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 1. ADMINISTRATION
PART III. Office of the Attorney General
CHAPTER 62. Sexual Assault Prevention and Crisis Services 
1 TAC sec.sec.62.11-62.19
The Office of the Attorney General proposes new sec.sec.62.11 - 62.19, 
concerning governing training certification for the sexual assault prevention 
and crises services program. The new rules define a process for certification 
application. 
Rebecca Turner-Gonzales, Grants Program Fiscal Administrator for the Sexual 
Assault Prevention and Crisis Services Division, Office of the Attorney General, 
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. Turner-Gonzales 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 a statewide and uniform process of training 
volunteers assisting sexual assault survivors. There will be no effect
on small business as a result of enforcing these sections. There is no cost to 
entities that are required to comply with these sections as proposed. 
Comments on the proposal may be submitted to Jo Halligan, Director of 
Certification, Sexual Assault Prevention and Crisis Services Division, Office of 
the Attorney General, P.O. Box 12548, Austin, Texas 78711. 
The new rules are proposed under Government Code, sec.420.004(b), which provides 
the Office of the Attorney General with the authority to promulgate these rules. 
No other statute, code, or article are affected by these proposed new sections.

sec.62.11. Definitions. 
The following words and terms when used in this chapter shall have the following 
meaning unless the content clearly indicates otherwise: 
(1) Executive Director - the chief staff person responsible for the overall 
fiscal management, program development, staff supervision, and board liaison for 
a non-profit agency. 
(2) Direct Services Coordinator - a staff person or volunteer designated by the 
executive director of the program who is responsible for supervising volunteers 
and coordination of their direct services delivery. A new position does not need 
to be created for this role. The position can be filled by either a staff person 
or a volunteer who has completed: 
(A) Forty hours of approved training for direct service volunteers;
(B) Twenty hours of continuing education; and 
(C) Fifty documented hours of direct client services. 
(3) Direct services - services provided to victims of sexual assault and their 
family members and/or friends to assist in their recovery process. Services 
include: 
(A) Crisis intervention (face-to-face, hotline); 
(B) Accompaniment; 
(C) Explanation of the criminal justice system; 
(D) Explanation of the medical process; 
(E) Explanation of Victims' Bill of Rights; 
(F) Explanation of Victim Impact Statement; and 
(G) Referral services. 
(4) Continuing education - education acquired by volunteers who have completed 
the initial 40 hours of required training. Continuing education topics must 
enhance the skills of the volunteer or benefit a survivor. Continuing education 
is above and beyond the initial 40 hour training. 
(5) Training certification requirements - a formal process documenting that a 
training program approved by the Office of the Attorney General (OAG) meets the 
training standards established by the OAG. 
(6) On-the-job training - learning completed outside the traditional classroom 
environment and occurring within service delivery sites. On-the-job training is 
supervised and approved by the direct services coordinator. 
(7) Self-study - learning that occurs outside the traditional classroom 
environment that involves reading assigned materials, viewing assigned 
videos/films, or listening to assigned audio tapes. Reading 15 pages of standard 
letter-size pages, viewing one hour of video/film or listening to one hour of 
cassette tape meets one hour of classroom training. 
(8) Direct Services Volunteer Advocate - a volunteer at least 18 years of age 
who has completed the initial 40 hour certified training and has been approved 
by the direct services coordinator to provide direct services to victims of 
sexual assault and their family members and/or friends.
(9) Hotline Advocate - a volunteer at least 18 years of age who has completed 
the initial 30 hour certified training and has been approved by the direct 
services coordinator to provide hotline services to victims of sexual assault 
and their family members and/or friends. 
(10) Values Clarification - a process to assist in the identification of 
personal beliefs and behaviors. 

sec.62.12. Program Requirements for Training Certification. 
(a) Programs must have written volunteer advocate policies that include: 
(1) Application process with references and interview process;
(2) Right of program to remove volunteer before or after initial training is 
completed and reasons to remove; 
(3) Volunteer confidentiality statement; 
(4) Ethical standards; 
(5) Continuing education requirements; 
(6) Volunteer grievance procedure; and 
(7) Volunteer job descriptions. 
(b) Hotline Volunteer Advocate's must receive 30 hours of training within a 
three month period. Hours must be delivered in either: 
(1) All classroom hours ("CH"); or 
(2) A combination ("COM") of hours: 
(A) classroom (minimum of 18 hours); 
(B) self-study and on-the-job training (minimum of 12 hours to be divided at the 
discretion of the Executive Director). The content of training must be taken 
from the forty hours listed below and at the discretion of the Direct Services 
Coordinator). 
(c) Forty hours of training for Direct Services Volunteer Advocates must be 
delivered within a three month period. Forty hours must be delivered in either: 
(1) All classroom hours ("CH"); or 
(2) A combination ("COM") of: 
(A) classroom (minimum of 28 hours); 
(B) self-study (maximum of 4 hours); and 
(C) on-the-job training hours (maximum of 8 hours). 
(d) Training must include the following: 
(1) Orientation. The orientation can be delivered in either "CH" or "COM". If 
"CH", a minimum of two hours must be delivered. If COM, a minimum of one hour 
must be classroom and a maximum of one hour must be on-the-job. Self-study hours 
are not allowed. Orientation to the program must include: 
(A) Volunteer job description; 
(B) Role of volunteer in the program; 
(C) Structure and history of the program; and 
(D) Historical perspectives of rape. 
(2) Definitions/Facts. Definition/Facts for not less than two hours in the 
classroom, must include the following topics: 
(A) Myths vs facts; 
(B) Socialization issues; 
(C) Confidentiality; 
(D) Values clarification; 
(E) Ethics; and 
(F) Definition of sexual assault. 
(3) Orientation to Sexual Assault Issues. The orientation to sexual assault 
issues can be delivered in either "CH" or "COM". If "CH", a minimum of five 
hours must be delivered. If "COM", a minimum of three classroom and a maximum of 
two hours self-study. Orientation to sexual assault issues must include: 
(A) Survivor Profile: Child; Teen; and Adult; 
(B) Offender Profile: Adult offender/adult victim; adult offender/child victim; 
and teen offender/adult or child victim. 
(4) Advocacy. Advocacy instruction may be delivered in either "CH" or "COM". If 
"CH", a minimum of four hours must be delivered. If "COM", a minimum of two 
classroom hours and a maximum of two self-study hours. On-the-job hours are not 
allowed. Advocacy must include: 
(A) Rape Trauma Syndrome; 
(B) Identifying potential suicides; and 
(C) Working with significant others. 
(5) Crisis intervention. Crisis intervention instruction must be delivered 
through a minimum of four classroom hours. "COM" hours are not allowed. Crisis 
intervention instruction must include: 
(A) Orientation to a crisis; 
(B) Communication skills/active listening skills; 
(C) Telephone counseling skills; 
(D) Problem solving skills; and 
(E) Appropriate and inappropriate responses. 
(6) Types of Sexual Assault and Types of Special Populations. Types of Sexual 
Assault and Types of Special Populations instruction may be delivered in either 
"CH" or "COM". If "CH", a minimum of three hours. If "COM", a minimum of two 
classroom hours and a maximum of one self-study hour. On-the-job hours are not 
allowed. 
(7) Medical. Medical information may be delivered in either "CH" or "COM". If 
"CH", a minimum of four hours. If "COM", a minimum of two classroom hours and a 
maximum of one self-study hours and one on-the-job hour. Medical information 
must include: 
(A) Hospital and program procedures; 
(B) Emergency room protocol; 
(C) Pregnancy; 
(D) Sexually transmitted diseases; 
(E) Date rape drugs; 
(F) Birth control; 
(G) Abortion; 
(H) Basic anatomy; 
(I) Medical exam and collection of forensic evidence; 
(J) Medical resources; and 
(K) Role of a sexual assault nurse examiner (when applicable).
(8) Criminal Justice. Criminal justice information may be delivered in either 
"CH" or "COM". If "CH", a minimum of six hours (three hours for law enforcement 
divided between the Police Department and Sheriff's Office; two hours for 
District Attorney's Office; and one hour for Crime Victims' Compensation). If 
"COM", a minimum of four classroom hours (one hour each for law enforcement, 
District Attorney's Office, and Crime Victim's Compensation), a minimum of one 
hour for self-study (law enforcement), and a minimum of one hour on-the-job for 
both law enforcement and District Attorney's Office. Criminal justice 
information must include: 
(A) Law enforcement procedures; 
(B) Applicable laws; 
(C) Victims' Bill of Rights; 
(D) Impact statements; 
(E) Overview of the criminal justice system; and 
(F) Legal resources and remedies. 
(G) Overview of Crime Victims' Compensation 
(9) Volunteer Information. Volunteer information may be delivered in either "CH" 
or "COM". If "CH", a minimum of three classroom hours. If "COM", a minimum of 
two classroom hours and a maximum of one self-study hour. Volunteer information 
must include: 
(A) Secondary victimization; 
(B) Stress and burnout; 
(C) Self protection; 
(D) Survivor's/victim's spirituality; 
(E) Community resources for the volunteer; 
(F) Responsibility and limitations; 
(G) Local community attitudes; and 
(H) Client's needs vs own needs. 
(10) Reporting and Documentation. Reporting and Documentation information may be 
delivered in either "CH" or "COM". If "CH", a minimum of two classroom hours. If 
"COM", a minimum of one classroom hour and a maximum of one self-study hour. 
Reporting & Documentation must includes:
(A) Program forms; 
(B) Program procedures; 
(C) Reporting child/elder abuse; 
(D) Use of program equipment; 
(E) Program specific information for survivors; and 
(F) Resources for sexual assault survivors. 
(11) Role-playing. Role-playing instruction must be delivered through a minimum 
of five classroom hours. At least two role-plays must be hot-line situations, 
with one being a crank caller. "COM" is not allowed. Role-playing instruction 
must include at least one case example of each of the following: 
(A) Recent assault; 
(B) Past sexual assault or an adult or child; 
(C) Adult sexually assaulted as a child; 
(D) Crank call; 
(E) Stranger assault; 
(F) Acquaintance assault; and 
(G) Family member/friend of survivor. 

sec.62.13. Test Requirements. 
(a) Volunteers trained to deliver direct services and/or community education 
must take a final examination whether training was "CH" or "COM".
(b) The final examination must be approved by local program Executive Director. 
(c) The final examination must track designed training. 
(d) Volunteers delivering direct services and/or community education must pass 
the final examination with a score of seventy. 
(e) One final examination re-test is allowed. 
(f) Final examination must be retained in volunteer files.

sec.62.14. Trainers. 
(a) Training must be delivered by: 
(1) Staff with no less than one year's experience in the topic presented, unless 
the topic is crisis intervention, in which case two years of crisis intervention 
experience is required; and/or 
(2) Volunteers with no less than 500 documented hours, which include 100 
documented hours of direct services; and/or 
(3) An expert in the field. 
(b) Programs unable to secure trainers meeting the requirements in subsection 
(a) of this section may request in writing a waiver from the Director of Sexual 
Assault Prevention and Crisis Services Division, Office of the Attorney General. 

sec.62.15. Continuing Education.
(a) After a program is certified and a volunteer completes training, the 
volunteer is required to complete a minimum of eight hours of continuing 
education per year. 
(b) A copy of the volunteer sign-in sheet for any continuing education training 
delivered by a certified program must be kept on file and retained for a period 
of three years. 
(c) Accepted continuing education training is training that meets the standards 
imposed by the OAG and is sponsored by the OAG, Texas Association Against Sexual 
Assault (TAASA), National Coalition Against Sexual Assault (NCASA), institutions 
of higher education, a trainer who is recommended by the OAG or a local sexual 
assault program. 
(d) A certificate of attendance that includes dates of attendance, hours 
accrued, name of sponsor and name of volunteer/staff must be kept in the 
volunteer's file. 

sec.62.16. Program Application Process for Training Certification.
(a) Applications must be obtained from the Sexual Assault Prevention and Crisis 
Services Division of the OAG. Information to be submitted must include: 
(1) Completed checklist; 
(2) Application cover sheet; 
(3) Direct services supervisor form; 
(4) Direct services supervisor job description; 
(5) Direct services supervisor current resume; 
(6) Training agenda w/topics, trainers, times; 
(7) Training hours chart; 
(8) Trainer qualification form; 
(9) Copy of test; 
(10) Table of contents from volunteer training manual;
(11) Volunteer policies; 
(12) Volunteer application form example; 
(13) Job description for hotline volunteers (if applicable);
(14) Job description for accompaniment volunteers (if applicable); and 
(15) Job description for peer counseling volunteers (if applicable). 
(b) Applications will be reviewed by the OAG for compliance to certification 
guidelines and rules. Site visits and/or phone interviews will be utilized to 
clarify application information. The OAG will notify, in writing, approval or 
disapproval of request for certification within 120 days of receipt. Program 
approved for certification will receive a written notice of their two-year 
certification (LAW). 
(c) A program denied certification will receive written instructions or 
corrections and/or request for additional information to meet certification 
guidelines. The amended certification packet and/or additional information must 
be received within 45 days of notice for corrections. A program may resubmit the 
corrections one time annually. 

sec.62.17. Appeals Process. 
(a) A certification appeals committee is appointed by the Director, Sexual 
Assault Prevention and Crisis Services Division, Office of the Attorney General, 
and will be made up of two OAG staff members, one TAASA representative, and 
three sexual assault program advocates. The committee will meet as needed. 
(b) In order to appeal denial of certification, a program must: 
(1) Put in writing reasons for requesting an appeal; 
(2) Describe any unusual circumstances surrounding the application; and 
(3) State a justification for appeal; 
(c) The certification appeals committee must: 
(1) Hold a certification appeal hearing in Travis County, Texas; 
(2) Notify ten working days in advance the program denied certification of the 
certification appeal hearing; 
(3) Review the original application; 
(4) Review the appeal letter; 
(5) Request any additional information as needed; 
(6) Meet as a group to finalize the decision; and 
(7) Respond in writing within 60 days of receipt of appeal letter. 

sec.62.18. Revocation and Appeals Process for Revocation of Certification. 
(a) The revocation appeals committee and the certification appeals committee are 
the same committee. The revocation committee must receive written complaints 
and/or site visit reports documenting training certification policy violations. 
(b) Training certification may be revoked for: 
(1) Changes in the training program content; 
(2) Falsification of volunteer training and continuing education records; 
(3) Falsification of trainer records; 
(4) Use of unqualified trainers; and 
(5) Non-compliance with volunteer policy requirements.
(c) In order to appeal revocation of certification, a program must : 
(1) Put in writing reasons for requesting appeal; 
(2) Describe any extenuating circumstances; and 
(3) State a justification for appeal; 
(d) The revocation appeals committee must: 
(1) Hold a certification appeal hearing in Travis County, Texas; 
(2) Notify ten working days in advance the program who's certification has been 
revoked of the revocation appeal heating; 
(3) Review information supporting the allegations against the programs; 
(4) Review the revocation appeal letter; 
(5) Request any additional information as needed; 
(6) Meet as a group to finalize the decision; 
(7) Respond in writing within 60 days of receipt of revocation appeal letter; 
(e) The revocation appeals committee shall determine appeals and shall render 
decisions disposing of appeals by ordering one of the following in each appeal 
process: 
(1) Probation, consisting of a minimum period of 60 days or until all conditions 
are satisfied; 
(2) Revocation of certification; or 
(3) Granting the appeal. 

sec.62.19. Restoration of Good Standing.
If a program is placed on probation, that program must meet the terms of 
probation within the time limits imposed by the appeals committee in order to 
regain the status of being in good standing. If certification is revoked, that 
program must resubmit a training application within the time limits imposed by 
the appeals committee. 
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 April 13, 1998.
TRD-9805141
Sarah Shirley
Assistant Attorney General 
Office of the Attorney General
Earliest possible date of adoption: May 24, 1998
For further information, please call: (512) 475-4499

PART XV. Health and Human Services Commission
CHAPTER 351. Coordinated Planning and Delivery of Health and Human Services
1 TAC sec.351.13
The Health and Human Services Commission proposes new sec.351.13, concerning 
substitute care provider outcome standards. This new rule affects substitute 
care providers who contract with the State to provide services to children under 
the care of the State. This new rule will clarify outcome domains, provide 
definitions of key terms, and describe the method of evaluating children's 
achievements while in substitute care and the implementation of this information 
by state health and human services agencies contracting for substitute care 
services. 
Section 531.047 of the Texas Government Code requires the Health and Human 
Services Commission to establish rules requiring a provider of substitute care 
to implement result-oriented standards which the provider must achieve. Section 
531.047 also requires a health and human services agency that purchases 
substitute care services to incorporate the result-oriented standards into each 
substitute care service provider contract. The inclusion of these measurable 
outcome standards in contracts will enhance accountability by clarifying 
expectations. As a result, the agencies should have quantifiable information 
that they may use or share with other agencies regarding the substitute care 
provider, including rates, contracts, outcomes, and client information. 
Mr. Gary Bego, Associate Commissioner for Fiscal Policy, has determined that for 
each year during the first five-year period that the rule will be in effect, 
there will be no net fiscal implications for state or local government as a 
result of enforcing or administering sec.351.13. 
Mr. Bego has also determined that for each year during the first five-year 
period the rule will be in effect, the public benefit anticipated as a result of 
adopting the proposed rule will be better quality care for children in 
substitute care and probable improvement of the children as a result of better 
care. There may be incidental costs to providers in complying with this new rule 
primarily from informing provider staff, clients, and clients' families of the 
outcome-based measurement of progress toward achievement of an individualized 
treatment plan or service plan. Otherwise, there will be no costs to small 
businesses or persons complying with the rule as proposed. 
A public hearing will be held at 2:00 p.m. on Monday, June 1, 1998, at the Texas 
Department of Human Services, 701 West 51st Street, Public Hearing Room (125), 
East Tower, Austin, Texas, to accept oral and written testimony concerning the 
proposal. Persons requiring an interpreter for the deaf or hearing impaired 
should notify Barbara Tejero, Office of Legislative and Legal Affairs, the 
Health and Human Services Commission, at least 72 hours prior to the hearing by 
calling (512) 424-6576.
Comments may be submitted to Stella M. Bryant, Texas Health and Human Services 
Commission, 4900 North Lamar Boulevard, 4th Floor, Austin, Texas 78751, (512) 
424-6577. Comments must be received no later than 30 days following publication 
of this proposal in the Texas Register.
The new rule is proposed under the Texas Government Code, Chapter 531, 
sec.531.033, which authorizes the Commissioner of Health and Human Services to 
adopt rules necessary to carry out the Health and Human Services Commission's 
duties under Chapter 531.
The new rule affects Chapter 531 of the Texas Government Code.

