
individual's own land where: 
<nl>(1)<ol> the litter or waste is generated on land the individual owns; 
<nl>(2)<ol> the litter or waste is not generated as a result of an activity 
related to a commercial purpose; 
<nl>(3)<ol> the disposal occurs on land the individual owns; 
<nl>(4)<ol> the disposal is not for a commercial purpose;
<nl>(5)<ol> the waste disposed of is not hazardous waste or industrial waste; 
<nl>(6)<ol> the volume of waste disposed of by the individual does not exceed 
2,000 pounds per year; 
<nl>(7)<ol> the waste disposal method complies with sec.sec.111.201 - 111.221 of 
this title (relating to Outdoor Burning); and 
<nl>(8)<ol> the waste disposal method does not contribute to a nuisance and does 
not endanger the public health or the environment. Exceeding 2,000 pounds per 
individual's residence per year is considered to be a nuisance. 
<nl>(w)<ol> A permit or registration is not required for the disposal of animal 
carcasses from government roadway maintenance where: 
<nl>(1)<ol> either of the following: 
<nl>(A)<ol> the animals were killed on county or municipal roadways and the 
carcasses are buried on property owned by the entity that is responsible for 
road maintenance; or 
<nl>(B)<ol> the animals were killed on state highway right-of-way and the 
carcasses are disposed of by the Texas Department of Transportation by burying 
the carcasses on state highway right-of-way; and 
(2) the waste disposal method does not contribute to a nuisance and does not 
endanger the public health or the environment; and 
(3) the animal carcasses are covered with at least two feet of soil in 
accordance with sec.330.136(b)(2) of this title (relating to Disposal of Special 
Wastes). 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on February 23, 1998.
TRD-9802639
Kevin McCalla
Director, Legal Services
Texas Natural Resource Conservation Commission
Earliest possible date of adoption: April 5, 1998
For further information, please call: (512) 239-6087

SUBCHAPTER B. Municipal Solid Waste Storage
30 TAC sec.330.26
STATUTORY AUTHORITY. The section is proposed under the authority of the Texas 
Water Code, sec.5.103, which provides the commission with the authority to adopt 
any rules necessary to carry out the powers and duties under the provisions of 
the Texas Water Code and other laws of this state, and under House Bill 717, as 
passed by the 75th Legislature amending the Texas Litter Abatement Act, 
sec.365.012, Texas Health and Safety Code, Chapter 365; Senate Bill 1782, as 
passed by the 75th Legislature, which amended the Texas Health and Safety Code, 
Chapter 361, the Solid Waste Disposal Act, sec.361.116; and pursuant to the 
Texas Solid Waste Disposal Act, Texas Health and Safety Code sec.361.024, which 
provides the commission with the authority to regulate municipal solid waste and 
adopt rules as necessary to regulate the operation, management, and control of 
solid waste under its jurisdiction. 
The proposed new section implements Texas Health and Safety Code, sec.365.012, 
and sec.361.116. 

sec.330.26. Storage of Litter and Other Waste. 
Litter and other waste temporarily stored on an individual's own land for future 
disposal shall be maintained in a manner that complies with sec.330.22 of this 
title (relating to Storage Requirements), sec.330.23 of this title (relating to 
Approved Containers), and sec.111.201 - 111.221 of this title (relating to 
Outdoor Burning). 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt. 
Filed with the Office of the Secretary of State on February 23, 1998.
TRD-9802638
Kevin McCalla
Director, Legal Services
Texas Natural Resource Conservation Commission
Earliest possible date of adoption: April 5, 1998
For further information, please call: (512) 239-6087

TITLE 31. NATURAL RESOURCES AND CONSERVATION
PART XVI. Coastal Coordination Council
CHAPTER 506. Coastal Procedures for Federal Consistency with
Coastal Management Program Goals and Policies
31 TAC sec.506.12, sec.506.20
The Coastal Coordination Council (Council) proposes amendments to 
sec.506.12(a)(1)(F) (relating to Goals) and sec.506.20 (relating to Council 
review and Certification of Existing Agency Rules), concerning federal 
restoration plans developed pursuant to the federal Oil Pollution Act of 1990
(OPA) and Comprehensive Environmental Response, Compensation, and Liability Act 
(CERCLA). The amendments add these plans to the Council's list of federal 
activities that are subject to the Texas Coastal Management Program (CMP) and 
establish a special process for reviewing the plans to ensure they are 
consistent with the CMP goals and policies. Federal Coastal Zone Management Act 
regulations encourage a state to list the federal activities it believes are 
subject to its coastal management program. These amendments notify the public 
and federal agencies of which federal activities the state believes must be 
consistent with the CMP goals and policies. 
Under OPA and CERCLA, federal agencies assess injury to natural resources from 
spills or unauthorized discharges of oil or hazardous substances and require 
responsible parties to restore or compensate for the damage. The process is 
known generally as natural resource damage assessment (NRDA) and, in Texas, 
usually is carried out by U.S. Fish and Wildlife Service (USFWS) and National 
Oceanic and Atmospheric Administration (NOAA) in conjunction with state agency 
trustees. The state agency trustees in Texas are the General Land Office (GLO), 
Texas Natural Resource Conservation Commission (TNRCC), and the Texas Parks and 
Wildlife Department (TPWD). 
The issue of whether NRDA restoration plans are subject to the CMP arose from a 
June 18, 1997, letter from USFWS requesting the Council's position on whether 
the NRDA restoration plan from the 1990 Apex Barges/Galveston Bay Oil Spill was 
subject to the CMP. In a July 10, 1997, letter, Council staff responded that it 
was. The Council took up the matter at its November 12, 1997, meeting and voted 
to form a workgroup to draft rule amendments for possible action at the February 
11, 1998, Council meeting. The Council also published a notice in the December 
5, 1997, Texas Register (22TexReg 12155) informing the public that the Council 
was considering this item and soliciting public comment. The Council's specific 
directions to the workgroup were to attempt to draft rule amendments that used 
consistency review to increase public awareness of and input into federal 
restoration plans without delaying or adding time to the planning process. 
There were over sixty workgroup members, including state and federal agency 
staff, representatives of industry, the Galveston Bay Foundation, the Galveston 
Bay and Corpus Christi Bay national estuary programs, and other stakeholders. 
The group met on December 11, 1997, and January 8 and 28, 1998. A special 
process for consistency review of NRDA restoration plans was developed. There 
was broad consensus among workgroup members that the Council should list these 
plans and establish this special process for their review. To that end, draft 
amendments were presented to the Council at its February 11, 1998, meeting and 
the Council voted to propose them. 
The special consistency review process developed by the workgroup has three key 
points: 
First, since the state NRDA trustee agencies (GLO, TNRCC, TPWD) are represented 
on the Council, the Council should streamline consistency review by delegating 
its responsibility for consistency review of NRDA restoration plans to those 
agencies. The state and federal trustees analyze restoration alternatives and 
select a preferred alternative under the National Environmental Policy Act 
(NEPA), OPA, and CERCLA. The federal trustees would be required to determine, 
and the state trustees would need to concur, whether the preferred alternative 
is consistent with the CMP. The federal trustees' consistency determination will 
be subject to public comment during the NEPA process. 
Second, among the alternatives available for trustee consideration would be 
those on a list of potential restoration projects that would be developed for 
each major estuary system on the Texas coast. The public, industry, and other 
stakeholders would participate in development of these restoration project 
lists. While trustees' first obligation is generally to restore a damaged site 
to its preexisting condition, if that is not practicable the trustees would have 
the regional lists on hand as a ready source of alternatives. Workgroup members 
agreed that this would save both costs and time for all involved in the NRDA 
process. It is anticipated that the first step in developing the regional lists 
is to compile existing information on potential projects. At its second meeting, 
the workgroup agreed that staff should schedule workshops on the coast to begin 
developing the lists. 
Third, the Council includes members representing both the public and the state 
trustees who are delegated responsibility for consistency review. This makes the 
Council an excellent forum to increase public awareness of and input into NRDA 
restoration plans. Therefore, as part of their delegated responsibilities, the 
state trustees will give regular updates to the Council on consistency reviews 
of NRDA restoration plans. 
Ms. Caryn Cosper, deputy commissioner for Resource Management, has determined 
that for the first five-year period the rules are in effect there will be no 
fiscal implications for state or local governments as a result of administering 
the rules. 
Ms. Cosper also has determined that for the first five-year period the rules are 
in effect, the public benefit of the rules will be enhanced coordination of, and 
greater input into NRDA restoration plans for citizens and local governments. 
There will be no effect on small businesses and no cost to persons required to 
comply with the rule. Only the federal and state trustee agencies are required 
to comply with the rule. 
Comments on the proposal may be submitted to Ms. Carol Milner, Texas Register 
Liaison, General Land Office, 1700 North Congress Avenue, Room 626, Austin, 
Texas, 78701-1495; or by facsimile: (512) 463-6311. To be considered, comments 
must be received by 5 p.m. on April 6, 1998. 
These amendments are proposed under the Natural Resources Code, Chapter 33, 
Subchapter C, sec.33.053(a)(10), and the Natural Resources Code, Chapter 33, 
Subchapter F, sec.33.206(d), which provide the Council with, respectively, the 
authority to list each federal activity that may have a direct and significant 
detrimental impact on coastal natural resource areas and to adopt procedural 
rules for the review of federal activities. 
Natural Resources Code, Chapter 33, Subchapter C, sec.33.053(a)(10) and 
Subchapter F, sec.33.206(d) are affected by these proposed amendments. 

sec.506.12. Federal Agency Actions, Federal Agency Activities and Development 
Projects, and Outer Continental Shelf Plans Subject to the Coastal Management 
Program. 
(a) For purposes of this section, the following federal actions within the CMP 
boundary may adversely affect coastal natural resource areas (CNRAs): 
(1) Federal Agency Activities and Development Projects: 
(A)-(E) (No Change.) 
(F) All federal agencies: [.] 
<nl>(i)<ol> <nl>all<ol> [All] other development projects<nl>; and <ol>[.] 
<nl>(ii)<ol> natural resource restoration plans developed pursuant to the Oil 
Pollution Act of 1990 (33 United States Code Annotated sec.sec.2701-2761) and 
the Comprehensive Environmental Response, Compensation and Liability Act (42 
United States Code Annotated sec.sec.9601-9675). 
(2)-(3) (No Change.) 
(b)-(g) (No Change.) 

sec.506.20. Consistency Determinations for Federal Agency Activities and 
Development Projects. 
(a)-(b) (No Change) 
<nl>(c)<ol> For natural resource damage assessment restoration plans that are 
prepared solely by federal natural resource trustee(s), or are the product of a 
joint cooperative natural resource damage assessment by state and federal 
trustees, the consistency determination shall be made by the federal trustees 
and consistency review is delegated to the state trustees (TNRCC, TPWD, and the 
GLO). The consistency determinations of the federal trustee(s) and public notice 
of the determinations shall occur concurrently with the federal trustees' 
process of complying with the provisions of the National Environmental Policy 
Act, 42 United States Code Annotated sec.sec.4321-4370d. 
<nl>(1)<ol> Any project implemented under a restoration plan determined to be 
consistent under this subsection shall not be subject to further review under 
Chapters 505 and 506 of this title. 
<nl>(2)<ol> Based on citizen input, the Council shall develop a list of 
potential restoration projects by major estuary for consideration by restoration 
planners. The federal trustees may choose for consideration projects from the 
list when appropriate and when the projects meet the statutory requirements for 
natural resource damage assessments. Projects on the Council's list are deemed 
consistent with the goals and policies of the CMP and shall not be subject to 
further review under Chapters 505 and 506 of this title. When the federal 
trustees select a project that is not on the list, the state trustees shall 
conduct consistency reviews as provided in subsection (c) of this section. 
<nl>(3)<ol> The state trustees shall give to the Council regular reports on 
consistency reviews of restoration plans resulting from natural resource damage 
assessments. 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on February 23, 1998.
TRD-9802619
Garry Mauro
Commissioner
Coastal Coordination Council
Earliest possible date of adoption: April 5, 1998
For further information, please call: (512) 305-9129

TITLE 34. PUBLIC FINANCE
PART I. Comptroller of Public Accounts
CHAPTER 3. Tax Administration
SUBCHAPTER O. State Sales and Use Tax
34 TAC sec.3.316
The Comptroller of Public Accounts proposes an amendment to sec.3.316, 
concerning occasional sales and other tax-free sales. Senate Bill 862, 75th 
Legislature, 1997, placed a ceiling of $5,000 on the selling price of a taxable 
item that qualifies as an exempt sale by a university, college or student 
organization at its monthly exempt sale. The Legislature also repealed the 
requirement that the university or college organizations be re-certified every 
two years. 
Mike Reissig, chief revenue estimator, has determined that for the first five-
year period the amendment will be in effect there will be no significant revenue 
impact on the state or local government. 
Mr. Reissig also has determined that for each year of the first five years the 
rule is in effect the public will benefit by the amended rule reflecting state 
law, thereby making the rule easier to read and interpret. The rule is adopted 
under the Tax Code, Title 2, and does not require a statement of fiscal 
implications for small businesses. There is no significant anticipated economic 
cost to individuals who are required to comply with the proposed amendment. 
Comments on the proposal may be submitted to Karey W. Barton, Manager, Tax 
Policy Division, P.O. Box 13528, Austin, Texas 78711. 
This amendment is proposed under the Tax Code, sec.111.002, which provides the 
comptroller with the authority to prescribe, adopt, and enforce rules relating 
to the administration and enforcement of the provisions of the Tax Code, Title 
2. 
The amendment implements the Tax Code, sec.151.321. 

sec.3.316. Occasional Sales and Other Tax-Free Sales.
(a)-(j) (No change.) 
(k) University and college student organizations. 
(1) A sale of a taxable item by a qualified student organization is exempted 
from sales tax if: 
(A) (No change.) 
(B) the qualifying organization holds not more than one fund-raising sale each 
calendar month for which the exemption is claimed; [and]
(C) the qualifying organization has as its primary purpose a purpose other than 
engaging in business or performing an activity designed to make a profit<nl>; 
and<ol>[.] 
(D) the selling price of the taxable item is not more than $5,000. The full 
selling price of an item selling for more than $5,000 is taxable. 
(2) (No change.) 
(3) A qualifying student organization must be affiliated with an institution of 
higher education as defined by the Education Code, sec.61.003, or a private or 
independent college or university that is located in this state and that is 
accredited by a recognized accrediting agency under the Education Code, 
sec.61.003. A student organization must file with the comptroller a 
certification issued by the institution, college, or university showing that the 
organization is affiliated with the institution, college, or university. A 
college, university, or institution may designate one of its departments or 
officers to compile a list of registered or certified student organizations and 
submit the list to the comptroller in lieu of having each student organization 
submit individual certifications. The certification is valid for <nl>as long as 
the organization is accredited by the accrediting agency<ol>[two years after the 
date the comptroller receives it. After the two-year period, the organization 
must re-certify with the comptroller. 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on February 17, 1998.
TRD-9802328
Martin Cherry
Chief, General Law
Comptroller of Public Accounts
Earliest possible date of adoption: April 5, 1998
For further information, please call: (512) 463-4062