sec.351.13. Substitute Care Provider Outcome Standards. 
(a) Definitions of Domains. The following words or terms, when used in this 
section, shall have the following meanings unless the context clearly indicates 
otherwise. 
(1) Medical domain: The medical domain is related to a child's physical health. 
It includes, but is not limited to, medication management, medication 
monitoring, and management of acute and chronic medical conditions.
(2) Safety and security domain: The safety and security domain is characterized 
by the absence of harm to self and others and safety to self, others, and 
community. This domain includes, but is not limited to, self-harm, aggression, 
and destructive acts. The safety and security domain depends upon a child's 
ability to modify inappropriate behavior. 
(3) Recreational domain: The recreational domain involves the child's ability to 
choose and participate in age-appropriate play and activities. This domain 
includes, but is not limited to, hobbies and sports.
(4) Educational domain: The educational domain is related to a child's 
performance and conduct in an academic or vocational setting.
(5) Mental/behavioral health domain: The mental/behavioral health domain refers 
to the behavioral and emotional functioning of the child, as well as any 
psychiatric symptomatology that may be present. 
(6) Relationship domain: The relationship domain is characterized by, but is not 
limited to, a child's ability to trust, to form positive relationships, to 
function well as part of family unit, as well as by the development and 
maintenance of age-appropriate social relationships. 
(7) Socialization domain: The socialization domain is characterized by, but is 
not limited to, age-appropriate social behavior, problem-solving, and social 
skills in various social settings. 
(8) Permanence domain: The permanence domain is characterized by a child moving 
out of a substitute care system and remaining in the least restrictive 
environment in the community and, whenever possible, in a family setting. 
(9) Parent and child satisfaction domain: The parent and child satisfaction 
domain involves, but is not limited to, both the parent's and child's general 
satisfaction with services, their relationship with service providers, their 
participation in the treatment or service plan, and improvement in the 
relationship between the child and the parents. 
(b) Other Definitions. 
(1) Contracting entity-a health and human services agency (the Texas Juvenile 
Probation Commission, Texas Department of Mental and Mental Retardation, and/or 
Texas Department of Protective and Regulatory Services) that is responsible for 
implementing, coordinating, and monitoring outcome standards for substitute care 
services for children placed in a licensed foster families, foster group homes, 
or 24-hour residential care facilities. 
(2) Substitute care provider-a person who provides residential care for children 
for 24 hours a day, including: 
(A) a child-care institution, as defined by sec.42.002, Human Resources Code; 
(B) a child-placing agency, as defined by sec.42.002, Human Resources Code; 
(C) a foster group home or foster family home, as defined by sec.42.002 Human 
Resources Code; and 
(D) an agency group home or agency home, as defined by sec.42.002 Human Resource 
Code, other than an agency group home, agency home, or a foster home verified or 
certified by the Texas Department of Protective and Regulatory Services. 
(3) Individualized Treatment Plan-this term has the same meaning as that 
provided in 25 TAC sec.402.53. 
(4) Service Plan-This term has the same meaning as that provided in 40 TAC 
sec.700.1331. 
(c) Individualized Treatment Plan or Service Plan. A substitute care provider 
who receives funds from the state to provide substitute care services to 
children under the care of the State shall maintain an individualized treatment 
plan or service plan on each individual child. The plan shall contain specific 
behavioral goals that are appropriate to the child and the types of services to 
be provided under the appropriate levels of care. The provider should use the 
nine domains in subsection (a) of this section in setting the behavioral goals. 
A child is not required to have a goal in each domain; however, a child may have 
one or more different goals within the same domain. 
(d) Development of Goals. The responsibility of developing goals in a child's 
individual treatment plan or service plan resides with the contracting entity in 
conjunction with the substitute care provider. The child and family should be 
involved in the development of treatment goals whenever possible. Once a child 
has met goal(s) identified in the treatment or service plan, new goals should be 
developed for the child. 
(e) Measure of Progress toward Goals. 
(1) The staff, representative, or third party independent agent of the 
contracting entity shall monitor the progress of the child in achieving the 
goals. The frequency of monitoring shall be based upon the current review period 
appropriate for that specific child's level of care. A five-point scale measures 
the child's progress towards the achievement of each goal. The staff, 
representative, or third party independent agent also rates the child. Progress 
is rated at given intervals on the following five-point scale:
(A) +2 Substantial improvement in behavior identified in the goal; 
(B) +1 Some improvement in behavior identified in the goal;
(C) 0 Behavior identified in the goal maintained; 
(D) -1 Some worsening in behavior identified in the goal; and 
(E) -2 Substantial worsening in behavior identified in the goal. 
(2) The child's progress will be assessed on each identified goal within the 
nine domains listed in subsection (a) of this section. If the child has shown 
improvement in 50% or more of the identified goal(s) as measured by a positive 
rating (+1 or +2) during the monitoring period, the child will be considered to 
be progressing towards the goal(s). 
(3) The outcome of a substitute care provider's service delivery shall be 
measured by the percentage of children under its care that are considered to 
have made progress towards their goals, as defined in paragraph (2) of this 
subsection. 
(4) When a contracting entity has an option in placing a child in substitute 
care, the entity shall consider whether the children in a particular substitute 
care provider's care are progressing as provided in subsection (c)(2) of this 
section. 
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 April 13, 1998.
TRD-9805150
Marina S. Henderson
Executive Deputy Commissioner
Health and Human Services Commission
Earliest possible date of adoption: May 24, 1998
For further information, please call: (512) 424-6578

TITLE 4. AGRICULTURE
PART I. Texas Department of Agriculture
CHAPTER 7.Pesticides
SUBCHAPTER C.Licensing
4 TAC sec.7.22
The Texas Department of Agriculture (the department) proposes amendments to 
sec.7.22, concerning licensing of pesticide applicators. The department proposes 
the amendments to provide an exemption from testing fees for certain employees 
of governmental entities. The amendment exempts from testing fees employees of 
political subdivisions of the state of Texas or of a federal agency operating in 
Texas who utilize the license in the course of their employment. 
Donnie Dippel, Assistant Commissioner for Pesticide Programs, has determined 
that for the first five-year period the amendments are in effect there will be 
fiscal implications to state and local government as a result of enforcing or 
administering the proposal. There will be a decrease in revenue to state 
government and a corresponding increase in revenue to local government for the 
elimination of testing fees for certain governmental employees. The estimated 
amount of the effect is not determinable at this time and will depend on the 
number of applicators eligible for the testing fee exemption. 
Mr. Dippel also has determined that for each year of the first fice years the 
proposal is in effect the expected public benefit derived from enforcement and 
administration of the proposal will be continued licensing and testing of 
governmental employees at a more cost-efficient rate. There will be no effect on 
small businesses. The effect on persons required to comply with the proposal is 
a decrease in cost of licensing due to the elimination of testing fees. 
Comments on the proposal may be submitted to Donnie Dippel, Assistant 
Commissioner for Pesticide Programs, 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 proposal in the Texas Register The amendments are 
proposed under the Texas Agriculture Code, sec.76.106, which provides the 
department with the authority to classify licenses, establish testing 
requirements and set and charge a fee for testing in each license category. 
The Code affected by the proposal is the Texas Agriculture Code, Chapter 76.

sec.7.22.Licensing of Pesticide Applicators. 
(a)-(c) (No Change.) 
(d) Commercial and noncommerical applicators must meet the following 
requirements: 
(1) (No Change.) 
(2) A fee of $20 shall be required for testing each applicant in each license 
use category and subcategory, and must be paid at the time the test or tests are 
given. [Political subdivision employees may submit a purchase order number in 
lieu of payment at time of the examination.] Employees of <nl>political 
subdivisions of the State of Texas or of a federal agency operating in Texas who 
utilize the license solely in the course of their employment<ol> [state 
universities and state agencies] are exempt from examination fees. 
(3) (No Change.) 
(e)-(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 April 6, 1998.
TRD-9804800
Dolores Alvarado Hibbs
Deputy General Counsel
Texas Department of Agriculture
Earliest possible date of adoption: May 24, 1998
For further information, please call: (512) 463-7541

TITLE 16. ECONOMIC REGULATION
PART II. Public Utility Commission of Texas
CHAPTER 22.Practice and Procedure
SUBCHAPTER M.Procedures and Filing Requirements in Particular Commission 
Proceedings
16 TAC sec.22.246
The Public Utility Commission of Texas (PUC) proposes an amendment to 
sec.22.246, relating to Administrative Penalties. The proposed amendment will 
streamline existing administrative penalty procedures in a manner that 
facilitates rapid response and timely enforcement action by the commission, and 
that more closely conforms the rule to the terms of the Public Utility 
Regulatory Act, Texas Utilities Code Annotated, sec.15.023 and sec.15.024 
(Vernon 1998) (PURA). The proposed amendment will also allow the commission to 
develop and refine interdivisional procedures to ensure a close working 
relationship between the Office of Customer Protection and the Office of 
Regulatory Affairs on enforcement-related activities. In addition, the proposed 
amendment seeks to encourage settlement negotiations between parties at any 
stage of the proceeding by deleting the time period during which a party must 
request a settlement conference. Project Number 18121 has been assigned to this 
proposed amendment. 
Mr. Bill Magness, Director, Office of Customer Protection, has determined that 
for each year of the first five-year period the proposed section is in effect 
there will be no fiscal implications for state or local government as a result 
of enforcing or administering the section. 
Mr. Magness has determined that for each year of the first five years the 
proposed section is in effect the public benefit anticipated as a result of 
enforcing the section will be efficient and effective enforcement of PURA and 
commission rules and orders. There will be no effect on small businesses as a 
result of enforcing this section. There is no anticipated economic cost to 
persons who are required to comply with the section as proposed. 
Mr. Magness has also determined that for each year of the first five years the 
proposed section is in effect there will be no impact on employment in the 
geographical area affected by implementing the requirements of the section.
Comments on the proposed amendment (16 copies) may be submitted to the Filing 
Clerk, Public Utility Commission of Texas, 1701 North Congress Avenue, P.O. Box 
13326, Austin, Texas 78711-3326, within 30 days after publication. All comments 
should refer to Project Number 18121. 
The commission staff will conduct a public hearing on this rulemaking under 
Government Code sec.2001.029 at the commission's offices, located in the William 
B. Travis Building, 1701 N. Congress Avenue, Austin, Texas, on June 3, 1998, at 
9:00 a.m. 
This amendment is proposed under PURA sec.14.002 and sec.14.052, which provide 
the Public Utility Commission with the authority to make and enforce rules 
reasonably required in the exercise of its powers and jurisdiction, including 
rules of practice and procedure; and specifically, PURA sec.15.023 and 
sec.15.024, which grant the commission authority to impose administrative 
penalties for violations of PURA or commission adopted rules or orders, and set 
forth procedures for the assessment of administrative penalties. 
Cross Reference to Statutes: Public Utility Regulatory Act, sec.sec.14.002, 
14.052, 15.023 and 15.024. 

sec.22.246.Administrative Penalties.
(a) (No change.) 
(b) Definitions. The following words and terms, when used in this section, shall 
have the following meanings unless the context clearly indicates otherwise: 
(1) Executive director -- The executive director of the commission or the 
executive director's designee. 
[(2) ORA Director -- The director of the commission's office of regulatory 
affairs or the ORA director's designee.
<nl>(2)<ol> [(3)] Person -- Includes a natural person, partnership of two or 
more persons having a joint or common interest, mutual or cooperative 
association, and corporation. 
<nl>(3)<ol> [(4)] Violation -- Any activity or conduct prohibited by the Public 
Utility Regulatory Act (PURA), commission rule or commission order. 
<nl>(4)<ol> <nl>Continuing violation &mdash; Any instance in which the person 
alleged to have committed a violation attests that a violation has been remedied 
and was accidental or inadvertent and subsequent investigation reveals that the 
violation has not been remedied or was not accidental or inadvertent. <ol>
(c) - (d) (No change.) 
(e) Report of violation. If, based on the investigation undertaken pursuant to 
subsection (d) of this section, the executive director <nl>determines <ol> [and 
the ORA director determine] that a violation has occurred, the executive 
director may issue a report to the commission. [The executive director must 
obtain concurrence from the ORA director that a violation has occurred before 
the report is issued to the commission; provided, however, that if within 30 
days of the date the draft report is provided to the ORA director, the ORA 
director does not expressly concur or not concur in the issuance of the report, 
the report may be issued without such concurrence.
(1) - (2) (No change.) 
(f) Options for response to notice of violation. 
(1) Opportunity to <nl>remedy<ol> [cure]. 
(A) Within 30 days of the date of receipt of the notice of violation set out in 
subsection (e)(2) of this section, the person against whom the penalty may be 
assessed may notify the commission in writing that the alleged violation <nl>has 
been remedied<ol> [will be cured] and that the alleged violation was accidental 
or inadvertent<nl>. A person who claims to have remedied an alleged violation 
has the burden of proving to the commission both that an alleged violation was 
remedied and was accidental or inadvertent. Proof<ol> [, and that proof] that 
the alleged violation has been <nl>remedied<ol> [cured] and was accidental or 
inadvertent <nl>shall<ol> [will] be filed with the commission <nl> within 40 
days of the person's receipt of the notice of violation.<ol> Proof that an 
alleged violation has been <nl>remedied<ol> [cured] and that the alleged 
violation was accidental or inadvertent shall be evidenced in writing, under 
oath, and supported by necessary documentation [, and shall be filed with the 
commission within 40 days of the person's receipt of the notice of violation]. 
[(B) Within 20 working days of receipt of the evidence required by subparagraph 
(A) of this paragraph, the executive director shall make a determination as to 
whether further proceedings are necessary. The executive director must obtain 
the written concurrence from the ORA director before initiating such proceedings 
or closing the matter. However, if the ORA director does not expressly concur or 
not concur within ten days of receiving the request for concurrence, the 
executive director may implement the decision to proceed or not proceed without 
such concurrence.] 
<nl>(B)<ol> [(C)] If the executive director determines that the alleged 
violation has been <nl>remedied,<ol> [cured, and] was <nl>remedied<ol> [cured] 
within 30 days, and that the alleged violation was accidental or inadvertent, 
[and has obtained concurrence from the ORA director,] no penalty will be 
assessed against the person who is alleged to have committed the violation. 
<nl>(C)<ol> <nl> If the executive director determines that the alleged violation 
was not remedied or was not accidental or inadvertent, the executive director 
shall make a determination as to what further proceedings are necessary. <ol>
<nl>(D)<ol> <nl>If the executive director determines that the alleged violation 
is a continuing violation, the executive director shall institute further 
proceedings, including referral of the matter for hearing pursuant to subsection 
(h) of this section. <ol>
(2) (No change.) 
[(3) Request for settlement conference. Within 30 days of the date the person 
receives the notice set out in subsection (e)(2) of this section, the person may 
submit to the executive director a written request that a settlement conference 
be held to discuss the occurrence of the violation, the amount of the penalty, 
or both the occurrence of the violation and the amount of the penalty. A 
settlement conference shall be held within 45 days from the date the executive 
director receives the request and shall be conducted pursuant to the procedures 
set out in subsection (g) of this section.] 
<nl>(3)<ol> [(4)] Request for hearing. <nl> Not later than the 20th day 
after<ol> [Within 30 days of] the date the person receives the notice set out in 
subsection (e)(2) of this section, [or at any time during the 45 days within 
which a settlement conference is held pursuant to paragraph (3) of this 
subsection,] the person may submit to the executive director a written request 
for a hearing on the occurrence of the violation, the amount of the penalty, or 
both the occurrence of the violation and the amount of the penalty. 
(g) Settlement Conference. A settlement conference <nl>may be requested by any 
party to discuss the occurrence of the violation, the amount of the penalty, and 
the possibility of reaching a settlement prior to hearing. A settlement 
conference<ol> [requested pursuant to subsection (f)(3) of this section] is not 
subject to the Texas Rules of Evidence or the Texas Rules of Civil Procedure; 
however, the discussions are subject to Texas Rules of Civil Evidence 408, 
concerning compromise and offers to compromise. [The settlement conference shall 
be conducted in accordance with the procedures set out in paragraphs (1) - (3) 
of this subsection.]
[(1) Upon request of the parties, the commission's legal administration division 
shall conduct the settlement conference and shall act as a facilitator.] 
<nl>(1)<ol> [(2)] If a settlement is reached:
(A) the <nl>parties<ol> [legal administration division] shall <nl>file<ol> 
[send] a report <nl>with<ol> [to] the executive director setting forth the 
factual basis for the settlement;
(B) the executive director shall issue the report of settlement to the 
commission; and 
(C) the commission by written order will approve the settlement.
<nl>(2)<ol> [(3)] If a settlement is reached after the matter has been referred 
to <nl>SOAH<ol> [the State Office of Administrative Hearings (SOAH)], the matter 
shall be returned to the commission<nl>. If the settlement is approved, the 
commission shall issue an order memorializing commission approval and setting 
forth commission orders associated with the settlement agreement<ol> [and the 
commission by written order will approve the settlement]. 
(h) Hearing. If a person requests a hearing under subsection <nl>(f)(3)<ol> 
[(f)(4)] of this section, or fails to respond timely to the notice of the report 
of violation provided pursuant to subsection (e)(2) of this section, [or if a 
settlement is not reached with 45 days of the date the executive director 
receives a request for a settlement conference under subsection (g) of this 
section,] or if the executive director[, with the concurrence of the ORA 
director,] determines that further proceedings are necessary [under subsection 
(f)(1)(B) of this section, relating to the opportunity to cure the violation], 
the <nl>executive director<ol> [secretary] shall set a hearing, provide notice 
of the hearing to the person, and refer the case to SOAH pursuant to sec.22.207 
of this title (relating to Referral to State Office of Administrative Hearings). 
The case shall then proceed as set forth in paragraphs (1)-(5) of this 
subsection.
(1) The <nl>commission<ol> [secretary] shall provide the <nl>SOAH<ol> 
administrative law judge a list of issues or areas that must be addressed. 
(2) - (3) (No change.) 
(4) Based on the SOAH administrative law judge's proposal for decision, the 
commission may: 
(A) (No change.) 
(B) determine that a violation occurred but that, pursuant to subsection (f)(1) 
of this section, the person <nl>remedied<ol> [cured] the violation within 30 
days and proved that the violation was accidental or inadvertent, and that no 
penalty will be imposed; or, 
(C) (No change.) 
(5) Notice of the commission's order issued pursuant to paragraph (4) of this 
subsection shall be provided under <nl>the Government Code,<ol> Chapter 2001 [of 
the Government Code] and sec.22.263 of this title (relating to Final Orders) and 
shall include a statement that the person has a right to judicial review of the 
order. 
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 April 7, 1998.
TRD-9804845
Rhonda Dempsey
Rules Coordinator
Public Utility Commission of Texas
Earliest possible date of adoption: May 24, 1998
For further information, please call: (512) 936-7308