TITLE 40. SOCIAL SERVICES AND ASSISTANCE
PART I. Texas Department of Human Services
CHAPTER 19.Nursing Facility Requirements for Licensure and Medicaid 
Certification
The Texas Department of Human Services (DHS) proposes the repeal of 
sec.sec.19.2322 and 19.2324, concerning additional participation requirements, 
and selection and contracting procedures for adding beds in high-occupancy 
areas; and new sec.sec.19.2322 and 19.2324, concerning allocation, reallocation, 
and decertification requirements, and selection and contracting procedures for 
adding beds in high-occupancy areas, in its Nursing Facility Requirements for 
Licensure and Medicaid Certification chapter. The purpose of the repeals and new 
sections is to comply with Senate Bill 190, 75th Legislature, which gives DHS 
the authority to develop procedures for allocating, decertifying, and 
reallocating Medicaid beds. The rules contain provisions for the allocation of 
Medicaid-certified beds to existing facilities, which have passed quality 
screens, and the decertification of beds in facilities with low occupancy rates, 
with the reallocation of those beds to qualified facilities. 
These proposed rules are based on the work of a negotiated rulemaking committee 
composed of representatives of the Texas Health Care Association, Texas 
Association of Homes and Services for the Aging, Texas Department on Aging, 
Texas Advocates for Nursing Home Residents, Advocates for Nursing Home Reform, 
American Association of Retired Persons, Texas Health and Human Services 
Commission, Arboretum Group, Texas Hospital Association, and the Texas 
Department of Human Services. At the conclusion of the negotiated rulemaking 
process, the committee unanimously agreed to recommend these rules to DHS in a 
final report which is available to the public. Persons wishing to obtain the 
report may contact: Sharon Brown, Policy Development Services, P.O. 149030, Mail 
Code E-205, Austin, Texas 78714 - 9030. 
Eric M. Bost, commissioner, has determined that for the first five-year period 
the sections are in effect there will be fiscal implications as a result of 
enforcing or administering the new sections. There will be no effect on state 
government for fiscal years 1998, 1999, and 2000. The effect on state government 
for fiscal years 2001 and 2002 is an estimated additional cost of $642,265 for 
fiscal year 2001 and $964,734 for fiscal year 2002. There will be no fiscal 
implications for local government. 
Mr. Bost also has determined that for each year of the first five years the 
sections are in effect the public benefit anticipated as a result of enforcing 
the sections will be that additional Medicaid-certified beds will be available 
in facilities providing a high quality of care. There is no anticipated economic 
cost to persons who are required to comply with the proposed sections. 
The department has determined that these rules regarding bed allocations will 
not affect any real property interests. Accordingly, no takings impact 
assessment is required under sec.2007.043 of the Government Code and sec.2.19 of 
the Attorney General's Guidelines under the Private Real Property Rights 
Preservation Act. See 21 Tex. Reg. 387,390 (1996). 
The proposed rules require no action by nursing facilities. The information on 
occupancy rates required to implement the proposed rule has been gathered for 
many years; thus, the cost of providing the information to calculate occupancy 
rates is currently reflected in the cost and revenue structure of the industry. 
Because the proposed rule entails no new compliance requirements, contracted 
facilities, whether large businesses or small, should not incur any new costs to 
comply with the proposed rule. 
Although nursing facilities would not incur any additional costs to comply with 
the proposed rules, an argument could be made that Medicaid certification adds 
value to nursing facility beds through access to a larger pool of potential 
residents and the associated streams of revenue and potential profit. 
Consequently, according to this line of argument, decertification of beds might 
constitute a devaluation of those assets. This could cause a speculative 
"adverse economic effect" if that phrase is understood to mean an effect on the 
facility other than the cost of complying with the proposed rules. 
A number of factors determine the market value of a nursing facility. For 
example, as real property, a nursing home has value due to its location, the 
condition and potential uses of the building or buildings, and other factors. 
Bed decertification does not undermine value from this perspective, because it 
does not affect the physical assets and their ownership.
More importantly in the present context, the market value of a nursing facility 
is also determined by the nature of the business as an ongoing enterprise 
generating present and future revenue and profit streams. For many homes where 
Medicaid residents are a large part of the census, Medicaid certification is a 
crucial factor in determining whether adequate revenue streams will be available 
to continue the operation. However, the proposal under consideration would 
decertify only a limited number of beds that have been chronically unoccupied. 
Thus, no change in the facility's revenues, costs, or profits would occur. 
Although the Medicaid certification of the decertified beds might add to the 
speculative value of a facility on sale, the loss in speculative value of unused 
beds generating no revenues and no profits is questionable at best. In short, 
the current proposal for limited decertification of unused beds would not 
undermine the value of individual nursing facilities, large or small. A related 
argument could be made that decertification of beds would decrease the 
availability or increase the cost of credit to finance nursing facility 
purchases. Once again, it is hard to see how the limited decertification of 
unused beds generating no revenues and no profits would substantially alter a 
lender&thorn;s risk assessment of such a business entity. 
These rules will also affect the manner in which facilities may apply for 
additional bed allocations. New opportunities for obtaining additional beds are 
created, and applicant facilities are required to have demonstrated a history of 
quality care, which is primarily defined as an absence of serious Medicaid or 
licensing sanctions on the part of the facility. These are, by definition, new 
opportunities or benefits and will thus not have an adverse impact. 
With regard to the decertification of unused beds and their reallocation, 
department staff have determined that small facilities are less likely than 
large facilities to be adversely affected by these primary functions of the 
rules for the reason that a profile of current providers reveals that small 
facilities are less likely to have unused beds and more likely to qualify for 
reallocated beds. 
The rules also operate to deny an existing bed allocation to facilities in 
certain rare circumstances where licenses are denied or revoked or an operator 
is unable to re-qualify for the Medicaid program. Again, a review of sanctions 
imposed during the last year suggests a greater impact on large rather than 
small facilities. Moreover, the consequences of these provisions are simply a 
function of compliance with existing federal and state health and safety 
requirements. 
Reducing the economic effect, if any, of this rule on businesses while 
continuing to comply with the law is not feasible. 
The department will hold a public hearing on the proposal on Tuesday, March 17, 
1998, at 9 a.m. in the John H. Winters Building Public Hearing Room, first 
floor, East Tower, 701 West 51st Street, Austin. 
Questions about the content of this proposal may be directed to Sharon Balcezak 
at (512) 438-3529 in DHS's Long Term Care Policy Section. Written comments on 
the proposal may be submitted to Supervisor, Rules and Handbooks Unit-152, Texas 
Department of Human Services E-205, P.O. Box 149030, Austin, Texas 78714-9030, 
within 30 days of publication in the Texas Register. 

SUBCHAPTER X.Requirements for Medicaid-Certified Facilities
40 TAC sec.sec.19.2322, 19.2324
(Editor's note: The text of the following sections proposed for repeal will not 
be published. The sections may be examined in the offices of the Texas 
Department of Human Services or in the Texas Register office, Room 245, James 
Earl Rudder Building, 1019 Brazos Street, Austin.)
The repeals are proposed under the Human Resources Code, Title 2, Chapters 22 
and 32, which authorizes the department to administer public and medical 
assistance programs; and under Texas Government Code sec.531.021, which provides 
the Health and Human Services Commission with the authority to administer 
federal medical assistance funds. 
The repeals implement the Human Resources Code, sec.sec.22.001-22.030 and 
sec.sec.32.001-32.042. 
sec.19.2322. Additional Participation Requirements.
sec.19.2324.Selection and Contracting Procedures for Adding Beds in High- 
Occupancy Areas.
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State, on February 20, 1998.
TRD-9802621
Glenn Scott
General Counsel, Legal Services
Texas Department of Human Services
Earliest possible date of adoption: April 5, 1998
For further information, please call: (512) 438-3765

40 TAC sec.sec.19.2322, 219.2324
The new sections are proposed under the Human Resources Code, Title 2, Chapters 
22 and 32, which authorizes the department to administer public and medical 
assistance programs; and under Texas Government Code sec.531.021, which provides 
the Health and Human Services Commission with the authority to administer 
federal medical assistance funds. 
The new sections implement the Human Resources Code, sec.sec.22.001- 22.030 and 
sec.sec.32.001-32.042. 