PART IX. Texas Lottery Commission
CHAPTER 401.Administration of the State Lottery Act
SUBCHAPTER E.Retailer Rules
16 TAC sec.401.369
The Texas Lottery Commission proposes an amendment to sec.401.369, concerning 
retailer sales incentive. The proposed amendment will allow a lottery retailer 
who has undergone a business reorganization but retained 100% of the principals 
in the business to be eligible for the reduction of the on-line service charge 
from $20 to $10. 
Richard Sookiasian, Budget Analyst, has determined that for the first five-year 
period the rule is in effect, there will be fiscal implications as a result of 
enforcing or administering the section as proposed. The effect on state 
government for the following fiscal years will be an estimated loss in revenue: 
1998 - $0; 1999 - $208,000; 2000 - $416,000; 2001 - $624,000; and 2002 - 
$624,000. There will be no effect on local government as a result of enforcing 
or administering the proposed section. 
Greg Hoelk, Sales and Retailer Relations Assistant Director, has determined that 
for each of the first five years the section as proposed is in effect the public 
benefit anticipated as a result of enforcing the section as proposed will be the 
enhanced ability of retailers to participate in and continue to sell Texas 
Lottery on-line tickets in a profitable manner notwithstanding the fact that 
retailer has undergone a business reorganization which resulted in the issuance 
of a new lottery sales agent's license provided that 100% of the principals 
remain the same. 
Mr. Sookiasian also has determined that there will be no adverse effect on small 
or large businesses as a result of economic cost to individuals who we required 
to comply with the section as proposed. 
Comments on the proposal may be submitted to Kimberly L. Kiplin, General 
Counsel, Texas Lottery Commission, P.O. Box 16630, Austin, Texas 78761-6630.
The amendment is proposed under the Texas Government Code, sec.466.015, which 
gives the Texas Lottery Commission authority to adopt rules necessary to 
administer the State Lottery Act and to adopt rules governing the establishment 
and operation of the lottery and Texas Government Code, sec.467.102, which 
authorizes the Texas Lottery Commission to adopt rules for the enforcement and 
administration of the Texas Government Code, Chapter 467 and the laws under the 
commission's jurisdiction. 
The Texas Government Code, Chapter 466 is affected by the proposed amendment.

sec.401.369.Retailer Sales Inventive.
(a) The Executive Director may reduce a lottery sales agent's on-line weekly 
service charge from $20 to $10 if the sales agent meets the following criteria: 
(1)-(2) (No change.) 
(3) The license must be held by the same sales agent and must not have been 
transferred to another entity during the time period <nl> except in the event of 
a lottery sales agent who has undergone a business reorganization that results 
in the creation of a new entity which retains 100% of the principals<ol>. 
(b) (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 April 13, 1998.
TRD-9805118
Kimberly L. Kiplin
General Counsel
Texas Lottery Commission
Earliest possible date of adoption: May 24, 1998
For further information, please call: (512) 344-5113

TITLE 19. EDUCATION
PART II. Texas Education Agency
CHAPTER 75.Curriculum
SUBCHAPTER AA.<nl>Commissioner's Rules Concerning <ol>Driver Education
19 TAC sec.sec.75.1001-75.1003, 75.1010
The Texas Education Agency (TEA) proposes amendments to sec.75.1001-75.1003 and 
sec.75.1010, concerning driver education. The sections provide for a program of 
organized instruction in driver education and traffic safety for public school 
students and establish standards for certifying professional and 
paraprofessional personnel who conduct the programs in the public schools. 
Section 75.1010 also establishes the fee for a driver education certificate and 
requirements relating to issuing, completing, and maintaining the certificate. 
The proposed amendment to 19 TAC sec.75.1001 establishes the requirement for 
driver education teachers in public entities to annually complete a minimum of 
six hours of continuing education. These proposed amendments are consistent with 
requirements for licensed schools outlined in Senate Bill 964, 74th Texas 
Legislature, 1995. Proposed amendments to 19 TAC sec.75.1002 and sec.75.1003 
increase the minimum certification requirements for driver education teachers in 
public entities from six semester hours to nine semester hours. These proposed 
amendments are consistent with the requirements for licensed schools as outlined 
in Senate Bill 964, 74th Texas Legislature, 1995. 
The proposed amendment to 19 TAC sec.75.1010 increases the fee for driver 
education certificates from $1.00 to $2.00. The fee increase provides for costs 
associated with the monitoring requirements of driver education programs and 
administrative costs. Senate Bill 964, 74th Texas Legislature, 1995, allows the 
TEA to charge up to $4.00 for each certificate. 
Pat Pringle, associate commissioner for school support and continuing education, 
has determined that for the first five-year period the sections are in effect 
there will be fiscal implications for state and local government as a result of 
enforcing or administering the sections. 
The TEA is required by Senate Bill 964, 74th Texas Legislature, 1995, to provide 
driver education certificates to public schools and colleges and universities. 
The fee for each certificate will be $2.00, which will be sufficient to cover 
TEA administrative costs associated with each certificate and costs to support 
curriculum development for driver education programs. The estimated increase in 
revenue for TEA will be $110,000 for Fiscal Years (FYs) 1998-2002. The TEA will 
receive revenue from colleges, universities, local school districts, and 
education service centers that conduct teenage driver education programs. It is 
anticipated that the Department of Public Safety will recover the expenditure of 
approximately $50,000 for FYs 1998-2002 and associated administrative costs 
through the fees charged to parents and legal guardians who purchase the course 
materials for the Parent Taught Driver Education course. The increase equates to 
only $1.00 per student enrolling in a Parent Taught driver education program. It 
is anticipated that colleges and universities will also recover the expenditure 
of approximately $10,000 for FYs 1998-2002 and associated administrative costs 
through the fees charged to students who enroll in their driver education 
programs. This increase equates to only $1.00 per student enrolled in a college 
or university driver education program. It is anticipated that public schools 
and education service centers will recover the expenditure of approximately 
$50,000 for FYs 1998-2002 and associated administrative costs through the fees 
charged to students who enroll in their driver education programs. This increase 
equates to only $1.00 per student enrolled in a public school or education 
service center driver education program.
Mr. Pringle and Criss Cloudt, associate commissioner for policy planning and 
research, have 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 teacher training programs that are standardized and 
teachers who will be better prepared to conduct driver education programs. Also, 
the requirements for driver education personnel will be consistent. 
There will be no effect on small businesses. The proposed increase from $1.00 to 
$2.00 will only impact public entities. Currently, private businesses licensed 
to conduct driver education programs are charged a fee of $2.00 for driver 
education certificates. The proposed sections will standardize the fee charged 
to public and private entities for driver education certificates and still be 
below the maximum allowed by law. The anticipated economic cost to persons who 
are required to comply with the sections as proposed cannot be precisely 
determined. Any entity offering a driver education program can recover costs by 
charging a course fee. Driver education fees in Texas vary and are estimated to 
average between $150 to $225. Individuals participating in the driver education 
programs may be charged increased fees as a result of the proposed increase. 
However, the $1.00 projected economic cost to individuals in FYs 1998-2002 is 
only an estimate. Increases will vary across Texas since administrative costs 
also vary. In addition, some schools may choose to absorb the increase within 
current fee structures or increase fees for reasons not associated with the 
proposed sections. 
Comments on the proposal may be submitted to Criss Cloudt, Policy Planning and 
Research, 1701 North Congress Avenue, Austin, Texas 78701, (512) 463-9701.
Comments may also be submitted electronically to rules@tmail.tea.state.tx.us. 
All requests for a public hearing on the proposed sections submitted under the 
Administrative Procedure Act must be received by the commissioner of education 
not more than 15 calendar days after notice of a proposed change in the sections 
has been published in the Texas Register. 
The amendments are proposed under Texas Education Code, sec.29.902, which 
authorizes the TEA to develop a program of organized instruction in driver 
education and traffic safety for public school students and to establish 
standards for certifying professional and paraprofessional personnel who conduct 
the programs in public schools; and Senate Bill 964, sec.9A, 74th Texas 
Legislature, 1995, which authorizes the TEA to provide by rule for the design 
and distribution of the driver education certificate and to charge a fee for 
each certificate. 
The amendments implement Texas Education Code, sec.29.902, and Senate Bill 964, 
sec.9A, 74th Texas Legislature, 1995. 

sec.75.1001. Administration and Supervision. 
(a) (No Change.)
(b) The superintendent, chief school official, or education service center (ESC) 
director must: 
(1) certify that the course meets Texas Education Agency (TEA) and Texas 
Department of Public Safety (DPS) standards for an approved course in driver 
education for Texas schools; 
(2) certify that all driver education personnel meet state requirements <nl>and 
annually complete a minimum of six hours of continuing education<ol>; 
(3) provide each driver education instructor and administrator a copy of this 
subchapter; [and] 
(4) provide each driver education instructor a state-approved curriculum guide 
appropriate for his or her phase of instruction<nl>; and <ol> [.] 
<nl>(5)<ol> <nl> conduct reviews on a periodic basis to assure that driver 
education programs and instructors are in compliance with all requirements 
specified for the programs and teachers. <ol>
<nl>(c)<ol> <nl> The TEA may conduct on-site compliance surveys and complaint 
investigations. <ol>

sec.75.1002.Driver Education Teachers. 
(a) To qualify to <nl>teach all phases of driver education and<ol> add a driver 
education endorsement as a specialization area on his or her current Texas 
teaching certificate <nl>after January 1, 1999, an individual must:<ol> [, a 
teacher must meet the requirements in Chapter 137 of this title (relating to 
Professional Educator Preparation and Certification).
<nl>(1)<ol> <nl> possess a Bachelor's degree; <ol>
<nl>(2)<ol> <nl> complete nine semester hours of driver education classroom, in-
car, simulation, and traffic safety instruction; <ol>
<nl>(3)<ol> <nl> possess a valid Texas teaching certificate as defined by the 
State Board for Educator Certification in Chapter 230 of this title (relating to 
Professional Educator Preparation and Certification);<ol>
<nl>(4)<ol> <nl> possess a valid Texas driver's license for the type of vehicle 
used for instruction; and <ol>
<nl>(5)<ol> <nl> not accumulate ten or more penalty points on a driving record 
evaluation for the three-year period immediately preceding application using the 
record evaluation standards established by the Texas Department of Public Safety 
(DPS), which are the same standards used to evaluate Texas school bus drivers. 
<ol>
(b) A fully certified teacher of driver education may be designated by the Texas 
Education Agency (TEA) as a supervising teacher of driver education by 
successfully completing one of the following: 
(1) six semester hours of university instruction beyond the basic <nl>nine<ol> 
[six] hours of driver education certification courses that include administering 
driver education programs that incorporate classroom and in-car instruction, 
techniques of simulation and multicar driving range instruction, supervising, 
and administering traffic safety education. The instruction for supervising 
teachers must be given by a university approved to train driver education 
supervising teachers; or 
(2) (No Change.)
(c) (No Change.)
(d) At least once each year a school district, an ESC, or a college or 
university must document that each certified driver education teacher employed 
in the driver education program meets the driving record evaluation standards 
established by the <nl>DPS<ol> [Texas Department of Public Safety (DPS)] for 
Texas school bus drivers. 

sec.75.1003. Teaching Assistants. 
(a) An individual may be employed as a teaching assistant in a driver education 
program under the direction of a supervising driver education teacher after 
completing one of the following programs. 
(1) Teaching assistant (full). An individual may be approved as a teaching 
assistant (full) to assist certified teachers in the classroom phase of driver 
education and to conduct behind-the-wheel, multicar range, and simulator 
training by successfully completing one of the following requirements:
(A) a program of study in driver education developed by the Texas Education 
Agency (TEA). Applications are available from the TEA and must be submitted 30 
days before the training program starts; 
(B) [the] <nl>nine<ol> [six] semester hours of driver and traffic safety 
education from an approved university that are required for driver education 
teacher endorsement [, plus three additional hours in techniques of teaching in-
car instruction and simulation]; or 
(C) [the] nine semester hours of driver and traffic safety education instructor 
training as outlined in Texas Civil Statutes, Article 4413(29c), sec.15A(b). 
(2) Teaching assistant (in-car only). An individual may be approved as a 
teaching assistant (in-car only) to conduct only in-car training by completing 
one of the following requirements: 
(A) [the] six <nl>of the nine<ol> semester hours of driver and traffic safety 
education required for driver education teacher certification <nl>that include 
driver education in- car, simulation, and traffic safety instructor 
development<ol>; or 
(B) [the] six semester hours of driver and traffic safety education instructor 
training as outlined in Texas Civil Statutes, Article 4413(29c), sec.15A(b). 
(b)-(f) (No Change.)

sec.75.1010. Procedures for Student Certification.
(a) The Texas Education Agency (TEA) shall be responsible for providing the 
driver education certificate (Form DE-964E) to public schools, education service 
centers (ESCs), and colleges or universities exempt from the Texas Driver and 
Traffic Safety Education Act. The TEA shall also provide the DE-964E certificate 
to the Texas Department of Public Safety (DPS) for driver education programs 
approved by DPS. On this form, the driver education instructor and the chief 
school official, ESC or DPS director, or individuals designated by the chief 
school official or ESC or DPS directors must certify that the driver education 
course was conducted according to TEA and DPS education standards for an 
approved course in driver education for Texas schools. 
(1) (No Change.)
(2) The TEA shall charge a fee of <nl>$2.00<ol> [$1.00] for each DE-964E 
certificate provided. 
(3)-(6) (No Change.)
(b)-(k) (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 April 13, 1998.
TRD-9805130
Criss Cloudt
Associate Commissioner, Policy Planning and Research
Texas Education Agency
Earliest possible date of adoption: May 24, 1998
For further information, please call: (512) 463-9701

CHAPTER 89.Adaptions for Special Populations
The Texas Education Agency (TEA) proposes amendments to sec.sec.89.1001, 
89.1011, 89.1015, 89.1020, 89.1025, 89.1030, 89.1035, 89.1040, 89.1045, 89.1050, 
89.1055, 89.1060, 89.1065, 89.1075, 89.1085, 89.1115, 89.1125, 89.1131, 89.1141, 
89.1155, 89.1160, 89.1165, 89.1170, 89.1175, 89.1180, 89.1185; new 
sec.sec.89.1181, 89.1186-89.1190; and the repeal of sec.sec.89.1095, 89.1105, 
and 89.1190, concerning special education services. The sections clarify federal 
regulations and state statutes pertaining to delivering special education 
services to students with disabilities. The sections also establish definitions, 
requirements, and procedures related to: interagency agreements; special 
education funding; personnel issues; regional education service centers special 
education programs; and hearings under the Individuals with Disabilities 
Education Act (IDEA). The TEA is revising its rules to reflect changes as a 
result of the IDEA Amendments of 1997, which contain numerous changes to the 
federal law pertaining to the education of students with disabilities. The TEA 
rules are proposed for revision to ensure school district compliance with new 
procedural and reporting requirements. The revisions to the TEA rules focus 
primarily on changes to federal references. The most significant issue 
pertaining to the proposed changes relates to the repeal of 19 TAC sec.89.1095. 
Section 89.1095 required school districts to serve students with disabilities 
placed in private schools by their parents if the student was dually enrolled in 
the school district and private school. The amended federal law limits the 
obligation of school districts and states to serve students placed in private 
schools by their parents. Rules pertaining to due process hearings on students 
with disabilities are also proposed for revision to conform to the new 
provisions in IDEA and to promote effective and efficient determination of 
disputes arising under IDEA. 
In addition to the changes in federal law, Texas Education Code (TEC), 
sec.30.057, 75th Texas Legislature, 1997, authorizes the commissioner of 
education to adopt rules pertaining to the Texas School for the Deaf. As a 
result of TEC, sec.30.057, a new subsection (c) is proposed in 19 TAC 
sec.89.1085. Also, 19 TAC sec.89.1105, pertaining to the memorandum of 
understanding relating to school-age residents of intermediate care facilities, 
is proposed for repeal because the section expired August 1997. Current 19 TAC 
sec.89.1115 includes intermediate care facilities. Subsection (d) of Section 
89.1131, relating to the use of teacher assistants, also expired August 1997 and 
is proposed for repeal. This specific provision may need to be revisited by TEA 
after the federal regulations have been finalized, if the regulations provide 
additional flexibility for school districts. 
House Bill 1, General Appropriations Act, 75th Texas Legislature, Article IX, 
Rider 167, establishes a four-year sunset review cycle for all state agency 
rules. The TEA is also conducting a review of 19 TAC Chapter 89, Subchapter AA, 
Special Education Services, in accordance with Rider 167. The TEA finds 
sufficient reason for the rules to continue to exist and proposes revising the 
rules as indicated. 
Carol Francois, associate commissioner for education of special populations, 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. However, the overall fiscal impact for 
implementing special education should increase due to the passage of the IDEA 
Amendments of 1997. The IDEA Amendments of 1997 contain additional prescriptive 
procedural and reporting requirements for the delivery of special education 
services. 
Ms. Francois and Criss Cloudt, associate commissioner for policy planning and 
research, have 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 a consistent linkage to the IDEA Amendments of 1997 and a 
specific reference for school districts to the new federal requirements that 
provide for the education of students with disabilities. 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 Criss Cloudt, Policy Planning and 
Research, 1701 North Congress Avenue, Austin, Texas 78701, (512) 463-9701. 
Comments may also be submitted electronically to rules@tmail.tea.state.tx.us. 
All requests for a public hearing on the proposed sections submitted under the 
Administrative Procedure Act must be received by the commissioner of education 
not more than 15 calendar days after notice of a proposed change in the sections 
has been published in the Texas Register. 