sec.19.2322. Allocation, Reallocation, and Decertification Requirements. 
(a) Definitions. The words and terms defined below, when used in this section, 
will have the following meanings, unless the context clearly indicates 
otherwise. 
(1) Nursing Facility Operator (NFO) - The entity that holds the contract to 
provide Medicaid services and is licensed by the Texas Department of Human 
Services (DHS) under Chapter 242 of the Texas Health and Safety Code.
(2) Occupancy rate - The number of residents occupying certified Medicaid beds, 
divided by the number of existing certified Medicaid beds in a facility. 
(3) Physical plant - The structure and land to which beds are allocated. 
(b) Purpose. The purpose of these rules is to control the number of Medicaid 
beds for which DHS contracts. The allocation of certified beds represents an 
opportunity to contract to serve a specific number of residents. The Medicaid 
beds for which an NFO is certified are strictly limited to the physical plant at 
which they were originally certified, unless their transfer by the NFO in the 
county is expressly approved by DHS. The beds remain at the physical plant even 
if the bed allocation was obtained by or through the action of the NFO. When the 
NFO's business is sold, the allocation of certified beds remains at the physical 
address at which they were originally certified. Any transfer must meet the 
requirements contained in subsection (h) of this section. 
(c) Control of beds. Except as specified in this section and in sec.19.2324 of 
this title (relating to Selection and Contracting Procedures for Adding Beds in 
High- Occupancy Areas), DHS does not accept applications for participation in 
the Texas Medicaid Nursing Home Program or for a contract for nursing facility 
beds from any nursing facility that was not granted a valid certificate of need 
(CON) by the Texas Health Facilities Commission before September 1, 1985; a 
waiver by DHS prior to January 1, 1993; or other valid order that had the effect 
of authorizing the operation of the facility at the bed capacity for which 
participation is sought. 
(d) Exemptions. If the NFO meets all criteria, DHS may grant the following 
exemptions from the policy stated in subsection (c) of this section. 
(1) NFOs that change ownership. Except as otherwise provided in this section, 
DHS limits contracting with the new owner to no more certified Medicaid beds 
than the prior owner had when the ownership change occurred.
(2) NFOs whose Medicaid contracts have been terminated. DHS limits contracting 
to no more than the number of certified Medicaid beds on the effective date of 
termination. The NFO must meet certification and contract requirements within 90 
days of the effective date of the termination in order to retain the allocation 
of Medicaid beds. The loss of the bed allocation after 90 days is dependant upon 
the NFO having failed two surveys within that period, so long as these surveys 
were requested within sufficient time for the department to complete them within 
90 days, consistent with federal requirements. Until an NFO has qualified to re-
enter the Medicaid program, the allocation of beds to that facility is suspended 
and any sale of either the NFO or the physical plant will not transfer or convey 
the bed allocation to a buyer. However, the department may make an affirmative 
finding that good cause exists to waive this requirement to facilitate a change 
in ownership to protect residents of the facility or for other good cause. 
(3) Replacement beds. DHS limits contracting of the replacement beds to the 
county in which the original physical plant was located and to no more than the 
number of certified Medicaid beds being replaced. The replacement beds must be 
recertified in the replacement physical plant within 24 months from the date of 
the DHS letter of approval to transfer beds. Potential NFOs previously issued 
waivers have 18 months from the effective date of this rule to be licensed and 
certified. DHS may grant an extension for extenuating circumstances, at the 
discretion of the DHS commissioner. 
(4) Low capacity. For reasons of efficiency, DHS will accept an application to 
contract up to 60 beds from a small facility of less than 60 licensed beds if 
the NFO: 
(A) has a Medicaid contract to provide nursing facility services; and 
(B) has not had remedies imposed, as specified in subsection (g)(4) of this 
section, which have resulted in contract cancellation in the 24-month period 
immediately preceding the month of application. 
(5) Teaching facilities. Facilities approved and contracted to operate as 
teaching nursing facilities from March 1, 1989, through January 1, 1993, must 
continue to meet their affiliation agreements. 
(6) Special commissioner's waiver. 
(A) The commissioner of DHS has authority to waive the restriction on 
contracting in subsection (c) of this section and direct DHS to enter into 
Medicaid contracts with NFOs that satisfy the requirements specified in this 
subparagraph. In a manner acceptable to DHS, each of these NFOs must: 
(i) document that there is a crisis and immediate need for additional Medicaid 
nursing-facility beds in the NFO's community; 
(ii) document that there are problems with the quality of care available in the 
NFO's community, and show that new Medicaid beds will remedy these problems; 
(iii) demonstrate that Medicaid residents in their community do not have 
reasonable access to quality nursing facility care; 
(iv) document strong community support for a new Medicaid nursing facility; and 
(v) demonstrate a history of quality care, as specified in subsection (g)(4) of 
this section. An applicant that has not owned or operated a nursing facility may 
apply; however, DHS will evaluate the applicant and any controlling person as 
defined in Texas Health and Safety Code sec.242.0021, to determine if the 
applicant has the capacity to provide quality care. 
(B) DHS applies the following criteria when granting special DHS commissioner's 
waivers: 
(i) If the physical plant has not completed construction requirements, and if 
the NFO has not been licensed and certified within 24 months of the date on the 
DHS letter approving the waiver, the DHS commissioner will rescind the approvals 
for all such waivers granted. 
(ii) DHS may grant an extension for extenuating circumstances, at the discretion 
of the DHS commissioner. 
(7) Criminal justice and underserved minorities. The commissioner may grant a 
waiver of these restrictions for a contract if the commissioner determines that 
beds are necessary for the following circumstances:
(A) to meet the need identified and determined by the Texas Department of 
Criminal Justice (TDCJ) as necessary to serve persons under the supervision of 
TDJC who have been released on parole, mandatory supervision, or special needs 
parole under the Code of Criminal Procedure, Article 42.18; or 
(B) to meet the documented demand in underserved minority communities where beds 
are not available from existing resources. For purposes of this waiver, the term 
minority shall mean all persons who are black, hispanic, Asian or Pacific 
islander, American Indian, or Alaskan native. The facility must: 
(i) be located in a county with a total population of at least 1,000,000, 
according to the 1990 U.S. census; 
(ii) serve a zip code whose minority population is greater than 50%, according 
to the 1990 U.S. census; 
(iii) document that minority residents in the zip code in which the facility is 
located are unable to attain Medicaid long term care services in that specific 
location, due to lack of such service availability; and 
(iv) be the only waived facility, as defined in this paragraph, in that county. 
(C) NFOs granted waivers must be licensed and certified within 24 months of the 
approval letter. 
(D) Potential NFOs previously issued waivers have 18 months from the effective 
date of this rule to be licensed and certified. 
(8) Alzheimer's facilities. DHS waives a restriction imposed by state law on the 
authority to contract under the state Medicaid program for nursing home beds 
based on the percentage of beds that are occupied in a geographical area if the 
NFO: 
(A) is affiliated with a medical school operated by the state;
(B) is participating in research programs for the care and treatment of persons 
with Alzheimer's disease; 
(C) is designed to separate and treat Alzheimer's disease by stage and 
functional level; and 
(D) documents to DHS the need for the specific number of beds requested. 
(9) Medicaid eligible residents for whom no Medicaid bed is available. 
Facilities may obtain certified beds to serve residents by meeting the following 
criteria: 
(A) The resident must: 
(i) have been a resident of the nursing facility for at least six consecutive 
months before becoming eligible for Medicaid; and 
(ii) not have been eligible for Medicaid at the time of admission to the nursing 
facility. 
(B) The NFO must: 
(i) request certification of currently non-certified Medicaid beds; 
(ii) meet requirements for Medicaid participation; 
(iii) obtain a Medicaid contract; and 
(iv) have demonstrated to DHS a satisfactory compliance history.
(C) The certification of the bed is in effect until the resident's death or 
permanent discharge from the nursing facility or a Medicaid bed in the nursing 
facility becomes available. 
(D) The number of Medicaid-certified beds under this paragraph may not exceed 
10% of the total number of licensed beds in the nursing facility at any one 
time. 
(e) Loss of allocation due to sanctions. An NFO whose license has been denied or 
revoked loses the allocation of certified beds on the effective date of the 
denial or revocation and may not contract with DHS at the physical plant for 
which those beds were allocated. No beds are transferred to the buyer when an 
NFO whose license has been revoked or denied is sold. If the owner of the 
physical plant also operates the facility, the denial of the license will result 
in the loss of the owner's bed allocation at that facility. If the owner of the 
physical plant leases to an NFO, the owner will lose the allocation of beds 
when, within any 42-month period, one or more NFOs has two of any of the 
following: license denials, license revocations, or contract terminations. 
However, DHS may make an affirmative finding that good cause exists to waive 
this requirement to facilitate a change in ownership to protect residents of a 
facility. 
(f) Decertification of unused beds. 
(1) Six months after the effective date of the adopted rule, an NFO with an 
average occupancy rate for the preceding six months of less than 70% will have a 
specific number of its beds decertified. The number of beds to be decertified 
will be calculated by subtracting the preceding six-month average occupancy rate 
of Medicaid certified beds in the facility from 70% of the number of allocated 
certified beds and dividing the difference by 2, rounding the final figure down 
if necessary. For example: for a facility with 100 Medicaid-certified beds and a 
50% occupancy rate, the difference between 70% (70 beds) and 50% (50 beds) is 20 
beds, divided by 2, equals 10 beds to be decertified. 
(2) NFO occupancy rates may be reviewed annually and if the average occupancy 
rate is below 70% for the previous six months, the decertification process will 
occur. 
(3) Medicaid-certified beds in new or replacement physical plants and newly 
constructed wings in existing physical plants will be exempt from this 
decertification process until they have been certified for two years. 
(4) Facilities that have had beds decertified under this subsection are also 
eligible to receive an increased allocation of certified beds if the 
requirements in subsection (g)(4) of this section are met. 
(g) Reallocations. NFOs that wish to increase the number of allocated certified 
beds must meet the following criteria. 
(1) A Medicaid-certified NFO must have an average occupancy rate of 90% of the 
current number of its certified beds for nine out of the previous 12 months. The 
request for additional beds must be no greater than 10% of the current number of 
certified beds in a nursing facility; 
(2) A non-certified NFO's request for Medicaid-certified beds must be no greater 
than 10% of the current number of its licensed beds.
(3) NFOs may reapply for additional Medicaid-certified beds, having met the 
requirements in paragraphs (1) or (2) of this subsection, no sooner than nine 
months from the date of the prior allocation. 
(4) To qualify for increased bed capacity the NFOs must, in addition to meeting 
the criteria in paragraph (1) or (2) of this subsection, demonstrate a history 
of quality care. 
(A) History of quality of care. For purposes of this section, an NFO 
demonstrates a history of quality care if, within the two years preceding a 
request for additional capacity: 
(i) the NFO has not received any of the following sanctions:
(I) termination of Medicaid certification; 
(II) termination of Medicaid contract; 
(III) civil penalty pursuant to sec.242.065 of the Texas Health & Safety Code; 
(IV) Medicaid monetary penalty; 
(V) denial of payment for new admissions; 
(VI) denial of facility's license; or 
(VII) denial of new admissions, as described in sec.242.012 of the Texas Health 
and Safety Code; and 
(ii) DHS does not find a clear pattern of substantial or repeated licensing and 
Medicaid sanctions including administrative penalties, and/or other sanctions. 
(B) Exceptions to history of quality of care. 
(i) Regardless of any sanctions imposed in subparagraph (A) of this paragraph, 
DHS may grant an application in a county with four or fewer facilities, where 
none of the facilities would meet all of the requirements in subparagraph (A) of 
this paragraph for increased capacity, upon finding a clear pattern of 
decreasing numbers of substantial or repeated licensing and Medicaid sanctions 
including administrative penalties, and/or other sanctions on the part of the 
NFO. 
(ii) Subparagraph (A)(i)-(ii) of this paragraph does not apply to sanctions that 
are administratively withdrawn or subsequently reversed upon administrative or 
judicial appeal. 
(iii) In the case of sanctions that are appealed, either administratively or 
judicially, an application to DHS for an allocation of Medicaid-certified beds 
will be suspended until the appeal has been finally resolved. 
(iv) Subparagraph (A)(i)-(ii) of this paragraph will not apply if all the 
following are met: 
(I) The applicant NFO has changed ownership within that period;
(II) The new owner of the NFO has demonstrated a history of quality care in that 
nursing facility for at least one year preceding the application for increased 
capacity; and 
(III) The new owner of the NFO has demonstrated to DHS's satisfaction a record 
of compliance in other nursing facilities it owns or operates. 
(h) Transfer of allocation of Medicaid beds within a county. Subject to approval 
by DHS, the NFO has the opportunity to contract for Medicaid-certified beds 
under the following conditions: 
(1) Certified Medicaid beds may be transferred within a county if the owners of 
the physical plants involved approve the transfer in writing. However, if the 
same entity owns all the physical plants involved, written approval of the 
transfer is not required. 
(2) DHS must expressly approve the transfer specified in paragraph (1) of this 
subsection. To have a transfer approved, the physical plant owners and NFOs 
involved in the transaction must establish a history of quality of care as 
defined in subsection (g)(4) of this section. 

sec.19.2324.Selection and Contracting Procedures for Adding Beds in High-
Occupancy Areas. 
(a) Definitions. The words and terms defined below, when used in this section, 
will have the following meanings, unless the context clearly indicates 
otherwise. 
(1) Nursing Facility Operator (NFO) - The entity that holds the contract to 
provide Medicaid services and is licensed by the Texas Department of Human 
Services (DHS) under Chapter 242 of the Texas Health and Safety Code.
(2) Nontransferable letter of intent - A written document, initiated by DHS and 
issued to potential contractors selected in a random selection process, 
specifying the location and number of beds for which DHS will contract, provided 
that the potential contractor meets all criteria specified by DHS. 
(3) Occupancy rate - The number of residents occupying certified Medicaid beds, 
divided by the number of existing certified Medicaid beds in a county or 
designated county-commissioner precinct in the four most populated counties in 
the state. The number of beds to which a selected potential contractor has 
committed with a nontransferable letter of intent is included in the occupancy-
rate data for the county or designated county-commissioner precinct from the 
date of issuance of the letter of intent, unless the potential contractor 
defaults. 
(4) Open solicitation period - A period during which potential contractors may 
ask to participate in a random-selection process for adding beds in a high-
occupancy area. 
(5) Potential contractor - An entity who wants to contract for additional beds 
in a county that has reached its threshold. 
(6) Threshold - An occupancy rate of 90% in a county. If a county has a 
population of more than 5,000 and has no beds certified for Title XIX 
participation, the county is considered to have exceeded the threshold. 
(b) Primary selection process - conversion of existing licensed beds. When DHS 
determines that the occupancy rate in a county exceeds the threshold during any 
six- month period, DHS places a public notice in the Texas Register to announce 
an open solicitation period. 
(1) The public notice includes the following information:
(A) identification of the high-occupancy area(s); 
(B) six-month occupancy-rate figures for the high-occupancy area(s); and 
(C) the beginning and ending dates for the open solicitation period. 
(2) Potential contractors seeking to contract in an area identified in the 
public notice must demonstrate a history of quality of care, as specified in 
sec.19.2322(g)(4) of this title (relating to Allocation, Reallocation, and 
Decertification Requirements), and must make written reply to the public notice. 
The reply must be received by Long Term Care Bed Allocation Services, Mail Code 
W-530, Texas Department of Human Services, P.O. Box 149030, Austin, Texas 78714-
9030, before the close of business on the published ending date of the open 
solicitation period. The reply must include the following information: 
(A) the name, address, and telephone number of the person wishing to contract; 
(B) the location of available beds, which must be currently licensed as nursing 
home beds or as hospital beds; and 
(C) the number of proposed beds desired. 
(3) At the end of the solicitation period, DHS allocates certified beds equally 
among qualified NFOs until the occupancy rate is reduced to less than 90%. 
(c) Secondary selection process - new construction. When there are insufficient 
available beds after the primary selection, potential contractors may 
participate in a secondary selection process. The secondary selection is for 
potential contractors who wish to construct a nursing facility or an addition to 
an existing nursing facility.
(1) To initiate a secondary selection process, DHS places a public notice in the 
Texas Register announcing an open solicitation period. The public notice 
includes the following information:
(A) identification of the high-occupancy area(s); 
(B) six-month occupancy-rate figures for the high-occupancy area(s); 
(C) the beginning and ending dates for the open solicitation period; and 
(D) the number of blocks of beds for which DHS will contract.
(2) Potential contractors seeking to contract to construct a nursing facility or 
an addition to an existing nursing facility in a high-occupancy area must 
demonstrate a history of quality care, as specified in sec.19.2322(g)(4) of this 
title (relating to Allocation, Reallocation and Decertification Requirements). 
This rule does not eliminate a new potential NFO who has no history of providing 
care. The NFO must make written reply to the public notice. The reply must be 
received by Long Term Care Bed Allocation Services, Mail Code W-530, Texas 
Department of Human Services, P.O. Box 149030, Austin, Texas 78714-9030, before 
the close of business on the published ending date of the open solicitation 
period. The reply must include the following information: 
(A) the name, address, and phone number of the person wishing to contract; 
(B) the location of the proposed facility; and 
(C) the number of proposed blocks of beds offered. 
(3) DHS restricts potential contractors to specified blocks of beds as follows: 
(A) 120-bed blocks in counties with 1,500 or more certified nursing facility 
beds; and 
(B) 90-bed blocks in counties with fewer than 1,500 certified nursing facility 
beds. 
(4) Potential contractors who reply as specified in paragraph (2) of this 
subsection are allowed 90 days to qualify for the secondary selection, as 
specified in this subsection. DHS notifies the potential contractors in writing 
of the beginning and ending dates of the qualification period. If no potential 
contractors submit replies during the open solicitation period, DHS publishes in 
the Texas Register a public notice announcing the reopening of the open 
solicitation period until a potential contractor replies to the public notice. 
Upon receipt of a reply from a potential contractor, as specified in paragraph 
(2) of this subsection, DHS places a notice in the Texas Register to announce 
the closing date of the reopened solicitation period.
(5) To qualify for the secondary selection, potential contractors must 
demonstrate an intent and ability to begin construction of a facility and 
complete contracting within time frames specified in paragraphs (9) and (10) of 
this subsection, by submitting a letter of application to DHS with the following 
documentation: 
(A) acceptable written documentation showing the ownership of or an option to 
buy the land on which the proposed nursing facility is or will be located; 
(B) a letter of finance from a financial institution; and
(C) a signed agreement stating that, if selected, the potential contractor will 
pay liquidated damages if either the 12-month or the 24-month deadline described 
in paragraph (10) of this subsection are not met. The signed agreement must also 
require the potential contractor to provide, within ten workdays after the date 
of selection, a surety bond or other financial guarantee acceptable to DHS 
ensuring payment in the event of default. If the 12- month deadline described in 
paragraph (8) of this subsection is not met, liquidated damages are 5% of the 
estimated total cost of the proposed or completed facility. If the 24-month 
deadline described in paragraph (9) of this subsection is not met, an additional 
5% of the estimated total cost of the proposed or completed facility is 
assessed. 
(6) Potential contractors who submit false information will be eliminated from 
the secondary selection process. 
(7) If two or more potential contractors become eligible to be qualified during 
the open solicitation period, there will be a lottery selection. Each 
application must be complete at the time of its receipt, as specified in this 
subsection. 
(8) DHS issues a nontransferable letter of intent to the potential contractors 
selected to reduce the occupancy in the high-occupancy area to less than 90%. 
Potential contractors granted a nontransferable letter of intent have 12 months 
to complete all foundation work and 24 months from the date of the non-
transferable letter of intent to complete the process of contracting with DHS 
for additional beds. Verification of completed foundation work is done on site 
by DHS staff. DHS notifies potential contractors in writing about the 12-month 
and 24-month deadlines. The process of contracting is considered complete when 
facility construction requirements are completed and the nursing facility is 
licensed and certified. 
(9) A potential contractor who does not meet the 12-month and/or 24-month 
deadline(s) to complete the process of contracting with DHS for additional beds, 
as specified in paragraph (10) of this subsection, thereby defaults on the 
requirements of the nontransferable letter of intent. At its sole option, DHS 
may grant an extension to a potential contractor who anticipates default on the 
24-month deadline, if the potential contractor submits to DHS written 
documentation explaining the reasons for the delay in completion of the nursing 
facility. The request for the extension of the 24-month deadline must be made in 
writing to DHS 15 days before the date of the anticipated default. DHS allows no 
extensions for defaults on the 12-month deadline. Potential contractors on the 
secondary waiting list who were not initially selected to reduce the occupancy 
rate in the open area are considered alternate candidates for a nontransferable 
letter of intent when a selected potential contractor defaults. Upon default, 
DHS notifies alternate candidates of their selection for a nontransferable 
letter of intent in the sequential order established during the secondary 
selection process. If no alternate candidates are available, DHS publishes in 
the Texas Register a second public notice announcing reopening of the open 
solicitation period. The reopened solicitation period remains open until a 
potential contractor replies, as specified in paragraph (4) of this subsection. 
Upon receipt of the reply, DHS places a notice in the Texas Register announcing 
the closing of the reopened solicitation period.
(10) The potential contractor owes liquidated damages to DHS if the 12-month 
and/or 24-month deadline(s) specified in paragraph (8) of this subsection are 
not met. A DHS-approved extension of the 24-month deadline does not prevent 
collection of the potential contractor's liquidated damages; and collection of 
liquidated damages does not preclude DHS from terminating the nontransferable 
letter of intent for default. 
(11) The initial Medicaid contract for beds under provisions in this section 
requires payment of liquidated damages in an amount equal to $100 per contracted 
bed if the provider sells the nursing facility during the first year of the 
initial Medicaid contract. 
(12) Providers may request an informal review of DHS actions involving this 
section and sec.19.2322 of this title (relating to Allocation, Reallocation, and 
Decertification Requirements) by writing to Manager, Long Term Care Bed 
Allocation Services, Texas Department of Human Services, Mail Code W-530, P.O. 
Box 149030, Austin, Texas 78714-9030. The review must be requested within 30 
days of the DHS action. 
(d) Occupancy reports. NFOs must submit properly completed monthly occupancy 
report forms to DHS each month. This report must be submitted on or before the 
fifth day of the month following the reporting period month. Failure to submit 
occupancy reports may result in DHS's withholding vendor payments until the 
reports, which substantiate data regarding payments made to the facility, have 
been received. 
(e) Requesting occupancy reports. DHS computes occupancy rates by using the 
information contained in DHS's Nursing Facility Monthly Occupancy Report form. 
Monthly copies of occupancy-rate information for a particular county are 
available on request. Requests may be sent to Long Term Care Bed Allocation 
Services, Mail Code W-530, Texas Department of Human Services, P.O. Box 149030, 
Austin, Texas 78714-9030. 
(f) School-age residents. Any potential contractor building a new nursing 
facility or expanding a nursing facility that serves or plans to serve school-
age residents must provide written notice to the affected local education agency 
(LEA) of their intent to establish or expand a nursing facility within the LEA's 
boundaries. 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt. 
Filed with the Office of the Secretary of State, on February 23, 1998.
TRD-9802622
Glenn Scott
General Counsel, Legal Services
Texas Department of Human Services 
Proposed date of adoption: June 1, 1998
For further information, please call: (512) 438-3765

PART IV. Texas Commission for the Blind
CHAPTER 159.Administrative Rules and Procedures
Fair Hearing Procedures for Resolution of Client Dissatisfaction
40 TAC sec.159.21
The Texas Commission for the Blind proposes an amendment to sec.159.21 
pertaining to fair hearing procedures for resolution of client dissatisfaction. 
The amendment deletes references to vocational rehabilitation program hearing 
procedures. The Commission is simultaneously proposing new vocational 
rehabilitation hearing rules in another chapter to improve the agency's rule 
base. The amendment and new rules are necessary to comply with changes to 
federal regulations governing the State Vocational Rehabilitation Services 
Program.
Ernest Pereyra, Deputy Director of Administration and Finance, has determined 
that for the first five years the rules are in effect there will be no fiscal 
implications for state or local government as a result of the repeal. 
Mr. Pereyra has also determined that for each year of the first five years the 
rule as proposed is in effect the public benefits anticipated as a result of 
enforcing the rules will be the elimination of rules that no longer conform to 
federal and state requirements. There will be no effect on small businesses. 
There is no anticipated economic cost to individuals who are required to comply 
with the rule. 
Questions about the content of this proposal may be directed to Jean Crecelius 
at (512) 459-2611 and written comments on the proposal may be submitted to 
Policy and Rules Coordinator, P. O. Box 12866, Austin, Texas 78711, within 30 
days from the date of this publication. 
The new sections are proposed under Human Resources Code, Title 5, Chapter 91, 
sec.91.011(g), which authorizes the commission to adopt rules prescribing the 
policies and procedures followed by the commission in the administration of its 
programs. 
The new sections affect Human Resources Code, Title 5, sec.91.052, concerning 
the vocational rehabilitation program for the blind, and sec.91.058, concerning 
hearings. 

sec.159.21. Appeals Process, Reviews, and Hearings.
(a) (No change.) 
(b) [Vocational rehabilitation program. There are two types of reviews available 
to applicants for and clients of the vocational rehabilitation program who are 
dissatisfied with any of the commission actions delineated in subsection 
(a)(1)(A)-(F) of this section: an informal review and a formal review. Either or 
both of these reviews may be requested. 
[(1) Informal review. An informal review is used to clarify issues and resolve 
disputes at the lowest possible level. The informal review involves the 
counselor, the regional supervisor, and, if necessary, an informal 
administrative hearing. The informal review is not intended to delay or in any 
way deny access to a formal review. 
[(A) Counselor review. To initiate an informal review, the appellant must advise 
the counselor in writing within 30 calendar days of the decision about which 
there is a complaint and the reason for dissatisfaction. Upon receipt of the 
letter of appeal, the counselor will respond in writing to the appellant within 
10 work days. The letter will contain the dissatisfaction or disputed issue(s); 
the counselor's decision; the reason(s) for the decision; a statement that the 
appellant has the right to appeal the decision through a conference with the 
counselor and counselor's regional supervisor or through a case review by the 
counselor's regional supervisor; the regional supervisor's name, address, and 
telephone number; and the requirement that the appellant must mail or otherwise 
communicate to the regional supervisor within 10 work days of receipt of the 
counselor's letter that the next step in the informal review procedure is being 
requested. 
[(B) Supervisory review. If the appellant has requested a conference with the 
counselor and the counselor's regional supervisor, the regional supervisor will 
notify the appellant in writing of the date, time, and place for the conference 
within five work days after receiving the notice of appeal. Within 10 work days 
of the conference, or within 30 calendar days if a case review was requested, 
the regional supervisor will notify the appellant of the decision via certified 
return receipt letter. The letter will contain the dissatisfaction or disputed 
issue(s); the regional supervisor's decision; the reason(s) for the decision; 
the name, address, and telephone number of the assistant director of the 
vocational rehabilitation program; and the requirement that the appellant has 10 
work days after receipt of the letter to continue the informal review. 
[(C) Informal administrative hearing. Within 10 work days after receiving the 
notice of appeal, the assistant director of vocational rehabilitation will 
notify the appellant of the date, time, and place for the informal 
administrative hearing. The hearing will be conducted by an administrative staff 
member who has no direct personal knowledge of the details involved in the 
disputed issue and who has not participated in the decision being appealed. 
Within 30 calendar days after completion of the hearing, the appellant will be 
notified in writing. The letter will contain the dissatisfaction or disputed 
issue(s); the decision; the reason(s) for the decision; and the name and address 
of the director of the vocational rehabilitation program. 
[(2) Formal review. 
[(A) The applicant or client may, at any time, request a formal hearing before 
an impartial hearing officer. The purposes of the formal hearing are to provide 
the applicant or client an opportunity to explain the request for services and 
to enable the applicant or client and the commission to ascertain relevant 
factual data upon which a just recommendation will be made by the impartial 
hearing officer. 
[(B) To initiate the procedures for a formal review, the applicant or client 
must file a petition for a formal hearing with the director of the vocational 
rehabilitation program in the commission's central office within 90 days of the 
decision about which there is a complaint. The petition must specify the action 
or inaction by the commission with which the applicant or client is 
dissatisfied; the course of action the petitioner would like the commission to 
take; and why the commission should take such action. Petition forms are 
available in any commission office. 
[(C) The director of the vocational rehabilitation program designates an 
impartial hearing officer. The hearing officer will be someone with experience 
in and knowledge of the delivery of vocational rehabilitation who has not been 
involved in any decision regarding services to the petitioner and who has no 
personal or financial interest that would conflict with his or her objectivity.
[(D) The hearing officer, who does not have authority to change the policies of 
the commission or other organizations or the authority to conduct class action 
hearings, will direct the commission and petitioner to exchange a list of 
witnesses and summary of testimony five work days before the hearing and to send 
all correspondence between the hearing officer and either party to all parties 
involved; will notify all parties of the date, time, and location of the hearing 
at least 10 work days prior to the hearing; and will conduct the hearing within 
45 calendar days of the director of the vocational rehabilitation program's 
receipt of the petition. An extension of time may be granted for good cause 
shown at the request of either or both parties. 
[(E) Before the hearing, the hearing officer may, on his own motion or the 
motion of the petitioner or commission, direct that a prehearing conference be 
held. Matters that may be considered at the prehearing include the formulation 
and simplification of issues; admissions of fact; stipulation concerning the use 
of matters of public record to avoid the unnecessary introduction of proof; the 
procedure at the hearing; specification of the number of witnesses; matters to 
be officially noted; the mutual exchange of prepared testimony and exhibits; the 
date discovery is to be closed; the date, time, and place of the hearing; the 
issuance of subpoenas for witnesses and documents; the issuance of commissions 
for the taking of depositions; and any other matters which may aid in the 
simplification of the proceedings and the disposition of the matters in 
controversy. 
[(F) The hearing will be conducted at a date, time, and location convenient to 
the petitioner, usually during business hours at the commission's central office 
in Austin. Reader or interpreter services will be provided by the commission if 
the appellant notifies the commission no later than three work days prior to the 
hearing that one is needed. 
[(G) The hearing officer will preside over the hearing; apply rules to obtain 
the most credible evidence available; allow cross-examination of any matter 
pertinent to the proceeding; exclude irrelevant or unduly repetitious evidence; 
make available all documents or other evidence for review by either side; allow 
the petitioner to present his case first, followed by the commission's 
submission of its case (unless other arrangements are made); allow either side 
to present rebuttal evidence; utilize a court reporter to prepare a verbatim 
record; rule on all matters at the hearing; and determine issues in accordance 
with relevant and material evidence presented at the hearing. 
[(H) Each party may make an opening statement and present relevant and material 
evidence; may present witnesses to testify under oath and be available for 
cross-examination; may present proposed findings of fact and conclusions of law 
after presentation of evidence is closed within a time set by the hearing 
officer; and is entitled to the name and addresses of all witnesses. 
[(I) After the hearing, the certified court reporter will prepare one original 
transcript of the hearing and the commission will send the transcript to the 
hearing officer. 
[(J) The hearing officer will review the record of the hearing and prepare a 
written report. The report will contain a recommendation based on the provisions 
of the approved state plan, the Rehabilitation Act of 1973, as amended, and 
appropriate state laws. The recommendation will be supported by findings of 
facts and conclusions of law. A copy of the report will be provided to the 
executive director of the commission within 30 calendar days of the hearing 
completion date. 
[(K) The petitioner will be provided with a copy of the hearing officer's report 
by certified mail by the commission. Upon request by the petitioner, a copy of 
the transcript of the hearing will be provided. The petitioner will be billed 
for reproduction costs of the transcript according to established policies of 
the commission. 
[(L) The complete record of the case will be transferred to the executive 
director of the commission for file retention.
[(M) Within 20 days of the hearing officer's recommendation, the executive 
director will either notify the petitioner that the recommendation of the 
hearing officer is final or that the executive director has decided to review 
the recommendation. Within 30 calendar days of the notice of intent to review 
the recommendation, the executive director will make a final decision and 
provide a written report to the petitioner. 
(c)] Blind and visually handicapped children's program. 
(1) The appeals procedures established within the children's program are in 
compliance with the Texas Human Resources Code, sec.91.018.
(2) All applicants and recipients of services shall be advised early in the 
casework process of their right to appeal, the procedures for requesting a 
review of an agency decision, and the names and addresses of individuals with 
whom appeals may be filed. 
(3) Every attempt will be made to resolve the issue on an informal basis at the 
local level. In the event this is not successful, the procedures enumerated in 
subparagraphs (A)-(D) of this paragraph will be followed. The word appellant 
encompasses applicants, referrals, children receiving services, their parent(s) 
or guardian(s), and any other person authorized to represent the child during 
the appeals procedure. 
(A) Caseworker review. The appellant who is dissatisfied with any of the 
commission actions delineated in subsection (a)(1)(A)-(F) of this section must 
notify the caseworker of the matter in contention within 30 calendar days. The 
caseworker, after seeking additional opinions on the matter from other qualified 
sources such as the medical consultant or specialists in the agency's central 
office, will make a decision in the matter within 10 work days after receipt of 
the appeal and will immediately notify the appellant of the decision in writing. 
The letter will contain the caseworker's decision and, if necessary, the name 
and address of the caseworker's immediate supervisor.
(B) Supervisory review. Upon continued dissatisfaction, the appellant may appeal 
to the caseworker's immediate supervisor. The appeal must be made in writing 
within 10 work days from receipt of the caseworker's decision. The supervisor 
will review the case and either uphold or overrule the caseworker's 
determination. A written copy of the decision will be sent to the petitioner 
within 30 days of the supervisor's receipt of the appeal. The letter will also 
contain the name and address of the director of special services, if necessary. 
(C) Administrative review. Upon continued dissatisfaction, the appellant may 
request an administrative review. The request must be made in writing within 10 
work days of receipt of the supervisor's decision to the director of special 
services. The administrative review will be conducted at a time and place 
convenient to the appellant (usually during business hours at the local 
commission office) by a supervisory staff member who has no direct personal 
knowledge of the details involved in the matter and who has not participated in 
the decision being appealed. Reader services or interpreter services will be 
provided by the commission if three work days notice is given. The appellant has 
the right to present evidence and provide witnesses in support of the case, 
question agency staff members, and receive a written report of the findings from 
the person conducting the administrative review within 30 calendar days 
following the proceeding. The report will contain, if necessary, the name and 
address of the executive director and the procedures for proceeding to the last 
step in the appeals procedure. 
(D) Fair hearing. To request a fair hearing, the appellant must write the 
executive director within 10 work days from the date they received notification 
of the results of the administrative review. The fair hearing will be conducted 
by the agency's executive director or by a designated hearing officer at a time 
and place convenient to the appellant (usually during business hours at the 
agency's central office in Austin). Reader services or interpreter services will 
be provided by the commission if three work days notice is given. The appellant 
or representative has the right to present evidence, to provide witnesses, to 
cross-examine witnesses, and to receive a tape recording of the fair hearing. 
The executive director will notify the appellant in writing of the final 
decision in the matter within 30 calendar days following adjournment of the 
hearing. 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State, on February 13, 1998.
TRD-9802232
Terrell I. Murphy
Interim Executive Director
Texas Commission for the Blind
Earliest possible date of adoption: April 5, 1998
For further information, please call: (512) 459-2611