SUBCHAPTER AA.<nl>Commissioner's Rules Concerning <ol>Special Education Services
Division I. General Provisions
19 TAC sec.89.1001
The amendment is proposed under 34 Code of Federal Regulations, sec.300.600, 
which outlines the responsibilities of TEA for all educational programs; Texas 
Education Code, sec.sec.29.001, 29.003, 29.005, 29.011, and 29.012, which 
authorizes the commissioner of education to adopt rules related to delivering 
special education services; and House Bill 1, General Appropriations Act, 75th 
Texas Legislature, Article IX, Rider 167, which establishes a four-year sunset 
review cycle for all state agency rules. 
The amendment implements 34 CFR, sec.300.600; Texas Education Code, 
sec.sec.29.001, 29.003, 29.005, 29.011, and 29.012; and House Bill 1, General 
Appropriations Act, 75th Texas Legislature, Article IX, Rider 167.

sec.89.1001.Scope and Applicability.
(a) (No Change.)
(b) Education programs, under the direction and control of the Texas Youth 
Commission, Texas School for the Blind and Visually Impaired, Texas School for 
the Deaf, and schools within the Texas Department of Criminal Justice shall 
comply with state and federal law and regulations concerning the delivery of 
special education and related services to eligible students and shall be 
monitored by the Texas Education Agency <nl>(TEA)<ol> in accordance with the 
requirements identified in subsection (a) of this section. 
(c) A school district having a residential care and treatment facility that is 
licensed by appropriate state agencies and located within the district's 
boundaries must provide special education and related services to eligible 
students residing in the facility, <nl>unless the facility meets the standards, 
as monitored by the TEA, for the purpose of offering contract day and/or 
residential special education and related services.<ol> [if the facility does 
not have an education program.] 
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 April 13, 1998.
TRD-9805124
Criss Cloudt
Associate Commissioner, Policy Planning and Research
Texas Education Agency
Earliest possible date of adoption: May 24, 1998
For further information, please call: (512) 463-9701

Division II. Clarification of Provisions in Federal Regulations and State Law
19 TAC sec.sec.89.1011, 89.1015, 89.1020, 89.1025, 89.1030, 89.1035, 89.1040, 
89.1045, 89.1050, 89.1055, 89.1060, 89.1065, 89.1075, 89.1085, 89.1115
The amendments are proposed under 34 Code of Federal Regulations, sec.300.600, 
which outlines the responsibilities of TEA for all educational programs; Texas 
Education Code, sec.sec.29.001, 29.003, 29.005, 29.011, 29.012, and 30.057, 
which authorizes the commissioner of education to adopt rules related to 
delivering special education services; and House Bill 1, General Appropriations 
Act, 75th Texas Legislature, Article IX, Rider 167, which establishes a four-
year sunset review cycle for all state agency rules.
The amendments implement 34 CFR, sec.300.600; Texas Education Code, 
sec.sec.29.001, 29.003, 29.005, 29.011, 29.012, and 30.057; and House Bill 1, 
General Appropriations Act, 75th Texas Legislature, Article IX, Rider 167.

sec.89.1011.Referral for Comprehensive Assessment.
Referral of students for possible special education services shall be a part of 
the district's overall, regular education referral or screening system <nl>and 
child find system<ol>. Prior to referral, students experiencing difficulty in 
the regular classroom should be considered for all support services available to 
all students, such as tutorial, remedial, compensatory, and other services. This 
referral for assessment may be initiated by school personnel, the student's 
parents or legal guardian, or another person involved in the education or care 
of the student.

sec.89.1015.Time Line for All Notices.
"Reasonable time" required for the written notice to parents under 34 Code of 
Federal Regulations (CFR), <nl>sec.300.503<ol> [sec.300.504], is defined as at 
least five school days, unless the parents agree otherwise.

sec.89.1020. Written Notice to Parent Before Assessment.
In accordance with the requirements of 34 Code of Federal Regulations (CFR), 
<nl>sec.300.503 and<ol> sec.300.504 [and sec.300.505], a district shall give 
written notice, which includes a full explanation of all procedural safeguards, 
to the parents and adult student a reasonable time before the district conducts 
an assessment.

sec.89.1025. Consent for <nl>Initial<ol> Assessment <nl> and Reevaluation<ol>.
A district shall obtain consent in writing in accordance with the requirements 
of 34 Code of Federal Regulations (CFR), sec.300.500 and <nl>sec.300.505 <ol> 
[sec.300.504(b)], before the district conducts an initial assessment <nl>and 
reevaluation<ol>. 

sec.89.1030. Comprehensive Individual Assessment.
The comprehensive individual assessment, including a written report, shall be 
completed in accordance with 34 Code of Federal Regulations (CFR), 
sec.sec.300.6, 300.7, <nl>300.21, 300.22, 300.27, 300.530- 300.532, and 
300.536<ol> [300.15, 300.16, 300.18, 300.530-300.532, and 300.534]; the Texas 
Education Code (TEC), sec.29.004; and sec.89.1040 of this title (relating to 
Eligibility Criteria).

sec.89.1035.Age Ranges for Student Eligibility. 
(a) Pursuant to state and federal law, services provided in accordance with this 
subchapter shall be available to all eligible students on their third birthday. 
A student receiving special education services who is younger than 22 years of 
age on September 1 of a scholastic year shall be eligible for services through 
the end of that scholastic year or until graduation <nl>in accordance with 
sec.89.1070 of this title (relating to Graduation Requirements)<ol>, whichever 
comes first. 
(b) In accordance with the Texas Education Code (TEC), sec.sec.29.003, 
30.002(a), and 30.081, a free [,] appropriate [,] public education shall be 
available from birth to students with visual or auditory impairments. 

sec.89.1040. Eligibility Criteria. 
(a) (No Change.)
(b) Autism. A student with autism is one who evidences the criteria for autism 
as stated in 34 CFR, sec.300.7(b)(1). Students with pervasive developmental 
disorders are included under this category. The [team's] written report of 
evaluation shall include specific recommendations for behavior <nl>supports and 
interventions<ol> [management].
<nl>(c)<ol> <nl>Deaf-blind. A student with deaf-blindness is one who: <ol>
<nl>(1)<ol> <nl> meets the eligibility criteria for auditory impairment and 
visual impairment; <ol>
<nl>(2)<ol> <nl> meets the eligibility criteria for a student with a visual 
impairment and has a suspected hearing loss that cannot be demonstrated 
conclusively, and if a speech/language therapist, certified speech and language 
therapist, or licensed speech language pathologist indicates there is no speech 
at an age when speech would normally be expected; <ol>
<nl>(3)<ol> <nl> has documented hearing and visual losses that, if considered 
individually, may not meet the requirements for auditory impairment or visual 
impairment, but the combination of which adversely affects the student's 
educational performance; or <ol>
<nl>(4)<ol> <nl>has a documented medical diagnosis of a progressive medical 
condition that will result in concomitant hearing and visual loss that, without 
special education intervention, will adversely affect the student's educational 
performance. <ol>
[(c) Deaf-blind. A student with deaf-blindness is one who has a combination of 
severe hearing and visual losses after best correction and is determined to be 
eligible as auditorially impaired and as visually impaired according to the 
specific eligibility criteria for each of these disabilities. If an eligible 
student with a visual impairment has a suspected hearing loss that cannot be 
demonstrated conclusively, and if a speech/language evaluation performed by a 
certified speech and hearing therapist, certified speech and language therapist, 
or licensed speech language pathologist indicates there is no speech at an age 
when speech would normally be expected, the student may be eligible for services 
as deaf-blind.] 
(d) (No Change.)
(e) Mental retardation. A student with mental retardation is one who has been 
determined to be functioning two or more standard deviations below the mean on 
individually administered scales of verbal ability [,] and either performance or 
nonverbal ability, and who concurrently exhibits deficits in adaptive behavior. 
(f)-(g) (No Change.)
(h) Emotional disturbance. A student with an emotional disturbance is one who 
has been determined to meet the criteria as defined in 34 CFR, sec.300.7(b) 
<nl>(4)<ol> [(9)]. The team's written report of evaluation shall include 
specific recommendations for behavior <nl>supports and interventions<ol> 
[management]. 
(i)-(k) (No Change.)
(l) Visual impairment. 
(1) A student who has a visual impairment is one who: 
(A) has been determined by a licensed ophthalmologist or optometrist to have no 
vision or to have a serious visual loss after correction<nl>, or has a medical 
diagnosis for a progressive condition that will result in no vision or a serious 
visual loss after correction<ol>. The visual loss should be stated in exact 
measures of visual field and corrected visual acuity at distance and near in 
each eye. The report should also include prognosis whenever possible. If exact 
measures cannot be obtained, the eye specialist must so state and give best 
estimates; and 
(B) (No Change.)
(2) (No Change.)

sec.89.1045. Notice to Parents for Admission, Review, and Dismissal (ARD) 
Committee Meetings.
(a) A district shall invite the parents and adult student to participate as 
members of the admission, review, and dismissal (ARD) committee by providing 
written notice in accordance with 34 Code of Federal Regulations (CFR), 
sec.sec.300.345, <nl>300.503, and<ol> 300.504 [, and 300.505], and Part 300, 
Appendix C.
(b) (No Change.)

sec.89.1050. The Admission, Review, and Dismissal (ARD) Committee. 
(a) (No Change.)
(b) Each school district shall establish at least one ARD committee that shall 
make decisions concerning eligibility determinations, development of the IEP, 
consideration of assistive technology, development of the behavior <nl>supports 
and interventions<ol> [management] plans, and placement of a student referred 
for consideration for special education services in accordance with 34 Code of 
Federal Regulations (CFR), sec.sec.300.308, 300.342- <nl>300.350<ol> [300.349], 
300.533 <nl>-300.535<ol>, and 300.550- 300.554, and Part 300, Appendix C; state 
statute; State Board of Education (SBOE) rules; and this subchapter. For a child 
from birth through two years of age with visual and/or auditory impairments, an 
individualized family services plan (IFSP) meeting must be held in place of an 
ARD committee meeting in accordance with 34 CFR, sec.sec.303.340-303.346 and the 
agreement memorandum between the Texas Education Agency (TEA) and Texas 
Interagency Council on Early Childhood Intervention. 
(c) The teacher that participates in the ARD committee meeting, in accordance 
with 34 CFR, sec.300.344(a) <nl>(3)<ol> [(2)], must be certified in the child's 
suspected areas of disability. When a specific certification is not required to 
serve certain disabilities categories, then the teacher must be qualified to 
provide the educational services the child may need. The <nl>committee must<ol> 
[district may] include a regular education teacher(s)<nl>, in accordance with 34 
CFR sec.300.344(a)(2), <ol> in addition to a certified special education 
teacher. Districts should refer to sec.89.1131 of this title (relating to 
Qualifications of Special Education, Related Service, and Paraprofessional 
Personnel) to ensure the appropriate teacher participates in the ARD committee 
meeting.
(d) The written report of the ARD committee shall document the findings required 
by subsection (b) of this section. The report shall include the date, names, 
positions, and signatures of the members participating in each meeting in 
accordance with 34 CFR, sec.sec.300.344, 300.345, <nl> 300.349<ol> [300.348], 
and <nl>300.350<ol> [300.349]. The report shall also indicate each member's 
agreement or disagreement with the committee's decisions. A district shall 
obtain written consent in accordance with the requirements of 34 CFR, 
sec.300.500 and <nl>sec.300.505<ol> [sec.300.504(b)], before initial placement 
occurs. 
(e) For a student who is new to a school district, the ARD committee may meet 
when the student registers and the parents verify that the student was receiving 
special education services in the previous school district, or the previous 
school district verifies in writing or by telephone that the student was 
receiving special education services. Special education services are temporary, 
contingent upon either receipt of valid assessment data from the previous school 
district or the collection of new assessment data. A second ARD committee 
meeting shall be held within 30 school days from the first ARD committee meeting 
to finalize or develop a new IEP based on the assessment data. <nl>The student's 
current or previous school districts are not required to obtain parental consent 
before requesting or sending the student's special education records if 
disclosure is conducted in accordance with 34 CFR, sec.sec.99.30-99.37 (relating 
to the disclosure of personally identifiable information from education 
records); and Texas Education Code (TEC), sec.25.002 (Requirements for 
Enrollment).<ol> 
(f) All disciplinary actions regarding students with disabilities shall be 
<nl>conducted<ol> in accordance with <nl>34 CFR, sec.sec.300.520-300.529 
(relating to Discipline Procedures)<ol> [federal requirements] and <nl>TEC<ol> 
[the Texas Education Code (TEC)], Chapter 37, Subchapter A (Alternative Settings 
for Behavior Management). [The ARD committee shall determine the instructional 
and related services to be provided during the time of expulsion. The student's 
IEP shall include goals and objectives designed to assist in returning the 
student to school and preventing significant regression.] 
(g) All members of the ARD committee shall have the opportunity to participate 
in a collaborative manner in developing the IEP. A decision of the committee 
concerning required elements of the IEP shall be made by mutual agreement of the 
required members if possible. The committee may agree to an annual IEP or an IEP 
of shorter duration.
(1) When mutual agreement about all required elements of the IEP is not 
achieved, the party (the parents or adult student) who disagrees shall be 
offered a single opportunity to have the committee recess for a period of time 
not to exceed ten school days. This recess is not required when the student's 
presence on the campus presents a danger of physical harm to the student or 
others or when the student has committed an expellable offense or an offense 
which may lead to a placement in an alternative education program (AEP). <nl>The 
requirements of subsection (g) of this section do not prohibit the local school 
district from recessing an ARD committee meeting for reasons other than failure 
of the parents or adult student and school district from reaching mutual 
agreement about all required elements of the IEP.<ol> 
(2)-(5) (No Change.)
(6) When a district implements an IEP with which the parents disagree or the 
adult student disagrees, the district shall provide prior written notice to the 
parents or adult student as required in 34 CFR, <nl> sec.300.503 and<ol> 
sec.300.504 [and sec.300.505]. 
(7) (No Change.)

sec.89.1055. Content of the Individual Educational Plan (IEP). 
(a) The individual educational plan (IEP) developed by the admission, review, 
and dismissal (ARD) committee for each student with a disability shall include 
the following information in addition to the requirements of 34 Code of Federal 
Regulations (CFR), sec.300.346 <nl>and sec.300.347 <ol>, and Part 300, Appendix 
C: 
(1) (No Change.)
(2) a statement addressing nonexemption, modification/accommodation, or 
exemption from some or all of the <nl>criterion-referenced<ol> [basic skills] 
assessment instruments, as appropriate. Modifications/accommodation of regular 
classroom procedures [which are provided for students by the local district] as 
specified in the student's IEP shall be provided during the testing process in 
accordance with sec.101.3 of this title (relating to Testing Accommodations and 
Exemptions); and 
(3) goals and objectives <nl>from the current IEP<ol> shall be specified if 
extended year services are included in the IEP. 
(b) (No Change.)
(c)-(d) (No Change.)

sec.89.1060.Definitions of Certain Related Services.
(a) (No Change.)
(b) Interpreting services for students who are deaf. Interpreting services 
include interpreting/transliterating receptively and expressively for persons 
who are deaf or hard of hearing. Interpreting services for students who are deaf 
shall be provided by an interpreter who is certified by the Registry of 
Interpreters for the Deaf or the Texas Commission for the Deaf and Hard of 
Hearing or who has a <nl>permit<ol> [waiver] from the commissioner of education 
for not more than three consecutive years.

sec.89.1065. Extended Year Services (EYS).
Extended year services (EYS) are defined as individualized instructional 
programs beyond the regular school year for students who are <nl>eligible 
for<ol> [enrolled in a school district's] special education <nl> services under 
34 Code of Federal Regulations (CFR), Part 300<ol> [program]. 
(1)-(4) (No Change.)
(5) If the district does not propose EYS for discussion at the annual review of 
a student's IEP, the parent may request that the ARD committee discuss EYS 
pursuant to 34 <nl>CFR<ol> [Code of Federal Regulations (CFR)], 
<nl>sec.300.503<ol> [sec.300.504] and sec.300.505. 
(6)-(9) (No Change.)