CHAPTER 161.Scope of Services and General Clientele
40 TAC sec.sec.161.1-161.4
(Editor's note: The text of the following sections proposed for repeal will not 
be published. The sections may be examined in the offices of the Texas 
Commission for the Blind or in the Texas Register office, Room 245, James Earl 
Rudder Building, 1019 Brazos Street, Austin.)
The Texas Commission for the Blind proposes the repeal of sec.sec.161.1-161.4 of 
Chapter 161 pertaining to the scope of services and general clientele of the 
agency. The sections were originally adopted in 1976 are no longer needed 
because they either do not meet the state's definition of a rule or they 
duplicate provisions contained elsewhere in the agency's rules. The agency will 
be renaming and using the chapter for new appeals procedures and hearing rules, 
which are proposed simultaneously with this proposed repeal. 
Ernest Pereyra, Deputy Director of Administration and Finance, has determined 
that for the first five years the repeal is in effect there will be no fiscal 
implications for state or local government. 
Mr. Pereyra has also determined that for each year of the first five years the 
repeal as proposed is in effect the public benefits anticipated as a result of 
the repeal will be the removal of obsolete rules and a clearer rule base. There 
will be no effect on small businesses. There is no anticipated economic cost to 
individuals as a result of the repeal. 
Questions about the content of this proposal may be directed to Jean Crecelius 
at (512) 459-2611 and written comments on the proposal may be submitted to 
Policy and Rules Coordinator, P. O. Box 12866, Austin, Texas 78711, within 30 
days from the date of this publication. 
The repeal is proposed under Human Resources Code, Title 5, Chapter 91, 
sec.91.011(g), which authorizes the commission to adopt rules prescribing the 
policies and procedures followed by the commission in the administration of its 
programs. 
The repeal affects Human Resources Code, Title 5, sec.Section 91.021, 
Responsibility for Visually Handicapped Persons. 
sec.161.1. Primary Responsibilities
sec.161.2. Multiple Handicapped 
sec.161.3. Discrimination Prohibited 
sec.161.4. Basic Services 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State, on February 13, 1998.
TRD-9802230
Terrell I. Murphy
Interim Executive Director
Texas Commission for the Blind
Earliest possible date of adoption: April 5, 1998
For further information, please call: (512) 459-2611

CHAPTER 161.<nl>Appeals and Hearing Procedures<ol>
SUBCHAPTER <nl>A.<ol><nl>Vocational Rehabilitation Program<ol>
40 TAC sec.sec.161.10-161.44
The Texas Commission for the Blind proposes new sec.sec.161.10-161.44 pertaining 
to vocational rehabilitation program appeals and hearing procedures. The 
proposed sections are available to any applicant or eligible individual who is 
dissatisfied with a determination made by a rehabilitation counselor concerning 
the furnishing or denial of services. The rules define terms used in the review 
process and include the federal deadline in which hearings must be held and how 
time is computed. The rules also contain the federal requirements for the 
appointment of an impartial hearing officer and the hearing procedures that will 
be followed. So that persons requesting reviews can fully participate in the 
proceedings, the Commission has included rules pertaining to reasonable 
accommodations. Procedures for appealing an impartial hearing officer's decision 
are also covered. 
The Commission's enabling statutes require the agency to cooperate with the 
federal government in providing vocational rehabilitation services, to comply 
with federal conditions required to secure the full benefits of the federal 
laws, and to provide services to individuals eligible under federal law. The 
Commission has written its rules in conformance with recent changes to federal 
regulations governing the State Vocational Rehabilitation Services Program and 
in conformance with applicable state procedures for administrative reviews. 
Ernest Pereyra, Deputy Director of Administration and Finance, has determined 
that for the first five years the rules are in effect there will be no fiscal 
implications for state or local government as a result of enforcing or 
administering the sections. 
Mr. Pereyra has also determined that for each year of the first five years the 
rule as proposed is in effect the public benefits anticipated as a result of 
enforcing the rules will be a rulebase that complies with federal guidelines and 
that affords applicants and consumers an opportunity for an impartial review of 
agency determinations. There will be no effect on small businesses. There is no 
anticipated economic cost to individuals who are required to comply with the 
rule. 
Questions about the content of this proposal may be directed to Jean Crecelius 
at (512) 459-2611 and written comments on the proposal may be submitted to 
Policy and Rules Coordinator, P. O. Box 12866, Austin, Texas 78711, within 30 
days from the date of this publication.
The new sections are proposed under Human Resources Code, Title 5, Chapter 91, 
sec.91.011(g), which authorizes the commission to adopt rules prescribing the 
policies and procedures followed by the commission in the administration of its 
programs. 
The new sections affect Human Resources Code, Title 5, sec.91.052, concerning 
the vocational rehabilitation program for the blind, and sec. 91.058, concerning 
hearings.

sec.161.10.Purpose and Scope. 
(a) The purpose of this chapter is to establish procedures whereby an applicant 
for services or a consumer receiving agency services may appeal an action taken 
by the Commission in the administration of the Vocational Rehabilitation 
Program. 
(b) The provisions of this subchapter shall not be construed so as to enlarge, 
diminish, modify, or alter the jurisdiction, powers, or authority of the 
Commission or the substantive rights of any person. 

sec.161.11. Legal Authority and Scope. 
(a) Procedures for appealing rehabilitation counselor determinations are 
authorized by and must comply with 29 United States Code, Section 701, et seq., 
also known as the Rehabilitation Act of 1973, as amended, and Department of 
Education Regulations at 34 Code of Federal Regulations (CFR) 361.57, as such 
authority may exist or may be amended from time to time. 
(b) The procedures in this subchapter are available to any applicant or consumer 
who is dissatisfied with a determination made by a rehabilitation counselor 
concerning the furnishing or denial of services authorized in Chapter 163 of 
this title (relating to the Vocational Rehabilitation Program). 
(c) A person's decision to seek an informal resolution to matters about which 
the person is dissatisfied shall not prevent, compromise, or delay the person's 
access to formal resolution procedures in this subchapter.
(d) The Commission shall not institute a suspension, reduction, or termination 
of services being provided under an individualized written rehabilitation plan 
pending informal resolution or a final determination of the formal hearing under 
this subchapter unless the individual or, in an appropriate case, the 
individual's authorized representative, so requests or the agency has evidence 
that the services have been obtained through misrepresentation, fraud, 
collusion, or criminal conduct on the part of the individual. 

sec.161.12. Definitions.
The following words and terms, when used in this chapter, shall have the 
following meanings unless the context clearly indicates otherwise. The use of 
the singular or plural case is not meant to be limiting unless the context 
clearly indicates otherwise.
Act -- The Rehabilitation Act of 1973 as amended, 29 United States Code, Section 
701, et seq. 
Appellant -- An applicant, consumer, or authorized representative who has 
initiated formal procedures pursuant to this chapter. 
Applicant -- A person who has applied for services but for whom an eligibility 
determination has not been made. 
Authorized representative -- An attorney authorized to practice law in the State 
of Texas, or a person designated by a party to represent the party in hearing 
procedures. The term includes a parent or guardian if the appellant is a child 
or a person adjudicated as a ward by a court of competent jurisdiction. 
Consumer -- A person who has been determined eligible for and is receiving 
vocational rehabilitation services from the Commission. 
Commission -- The Texas Commission for the Blind, its officers, employees, and 
agents. 
Discovery -- The process by which a party may, prior to the hearing, obtain 
evidence which is relevant to the subject matter of the hearing.
Executive director -- The chief executive officer of the Texas Commission for 
the Blind. 
Hearing -- A formal review conducted under this chapter. This term includes 
prehearing conferences. 
Impartial hearing officer (IHO) -- A person who is appointed to conduct a 
hearing under this chapter. 
Party -- A person or agency named or admitted to participate in a formal 
hearing. 
Person -- Any individual, representative, corporation, or other entity, 
including any public or nonprofit corporation, or agency or instrumentality of 
federal, state, or local government. 
Record -- The official record of a hearing, including all arguments, briefs, 
pleadings, motions, intermediate rulings, orders, evidence received or 
considered, statements of matters officially noticed, questions and offers of 
proof, objections and rulings on objections, proposed findings of fact, 
conclusions of law, hearing officer decision, any other decision, opinion, or 
report by the hearing officer or executive director, and all Commission 
memoranda or data, including consumer and applicant files, submitted to or 
considered by the impartial hearing officer or executive director.

sec.161.13. Filing a Request for Review. 
(a) Any applicant or eligible individual who is dissatisfied with a 
determination made by a rehabilitation counselor concerning the furnishing or 
denial of services may request a review of the determination by notifying their 
counselor in writing. Although no prescribed form is required to file a request, 
preprinted forms for this purpose shall be maintained in every Commission office 
and are available upon request. 
(b) Upon receiving a request for review, the rehabilitation counselor shall, no 
later than the next working day, mail the appellant: 
(1) the name, address, and phone number of the Client Assistance Program 
established pursuant to federal law; 
(2) a form requesting the appellant's consent for the release of such 
information as is necessary for the conduct of a hearing; and 
(3) a copy of applicable hearing procedures. 
(b) A request for review shall be considered timely if it is received by the 
counselor within a reasonable period of time, not to exceed 180 days from the 
date the person was mailed notice of the determination to the person's last 
known address. 

sec.161.14. Time for Hearing. 
A hearing by an impartial hearing officer shall be held within 45 days of the 
individual's request for review unless the parties resolve the dispute prior to 
that time or the parties agree to a specific time extension for the hearing. 

sec.161.15. Computation of Time.
(a) Unless otherwise required by law in computing any period of time prescribed 
or allowed by these rules, the date of the act, event, or default after which 
the designated period of time begins to run is not to be included. The last day 
of the period so computed is to be included, unless such day is a Saturday, 
Sunday, or legal holiday, in which event the period runs until the end of the 
next day which is neither a Saturday, Sunday, nor legal holiday. 
(b) Unless otherwise provided by law, the time for filing any pleading may be 
extended by order of the impartial hearing officer at the request of any party 
or party's authorized representative upon written motion duly filed with the 
hearing officer prior to the expiration of the applicable period of time for the 
filing of same. Said motion shall include a showing that there is good cause for 
such extension of time and that the need therefor is not caused by neglect, 
indifference, or lack of diligence of the movant. A copy of any such motion 
shall be served upon all other parties of record to the proceeding 
contemporaneously with the filing thereof. Any party may contest a motion to 
extend by filing written notice of such opposition. A copy of any such motion 
shall be served upon all other parties of record to the proceeding 
contemporaneously with the filing thereof. 
(c) The date upon which a pleading or motion is filed is the later of the date 
on which it is received and date-stamped, or three days after it is deposited in 
the United States Mail, in a properly addressed wrapper with postage affixed in 
proper amounts, or the date upon which such document is personally delivered. 

sec.161.16. Filings. 
(a) All filings shall be sent to the Texas Commission for the Blind, P. O. Box 
12866, Austin, Texas 78711, with the notation "Attention: Hearings," or 
delivered to the Texas Commission for the Blind, 4800 North Lamar, Suite 220, 
Austin, Texas. 
(b) Pursuant to sec.161.21 of this title (relating to Appearance of Parties at 
Hearings; Representation), a copy of all filings shall be sent by mail or 
otherwise delivered to all parties. 
(c) A certificate of service, signed by the person making the filing, showing 
the manner of service, stating that the filing has been served on all other 
parties, and identifying those parties shall be contained in or attached to all 
filings. The certificate is prima facie evidence of service. 

sec.161.17. Assignment of Impartial Hearing Officer. 
(a) The Commission's authorized representative shall select, on a random basis 
or by agreement between the Commission's representative and the appellant, or if 
appropriate, the appellant's authorized representative, an impartial hearing 
officer from a pool of persons qualified according to these rules. 
(b) The impartial hearing officer shall be an individual who:
(1) is not an employee of a public agency (other than an administrative law 
judge, hearing examiner, or employee of an institution of higher education);
(2) has not been involved in previous decisions regarding the vocational 
rehabilitation of the appellant; 
(3) has knowledge of the delivery of vocational rehabilitation services, the 
state plan, and the federal and state regulations governing the provision of 
services; 
(4) has received training specified by the Commission with respect to the 
performance of official duties; and 
(5) has no personal, professional, or financial interest that would be in 
conflict with the objectivity of the individual. 
(c) An individual is not considered to be an employee of a public agency for the 
purposes of paragraph (b) of this section solely because the individual is paid 
by the agency to serve as a hearing officer. 

sec.161.18. Powers and Duties of the Impartial Hearing Officer. 
(a) The impartial hearing officer shall have the authority and duty to: 
(1) conduct a full, fair, and impartial hearing; 
(2) take action to avoid unnecessary delay in the disposition of the proceeding; 
and 
(3) maintain order. 
(b) The impartial hearing officer has the power to regulate the course of the 
hearing, including the power to: 
(1) administer oaths; 
(2) take testimony; 
(3) rule on questions of evidence; 
(4) rule on discovery issues; 
(5) issue orders relating to hearing and prehearing matters, including orders 
granting permission to subpoena witnesses and imposing sanctions regarding 
discovery; 
(6) admit or deny party status; 
(7) limit irrelevant, immaterial, and unduly repetitious testimony and 
reasonably limit the time for presentations; 
(8) grant continuance(s); 
(9) request parties to submit legal memoranda, proposed findings of fact and 
conclusions of law; and 
(10) issue decisions based on findings of fact and conclusions of law. 
(c) Unless required for the disposition of ex parte matters authorized by law, 
the impartial hearing officer may not directly or indirectly communicate in 
connection with any issue of fact or law with the executive director or any 
party or a party's authorized representative, except on notice and opportunity 
for each party to participate. 

sec.161.19. Substitution of Impartial Hearing Officer. 
(a) If for any reason an impartial hearing officer is unable to continue 
presiding over a pending hearing, or issue a decision after the conclusion of 
the hearing, another impartial hearing officer shall be designated as a 
substitute to complete the hearing and render a decision in accordance with 
these rules. 
(b) The substitute impartial hearing officer may use the existing record and may 
conduct further proceedings as are necessary and proper to conclude the hearing 
and render a decision. 

sec.161.20. Reasonable Accommodations.
(a) The Commission shall, upon reasonable notice, provide the appellant with 
readers or interpreters during proceedings conducted pursuant to this 
subchapter. Reasonable notice shall be considered as no fewer than five working 
days prior to the proceeding unless good cause for a shorter period of time 
shall exist in the judgment of the impartial hearing officer.
(b) A copy of a transcript prepared during hearing proceedings and all notices 
and documents shall be provided to the appellant in an accessible format. 

sec.161.21. Appearance of Parties at Hearings; Representation. 
(a) An individual may represent himself or herself. 
(b) A party may be represented by an attorney authorized to practice law in 
Texas or by any other representative authorized by the party to represent him or 
her. 
(c) A party's authorized representative shall be copied on all notices, 
pleadings, and other correspondence. 
(d) A party's authorized representative remains the representative of record in 
absence of a formal request to withdraw and an order approving such withdrawal 
issued by the impartial hearing officer. 

sec.161.22. Failure to Attend Hearing and Default. 
If, after receiving a notice of a hearing, a party or the party's authorized 
representative fails to attend a hearing, the impartial hearing officer may 
proceed and, where appropriate, may issue a default decision against the absent 
party. 

sec.161.23. Representation and Attorney Fees. 
(a) Except as provided in subsections (b) through (e) of this section, the 
Commission is not responsible for expenses incurred by appellants seeking remedy 
through this chapter, and representation and attorney fees and related expenses 
are the responsibility of the individual parties. 
(b) The impartial hearing officer may determine that costs and expenses, 
including fees related to representation, should be adjudged against a party who 
does not prevail in the hearing, in which case the party against whom such costs 
are adjudged shall pay such costs in accordance with the decision of the 
impartial hearing officer. In making such determination, the impartial hearing 
officer must consider the following: 
(1) whether, in a hearing with more than one issue, the party substantially 
prevailed on all or substantially all of the issues; 
(2) the reasonableness of the conduct of the parties in the matters leading to 
the hearing; 
(3) whether any issue was presented and pursued in bad faith by any party; 
(4) the ability of the party to pay attorney or representatives fees; and 
(5) any special circumstances that make an award of attorneys or representatives 
fees unjust. 
(c) In determining the amount of attorneys or representatives fees and related 
expenses to be awarded, the impartial hearing officer must consider the 
following: 
(1) the actual time expended in providing the representation;
(2) in the case of an attorney, the normal and customary billing rates for 
services of the type provided; 
(3) for a representative other than an attorney, a reasonable value of the time 
and services provided; and 
(4) the reasonableness of the total amount requested in relation to the impact 
of assessment of the amount against the party. 
(d) Attorneys and agencies receiving federal funds under the Rehabilitation Act 
for the purpose of representing applicants and consumers are specifically 
excluded from the provisions of subsections (b) and (c) of this section. 
(e) Nothing herein contained shall ever be construed to limit the right of 
appeal of any appellant because of the appellant being a pauper. In any case in 
which the appellant provides information to the impartial hearing officer 
reasonably establishing an inability to pay the costs of an appeal, then such 
appeal shall proceed without cost to the appellant. In no event shall the 
financial ability of the family of an adult appellant be considered in 
determining the ability of an appellant to pay the cost of an appeal under this 
subchapter. 

sec.161.24. Witness Fees. 
(a) Any witness or deponent who is not a party to and who is subpoenaed or 
otherwise appears at any hearing or proceeding at the instance of the Commission 
is entitled to receive reimbursement according to sec. 159.22 of this title 
(relating to Reimbursement of Expenses of Witnesses).
(b) The Commission is not responsible for expenses incurred by any witness or 
deponent who is not a party to and who is subpoenaed or otherwise appears at any 
hearing or proceeding at the instance of the appellant except as such cost may 
be determined by the impartial hearing officer to be the responsibility of the 
Commission as a part of the decision in the appeal.
(c) The party calling or deposing an expert witness shall be responsible for all 
fees and expenses charged by the expert witness. 

sec.161.25.Notices. 
(a) Written notices shall be mailed to all parties no later than 10 days prior 
to a hearing or conference. 
(b) Notice shall include: 
(1) a statement of the time, place, and nature of the hearing;
(2) a statement of the legal authority and jurisdiction under which the hearing 
is to be held; 
(3) a reference to the particular sections of the rules involved; and 
(4) a short, plain statement of the matters asserted.

sec.161.26.Prehearing Conferences.
(a) The impartial hearing officer may hold a prehearing conference to resolve 
matters preliminary to the hearing. At the discretion of the impartial hearing 
officer, a prehearing conference may be held by telephone. 
(b) A prehearing conference may be convened to address any or all of the 
following matters: 
(1) notice or jurisdiction; 
(2) scope or party status; 
(3) location of hearing; 
(4) factual and legal issues; 
(5) motions; 
(6) issuance of subpoenas; 
(7) discovery disputes; 
(8) scheduling; 
(9) stipulations; 
(10) settlement conferences; 
(11) requests for official notice; 
(12) identification and exchange of documentary evidence;
(13) admissibility of evidence; 
(14) identification and qualification of witnesses; 
(15) order of presentation; and 
(16) such other matters as shall promote the orderly and prompt conduct of the 
hearing. 

sec.161.27. Dismissal Without Hearing.
(a) The impartial hearing officer may entertain motions for dismissal without a 
hearing for the following reasons: 
(1) failure to pursue the hearing; 
(2) unnecessary duplication of proceedings or res judicata;
(3) withdrawal of the request for hearing; 
(4) moot questions; 
(5) lack of jurisdiction; 
(6) failure to raise a material issue in the pleading; and 
(7) failure of a party or authorized representative to appear at a scheduled 
hearing. 
(b) If the impartial hearing officer finds that such motion should be granted 
the impartial hearing officer will so order, and the executive director may 
enter a final order of dismissal. 

sec.161.28. Discovery. 
(a) Parties are entitled to conduct the following forms of discovery: 
(1) oral or written depositions of any party or nonparty;
(2) written interrogatories to a party; 
(3) requests of a party for admission of facts and the genuineness or identity 
of documents or things; 
(4) requests and motions for production, examination, and copying of documents 
or other tangible materials; and 
(5) requests for physical or mental examinations of persons.
(b) Parties may obtain discovery regarding any matter which is relevant to the 
subject matter of the hearing or which is reasonably calculated to lead to the 
discovery of evidence which would be admissible at the hearing.
(c) All discovery requests should be directed to the party from which discovery 
is being sought. 
(d) All disputes with respect to any discovery matter shall be filed with and 
resolved by the impartial hearing officer. 
(e) All parties shall be afforded a reasonable opportunity to file objections 
and motions to compel with the impartial hearing officer regarding any and all 
discovery requests. 
(f) Copies of discovery requests and documents filed in response thereto shall 
be filed on all parties, but should not be filed with the impartial hearing 
officer unless directed to do so by the impartial hearing officer or when in 
support of objections, motions to compel, motions for protective order, or 
motions to quash. 
(g) To the extent not inconsistent with these rules and applicable statutes, 
discovery shall be governed by the Texas Rules of Civil Procedure and applicable 
case law thereunder, provided however, that all such rules shall be liberally 
construed in furtherance of the ends of justice. 
(h) To the extent not inconsistent with these rules and applicable statutes, 
formal rules of evidence shall not apply and any evidence of any character may 
be admitted and considered by the impartial hearing officer if the impartial 
hearing officer deems such evidence relevant to the resolution of the issues 
presented for consideration. 
(i) Any documents contained in any file of the Commission related to the 
appellant are to be deemed admissible. 

sec.161.29. Motions. 
(a) Unless otherwise provided by these rules, the following shall apply: 
(1) A party or authorized representative may move for appropriate relief before 
or during a hearing; 
(2) A party or authorized representative shall submit all motions in writing or 
orally at a hearing; 
(3) Written motions shall: 
(A) be filed no later than 7 days before the date of the hearing, except, where 
good cause is stated in the motion, the impartial hearing officer may permit a 
written motion subsequent to that time; 
(B) state concisely the question to be determined; 
(C) be accompanied by any necessary supporting documentation; and 
(D) be served on each party. 
(4) An answer to a written motion shall be filed on the earlier of: 
(A) seven days after receipt of the motion; or 
(B) on the date of the hearing. 
(5) On written notice to all parties and authorized representatives or with 
telephone consent of all parties, the impartial hearing officer may schedule a 
conference to consider a written motion. 
(6) The impartial hearing officer may reserve ruling on a motion until after the 
hearing. 
(7) The impartial hearing officer may issue a written decision or state the 
decision on the record. 
(8) If a ruling on a motion is reserved, the ruling shall be in writing and may 
be included in the impartial hearing officer's decision.
(9) The filing or pendency of a motion does not alter or extend any time limit 
otherwise established by these rules unless such time is extended by the 
impartial hearing officer on his own motion or on the motion of any party to the 
appeal. 

sec.161.30. Orders. 
(a) The impartial hearing officer may issue an order to regulate the conduct of 
the proceedings. 
(b) The order shall be a part of the hearing record. 
(c) An order may address any matter, including the following:
(1) the actions taken or to be taken at a prehearing conference;
(2) any of the subjects listed in sec.161.26 of this chapter (relating to 
Prehearing Conferences); 
(3) a requirement that the parties file prehearing statements of the case 
describing the parties' present positions on any matter, including, but not 
limited to, the following: 
(A) the disputed issues or matters to be resolved, and a summary of the facts or 
arguments supporting the parties' or authorized representatives' positions in 
each disputed issue or matter; 
(B) a list of facts or exhibits to which a party or authorized representative 
will stipulate; and 
(C) a description of the discovery, if any, the party or authorized 
representative intends to engage in and an estimate of the time needed to 
complete discovery; 
(4) a requirement that the parties and authorized representatives discuss the 
prospects of settlement or stipulations and, if applicable, that they be 
prepared to report thereon at a prehearing conference; and 
(5) any other filing requirement or deadline imposed by statute, rule or order. 

sec.161.31. Settlement Conferences.
(a) Upon request of any party or authorized representative and approval by the 
impartial hearing officer, or in the impartial hearing officer's discretion, a 
conference may be held to address settlement possibilities. At such conference 
the impartial hearing officer may take such action as may be appropriate to 
facilitate a settlement of all or part of the issues in controversy, including 
ordering the parties to participate in alternative dispute resolution pursuant 
to the Texas Alternative Dispute Resolution Act.
(b) Settlement discussions shall not be made a part of the case record. 
(c) This section is not in derogation of the parties' ability to settle cases 
independently of the impartial hearing officer. 

sec.161.32. Stipulations. 
(a) The parties or authorized representatives, by stipulation, may agree to any 
substantive or procedural matter. A stipulation shall be filed in writing or 
entered on the record at the prehearing conference or hearing. 
(b) The impartial hearing officer may require additional development of 
stipulated matters. 

sec.161.33. Conduct of Hearing.
(a) On a genuine issue in a contested case, each party or authorized 
representative is entitled to: 
(1) call witnesses, including parties; 
(2) offer evidence; 
(3) cross-examine any witness called by another party; and 
(4) make opening and closing statements. 
(b) Once the hearing is begun the parties and authorized representatives may be 
off the record only when the impartial hearing officer permits. If the 
discussion off the record is pertinent, then the impartial hearing officer will 
summarize the discussion for the record. 
(c) Objections shall be timely noted in the record. 
(d) The impartial hearing officer may continue a hearing from time to time and 
from place to place. If the time and place for the proceeding to reconvene are 
not announced at the hearing, a notice shall be mailed stating the time and 
place of hearing. 
(e) The impartial hearing officer may question witnesses and parties and/or 
direct the submission of supplemental evidence. 

sec.161.34. Order of Proceedings.
(a) A case shall be called to order by the impartial hearing officer. 
(b) Proceedings shall be conducted according to the following:
(1) The appellant may state briefly the nature of the claim or defense, what the 
appellant expects to prove, and the relief sought. Immediately thereafter, the 
Commission may make a similar statement, and any other parties will be afforded 
similar rights as determined by the impartial hearing officer. The impartial 
hearing officer may limit the time available for each party or authorized 
representative with respect to such statement. 
(2) Evidence shall then be introduced by the appellant. The Commission or 
Commission's authorized representative and any other parties shall have the 
opportunity to cross-examine each of the appellant's witnesses.
(3) Cross-examination is not limited solely to matters raised on direct 
examination. Parties or authorized representatives are entitled to redirect and 
recross-examination. 
(4) Unless the statement has already been made, the Commission or the 
Commission's authorized representative may briefly state the nature of the claim 
or defense, what the Commission expects to prove, and the relief sought. 
(5) Evidence, if any, shall be introduced by the Commission. The appellant and 
any other parties shall have the opportunity to cross-examine each of the 
Commission's witnesses. 
(6) Any other parties may make statements and introduce evidence. The appellant 
and the Commission shall have opportunity to cross-examine the other parties' 
witnesses. 
(7) The parties may present rebuttal evidence. 
(8) The parties may be allowed closing statements at the discretion of the 
impartial hearing officer. 
(9) The impartial hearing officer may examine any witness and party. 
(c) The impartial hearing officer may permit deviations from this order of 
procedure in the interest of justice or to expedite the proceedings.
(d) Parties shall provide four copies of each exhibit offered.
(e) Evidence may be excluded which is determined by the impartial hearing 
officer to be irrelevant, immaterial, or unduly repetitious. 

sec.161.35.Exhibits. 
(a) Exhibits shall be limited to facts material and relevant to the issues 
involved in a particular proceeding. 
(b) The original of each exhibit offered shall be tendered to the court reporter 
for identification. Copies of original documents may be substituted upon 
agreement of the parties or approval of the impartial hearing officer. 
(c) In the event an exhibit has been identified, objected to, and excluded, the 
impartial hearing officer shall determine whether or not the party offering the 
exhibit withdraws the offer, and, if so, permit the return of the exhibit. If 
the excluded exhibit is not withdrawn it shall be given an exhibit number for 
identification, shall be endorsed by the impartial hearing officer with a 
ruling, and shall be included in the record only for the purpose of preserving 
the exception. 