sec.89.1075.General Program Requirements and Local District Procedures. 
(a)-(b) (No Change.)
(c) Each school district shall provide parents of students receiving special 
education services written reports of the students' progress<nl>, in accordance 
with 34 Code of Federal Regulations, sec.300.347(a)(7) and sec.300.343(c)(1)-
(2),<ol> on the same timely basis as the reports provided to students in regular 
education. 
(d)-(e) (No Change.)
<nl>(f)<ol> <nl>School districts that jointly operate their special education 
programs, as a shared services arrangement, shall do so in accordance with 
procedures developed by the Texas Education Agency.<ol>

sec.89.1085. Referral for Texas School for the Blind and Visually Impaired and 
Texas School for the Deaf Services. 
(a)-(b) (No Change.)
<nl>(c)<ol> <nl>For students who are deaf or hard of hearing for whom the Texas 
School for the Deaf may be an appropriate placement, the following procedures 
shall be implemented in accordance with TEC, sec.30.057 (Admission to the Texas 
School for the Deaf). <ol>
<nl>(1)<ol> <nl>The student's parent or legal guardian, a person with legal 
authority to act in place of the parent or legal guardian, or the student, if 
the student is 18 years of age or older, may initiate a referral to the Texas 
School for the Deaf at any time during the school year if the school is chosen 
as the appropriate placement for the student rather than placement in the 
student's local or regional program recommended under the student's IEP. The IEP 
must include the requirements of 34 CFR, sec.sec.300.340-300.351; and TEC, 
sec.sec.29.301-29.314. <ol>
<nl>(2)<ol> <nl> The school district in which the student resides may initiate a 
referral to the Texas School for the Deaf at any time during the school year 
under the student's IEP. In addition to the requirements provided in subsection 
(b) of this section, the IEP must include the requirements of 34 CFR, 
sec.sec.300.340-300.351; and TEC, sec.sec.29.301-29.314. The school district 
remains responsible for free appropriate public education and related services 
in accordance with 34 CFR, Part 300; state statues; and rules of the State Board 
of Education (SBOE) and commissioner of education.<ol>
<nl>(3)<ol> <nl> The Texas School for the Deaf shall accept referrals in 
accordance with paragraphs (1) and (2) of this subsection; 34 CFR, Parts 300 and 
303; and applicable state statutes. For students accepted by the Texas School 
for the Deaf under paragraph (2) of this subsection, the Texas School for the 
Deaf and the referring school district will mutually develop a cooperative 
agreement relating to the implementation of each student's IEP. For students 
accepted by the Texas School for the Deaf under paragraph (1) of this 
subsection, the Texas School for the Deaf shall be responsible for free 
appropriate public education and related services in accordance with 34 CFR, 
Part 300; state statutes; and rules of the SBOE and commissioner of education. 
<ol>
[(c) Students enrolled in the Texas School for the Deaf under this section who 
are not referred by local ARD committees shall be supported in accordance with 
TEC, sec.30.003. Upon enrollment of children not referred by local ARD 
committees, the Texas School for the Deaf shall be responsible for free, 
appropriate, education and related services.
<nl>(d)<ol> <nl> Students enrolled in the Texas School for the Deaf under this 
section shall be supported in accordance with TEC, sec.30.003. <ol>

sec.89.1115.Memorandum of Understanding Concerning Interagency Coordination of 
Special Education Services to Students with Disabilities in Residential Care 
Facilities. 
(a)-(f) (No Change.)
(g) Parental participation. 
(1) The parties acknowledge that parental participation is essential for the 
determination and the provision of appropriate special education services under 
IDEA. However, many of the school-age residents placed in RCFs are under the 
conservatorship of the State of Texas (usually through TDPRS). For these 
residents, the parties acknowledge the following "surrogate parent" 
requirements: 
(A) The LEAs have the obligation to ensure that a properly trained surrogate 
parent with no conflicts of interest is appointed for these residents for whom: 
(i)-(ii) (No Change.)
(ii) the parent cannot be located after reasonable efforts by the LEA to locate; 
or 
(iii) are wards of the state (e.g., in Texas, the term "conservatorship" is 
often used to indicate a student is a ward of the state, pursuant to 34 CFR, 
<nl>sec.300.515(a)).<ol> [sec.300.514(a)).] 
(B)-(E) (No Change.)
(F) The surrogate parent appointed must have the knowledge and skills to ensure 
adequate representation of the child and no personal or professional interest 
which would create a conflict of interest in his or her representation of the 
child, pursuant to 34 CFR, <nl>sec.300.515(c) <ol> [sec.300.514(c)]. 
(G) Pursuant to 34 CFR, <nl>sec.300.515(c)<ol> [sec.300.514(c)], a person 
assigned as a surrogate parent may not be an employee of a public agency that is 
involved in the education or care of the child. Thus, public (state, county, or 
local) employees, like caseworkers or probation officers, would be ineligible to 
serve as surrogate parents.
(H) (No Change.)
(I) Pursuant to 34 CFR, <nl>sec.300.515(e)<ol> [sec.300.514(e)], surrogate 
parents may represent the child in all matters relating to: 
(i)-(ii) (No Change.)
(2) (No Change.)
(h)-(j) (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 April 13, 1998.
TRD-9805125
Criss Cloudt
Associate Commissioner, Policy Planning and Research
Texas Education Agency
Earliest possible date of adoption: May 24, 1998
For further information, please call: (512) 463-9701

19 TAC sec.sec.89.1095, 89.1105
(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 Education 
Agency or in the Texas Register office, Room 245, James Earl Rudder Building, 
1019 Brazos Street, Austin.)
The repeals are proposed under 34 Code of Federal Regulations, sec.300.600, 
which outlines the responsibilities of TEA for all educational programs; Texas 
Education Code, sec.sec.29.001, 29.003, 29.005, 29.011, 29.012, and 30.057, 
which authorizes the commissioner of education to adopt rules related to 
delivering special education services; and House Bill 1, General Appropriations 
Act, 75th Texas Legislature, Article IX, Rider 167, which establishes a four-
year sunset review cycle for all state agency rules. 
The repeals implement 34 CFR, sec.300.600; Texas Education Code, sec.sec.29.001, 
29.003, 29.005, 29.011, 29.012, and 30.057; and House Bill 1, General 
Appropriations Act, 75th Texas Legislature, Article IX, Rider 167. 
sec.89.1095.Provision of Services for Students Placed by Their Parents in 
Private Schools.
sec. 89.1105. Memorandum of Understanding Relating to School-Age Residents of 
Intermediate Care Facilities for the Mentally Retarded.
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 April 13, 1998.
TRD-9805126
Criss Cloudt
Associate Commissioner, Policy Planning and Research
Texas Education Agency
Earliest possible date of adoption: May 24, 1998
For further information, please call: (512) 463-9701

Division III. Special Education Funding
19 TAC sec.89.1125
The amendment is proposed under 34 Code of Federal Regulations, sec.300.600, 
which outlines the responsibilities of TEA for all educational programs; Texas 
Education Code, sec.sec.29.001, 29.003, 29.005, 29.011, and 29.012, which 
authorizes the commissioner of education to adopt rules related to delivering 
special education services; and House Bill 1, General Appropriations Act, 75th 
Texas Legislature, Article IX, Rider 167, which establishes a four-year sunset 
review cycle for all state agency rules. 
The amendment implements 34 CFR, sec.300.600; Texas Education Code, 
sec.sec.29.001, 29.003, 29.005, 29.011, and 29.012; and House Bill 1, General 
Appropriations Act, 75th Texas Legislature, Article IX, Rider 167.

sec.89.1125. Allowable Expenditures of State Special Education Funds. 
(a)-(f) (No Change.)
(g) State special education funds may be used to pay [special education] staff 
travel to perform services <nl>directly related to the education of students 
with disabilities<ol>. Funds may also be used to pay travel of staff 
<nl>(including administrators, general education teachers, and special education 
and related services personnel)<ol> to attend staff development meetings for the 
purpose of improving performance in assigned positions <nl>directly related to 
the education of students with disabilities<ol>. The purpose for attending shall 
not include time spent in performing functions relating to the operation of 
professional organizations. 
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 April 13, 1998.
TRD-9805127
Criss Cloudt
Associate Commissioner, Policy Planning and Research
Texas Education Agency
Earliest possible date of adoption: May 24, 1998
For further information, please call: (512) 463-9701

Division IV. Special Education and Related Service Personnel
19 TAC sec.89.1131
The amendment is proposed under 34 Code of Federal Regulations, sec.300.600, 
which outlines the responsibilities of TEA for all educational programs; Texas 
Education Code, sec.sec.29.001, 29.003, 29.005, 29.011, and 29.012, which 
authorizes the commissioner of education to adopt rules related to delivering 
special education services; and House Bill 1, General Appropriations Act, 75th 
Texas Legislature, Article IX, Rider 167, which establishes a four-year sunset 
review cycle for all state agency rules.
The amendment implements 34 CFR, sec.300.600; Texas Education Code, 
sec.sec.29.001, 29.003, 29.005, 29.011, and 29.012; and House Bill 1, General 
Appropriations Act, 75th Texas Legislature, Article IX, Rider 167.

sec.89.1131.Qualifications of Special Education, Related Service, and 
Paraprofessional Personnel.
(a) All special education and related service personnel shall be certified, 
endorsed, or licensed in the area or areas of assignment in accordance with 34 
Code of Federal Regulations (CFR), <nl>sec.300.21<ol> [sec.300.15] and 
<nl>sec.300.136<ol> [sec.300.153]; the Texas Education Code (TEC), 
sec.sec.21.002, 21.003, and 29.304; or appropriate state agency credentials. 
(b) A teacher who holds a special education certificate or an endorsement may be 
assigned to any level of a basic special education instructional program serving 
students 3-21 years of age, in accordance with the limitation of their 
certification, except for the following. 
(1)-(3) (No Change.)
(4) Teachers certified in the education of students with visual impairments must 
be available to students who are visually impaired<nl>, including deaf-
blind,<ol> through one of the school district's instructional options, a shared 
service arrangement unit with other school districts, or an education service 
center (ESC). These teachers must attend admission, review, and dismissal (ARD) 
committee and individualized family services plan (IFSP) meetings when a 
student, birth through 21 years of age, with a visual impairment<nl>, including 
deaf-blind,<ol> is being considered. 
(5) Teachers certified in the education of students with auditory impairments 
must be available to students who are auditorially impaired<nl>, including deaf-
blind,<ol> through one of the school district's instructional options, a 
regional day school program for the deaf, a shared service arrangement unit with 
other school districts, or an ESC. These teachers must attend ARD committee and 
IFSP meetings when a student, birth through 21 years of age, with an auditory 
impairment<nl>, including deaf-blind,<ol> is being considered.
(6) (No Change.)
(7) Teachers assigned full-time or part-time to instruction of students from 
birth through age two with visual impairments<nl>, including deaf-blind,<ol> 
shall be certified in the education of students with visual impairments. 
Teachers assigned full-time or part-time to instruction of students from birth 
through age two who are deaf<nl>, including deaf-blind,<ol> shall be certified 
in education for students who are deaf and severely hard of hearing. Other 
certifications for serving these students shall require prior approval from TEA.
(8) (No Change.)
(c) Paraprofessional personnel may be assigned to work with eligible students, 
special education teachers, and related service personnel. Aides may also be 
assigned to assist students with special education transportation<nl>,<ol> [or] 
serve as a job coach<nl>, or serve in support of community-based 
instruction<ol>. Aides paid from state administrative funds may be assigned to 
the Special Education Resource System (SERS), the Special Education Management 
System (SEMS), or other special education clerical or administrative duties. 
[(d) This subsection will expire August 31, 1997. An aide may be assigned to 
function as a teacher assistant under the following conditions.] 
[(1) Qualifications shall include all of the following:] 
[(A) high school graduate or equivalent;]
[(B) 30 semester hours of college credit with some emphasis on child growth and 
development or related areas, or a minimum of three years experience working 
directly with children or youth (as appropriate) in instructional or child care 
facilities; and] 
[(C) documented ongoing inservice or other staff development activities related 
to the education of students with disabilities.
[(2) Assignment of an aide as a teacher assistant shall be for the following 
purposes:] 
[(A) providing individualized instruction in an environment other than the 
designated supervising teacher's classroom;
[(B) reinforcing academic or developmental skills requiring extensive repetition 
or drill and practice on skills which have been previously taught by the 
supervising teacher; and] 
[(C) assisting students in job training/employment and community-based 
instructional programs.] 
[(3) Supervision shall be by a certified special education teacher who is 
directly responsible for the implementation of the students' IEPs and evaluation 
of their progress. For teacher assistants operating under paragraph (2)(A) and 
(B) of this subsection, supervision shall be for a minimum of one hour per day 
during student instruction, in addition to the time necessary for joint planning 
and preparation. For teacher assistants operating under paragraph (2)(C) of this 
subsection, supervision shall be for a minimum of one hour per day or five hours 
per week.] 
[(4) Assignment shall be in one of the following:] 
[(A) homebound;] 
[(B) hospital class;] 
[(C) self-contained classes listed in sec.89.63 of this title (relating to 
Instructional Arrangements and Settings);]
[(D) off home campus; or] 
[(E) vocational adjustment class.] 
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 April 13, 1998.
TRD-9805128
Criss Cloudt
Associate Commissioner, Policy Planning and Research
Texas Education Agency
Earliest possible date of adoption: May 24, 1998
For further information, please call: (512) 463-9701

Division V. Regional Education Service Center Special Education Programs 
[Component]
19 TAC sec.89.1141
The amendment is proposed under 34 Code of Federal Regulations, sec.300.600, 
which outlines the responsibilities of TEA for all educational programs; Texas 
Education Code, sec.sec.29.001, 29.003, 29.005, 29.011, and 29.012, which 
authorizes the commissioner of education to adopt rules related to delivering 
special education services; and House Bill 1, General Appropriations Act, 75th 
Texas Legislature, Article IX, Rider 167, which establishes a four-year sunset 
review cycle for all state agency rules. 
The amendment implements 34 CFR, sec.300.600; Texas Education Code, 
sec.sec.29.001, 29.003, 29.005, 29.011, and 29.012; and House Bill 1, General 
Appropriations Act, 75th Texas Legislature, Article IX, Rider 167. 

sec.89.1141.Regional Education Service Center Special Education Programs 
Component.
(a)-(g) (No Change.)
(h) For the purposes of this subchapter, <nl>an ESC<ol> [ESCs] shall be 
considered to be <nl>an educational service agency <ol> [intermediate 
educational units] as defined in federal regulations.
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 April 13, 1998.
TRD-9805129
Criss Cloudt
Associate Commissioner, Policy Planning and Research
Texas Education Agency
Earliest possible date of adoption: May 24, 1998
For further information, please call: (512) 463-9701

Division VI. Hearings Concerning Students with Disabilities Under the 
Individuals with Disabilities Education Act
19 TAC sec.sec.89.1155, 89.1160, 89.1165, 89.1170, 89.1175, 89.1180, 89.1181, 
89.1185-89.1190
The amendments and new sections are proposed under 34 Code of Federal 
Regulations, sec.300.600, which outlines the responsibilities of TEA for all 
educational programs; Texas Education Code, sec.sec.29.001, 29.003, 29.005, 
29.011, and 29.012, which authorizes the commissioner of education to adopt 
rules related to delivering special education services; and House Bill 1, 
General Appropriations Act, 75th Texas Legislature, Article IX, Rider 167, which 
establishes a four-year sunset review cycle for all state agency rules. 
The amendments and new sections implement 34 CFR, sec.300.600; Texas Education 
Code, sec.sec.29.001, 29.003, 29.005, 29.011, and 29.012; and House Bill 1, 
General Appropriations Act, 75th Texas Legislature, Article IX, Rider 167.

sec.89.1155.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> Eligible student - Any student who is 18 years of age or older and 
has not been adjudged incompetent by a court of proper jurisdiction, or any 
minor student whose disabilities of minority are removed by order of a court or 
by operation of law. <nl>A student determined not to have the ability to provide 
informed consent pursuant to 34 Code of Federal Regulations (CFR), 
sec.300.517(b), is not an eligible student.<ol> 
<nl>(2)<ol> Parent - A parent<nl>, guardian,<ol> or person acting in the place 
of a parent, such as a grandparent or stepparent, with whom a student with 
disabilities lives. The term includes a surrogate parent who has been appointed 
in accordance with law, but does not include the state if the student is in the 
conservatorship of the state. <nl>As provided by 34 CFR, sec.300.19, a foster 
parent qualifies as a parent if:<ol> 
<nl>(A)<ol> <nl>the natural parents' authority to make educational decisions on 
the student's behalf has been extinguished under state law; <ol>
<nl>(B)<ol> <nl>an ongoing, long-term parental relationship exists between the 
foster parent and the student; <ol>
<nl>(C)<ol> <nl> a willingness to participate in making educational decisions on 
the student's behalf exists; and <ol>
<nl>(D)<ol> <nl> the interests of the foster parent do not conflict with the 
interests of the student. <ol>
<nl>(3)<ol> Personally identifiable information - <nl>As defined in 34 CFR, 
sec.300.500(b)(3), information<ol> [Information] that includes: 
(A) the name of the student, the student's parent, or other family member; 
(B) the address of the student; 
(C) a personal identifier, such as the student's social security number or 
student number; or 
(D) a list of personal characteristics or other information that would make it 
possible to identify the child with reasonable certainty.
<nl>(4)<ol> Public education agency - <nl>A <ol> [The] local school district, 
<nl>open-enrollment charter school,<ol> special education <nl>cooperative<ol> 
[cooperatives], and any other agency or political subdivision of the state 
responsible for providing education to students with disabilities <nl>(See 34 
CFR, sec.300.20) <ol>. 
<nl>(5)<ol> Students with disabilities - Students suspected of, or evaluated as 
possessing, one or more disabilities as defined by the Individuals with 
Disabilities Education Act (IDEA) and implemented by federal regulations, state 
law, and Texas Administrative Code (TAC) regulations <nl> (See 34 CFR, 
sec.300.7)<ol>. In this subchapter, the term "student" means a student with 
disabilities, unless the context clearly indicates otherwise.