sec.161.36. Transcription of Proceedings.
(a) Unless precluded by law, the parties to a hearing may agree upon a statement 
of facts, agree to use taped transcriptions as a statement of facts, or agree to 
the summarization of testimony before the hearing officer; provided, however, 
that proceedings or any part of them must be transcribed on written request of 
any party. 
(b) The Commission shall contract for and bear the cost of hearing transcripts. 
Nothing provided for in this section limits the Commission to a stenographic 
record of the proceedings. 

sec.161.37. Documentary Evidence and Official Notice. 
(a) Documentary evidence may be received in the form of copies or excerpts if 
the original is not readily available. On request, parties shall be given an 
opportunity to compare the original and the copy or excerpts.
(b) When numerous similar documents which are otherwise admissible are offered 
into evidence, the impartial hearing officer may limit the documents received to 
those which are typical and representative. The impartial hearing officer may 
also require that an abstract of relevant data from the documents be presented 
in the form of an exhibit, provided that all parties be given the right to 
examine the documents from which such abstracts were made. 
(c) The following laws, rules, regulations, and policies are officially noticed: 
(1) The Rehabilitation Act of 1973, as amended, 29 United States Code Sec. 701, 
et seq.; 
(2) Department of Education regulations, 34 Code of Federal Regulations, Part 
361; 
(3) Texas Human Resources Code, Chapter 91; 
(4) Texas Commission for the Blind State Plan for Vocational Rehabilitation 
Services; 
(5) Texas Commission for the Blind Vocational Rehabilitation Manual; and 
(6) Texas Administrative Code, Title 40, Part IV, Texas Commission for the 
Blind. 

sec.161.38.Prepared Testimony.
In all proceedings and after service of copies upon all parties of record at 
such time as may be designated by the impartial hearing officer, the prepared 
testimony of a witness upon direct examination, either in narrative or question 
and answer form, may be incorporated in the record as if read or received as an 
exhibit, upon the witness's being sworn and identifying the same. Such witness 
shall be subject to cross-examination and the prepared testimony shall be 
subject to a motion to strike in whole or in part. 

sec.161.39. Offer of Proof. 
When testimony on direct examination is excluded by ruling of the impartial 
hearing officer, the party offering such evidence shall be permitted to make an 
offer of proof by dictating or submitting in writing the substance of the 
proposed testimony prior to the conclusion of the hearing. Such offer of proof 
shall be sufficient to preserve the point for review by the executive director. 
The impartial hearing officer may ask such questions of the witness as deemed 
necessary to satisfy that the witness would testify as represented in the offer 
of proof. An alleged error in sustaining an objection to questions asked on 
cross-examination may be preserved without making an offer of proof.

sec.161.40. Pleadings. 
(a) In a formal appeal, all pleadings, for which no other form is prescribed, 
shall contain: 
(1) the name of the party making the pleading; 
(2) the names of all other known parties; 
(3) a concise statement of the facts alleged and relied upon; 
(4) a prayer stating the type of relief, action, or order desired; 
(5) any other matter required by law; 
(6) a certificate of service, as required by these rules; and 
(7) the signature of the party or the party's authorized representative making 
the pleading. 
(b) Any pleading filed pursuant to a formal appeal may be amended up to 14 days 
prior to the hearing. Amendments filed after that time shall be accepted at the 
discretion of the impartial hearing officer. 
(c) Any pleading may adopt and incorporate, by specific reference thereto, any 
part of any document or entry in the official files and records of the 
Commission. 
(d) All pleadings relating to any matter pending before the Commission shall be 
filed with the impartial hearing officer and all parties.
(e) All pleadings shall be in a format and medium reasonably calculated to 
provide the required information and must be clear and legible.
(f) Pleadings shall contain the name, address, and telephone number of the party 
filing the document or the name, telephone number, and business address of the 
authorized representative. 
(g) The party or the party's authorized representative filing the pleading shall 
include a signed certification that a true and correct copy of the pleading has 
been served on every other party. 

sec.161.41. Continuance. 
(a) Continuance(s) may be granted by the impartial hearing officer to further 
the interests of justice and at the discretion of the impartial hearing officer. 
Motions for continuance shall be in writing or stated in the record and shall 
set forth the specific grounds upon which the party seeks the continuance. 
(b) Unless made during a prehearing or hearing, a party seeking a continuance, 
cancellation of a scheduled proceeding, or extension of an established deadline 
must file such motion no later than 10 days before the date or deadline in 
question. A motion filed fewer than 10 days before the date or deadline in 
question must contain a certification that the movant contacted the other party 
or party's authorized representative and whether or not it is opposed by the 
party or party's authorized representative. Further, if a continuance to a 
certain date is sought, the motion must include a proposed date or dates and 
must indicate whether the other party or party's authorized representative 
contacted agrees on the proposed new date or dates. 

sec.161.42. Impartial Hearing Officer Decision. 
(a) Within 30 days of the hearing completion date, the impartial hearing officer 
shall issue a decision based on the evidence and which is not inconsistent with 
the provisions of the approved state plan, the Act, federal vocational 
rehabilitation regulations, and state regulations and policies that are 
consistent with federal requirements, and shall provide to the appellant or, if 
appropriate, the appellant's authorized representative, the executive director, 
and the Commission's authorized representative with a full written report of the 
findings of fact, conclusions of law, and any other grounds for the decision. 
(b) The hearing completion date shall be that date upon which the impartial 
hearing officer receives the transcript, if any was prepared, of the oral 
hearing, or, if no transcript was prepared, the date of the adjournment of the 
hearing. 
(c) The decision shall address each issue considered by the impartial hearing 
officer. 
(d) The impartial hearing officer may prescribe such remedies as are appropriate 
within the scope of the Vocational Rehabilitation Program.
(1) The impartial hearing officer may not award monetary damages to any party. 
(2) The impartial hearing officer may not prescribe an action affecting the 
employment of an employee of the Commission. 
(3) An individual whose case is closed as a result of the decision of the 
impartial hearing officer may not be restricted from reapplying to the 
Commission for services for a period of longer than two years. 

sec.161.43.Action by the Executive Director. 
(a) If the executive director decides to review the decision of the impartial 
hearing officer, the executive director shall notify the appellant or the 
appellant's authorized representative in writing of that intent within 20 days 
of the mailing of the impartial hearing officer's decision.
(b) If the executive director fails to provide the notice required by paragraph 
(a) of this section, the impartial hearing officer's decision shall become a 
final decision on the twenty-first day. 
(c) The decision of the executive director to review any impartial hearing 
officer's decision shall be based on all applicable laws, rules, regulations, 
policies, and procedures, and all questions of law, fact, and written policy and 
procedure. 
(d) Review may result in affirming or reversing the decision of the impartial 
hearing officer in whole or in part or remanding the case to the impartial 
hearing officer for further proceedings. 
(e) Review may result in reversing or remanding the decision of the impartial 
hearing officer when the decision is found to be: 
(1) in violation of constitutional, statutory, regulatory, or written policy 
provisions; 
(2) in excess of the Commission's statutory authority;
(3) made upon unlawful procedure; 
(4) affected by other error of law, regulation, or written policy; 
(5) not reasonably supported by the evidence; or 
(6) arbitrary, capricious, or characterized by abuse of or clearly unwarranted 
exercise of discretion. 
(f) When none of the conditions in paragraph (e) of this section are present in 
the record of the hearing or the decision, review shall result in affirming the 
decision of the impartial hearing officer. 
(g) If the executive director decides to review the decision of the impartial 
hearing officer, the executive director shall provide the appellant an 
opportunity to submit additional evidence and information relevant to the final 
decision. The parties shall have 15 days from the date of notice that the 
executive director has decided to review the impartial hearing officer's 
decision to submit any additional relevant evidence. 
(h) The executive director may not overturn or modify a decision or part of a 
decision of an impartial hearing officer that supports the position of the 
individual unless the director concludes that the decision of the impartial 
hearing officer is clearly erroneous based upon the evidence or because it is 
contrary to the approved state plan, the Act, federal vocational rehabilitation 
regulations, or state regulations or policies that are consistent with federal 
requirements. 
(i) Within 30 days of providing notice of intent to review the impartial hearing 
officer's decision, the executive director shall make a final decision and 
provide a full report in writing of the decision, including the findings and the 
statutory, regulatory, or policy grounds for the decision, to the appellant or 
the appellant's authorized representative.

sec.161.44. Implementation of Decision.
If the final decision of either the impartial hearing officer or the executive 
director results in a requirement of act or acts by the Commission, then such 
decision shall be immediately implemented by the Commission. 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt. 
Filed with the Office of the Secretary of State, on February 13, 1998.
TRD-9802231
Terrell I. Murphy
Interim Executive Director
Texas Commission for the Blind
Earliest possible date of adoption: April 5, 1998
For further information, please call: (512) 459-2611

CHAPTER 163.Vocational Rehabilitation Program
The Texas Commission for the Blind proposes the repeal and simultaneous adoption 
of a new sec.163.36 concerning personal assistance services. The repeal is 
proposed in order to rename the section "personal attendant services" to better 
identify the subject matter and to adopt more comprehensive rules for 
administering the service as a part of the vocational rehabilitation program. 
The new rules contain examples of typical personal attendant services, the 
conditions under which a person may receive personal attendant services, and the 
person's responsibilities in seeking reimbursement for the cost of personal 
attendant services while receiving another vocational rehabilitation services.
Ernest Pereyra, Deputy Director of Administration and Finance, has determined 
that for the first five years the rules are in effect there will be no fiscal 
implications for state or local government as a result of enforcing or 
administering the sections. 
Mr. Pereyra has also determined that for each year of the first five years the 
rule as proposed is in effect the public benefits anticipated as a result of 
enforcing the rules will be rules that comply with federal regulations and that 
are administered efficiently. There will be no effect on small businesses. There 
is no anticipated economic cost to individuals who are required to comply with 
the rule. 
Questions about the content of this proposal may be directed to Jean Crecelius 
at (512) 459-2611 and written comments on the proposal may be submitted to 
Policy and Rules Coordinator, P. O. Box 12866, Austin, Texas 78711, within 30 
days from the date of this publication. 

SUBCHAPTER C.Vocational Rehabilitation Services
40 TAC sec.163.36
(Editor's note: The text of the following section proposed for repeal will not 
be published. The section may be examined in the offices of the Texas Commission 
for the Blind or in the Texas Register office, Room 245, James Earl Rudder 
Building, 1019 Brazos Street, Austin.)
The repeal is proposed under Human Resources Code, Title 5, Chapter 91, 
sec.91.011(g), which authorizes the commission to adopt rules prescribing the 
policies and procedures followed by the commission in the administration of its 
programs. 
The repeal affects Human Resources Code, Title 5, sec.91.052, concerning the 
vocational rehabilitation program for the blind. 

sec.163.36. Personal Assistance Services 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State, on February 13, 1998.
TRD-9802250
Terrell I. Murphy
Interim Executive Director
Texas Commission for the Blind
Earliest possible date of adoption: April 5, 1998
For further information, please call: (512) 459-2611

40 TAC sec.163.36
The new section is proposed under Human Resources Code, Title 5, Chapter 91, 
sec.91.011(g), which authorizes the commission to adopt rules prescribing the 
policies and procedures followed by the commission in the administration of its 
programs. 
The new section affects Human Resources Code, Title 5, sec.91.052, concerning 
the vocational rehabilitation program for the blind. 

sec.163.36. Personal Attendant Services.
(a) Personal attendant services are a part of personal assistance services, as 
that term is defined in sec.163.4 of this title, which assist an individual with 
a severe disability or most severe disability with activities such as 
transferring, dressing and undressing, eating, toileting, weight shifting, 
mobility, writing, and reading, while the individual is receiving vocational 
rehabilitation services. 
(b) A consumer who is an individual with a severe disability or a most severe 
disability may receive personal attendant services if:
(1) the consumer is actively receiving another vocational rehabilitation service 
covered in sec.163.25 of this title (pertaining to Goods and Services), and 
(2) personal attendant services are necessary for the consumer to achieve an 
employment outcome. 
(c) Consumers may either hire their own personal attendants or allow the 
Commission to provide personal attendants through a source licensed in the State 
of Texas to provide personal attendant services. 
(d) Consumers who hire their own personal attendant shall be considered the 
employer under applicable employer tax laws, and shall be responsible for: 
(1) hiring and firing the attendant; 
(2) training the attendant in the delivery of services;
(3) supervising the attendant in the delivery of services or arranging for a 
friend or relative to provide direct supervision of the attendant; and 
(4) terminating the services of the attendant. 
(e) Consumers shall be responsible for informing their counselors of any 
dissatisfaction with services rendered by personal attendants. 
(f) To receive reimbursement for personal attendant services, the consumer or 
service provider must submit a monthly written statement to the Commission that 
contains the services rendered by the attendant during the consumer's vocational 
rehabilitation activity, the number hours worked by the attendant, and any 
additional information specified by the consumer's counselor that is needed to 
process reimbursement payments in a timely manner.
(g) Personal attendant services may be continued for three months after the 
consumer enters employment. This time period may be extended for one additional 
month upon determination of need. 
(h) Personal attendant services are subject to Subchapter E of this title 
(relating to Consumer Participation in the Cost of Services).
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt. 
Filed with the Office of the Secretary of State, on February 13, 1998.
TRD-9802233
Terrell I. Murphy
Interim Executive Director
Texas Commission for the Blind
Earliest possible date of adoption: April 5, 1998
For further information, please call: (512) 459-2611

CHAPTER 172.Advisory Committees and Councils
40 TAC sec.172.3
The Texas Commission for the Blind proposes amendments to sec.172.3 concerning 
committees and councils established by the agency's board. Pursuant to the 
provisions of Acts 1993, 73rd Legislature, chapter 398, sec.1, effective 
September 1, 1993, committees established by agencies that are not required by 
law are automatically abolished on their adopted abolishment dates unless 
periodically continued by the governing body. The Commission's board voted not 
to renew the Medical Advisory Council and the Optometric Council on their 
abolishment date; therefore, these two advisory bodies can be removed from the 
Commission's rules. 
Ernest Pereyra, Deputy Director of Administration and Finance, has determined 
that for the first five years the rules are in effect there will be no fiscal 
implications for state or local government as a result of the amendments. The 
Commission's alternative method of obtaining eye medical advice through a state 
medical consultant and a state optometric consultant will result in 
approximately the same cost to the state as the two advisory councils. 
Mr. Peyreyra has also determined that for each year of the first five years the 
rule as proposed is in effect the public benefits anticipated as a result of 
enforcing the rule will be the elimination of a method for obtaining eye medical 
advice from the ophthalmological and optometric communities that is no longer 
effective because of the size of the groups, scheduling problems, and declining 
attendance. 
There will be no effect on small businesses. There is no economic cost to 
individuals who are required to comply with the amendments. 
Questions about the content of this proposal may be directed to Jean Crecelius 
at (512) 459-2611. Written comments on the proposal may be submitted to Policy 
and Rules Coordinator, P. O. Box 12866, Austin, Texas 78711, within 30 days from 
the date of this publication. 
The amendment is proposed under the Human Resources Code, Title 5, Chapter 91, 
Section 91.011(g), which authorizes the commission to adopt rules prescribing 
the policies and procedures followed by the commission in the administration of 
its programs. 
The sections affect Human Resources Code, Title 5, Chapter 91, Section 91.021, 
concerning responsibility for visually handicapped persons. 

sec.172.3. Committees and Councils Established by the Board. 
[(a) Medical Advisory Council. ]
[(1) Legal Basis. The agency administers the Federal-State rehabilitation 
programs for persons who are blind under the Rehabilitation Act of 1973, as 
amended, 29 U.S.C. sec.701 et seq and 34 C.F.R. sec.361.1, which mandates the 
use of physicians and other licensed professionals in the program. 
[(2) Purpose. The purpose of the Medical Advisory Council (MAC) is to receive 
advice from ophthalmologists about policy and procedures related to physical 
restoration services, particularly eye care. 
[(3) Reporting requirements. The MAC serves in a consultative role to the agency 
through the Executive Director.
[(4) Tasks. 
[(A) The MAC is the agency's primary line of communication with the State's eye 
care professionals in administering the vocational rehabilitation program for 
persons who are blind or visually impaired. The MAC interprets the Commission's 
policies on medical services to the medical profession. 
[(B) The MAC advises the agency concerning:
[(i) allowable payments on certain Maximum Affordable Payment Schedule (MAPS) 
codes; 
[(ii) reimbursement for eye medical procedures;
[(iii) quality and standards of medical eye care; and 
[(iv) matters pertaining to the prevention of blindness. 
[(5) Membership. Members of the MAC include ophthalmologists from geographical 
regions of the state that correspond to agency field offices, representatives 
from the Texas Ophthalmologists Association, and representatives from the 
medical teaching profession in the field of ophthalmology. 
[(6) Presiding member. The State Medical Consultant to the agency is presiding 
member of the MAC. 
[(7) Duration. The abolishment date is September 1, 1997. 
[(b) Optometric Advisory Council 
[(1) Legal Basis. The agency administers the Federal-State rehabilitation 
programs for persons who are blind and visually impaired under the 
Rehabilitation Act of 1973, as amended, 29 U.S.C. sec.701 et seq and 34 C.F.R. 
sec.361.1, which mandates the use of physicians and other licensed professionals 
in the program. 
[(2) Purpose. The purpose of the Optometric Advisory Council (OAC) is to bring 
together optometrists to consult with the agency on optometric, low vision, 
vision therapy, and related eye care issues so that the agency has a line of 
communication with the State's optometric professionals in administering the 
vocational rehabilitation program for persons who are blind or visually 
impaired. 
[(3) Reporting requirements. The OAC serves in a consultative role to the agency 
through the Executive Director.
[(4) Tasks. The OAC advises the agency concerning: 
[(A) allowable payments on certain Maximum Affordable Payment Schedule (MAPS) 
codes; 
[(B) reimbursement for low vision services; and 
[(C) quality of eye care. 
[(5) Membership. Members of the OAC include representatives from the Texas 
Optometric Association and Texas Association of Optometrists and representatives 
from the teaching profession in the field of optometry. 
[(6) Presiding member. The State Optometric Consultant to the agency is 
presiding member of the OAC. 
[(7) Duration. The abolishment date is September 1, 1997. 
[(c)] Regional Advisory Committees. 
(1) Legal basis. The Rehabilitation Act of 1973 as amended, Title 1, sec. 101, 
requires the Commission to take into account the views of individuals and groups 
who are recipients of vocational rehabilitation services (or, in appropriate 
cases, their parents or guardians) and advocates in the formulation of plans and 
policies. 
(2) Purpose. The purpose of Regional Advisory Committees (RACs) is to increase 
the involvement of consumers and the public at the local level in planning and 
service innovation and to ensure effective representation on the Consumer 
Advisory Committee established in sec. 172.2 of this title (relating to Mandated 
Advisory Committees). 
(3) Reporting requirements. RACs shall serve in an advisory capacity to the 
regional directors. 
(4) Tasks. RACs shall meet at least three times a year and provide written 
comments and suggestions to regional directors about Commission programs, plans, 
local needs, and service quality. 
(5) Membership. Each RAC shall be comprised of seven members appointed by the 
regional director. The terms of three members will expire on December 31 of odd-
numbered years and the term of remaining members will expire on December 31 of 
even-numbered years. The first three members whose terms expire on an odd-
numbered year will conclude their terms on December 31, 1997. The majority of 
members shall be persons who are blind or parents/guardians of persons who are 
blind and who are receiving or have received services from the Commission within 
three years prior to appointment. 
(6) Presiding member. Each RAC shall select from among its members a presiding 
member. 
(7) Duration. The RAC shall continue in existence until December 31, 2000. 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State, on February 13, 1998.
TRD-9802260
Terrell I. Murphy
Interim Executive Director
Texas Commission for the Blind
Earliest possible date of adoption: April 5, 1998
For further information, please call: (512) 459-2611

TITLE 43. TRANSPORTATION
PART III. Automobile Theft Prevention Authority
CHAPTER 57. Automobile Theft Prevention Authority
43 TAC sec.sec.57.53-57.55
The Automobile Theft Prevention Authority (ATPA) proposes new sec.sec.57.53, 
57.54 and 57.55, relating to ATPA advisory committees. The proposed new rules 
establish the purpose, definition and identification of ATPA advisory committees 
as required by Texas Civil Statutes, Article 6252-33. The ATPA proposes these 
rules to set out the requirements and conditions that must be met as stated in 
Texas Civil Statutes, Article 6252-33 relating to Advisory Committees. This 
statute requires state agencies to adopt rules regarding advisory committees and 
must provide for accountability in areas such as composition of committees, 
presiding officer, reimbursement of members' expenses; appropriations process; 
statement of purpose, reporting requirements and duration of Advisory 
Committees. The ATPA will define the statutory requirements with the proposed 
rules. The proposed rule sec.57.53 defines the role and scope of Advisory 
Committees regarding representation, purpose, powers, procedures, adoption of 
rules and reimbursement of advisory committee members in order to comply with 
Texas Civil Statutes, Article 6252-33. 
Section 57.53 consists of subsection (a) through (e) as set forth in sec.211.000 
of the Government Code. Subsection (a) states that the ATPA Board shall appoint 
advisory committees to assist the Board in performing its duties. Subsection (b) 
sets forth that the ATPA Board shall appoint each advisory committee to provide 
for a balanced representation of the general public, providers, consumers and 
other persons, state agencies, or groups with knowledge of and interest in the 
committee's field. Subsection (c) states that the Board shall specify each 
committee's purpose, powers and duties, and shall require each committee to 
report to the Board in a manner specified by the Board concerning the 
committee's results and the results of its work. Subsection (d) establishes that 
the board shall adopt procedures for receiving reports concerning activities and 
accomplishments of advisory committees established to advise the board or 
department. The board may appoint additional members to those committees and 
establish additional duties to those members. Subsection (e) states that a 
member of an advisory committee receives no compensation but may be entitled to 
reimbursement for transportation expenses and the per diem allowance for state 
employees in accordance with the General Appropriations Act. 
The proposed rule sec.57.54 defines advisory committees according to 1 TAC 
sec.81 which states that committees are created by the Board for the purpose of 
providing advice or recommendations in a purely advisory manner regarding 
certain matters within the jurisdiction of the Board. The proposed rule 
sec.57.55 identifies the specific purpose, duties, manner of reporting and 
duration of the ATPA Advisory Committees. Paragraph (1) establishes the Border 
Solutions Committee with the purpose of developing initiatives to promote the 
reduction of vehicle theft in Texas and Bordering States of Mexico by 
facilitating the location, recovery and return of vehicles from both sides of 
the Border and to establish more effective cooperation, communication and 
understanding between participating agencies. Additionally, the proposed rule 
sec.57.55 establishes that the purpose of the Border Solutions Committee is to 
recommend mutually beneficial projects for funding to the ATPA Board and to 
aggressively pursue the prosecution of vehicle theft and related crime. The 
duties set forth in paragraph (2) state that the committee shall advise the ATPA 
Board concerning issues affecting the auto theft rate along the Texas-Mexico 
Border. The manner of reporting as stated in paragraph (3) describes how the 
committee shall report its advice and recommendations to the Chairman of the 
ATPA Board during regularly scheduled bimonthly ATPA Board meetings immediately 
following Border Solutions biannual meetings, overseen by the Committee Chair, 
who shall also be a member of the ATPA Board. The duration is described in 
paragraph (4) that upon the determination of a date set by the ATPA Board this 
committee will be abolished or upon the fourth anniversary of the date of its 
creation unless the ATPA Board establishes a different date. The proposed rule 
sec.57.55 also identifies the specific purpose, duties, manner of reporting and 
duration of the Grantee Advisory Committee as listed in subsection (b) which 
established the purpose of this committee as serving as a conduit between the 
Board and ATPA grantees statewide to both convey and hear concerns affecting the 
ATPA grant program. The duties as listed in paragraph (2) state that the Grantee 
Advisory Committee will raise concerns in a peer environment for ultimate Board 
consideration. The manner of reporting as discussed in paragraph (3) states that 
the committee shall voice its concerns as issues arise and deemed substantive by 
the Committee Chair, who shall also be a member of the ATPA Board. Lastly, the 
duration of the committee as prescribed in paragraph (4) states that upon the 
determination of a date set by the ATPA Board this committee will be abolished 
or upon the fourth anniversary of the date of its creation unless the ATPA Board 
establishes a different date. 
Agustin De La Rosa, Acting Director of the ATPA, has determined that for each 
year of the first five years that the rules, as proposed, will be in effect, 
there will be no fiscal implications to state or local governments as a result 
of enforcing or administering the new sections. 
Mr. De La Rosa has also determined that for each year of the first five years 
the rules as proposed will be in effect, the public benefit anticipated as a 
result of enforcing the proposed rules will be that ATPA will provide 
accountability according to statutory requirements. While the section as 
proposed adds new provisions relating to advisory committees, the provisions are 
found also in Texas Civil Statutes, Article 6252-33 and are applicable under the 
current section. The described benefit is the same for the current section as 
proposed. 
Additionally, for the same period of time, Mr. De La Rosa has determined that 
there should be no additional economic cost to persons required to comply with 
the rules as proposed. There is no additional effect on small business separate 
from other persons required to comply with the rules as proposed.
Comments on the proposal may be submitted to Agustin De La Rosa, Acting 
Director, Automobile Theft Prevention Authority, 200 East Riverside Drive, 
Austin, Texas 78704, for a period of 30 days following publication in this issue 
of the Texas Register. 
The new rules are proposed under Texas Civil Statutes, Article 4413(37) sec.6(a) 
which authorize ATPA to adopt rules to implement its powers and duties. 
Article 4413(37) sec.6(a) is affected by this proposal. 

sec.57.53. Role and Scope of Advisory Committees according to the ATPA Board. 
(a) The board shall appoint advisory committees to assist the board in 
performing its duties 
(b) The board shall appoint each advisory committee to provide for a balanced 
representation of the general public, providers, consumers, and other persons, 
state agencies, or groups with knowledge of and interest in the committee's 
field of work. 
(c) The board shall specify each committee's purpose, powers and duties and 
shall require each committee to report to the board in a manner specified by the 
board concerning the committee's activities and the results of its work. 
(d) The board shall adopt procedures for receiving reports concerning activities 
and accomplishments of advisory committees established to advise the board or 
department. The board may appoint additional members to those committees and 
establish additional duties to those members. 
(e) A member of an advisory committee receives no compensation may be entitled 
to reimbursement for transportation expenses and the per diem allowance for 
state employees in accordance with the General Appropriations Act. 

sec.57.54. Definition of Advisory Committee. 
An advisory committee is any committee created by the board for the purpose of 
providing advice or recommendations in a purely advisory manner regarding 
certain matters within the jurisdiction of the Board 

sec.57.55. Committees. 
(a) Border Solutions Committee 
(1) Purpose: The committee will develop initiatives to promote the reduction of 
vehicle theft in Texas and Bordering States of Mexico by facilitating the 
location, recovery and return of vehicles from both sides of the Border and to 
establish more effective cooperation, communication and understanding between 
participating agencies. Additionally, the purpose of the Border Solutions 
Committee is to recommend mutually beneficial projects for funding to the ATPA 
Board and to aggressively pursue the prosecution of vehicle theft and related 
crime. 
(2) Duties: The committee shall advise the Board concerning issues affecting the 
auto theft rate along the Texas- Mexico Border. 
(3) Manner of Reporting: The committee shall report its advice and 
recommendations to the Chairman of the ATPA Board during regularly scheduled 
bimonthly ATPA Board meetings immediately following Border Solutions Biannual 
meetings, overseen by the Committee Chair, who shall also be a member of the 
ATPA Board. 
(4) Duration: Upon the determination of a date set by the ATPA Board this 
committee will be abolished or upon the fourth anniversary of the date of its 
creation unless the ATPA Board establishes a different date. 
(b) Grantee Advisory Committee 
(1) Purpose: The committee will serve as a conduit between the Board and all 
ATPA grantees statewide to both convey and hear concerns affecting the ATPA 
grant program. 
(2) Duties: The committee will raise concerns in a peer environment for ultimate 
Board consideration 
(3) Manner of Reporting: The committee shall voice its concerns as issues arise 
and are deemed substantive by the Committee Chair, who shall also be a member of 
the ATPA Board. 
(4) Duration: Upon the determination of a date set by the ATPA Board at which 
point this committee will be abolished or upon the fourth anniversary of the 
date of its creation unless the ATPA Board establishes a different date. 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on February 23, 1998.
TRD-9802616
Agustin De La Rosa
Acting Director
Automobile Theft Prevention Authority
Earliest possible date of adoption: April 5, 1998
For further information, please call: (512) 416-4600