89.1160. Applicability. The provisions of this subchapter shall apply in any 
hearing brought under the Individuals with Disabilities Education Act (IDEA) 
involving the identification, evaluation, or educational placement of a student 
with disabilities or the provision of a free [,] appropriate [,] public 
education to the student <nl>(See 34 Code of Federal Regulations, 
sec.300.507(a)(1))<ol>.

sec.89.1165.Request for Hearing. 
(a) A parent, eligible student, or public education agency may initiate a 
hearing on any matter described in sec.89.1160 of this title (relating to 
Applicability) <nl>by filing a request for hearing under 34 Code of Federal 
Regulations (CFR), sec.300.507(c)(1). The party filing the request for hearing 
is called the "petitioner" and the party complained about in the request is 
called the "respondent"<ol>. 
(b) The request for hearing shall be in writing and filed with the Texas 
Education Agency, 1701 N. Congress Avenue, Austin, Texas 78701. <nl> The request 
for public hearing may be filed by mail, hand-delivery, or facsimile. <ol> The 
request for hearing shall be deemed filed only when actually received by the 
Texas Education Agency (TEA) <nl>division responsible for hearings <ol>. <nl>A 
copy of the request for hearing must be sent to the superintendent or chief 
executive officer of each respondent at the same time and by the same method of 
delivery as the original request for hearing sent to TEA.<ol>
<nl>(c)<ol> <nl>The TEA shall develop and disseminate to public education 
agencies a model form which may be used to request a due process hearing in 
accordance with 34 CFR, sec.300.507(c)(3). A petitioner is not required to use 
the model form. Public education agencies shall, on request, provide this form 
to parents and eligible students. The model form shall be available on the TEA 
World-Wide Website. <ol>
<nl>(d)<ol> <nl> The request for hearing must be signed and must include: <ol>
<nl>(1)<ol> <nl> the name of the student and the address of the residence of the 
student; <ol>
<nl>(2)<ol> <nl> the mailing address, telephone number(s), and facsimile number 
for the petitioner (or the petitioner's representative); <ol>
<nl>(3)<ol> <nl> the name of the school the student is attending and, if known, 
the name of the student's contact person at that school; <ol>
<nl>(4)<ol> <nl> a description of the problem on which a hearing is requested, 
including a statement of the facts relating to the problem such as specific 
actions or decisions, dates, and names of individuals; <ol>
<nl>(5)<ol> <nl> the resolution or remedy of the problem requested (to the 
extent known and available to the petitioner at the time); and <ol>
<nl>(6)<ol> <nl> a separately signed statement declaring that the petitioner has 
sent a copy of the request to each respondent as required by subsection (b) of 
this section. <ol>
<nl>(e)<ol> [(c)] If the request for hearing does not specify the issues to be 
heard and the relief requested, the TEA division responsible for hearings shall 
docket the request, and the hearing officer <nl>shall<ol> [may], upon request, 
order the <nl>petitioner <ol> [complaining party] to supplement the request. 
<nl>This subsection does not require the petitioner to state all evidence relied 
upon. However, all issues relied upon by the petitioner must be raised in the 
request for hearing. The petitioner shall be denied an opportunity to present 
evidence on issues not raised in the request for hearing.<ol> 
<nl>(f)<ol> <nl>A request for hearing is a confidential student record under the 
Family Educational Rights and Privacy Act of 1974 and 34 CFR, Part 99. The 
public education agency shall maintain the request for hearing in compliance 
with 34 CFR, sec.300.507(c)(1). <ol>

sec.89.1170. Impartial Hearing Officer. 
(a) Hearings shall be conducted by an independent, impartial hearing officer 
appointed by the commissioner of education. The hearing officer selected by the 
commissioner shall not be a person who: 
(1) (No Change.)
(2) has a personal or professional interest that would conflict with his or her 
objectivity in the hearing <nl>(See 34 Code of Federal Regulations, 
sec.300.508)<ol>. 
(b)-(c) (No Change.)

sec.89.1175. Hearing Rights. 
(a) (No Change.)
<nl>(c)<ol> <nl>At least five business days prior to a hearing, each party shall 
disclose to all other parties all evaluations completed by that date and 
recommendations based on the offering party's evaluations which the party 
intends to use at the hearing. A hearing officer may exclude any evaluation or 
recommendation that is not disclosed. <ol>

sec.89.1180. Prehearing Procedures. 
(a) <nl>At the request of any party to the hearing, the<ol> [The] hearing 
officer shall set and hold a prehearing conference unless the interests of 
justice require otherwise. The prehearing conference shall be held by telephone 
unless circumstances require an in person conference. Action taken at the 
conference shall be recorded in the manner directed by the hearing officer. The 
purpose of the prehearing conference shall be to consider any of the following: 
(1)-(5) (No Change.)
(b) No pleadings, other than the request for hearing <nl> under sec.89.1165 of 
this title (relating to Request for Hearing)<ol>, are mandatory, unless ordered 
by the hearing officer. Any pleadings after the request for <nl>hearing<ol> 
[hearings] shall be filed with the hearing officer. Copies of all pleadings 
shall be sent to all parties of record in the hearing and to the hearing 
officer. If a party is represented by an attorney, all copies shall be sent to 
the attorney of record. Telephone facsimile copies may be substituted for copies 
sent by other means. An affirmative statement that a copy of the pleading has 
been sent to all parties and the hearing officer is sufficient to indicate 
compliance with this rule. 
(c)-(d) (No Change.)
(e) Parties shall comply with the requirement in sec.89.1175(a)(3) <nl> and 
(c)<ol> of this title (relating to Hearing Rights) regarding disclosure of 
evidence five days before hearing. The hearing officer may specify the date and 
time that constitute compliance with this rule. Disclosure means providing 
copies of documentary evidence and an index of the documents, unless otherwise 
agreed by the parties, and providing the names, addresses, and professions of 
witnesses. In addition, copies of evidence disclosed under this subsection shall 
be filed with the hearing officer at least five days before hearing.
<nl>(f)<ol> <nl> On first contact with the parties, the hearing officer shall 
inform the parties how to obtain free mediation services from the TEA and shall 
urge them to resolve their dispute, if possible, by mediation or other means. 
<ol>

sec.89.1181.Dismissal of Request Without a Hearing. 
(a) The hearing officer may dismiss a request without a hearing for any proper 
reason, including: 
(1) compromise; 
(2) unnecessary duplication of proceedings; 
(3) issue or claim preclusion; 
(4) withdrawal; 
(5) mootness; 
(6) untimely filing; 
(7) lack of jurisdiction; 
(8) failure to state a claim for which relief can be granted; or 
(9) failure to prosecute. 
(b) The hearing officer may dismiss a request for failure to comply with 
sec.89.1165 of this title (relating to Request for Hearing) only if the 
following findings are made: 
(1) the request for hearing fails to comply with sec.89.1165 of this title 
(relating to Request for Hearing); 
(2) the petitioner was afforded reasonable opportunity after notice of 
noncompliance to cure the defect in the request for hearing; and 
(3) the petitioner failed or refused to amend the request for hearing to comply 
with the notice required in sec.89.1165 of this title (relating to Request for 
Hearing). 

sec.89.1185.Hearing. 
(a) <nl>Except as provided by sec.89.1190 of this title (relating to Expedited 
Due Process Hearing), the<ol> [The] hearing officer shall afford the parties an 
opportunity for hearing after reasonable notice of not less than ten days, 
unless the parties agree otherwise. 
(b)-(e) (No Change.)
(f) [Upon request, the] <nl>The<ol> hearing officer, at his or her discretion, 
may permit testimony to be received by telephone. 
(g)-(i) (No Change.)
(j) Filing of <nl>post-hearing<ol> [post-trial] briefs shall be permitted only 
upon order of the hearing officer and shall be limited to issues specified by 
the hearing officer. 
[(k) The hearing officer shall issue a final decision, signed and dated, no 
later than 45 days after a request for hearing is filed. A final decision must 
be in writing and shall include findings of fact and conclusions of law 
separately stated. Findings of fact must be based exclusively on the evidence 
and on matters officially noticed under the Administrative Procedure Act (APA), 
Texas Government Code, sec.2001.141(c). The final decision shall be mailed to 
each party by the hearing officer. The hearing officer, at his or her 
discretion, may render his or her decision following the conclusion of the 
hearing, to be followed by written findings of fact and written decision.
[(l) A hearing officer may grant extensions of time for good cause beyond the 
period specified in subsection (k) of this section at the request of either 
party. The extensions shall be granted to a specific date and shall be stated in 
writing by the hearing officer to the parties.] 
[(m) The decision made under subsection (k) of this section is final, unless a 
party brings a civil action under 20 United States Code (USC), sec.1415(e), in 
state or federal court. A school district shall implement any decision of the 
hearing officer that is, at least in part, adverse to the school district in a 
timely manner within 90 days after the date the decision was rendered. If a 
decision directing action on the part of a school district is not appealed or 
implemented within 90 days after the date of the decision, the Texas Education 
Agency (TEA) shall refer the matter for enforcement under the APA, Texas 
Government Code, sec.sec.2001.051 et seq.] 
[(n) Under provisions of the Individuals with Disabilities Education Act (IDEA) 
concerning prompt rendering of final decisions, decisions issued under this 
subchapter shall be final. No motion for rehearing shall be required for a 
decision to be appealable to court under the APA, Texas Government Code, 
sec.2001.145. The decision shall recite the fact that the public welfare 
requires immediate effect of the final decision.]
[(o) Under the Texas Rules of Civil Procedure, Rule 298, a party may request 
specified additional or amended findings or conclusions within ten days after 
the date of the decision. The hearing officer shall issue any additional or 
amended findings or conclusions that are appropriate, within the discretion of 
the hearing officer, within ten days after the request is filed.] 
[(p) Final decisions containing findings of fact and conclusions of law shall be 
made available to the public after any personally identifiable information has 
been deleted.] 

sec.89.1186. Time for Issuance of Decisions and Extensions. 
(a) The hearing officer shall issue a final decision, signed and dated, no later 
than 45 days after a request for hearing is filed. 
(b) A hearing officer may grant extensions of time for good cause beyond the 
period specified in subsection (a) of this section at the request of either 
party. The extensions shall be granted to a specific date and shall be stated in 
writing by the hearing officer to the parties. 
(c) Notwithstanding any extension under subsection (b) of this section, the 
hearing officer shall issue the final written decision no later than 30 days 
after the close of the record.

sec.89.1187.Hearing Officer Decision.
(a) A final decision must be in writing and shall includefindings of fact and 
conclusions of law separately stated. Findings of fact must be based exclusively 
on the evidence and on matters officially noticed under the Administrative 
Procedure Act, Texas Government Code, sec.2001.141(c).
(b) The decision shall include an order which grants or rejects specific relief 
in clear and concise language, including specific deadlines for implementation 
of each mandate in the order. If the time for implementing any mandate in the 
order is unspecified or unclear, the mandate shall be implemented in a 
reasonable time. 
(c) The final decision shall be mailed to each party by the hearing officer. The 
hearing officer, at his or her discretion, may render his or her decision 
following the conclusion of the hearing, to be followed by written findings of 
fact and written decision. 
(d) Final decisions containing findings of fact and conclusions of law shall be 
made available to the public after any personally identifiable information has 
been deleted. 

sec.89.1188. Appeal Process. 
(a) The decision made under sec.89.1187 of this title (relating to Hearing 
Officer Decision) is final, unless a party brings a civil action under 20 United 
States Code (USC), sec.1415(i)(2), in state or federal court. A public education 
agency shall bring suit under 20 USC, sec.1415(i)(2), within 30 days to appeal 
any decision of the hearing officer that is, at least in part, adverse to the 
public education agency. 
(b) Under 34 Code of Federal Regulations, sec.300.510 and sec.300.511, decisions 
issued under this subchapter shall be final. No motion for rehearing shall be 
required for a decision to be appealable to court under the Administrative 
Procedure Act, Texas Government Code, sec.2001.145. The decision shall recite 
the fact that the public welfare requires immediate effect of the final 
decision. 
(c) Under the Texas Rules of Civil Procedure, Rule 298, a party may request 
specified additional or amended findings or conclusions within ten days after 
the date of the decision. The hearing officer shall issue any additional or 
amended findings or conclusions that are appropriate, within the discretion of 
the hearing officer, within ten days after the request is filed. 

sec.89.1189.Enforcement of Hearing Officer Decision. 
(a) An individual with information indicating that a public education agency is 
in violation of a hearing officer decision may file a complaint in writing with 
the Texas Education Agency (TEA) division responsible for complaints at Texas 
Education Agency, 1701 N. Congress Avenue, Austin, Texas 78701. The complaint 
should state the violations and facts on which the complaint is based. 
(b) If the TEA determines that a public education agency is in violation of a 
hearing officer decision, the TEA shall enforce the decision through appropriate 
findings and corrective actions in accordance with 34 Code of Federal 
Regulations (CFR), sec.300.661. The TEA may also refer the matter for 
enforcement by the Attorney General pursuant to the Administrative Procedure 
Act, Texas Government Code, sec.2001.051. In addition, the TEA may take 
appropriate action against the public education agency under Texas Education 
Code, Chapter 39. 
(c) In resolving a complaint alleging failure to provide appropriate services, 
the TEA may order compensatory services as a corrective action for the denial of 
a free appropriate public education under 34 CFR, sec.300.660.
(d) Any party to a due process hearing with information indicating that a public 
education agency is in violation of a hearing officer decision may file, in 
addition to any complaint, a civil action in state or federal court to enforce 
the order. 

sec.89.1190.Expedited Due Process Hearing. 
(a) A parent or eligible student may request an expedited due process hearing 
regarding a disciplinary action described in 34 Code of Federal Regulations 
(CFR), sec.300.520(a)(2) or sec.300.521, to challenge an interim alternative 
educational setting or a manifestation determination under 34 CFR, 
sec.300.525(a)(2). A public education agency may request an expedited due 
process hearing regarding the placement of a student after the expiration of an 
interim alternative placement under 34 CFR, sec.300.526(b), if the public 
education agency maintains that it is dangerous for the student to return to the 
prior placement in accordance with 34 CFR, sec.300.526(c)(1).
(b) A party who requests an expedited due process hearing under subsection (a) 
of this section shall attach a separate sheet of paper to the front of the 
request for hearing with the statement "Expedited Discipline Hearing Requested" 
prominently displayed. Failure to attach this statement as required shall 
constitute a waiver of the right to expedite the hearing.
(c) An expedited due process hearing under this section must be conducted by a 
due process hearing officer assigned pursuant to sec.89.1170 of this title 
(relating to Impartial Hearing Officer). The decision required by sec.89.1186 of 
this title (relating to Time for Issuance of Decisions and Extensions) shall be 
issued within ten business days of the request for the hearing, unless the 
parties otherwise agree. 
(d) Unless the parties agree to extend the time period provided by subsection 
(c) of this section to 45 days or more, the following provisions shall apply to 
hearings under this section: 
(1) the ten-day notice required under sec.89.1185(a) of this title (relating to 
Hearing) and the Administrative Procedure Act shall be shortened to two business 
days from receipt of the request; 
(2) the five-day disclosure deadlines identified in sec.89.1175(a)(3) and (c) of 
this title (relating to Hearing Rights) shall be shortened to two business days; 
and 
(3) the hearing officer may make additional modifications, in his or her sound 
discretion, to sec.89.1165 of this title (relating to Request for Hearing), 
sec.89.1180 of this title (relating to Prehearing Procedures), and sec.89.1185 
of this title (relating to Hearing), consistent with state and federal law. 
(e) A decision made under this section is appealable under sec.89.1188 of this 
title (relating to Appeal Process). 
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 April 13, 1998.
TRD-9805135
Criss Cloudt
Associate Commissioner, Policy Planning and Research
Texas Education Agency
Earliest possible date of adoption: May 24, 1998
For further information, please call: (512) 463-9701

Division VI. Hearings Concerning Students with Disabilities Under the 
Individuals with Disabilities Education Act
19 TAC sec.89.1190
(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 Education 
Agency or in the Texas Register office, Room 245, James Earl Rudder Building, 
1019 Brazos Street, Austin.)
The repeal is proposed under 34 Code of Federal Regulations, sec.300.600, which 
outlines the responsibilities of TEA for all educational programs; Texas 
Education Code, sec.sec.29.001, 29.003, 29.005, 29.011, and 29.012, which 
authorizes the commissioner of education to adopt rules related to delivering 
special education services; and House Bill 1, General Appropriations Act, 75th 
Texas Legislature, Article IX, Rider 167, which establishes a four- year sunset 
review cycle for all state agency rules. 
The repeal implements 34 CFR, sec.300.600; Texas Education Code, sec.sec.29.001, 
29.003, 29.005, 29.011, and 29.012; and House Bill 1, General Appropriations 
Act, 75th Texas Legislature, Article IX, Rider 167. 
sec.89.1190. Student's Status During Proceedings.
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 April 13, 1998.
TRD-9805131
Criss Cloudt
Associate Commissioner, Policy Planning and Research
Texas Education Agency
Earliest possible date of adoption: May 24, 1998
For further information, please call: (512) 463-9701

TITLE 22. EXAMINING BOARDS
PART V. State Board of Dental Examiners
CHAPTER 107. Dental Board Procedures
SUBCHAPTER <nl>C. <ol>Administrative Penalties
22 TAC sec.107.200
The State Board of Dental Examiners proposes amendments to sec.107.200, 
concerning administrative penalty, to clarify the separation between penalties 
to be assessed licensees who either (1) fail to comply with the Board's 
continuing education requirements or (2) commit other violations of the Dental 
Practice Act and/or Board rules. 
Douglas A. Beran, Executive Director, State Board of Dental Examiners, has 
determined for the first five-year period the rule is in effect there will be no 
fiscal implications for local government as a result of enforcing or 
administering the rule. The impact on state government will be contingent upon 
the penalties assessed pursuant to sec.107.200 and sec.107.201.
Mr. Beran also has determined that for each year of the first five years the 
rule is in effect the public benefit anticipated as a result of enforcing the 
rule will be a greater assurance that licensees will comply with the Dental 
Practice Act and Board rules because of possible penalties that may be assessed 
for lack of compliance. 
Their will be no economic costs to persons who are required to comply with the 
rule as proposed. 
Comments on the proposal may be submitted to Mei Ling Clendennen, Executive 
Assistant, State Board of Dental Examiners, 333 Guadalupe, Tower 3, Suite 800, 
Austin, Texas 78701, (512) 463-6400. To be considered, all comments and written 
requests for public hearing must be received by the State Board of Dental 
Examiners on or before May 25, 1998. 
The amended rule is proposed under Texas Government Code sec.2001.021 et.seq; 
Texas Civil Statutes, Article 4543sec.2 and 4551d which provide the State Board 
of Dental Examiners with the authority to adopt and promulgate rules consistent 
with the Dental Practice Act; and Article 4548j. The proposed amendment to the 
rule is a new subsection (a) which provides that administrative penalties for 
failure to complete required continuing education hours will be set forth in 
another rule. This rule sets administrative penalties for all other violations 
of the Dental Practice Act and board rules. 
The proposed amended rule does not affect other statutes, articles, or codes. 

sec.107.200. Administrative Penalty.
<nl>(a)<ol> Procedures and amounts for administrative penalties portrayed in 
this rule apply generally to violations of the Dental Practice Act and/or Board 
rules except for violations of the continuing education requirements prescribed 
in the Dental Practice Act in Article 4544, sec.5, Texas Civil Statutes; Article 
4551e, sec.5A, Texas Civil Statutes and in Chapter 104 of this title (relating 
to Continuing Education). Procedures and amounts for administrative penalties 
for failure to comply with continuing education requirements are set forth in 
sec.107.201 of this title (relating to Administrative Penalties for Continuing 
Education Violations).
<nl>(b)<ol> [(a)] Upon review of the completed investigation file and on the 
recommendation of the Board Secretary or his/her designee an administrative 
penalty may be imposed on a licensee or registrant for violation(s) of the 
Dental Practice Act and/or Board rules and regulations.
<nl>(c)<ol> [(b)] Administrative penalties may be imposed for the following 
violation categories: 
(1) Advertising; 
(2) Utilizing an unregistered dental laboratory; 
(3) Failure to maintain a centralized inventory ledger for Controlled 
Substances; 
(4) Failure to complete the required continuing education hours; 
(5) Violating the terms and conditions of an issued Board Order; 
(6) Practicing dentistry or operating a registered dental laboratory with a 
delinquent license or registration certificate; 
(7) Failure to provide timely notice of a change of address;
(8) Failure to maintain the dental office in a sanitary condition; 
(9) Failure to make, maintain, and keep adequate records of the diagnosis made 
and treatment performed for and upon each dental patient;
(10) Failure to post the required consumer information;
(11) Failure to have at least one certified dental technician employed a minimum 
of 30 hours per week at a specific dental laboratory; 
(12) Other technical violations of the Dental Practice Act or the Board's rules 
and regulations that will not likely cause harm or danger to the public of 
Texas. 
<nl>(d)<ol> [(c)] The penalty for a violation may be in the amount not to exceed 
$5,000. Each day a violation continues or occurs is a separate violation for the 
purposes of imposing a penalty.
<nl>(e)<ol> [(d)] The amount of penalty imposed shall be based on the following 
criteria: 
(1) The seriousness of the violation, including but not limited to, the nature, 
circumstances, extent, and gravity of the prohibited acts and the hazard or 
potential hazard created to the health, safety, or welfare of the public; 
(2) The economic damage to property or the environment caused by the violation; 
(3) The history of previous violations; 
(4) The amount necessary to deter future violations;
(5) Efforts to correct the violation; and 
(6) Any other matter that justice may require. 
<nl>(f)<ol> [(e)] The amount of penalty imposed shall be based on a standardized 
penalty schedule as described below. Initial offense or repeat offenses shall be 
based on finalized administrative action.
(1) First offense: $100 to $1,000 per violation for each day the violation 
continues or occurs; 
(2) Second offense: $100 to $2,500 per violation for each day the violation 
continues or occurs; and 
(3) Third offense: $100 to $5,000 per violation for each day the violation 
continues or occurs. 
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 April 8, 1998.
TRD-9804935
Douglas A. Beran, Ph.D. 
Executive Director
State Board of Dental Examiners
Earliest possible date of adoption: May 24, 1998
For further information, please call: (512) 463-6400

PART VI. Texas Board of Professional Engineers
CHAPTER 131.Practice and Procedure
SUBCHAPTER A.Bylaws and Definitions
22 TAC sec.131.18
The Texas Board of Professional Engineers proposes an amendment to sec.131.18, 
concerning bylaws and definitions. 
The section is being amended to clarify that a resident of Texas may be someone 
who is practicing engineering in Texas exclusively on a Texas facility owned by 
that person's employer. 
John R. Speed, P.E., executive director, Texas Board of Professional Engineers, 
has determined that for the first five-year period the section is in effect 
there will no effect for state or local government. 
Mr. Speed 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 the 
section will be clarification of the definition resident to include an 
individual who is practicing engineering in Texas exclusively on a Texas 
facility owned by that person's employer. 
Comments on the proposal may be submitted to John R. Speed, P.E., Executive 
Director, Texas Board of Professional Engineers, P.O. Drawer 18329, Austin, 
Texas 78760-8329. 
The amendment is proposed under Texas Civil Statutes, Article 3271a, sec.8(a), 
which provide the Texas Board of Professional Engineers with the authority to 
promulgate rules in accordance with Senate Bill 623. Texas Civil Statutes, 
Article 3271a, sec.2 and sec.21 is affected by the proposed amendment. 

sec.131.18.Definitions.
In applying the Texas Engineering Practice Act and the board rules, the 
following definitions shall prevail unless the word or phrase is defined in the 
text for a particular usage. Singular and masculine terms shall be construed to 
include plural and feminine terms and vice versa. 
(1)-(25) (No change.) 
(26) Resident-An individual physically residing at a Texas address <nl>or who is 
practicing engineering in Texas exclusively on a Texas facility owned by the 
individual's employer<ol>. 
(27)-(29) (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 April 13, 1998.
TRD-9805112
John R. Speed, P.E.
Executive Director
Texas Board of Professional Engineers
Earliest possible date of adoption: May 24, 1998
For further information, please call: (512) 440-7723

SUBCHAPTER B.Application for License
22 TAC sec.131.52
The Texas Board of Professional Engineers proposes an amendment to sec.131.52, 
concerning application for license. 
The section is being amended to consolidate all the engineering branches 
recognized by the board in one rule and denote software engineering as a new 
branch designation. 
John R. Speed, P.E., executive director, Texas Board of Professional Engineers, 
has determined that for the first five-year period the section is in effect 
there will no effect for state or local government. 
Mr. Speed 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 the 
section will be consolidation of all the engineering branches recognized by the 
board in one rule and the denoting of software engineering as a new branch 
designation. 
Comments on the proposal may be submitted to John R. Speed, P.E., Executive 
Director, Texas Board of Professional Engineers, P.O. Drawer 18329, Austin, 
Texas 78760-8329. 
The amendment is proposed under Texas Civil Statutes, Article 3271a, sec.8(a), 
which provide the Texas Board of Professional Engineers with the authority to 
promulgate rules in accordance with Senate Bill 623. Texas Civil Statutes, 
Article 3271a, sec.12 and sec.14 is affected by the proposed amendment. 

sec.131.52.Applications for a Professional Engineer License.
(a)-(f) (No change.) 
(g) Applicants shall indicate a primary branch of engineering under which 
experience has been gained. Applicants seeking permission to take the Principles 
and Practice of Engineering examination shall indicate a primary branch for 
which there is an available National Council of Examiners for Engineering and 
Surveying (NCEES) examination <nl>as denoted, or other Board approved 
examination, or for which the Board will issue a license under applicable 
examination waiver rules<ol>. The [available] branches and their corresponding 
alphabetical code are: 
(1) (F) agricultural <nl>(NCEES)<ol>; 
(2) (K) chemical <nl>(NCEES)<ol>; 
(3) (C) civil <nl>(NCEES),<ol>; 
(4) (X) control systems <nl>(NCEES)<ol>; 
(5) (E) electrical, electronic, computer, communications <nl> (NCEES) <ol>; 
(6) (V) environmental <nl>(NCEES) <ol>; 
(7) (H) fire protection <nl>(NCEES)<ol>; 
(8) (L) industrial <nl>(NCEES) <ol>; 
(9) (M) mechanical <nl>(NCEES) <ol>; 
(10) (I) mining/mineral <nl>(NCEES) <ol>; 
(11) (J) metallurgical <nl>(NCEES) <ol>; 
(12) (U) manufacturing <nl>(NCEES) <ol>; 
(13) (N) nuclear <nl>(NCEES) <ol>; 
(14) (P) petroleum <nl>(NCEES) <ol>; 
(15) (B) structural <nl>(NCEES) <ol>; 
<nl>(16)<ol> <nl> (A) aeronautical/aerospace; <ol>
<nl>(17)<ol> <nl>(R) biomedical; <ol>
<nl>(18)<ol> <nl> (D) ceramic; <ol>
<nl>(19)<ol> <nl> (Q) engineering sciences; <ol>
<nl>(20)<ol> <nl>(G) geological; <ol>
<nl>(21)<ol> <nl> (O) ocean; <ol>
<nl>(22)<ol> <nl>(T) textile; <ol>
<nl>(23)<ol> <nl>(S) sanitary; <ol>
<nl>(24)<ol> <nl> (Z) software; <ol>
<nl>(25)<ol> <nl> (Y) other. <ol>
(h)-(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 April 13, 1998.
TRD-9805113
John R. Speed, P.E.
Executive Director
Texas Board of Professional Engineers
Earliest possible date of adoption: May 24, 1998
For further information, please call: (512) 440-7723

SUBCHAPTER F.Examinations
22 TAC sec.131.101
The Texas Board of Professional Engineers proposes an amendment to sec.131.101, 
concerning examinations. 
The section is being amended to establish a waiver from the Fundamentals of 
Engineering examination for individuals who meet certain educational 
requirements. John R. Speed, P.E., executive director, Texas Board of 
Professional Engineers, has determined that for the first five-year period the 
section is in effect there will no effect for state or local government. 
Mr. Speed 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 the 
section will be the establishment of a waiver from the Fundamentals of 
Engineering examination for individuals who meet certain educational 
requirements.
Comments on the proposal may be submitted to John R. Speed, P.E., Executive 
Director, Texas Board of Professional Engineers, P.O. Drawer 18329, Austin, 
Texas 78760-8329. 
The amendment is proposed under Texas Civil Statutes, Article 3271a, sec.8(a), 
which provide the Texas Board of Professional Engineers with the authority to 
promulgate rules in accordance with Senate Bill 623. Texas Civil Statutes, 
Article 3271a, sec.12 is affected by the proposed amendment. 

sec.131.101.Engineering Examinations Required for a License to Practice as a 
Professional Engineer.
(a)-(e) (No change.) 
(f) It is the intent of the board to utilize the examination as an integral part 
of the licensing process; all applicants are expected to have passed the 
examinations or to offer sufficient evidence of their qualifications in the 
absence of passage of the examinations. <nl>The board may waive the Fundamentals 
of Engineering examination for any applicant with at least four years of 
creditable experience and who holds at least the educational credentials 
described in paragraph (3)(A) of this subsection.<ol> The board may waive one or 
both of the experience and knowledge examinations for applicants who do not pose 
a threat to the public health, safety, or welfare; request a waiver in writing 
at the time the application is filed; and meet one of the following requirements 
listed in paragraphs (1)-(3) of this subsection: 
(1)-(3) (No change.) 
(g)-(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 April 13, 1998.
TRD-9805114
John R. Speed, P.E.
Executive Director
Texas Board of Professional Engineers
Earliest possible date of adoption: May 24, 1998
For further information, please call: (512) 440-7723

SUBCHAPTER G.Board Review of Application
22 TAC sec.131.114, sec.131.116
The Texas Board of Professional Engineers proposes amendments to sec.131.114 and 
sec.131.116, concerning board review of application. The sections are being 
amended to require that an applicant will be scheduled to appear before the full 
board for an interview instead of appearing before the licensing committee and 
to remove the branch designation listed in sec.131.116 as the branch 
designations are being consolidated in sec.131.52 which is being amended in this 
issue of the Texas Register John R. Speed, P.E., executive director, Texas Board 
of Professional Engineers, has determined that for the first five-year period 
the sections are in effect there will no effect for state or local government. 
Mr. Speed 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 requirement of an applicant to appear before the full 
board for an interview instead of appearing before the licensing committee and 
the removal of the branch designation listed in sec.131.116 as the branches are 
being consolidated in sec.131.52. 
Comments on the proposal may be submitted to John R. Speed, P.E., Executive 
Director, Texas Board of Professional Engineers, P.O. Drawer 18329, Austin, 
Texas 78760-8329. 
The amendments are proposed under Texas Civil Statutes, Article 3271a, sec.8(a), 
which provide the Texas Board of Professional Engineers with the authority to 
promulgate rules in accordance with Senate Bill 623. Texas Civil Statutes, 
Article 3271a, sec.sec.12, 14, and 15 is affected by the proposed amendments. 

sec.131.114.Personal Interviews of Applicants.
(a) The <nl>executive director<ol> [Licensing Committee of the board] may 
schedule [and conduct] a personal interview <nl> of an applicant before the 
board<ol>: 
(1) by issuing an invitation <nl>at the direction of board members<ol> to 
provide additional information or clarify information submitted in support of 
the application; 
(2) (No change.) 
(b) <nl>An invitation<ol> [A request] to appear before the <nl>board under 
subsection (a)(1) of this section may be issued by the executive director at any 
time. Requests made under subsection (a)(2) of this section must be initiated by 
the applicant and<ol> [Licensing Committee] must be made in writing and received 
at the board office by the close of business on or before the 60th calendar day 
from the date of the letter notifying the applicant that the reconsideration was 
non-approved <nl> or the request for an examination waiver was denied. The 
executive director shall issue an invitation or deny the invitation for 
cause.<ol> 
(c) An applicant appearing for a personal interview shall be scheduled by the 
executive director to appear at the next appropriate <nl> board<ol> [Licensing 
Committee]meeting. 
(d) -(f) (No change.) 
(g) <nl>Personal interviews requested under sec.131.113(c) of this title 
(relating to Reconsideration of Non-Approved Applications or Examination 
Waivers) to review an application non-approved under reconsideration or to 
reconsider the denial of an examination waiver shall constitute the last 
administrative appeal available to the applicant.<ol> [The Licensing Committee 
shall recommend approval or non-approval of an application to the full board at 
the next regular board meeting. Applicants who have appeared for a personal 
interview may appear and testify before the full board at this time. Requests 
for reconsideration of an examination waiver request shall be forwarded to the 
board for approval only if the committee finds such a waiver in order.] If the 
<nl>board<ol> [committee] does not <nl>approve an application or<ol> [recommend 
a] waiver, the previous board <nl>action<ol> [approval or non-approval] is 
sustained. [These actions shall constitute the last administrative appeal 
available to the applicant.] 

sec.131.116.Issuance of License.
(a)-(i) (No change.) 
(j) The records of the board shall indicate a branch considered by the board or 
license holder to be dominant. [The branch designation is limited to those 
branches listed in sec.131.52 of this title (relating to Applications for a 
Professional Engineer License) and those identified in paragraphs (1)-(9) of 
this subsection: ]
[(1) (A) aeronautical/aerospace; ]
[(2) (R) biomedical; ]
[(3) (Q) engineering sciences; ]
[(4) (G) geological; ]
[(5) (O) ocean; ]
[(6) (T) textile; ]
[(7) (D) ceramic; ]
[(8) (S) sanitary; ]
[(9) (Y) other.] 
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 April 13, 1998.
TRD-9805115
John R. Speed, P.E.
Executive Director
Texas Board of Professional Engineers
Earliest possible date of adoption: May 24, 1998
For further information, please call: (512) 440-7723

SUBCHAPTER I.Professional Conduct and Ethics
22 TAC sec.131.155
The Texas Board of Professional Engineers proposes an amendment to sec.131.155, 
concerning professional conduct and ethics. 
The section is being amended to define inappropriate behaviors and clarify an 
engineer's conduct with regard to the personal reputation and retaliation under 
engineer's responsibility to the profession. 
John R. Speed, P.E., executive director, Texas Board of Professional Engineers, 
has determined that for the first five-year period the section is in effect 
there will no effect for state or local government. 
Mr. Speed 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 the 
section will be the defining of inappropriate behaviors and clarification of an 
engineer's conduct with regard to the personal reputation and retaliation under 
engineer's responsibility to the profession. 
Comments on the proposal may be submitted to John R. Speed, P.E., Executive 
Director, Texas Board of Professional Engineers, P.O. Drawer 18329, Austin, 
Texas 78760-8329. 
The amendment is proposed under Texas Civil Statutes, Article 3271a, sec.8(a), 
which provide the Texas Board of Professional Engineers with the authority to 
promulgate rules in accordance with Senate Bill 623. Texas Civil Statutes, 
Article 3271a, sec.8 is affected by the proposed amendment.

sec.131.155.Engineers' Responsibility to the Profession.
(a) (No change.) 
(b) The engineer shall: 
(1)-(3) (No change.) 
<nl>(4)<ol> <nl>conduct engineering and related business affairs in a manner 
that is respectful of the client, involved parties, and employees. Inappropriate 
behaviors or patterns of inappropriate behaviors may include, but are not 
limited to, misrepresentation in billing; unprofessional correspondence or 
language; sale and/or performance of unnecessary work; or conduct that harasses 
or intimidates another party. <ol>
(c) The engineer shall not: 
(1) (No change.) 
(2) maliciously injure or attempt to injure or damage the <nl>personal or<ol> 
professional reputation of another by any means. This does not preclude an 
engineer from giving a frank but private appraisal of engineers or other persons 
or firms when requested by a client or prospective employer; 
(3) retaliate against a person who provides reference material for an 
application for a license <nl>or who in good faith attempts to bring forward an 
allegation of wrongdoing<ol>; 
(4)-(7) (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 April 13, 1998.
TRD-9805116
John R. Speed, P.E.
Executive Director
Texas Board of Professional Engineers
Earliest possible date of adoption: May 24, 1998
For further information, please call: (512) 440-7723

PART XVI. Texas Board of Physical Therapy Examiners
CHAPTER 341. License Renewal
22 TAC sec.341.8
(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 Board of 
Physical Therapy Examiners or in the Texas Register office, Room 245, James Earl 
Rudder Building, 1019 Brazos Street, Austin.)
The Texas Board of Physical Therapy Examiners proposes the repeal of sec.341.8 
and new sec.341.8, concerning license renewal. The section is being repealed and 
replaced as new to clarify and update the requirements regarding inactive 
status. 
The new section will add the requirement that a licensee must notify the board 
at the end of each two-year cycle that he or she wish to remain inactive and a 
late fee will be charged if the licensee does not notify the board before the 
license expiration date. Also, the licensee must be in good standing to enter 
inactive status and to reinstate active status. 
The repeal of this section will eliminate the board's inactive register. The 
board currently tracks all statuses electronically, and no longer prints rosters 
on a monthly basis. 
John Maline, Executive Director of the Executive Council of Physical Therapy and 
Occupational Therapy Examiners, has determined that for the first five-year 
period the section is in effect there will be no effect on state or local 
government. 
Mr. Maline 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 the 
section will be clarified and updated requirements regarding inactive status. 
Comments on the proposal may be submitted to Nina Hurter, PT Coordinator, Texas 
Board of Physical Therapy Examiners, 333 Guadalupe, Suite 2-510, Austin, Texas 
78701. 
The repeal is proposed under the Physical Therapy Practice Act, Texas Civil 
Statutes, Article 4512e, which provides the Texas Board of Physical Therapy 
Examiners with the authority to adopt rules consistent with this Act to carry 
out its duties in administering the Act. 
Texas Civil Statutes, Article 4512e is affected by this repeal. 
sec.341.8. Inactive Status. 
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 April 13, 1998.
TRD-9805152
John P. Maline
Executive Director
Texas Board of Physical Therapy Examiners
Earliest possible date of adoption: May 24, 1998
For further information, please call: (512) 305-6900

The new section is proposed under the Physical Therapy Practice Act, Texas Civil 
Statutes, Article 4512e, which provides the Texas Board of Physical Therapy 
Examiners with the authority to adopt rules consistent with this Act to carry 
out its duties in administering the Act. 
Texas Civil Statutes, Article 4512e is affected by this new section. 

sec.341.8. Inactive Status.
(a) Requirements for inactive status. Inactive status indicates the voluntary 
termination of the right or privilege to practice physical therapy in Texas by a 
licensee in good standing with the board. 
(1) A licensee who is not actively engaged in the practice of physical therapy 
in the state may request in writing a change to inactive status, to be effective 
on the next license renewal date. On or by that date, the licensee must submit 
to the board the following listed in subparagraphs (A)-(B) of this paragraph: 
(A) proof of having met the continuing education requirement for the current 
renewal period; and 
(B) a completed inactive status application as provided by the board. 
(2) A licensee may remain on inactive status for no more than six consecutive 
years (three renewal periods). A licensee may petition the board in writing for 
an extension of inactive status for more than six years. 
(3) A licensee on inactive status must notify the board by the end of each 
renewal period of his/her intention to remain on inactive status. A fee equal to 
that for late renewal will be charged if the licensee does not notify the board 
prior to the expiration of the license. 
(b) Reinstatement of active status. A licensee on inactive status may request a 
return to active status at any time. After the licensee has fulfilled the 
requirements for reinstatement, the board will send a renewal certificate for 
the current two-year renewal period to the licensee for display purposes. To 
return to active status, a licensee must submit the following listed in 
paragraphs (1)-(4) of this subsection: 
(1) the Inactive to Active Status reinstatement fee; 
(2) the license renewal fee for the current renewal period;
(3) a completed and notarized re-instatement application; and 
(4) proof of the required amount of continuing education for each two-year 
renewal period on inactive status, including the current period. The continuing 
education must be obtained during the time spent on inactive status. 
Alternatively, the licensee applying for reinstatement to active status may 
substitute one of the following actions for the continuing education 
requirements listed in subparagraphs (A)-(C) of this paragraph:
(A) re-take and pass the national licensure exam; 
(B) attend a university review course pre-approved by the board; or 
(C) complete an internship (equal to 150 hours of continuing education) pre-
approved by the board. 
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 April 13, 1998.
TRD-9805153
John P. Maline
Executive Director
Texas Board of Physical Therapy Examiners
Earliest possible date of adoption: May 24, 1998
For further information, please call: (512) 305-6900

TITLE 25. HEALTH SERVICES
PART I. Texas Department of Health
CHAPTER 29.Purchased Health Services
SUBCHAPTER A.Medicaid Procedures for Providers
25 TAC sec.29.6
On behalf of the State Medicaid Director, the Texas Department of Health 
(department) submits a proposed new sec.29.6, concerning surety bond 
requirements for certain types of Medicaid providers. Specifically, the section 
covers the department's policy governing bond requirements for providers within 
a provider type which has demonstrated a history of or potential for fraud or 
abuse. 
Senate Bill 30, Section 2.03, 75th Legislature, 1997, amended the Human 
Resources Code, Chapter 32, to require the department to establish a rule 
requiring providers in provider types that have demonstrated a significant 
history of or potential for fraud or abuse to file a surety bond with the 
department, naming the department as the obligee. 
The Texas Medical Assistance Program may determine that some provider types have 
a significant history of or potential for fraud and abuse in the Medicaid 
program. This rule would require these providers to maintain a surety bond, in 
an amount determined by the division of Medicaid Program Integrity, Office of 
Investigations and Enforcement of the Health and Human Services Commission 
(HHSC). The bond would be payable to the department and would allow the 
department to recover its costs and expenses as well as any damages, fines and 
penalties imposed as a result of the investigation, prosecution and conviction 
of a provider for fraud and abuse. 
Mr. Joe Moritz, Health Care Financing Budget Director, has determined that for 
the first five year period the section is in effect, there will be no fiscal 
implications to state or local governments as a result of enforcing or 
administering the section as proposed. 
Mr. Moritz has also determined that for each year of the five years the section 
is in effect, the public benefit anticipated as a result of enforcing the 
section will be the assurance that the department will be compensated for 
damages or penalties or fines resulting from fraud or abuse by a bonded 
provider. Providers within the provider type required to obtain a surety bond 
will incur the additional expense of obtaining the surety bond. The bond 
requirement may adversly impact local employment and small business operations. 
Comments on the proposed rule may be submitted to Everett Daniel, Program 
Specialist III, Health Care Financing, Texas Department of Health, 1100 West 
49th Street, Austin, Texas 78756-3168, (512) 794-5140. Comments will be accepted 
for 30 days following publication in the Texas Register The new section is 
proposed under the Human Resources Code, sec.32.021 and Government Code, 
sec.531.021, which provide the Health and Human Services Commission with the 
authority to adopt rules to administer the state's medical assistance program 
and is submitted by the Texas Department of Health under its agreement with the 
Health and Human Services Commission to operate the purchased health services 
program and as authorized under Chapter 15, sec.1.07, Acts of the 72nd 
Legislature, First Called Session (1991). 
The new section affects Chapter 32 of the Human Resources Code. 

sec.29.6.Surety Bond Requirements.
The Texas Department of Health (department) requires that each provider in a 
provider type which has been determined by the Health and Human Services 
Commission to have a significant history of or potential for fraud or abuse to 
obtain and file a surety bond with the department. 
(1) The surety bond must: 
(A) be issued by an insurance company licensed by the Texas Department of 
Insurance; 
(B) name the department as the obligee; 
(C) be payable to the department to compensate the department for costs and 
expenses and damages resulting from or penalties or fines imposed in connection 
with an act of fraud or abuse committed by the provider under the Texas Medicaid 
Program; and
(D) provide for the faithful performance of the provider in accordance with the 
provider agreement or contract, and all specifications related to the Texas 
Medicaid Program. 
(2) The department will inform each provider within the provider type of the 
necessity to obtain a surety bond and the amount of the required surety bond. 
(3) Providers who operate more than one entity or participate in more than one 
provider type for which a bond is required, are required to obtain and file a 
separate surety bond for each entity and each provider type in which they 
participate. 
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 April 13, 1998.
TRD-9804965
Susan K. Steeg
General Counsel
Texas Department of Health
Earliest possible date of adoption: May 24, 1998
For further information, please call: (512) 458-7236

SUBCHAPTER F.Physician Services
25 TAC sec.29.502
On behalf of the State Medicaid Director, the Texas Department of Health 
(department), submits a proposed amendment to sec.29.502, concerning the 
provision requiring a physician's "personal supervision" of services provided by 
a physician assistant (PA) and advanced practice nurses (APN). The amendment 
makes sec.29.502 consistent with state law and regulations, enhances access to 
medical care and treatment, and improves the efficiency of the economical 
administration of the Medicaid program. 
The Medical Practice Act (Article 4495b, sec.3.06(b)(6), Texas Civil Statutes) 
and the rules of the Texas Board of Medical Examiners (sec.185.2 "Definitions," 
and sec.sec.193.1-193.8 "Standing Delegation Orders") allow PAs and APNs to 
perform an array of medical services pursuant to protocols jointly developed 
with the physician, without the physician's personal supervision. In contrast, 
sec.29.502 provides for Medicaid payment only when a physician provides personal 
supervision of PA and APN provided medical services. The proposed amendment 
would allow for Medicaid payment to the physician when PAs and APNs perform 
pursuant to protocols jointly developed with the physician, in accordance with 
their scope of practice and state law. 
Joe Moritz, Budget Director, Health Care Financing, has determined that for the 
first five year period the amendment is in effect, there will be no fiscal 
implications to state or local government as a result of its administration or 
enforcement of the amendment as proposed. This amendment does not change the 
amount, duration, or scope of services provided by the Texas Medicaid Program. 
There are no fiscal implications as a result of the proposed amendment for small 
businesses or persons required to comply with the rule. The public benefit of 
this rule will be through enhanced access to medical care and the improved 
efficiency of the economical administration of the Texas Medicaid Program. 
Comments may be sent to Everett Daniel, Program Specialist III, Health Care 
Financing, Texas Department of Health, 1100 West 49th Street, Austin, Texas 
78756-3168, (512) 794-5140. Comments will be accepted for 30 days following 
publication of the amended rule in the Texas Register The proposed amendment is 
submitted in accordance with the Human Resources Code, Chapter 32, and the Texas 
Government Code, Chapter 531, which provides the Health and Human Services 
Commission with the authority to adopt rules to administer the State's medical 
assistance program and is submitted by the Texas Department of Health under it 
agreement with the Health and Human Services Commission to operate the purchased 
health services program as authorized by Chapter 15, sec.1.07, Acts of the 72nd 
Legislature. 
The proposed amendment affects Chapter 32 of the Human Resources Code and 
Chapter 531 of the Government Code.

sec.29.502.Authorized Physician Services.
(a) The term "physician services" includes those reasonable and medically 
necessary services that are provided by or under the personal supervision of a 
physician and that are within the scope of practice of medicine or osteopathy as 
defined by state law. Unless otherwise specified in writing by the department or 
its designee, <nl>or except for services specified in subsection (e) of this 
section,<ol> the physician must have examined the patient, made a diagnosis, and 
established a plan of care, and documented these tasks on the appropriate 
medical records of the patient before submitting claims for payment to the 
department or its designee. If such documentation is not present in the 
appropriate medical record, then any payment may be recouped. Except as 
specified in subsections (b), (c), [or] (d), <nl> or (e)<ol> of this section, 
the term "personal supervision" means that the physician must be in the building 
of the office or facility at the time, when, and where the service is provided. 
(b) (No change.) 
(c) If the attending physician delegates health care tasks to a qualified 
<nl>physician<ol> [physician's] assistant <nl> or advanced practice nurse<ol> in 
<nl>a<ol> [an intermediate care/skilled] nursing facility, the [physician] 
services are covered if the supervision or delegation is consistent with the 
rules and regulations of the Texas State Board of Medical Examiners. Services 
provided by physician's assistants <nl>and advanced practice nurses<ol> in 
[intermediate care/skilled] nursing facilities must be consistent with 
<nl>applicable rules, regulations, and laws<ol> [the requirements of 40 TAC 
sec.sec.16.1906, 16.1912, 16.3017(c), and 16.3207(a) (concerning Operating 
Policies and Procedures; Recipient/Patient Care Policies; Conformance with 
Physician Orders, and Drug Orders)]. If the supervision of the delegated task is 
not appropriately documented in the patient's chart, any payment for services 
may be recouped.
(d) (No change.) 
<nl>(e)<ol> <nl> If the services are provided by a physician assistant or 
advanced practice nurse, practicing within the scope of their license and based 
on protocols which have been agreed to and signed by their supervising licensed 
physician, the physician services are covered. <ol>
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 April 13, 1998.
TRD-9805121
Susan K. Steeg
General Counsel
Texas Department of Health
Earliest possible date of adoption: May 24, 1998
For further information, please call: (512) 458-7236

TITLE 30. ENVIRONMENTAL QUALITY
PART I. Texas Natural Resource Conservation Commission
CHAPTER 39.Public Notice
SUBCHAPTER F.Public Notice of Radioactive Material License Applications
30 TAC sec.sec.39.303, 39.305, 39.307, 39.309, 39.313 
The Texas Natural Resource Conservation Commission (commission) proposes 
amendments to sec.sec.39.303,39.305, 39.307, 39.309 and new sec.39.313, 
concerning Public Notice. 
EXPLANATION OF PROPOSED RULE 
The purpose of these rules is to implement Senate Bill (SB) 1857, 75th 
Legislature, 1997, to incorporate revisions and additions which are needed to 
maintain compatibility with the rules of the United States Nuclear Regulatory 
Commission (NRC), and to continue with agency-wide regulatory reform efforts to 
simplify language and requirements. Compatibility of the commission's rules with 
the federal program is necessary to preserve the status of Texas as an Agreement 
State under Title 10 Code of Federal Regulations Part 150 and the "Articles of 
Agreement between the United States Atomic Energy Commission and the State of 
Texas for Discontinuance of Certain Commission Regulatory Authority and 
Responsibility Within the State Pursuant to Section 274 of the Atomic Energy Act 
of 1954, as Amended." 
On July 20, 1997, SB 1857 transferred jurisdiction over licensing of source 
material and disposal of by-product material from the commission to the Texas 
Department of Health (TDH). 
Section 39.303(b) (relating to Notice of License Applications Upon Completion of 
Technical Review) is proposed to be amended to delete a reference to the source 
material licensing and by-product disposal jurisdiction transferred to the TDH 
by SB 1857. 
Section 39.305(1) and (5) (relating to Mailed Notice for Radioactive Material 
Licenses) are proposed to be amended and sec.39.305(6) is proposed to be deleted 
to remove language concerning the source material licensing and by-product 
disposal jurisdiction transferred to the TDH by SB 1857 and to simplify the 
overall language; old paragraph (7) is also proposed to be renumbered to (6) due 
to the deletion of old paragraph (6). 
Section 39.307 (relating to Public Notice) is proposed to be amended to remove a 
reference to the source material licensing and by-product disposal jurisdiction 
transferred to the TDH by SB 1857 and to simplify the publication requirement by 
requiring the notice to just be published in the newspaper that has the largest 
circulation in the county in which the facility is located. It is also proposed 
to delete the requirement for additional advertisement outside of the notice 
section of the newspaper because it is overly burdensome, not required 
statutorily, and inconsistent with other commission notice requirements. Section 
39.309 (b) and (c) (relating to Notice of Contested Case Hearing on Application) 
are proposed to be amended to remove language concerning the source material 
licensing and by-product disposal jurisdiction transferred to the TDH by SB 
1857. Section 39.309(d) is proposed to be deleted to ensure consistency and 
eliminate a redundancy with sec.39.11(13) (relating to Text of Public Notice). 
New sec.39.313 (relating to Public Notification and Public Participation) is 
derived from NRC's new 10 CFR sec.20.1405 and is proposed to maintain 
compatibility with the federal program. 
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 no significant fiscal implications for state government as a 
result of administration or enforcement of the rules. There are no fiscal 
implications for units of local government, except those that may operate an 
inactive radioactive disposal site subject to the provisions of these sections. 
For these local governments, the fiscal implications of these sections will be 
equivalent to those for any affected public or private entity. 
PUBLIC BENEFIT 
Mr. Minick has also determined that for the first five years the sections as 
proposed are in effect the public benefit anticipated as a result of enforcement 
of and compliance with the sections will be more efficient decommissioning of 
inactive radioactive material disposal sites and consistency between state and 
federal regulations. Compliance with the proposed state regulations will result 
in no significant increase in costs to affected parties that would not otherwise 
result from compliance with the existing federal regulations proposed for 
incorporation and may result in a cost decrease. Cost savings anticipated to any 
person, including any small business, required to comply with these sections as 
proposed is proportionate to the savings for a larger business. 
DRAFT REGULATORY IMPACT ANALYSIS 
The commission has reviewed the proposed 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). 
Although this rule is to protect the environment and reduce the risk to human 
health from environmental exposure, this is not a major environmental rule 
because it does not adversely affect in a material way the economy, a sector of 
the economy, productivity, competition, jobs, the environment, or the public 
health and safety of the state or a sector of the state. 
In addition, this rule does not exceed a standard set by federal law, exceed an 
express requirement of state law, exceed a requirement of a delegation 
agreement, or adopt a rule solely under the general powers of the agency.
The rule adds federal requirements that are necessary to maintain compatibility 
with the rules of the Nuclear Regulatory Commission. 
TAKINGS IMPACT ASSESSMENT
The commission has prepared a Takings Impact Assessment for these rules pursuant 
to Texas Government Code, sec.2007.043. The following is a summary of that 
Assessment. The specific purpose of the rules is to remove commission rule 
language related to the source material licensing and by-product disposal 
jurisdiction transferred to the TDH by SB 1857, 75th Legislature, 1997; to 
incorporate revisions and additions which are needed to maintain compatibility 
with the rules of the NRC; and to continue with agency-wide regulatory reform 
efforts to simplify language and requirements. Compatibility of the commission's 
rules with the federal program is necessary to preserve the status of Texas as 
an Agreement State under Title 10 Code of Federal Regulations Part 150 and the 
"Articles of Agreement between the United States Atomic Energy Commission and 
the State of Texas for Discontinuance of Certain Commission Regulatory Authority 
and Responsibility Within the State Pursuant to the Atomic Energy Act sec.274 of 
1954, as Amended." The rules will substantially advance this specific purpose by 
removing commission rule language related to the source material licensing and 
by-product disposal jurisdiction transferred to the TDH and by incorporating 
into commission rules the new federal requirements contained in "Resolution of 
Dual Regulation of Airborne Effluents of Radioactive Materials, Clean Air Act", 
61 Fed. Reg. 65120, December 10, 1996, effective January 9, 1997 and 
"Radiological Criteria for License Termination", 62 Fed. Reg. 39058, July 21, 
1997, effective August 20, 1997. Promulgation and enforcement of these rules 
will not burden private real property which is the subject of the rules because 
they primarily make federal decommissioning requirements less stringent. Section 
336.501 extends the deadline to apply for a license to decommission from January 
1, 1999 to January 1, 2000. If these existing, unlicensed sites decommission 
before January 1, 2000, owners or operators will avoid license application and 
annual fees. For both licensed and unlicensed disposal sites, new alternatives 
for decommissioning without meeting the criteria for unrestricted use are 
offered in new sec.336.607 (relating to Criteria for License Termination under 
Restricted Conditions) and sec.336.609 (relating to Alternate Criteria for 
License Termination). A site using one of these alternatives may save on 
decommissioning cost.
Also, the following exceptions to the application of Chapter 2007 of the Texas 
Government Code listed in Texas Government Code, sec.2007.003(b) apply to these 
rules: Section 2007.003(b)(4)--an action that is reasonably taken to fulfill an 
obligation mandated by federal law. 
COASTAL MANAGEMENT PROGRAM CONSISTENCY REVIEW 
The executive director has reviewed the proposed rulemaking and found that the 
rule is neither identified in Coastal Coordination Act Implementation Rules, 31 
TAC sec.505.11, nor will it affect any action/authorization identified in 
Coastal Coordination Act Implementation Rules, 31 TAC sec.505.11. Therefore, the 
proposal is not subject to the Coastal Management Program. 
SUBMITTAL OF COMMENTS 
Written comments may be mailed to Bettie Bell, Texas Natural Resource 
Conservation Commission, Office of Policy and Regulatory Development, MC 205, 
P.O. Box 13087, Austin, Texas 78711-3087, or faxed to (512) 239-4808. All 
comments must be received by May 25, 1998 and should reference Rule Log Number 
97154-336-WS. Comments received by 5:00 p.m. on that date will be considered by 
the commission prior to any final action on the proposal. For further 
information, please contact Kathy Vail at (512) 239-6637. 
STATUTORY AUTHORITY 
The amendments and new section are proposed under the Texas Radiation Control 
Act, Texas Health and Safety Code, sec.sec.401.011, 401.051, and 401.412, and 
Texas Water Code, sec.5.103, which give the commission the authority to adopt 
rules necessary to carry out its responsibilities to regulate and license the 
disposal of radioactive substances. 
The amendments and new section implement Health and Safety Code, Chapter 401 
(relating to Radioactive Materials and Other Sources of Radiation). 

sec.39.303.Notice of License Applications Upon Completion of Technical Review.
(a) (No change.) 
(b) For an application for minor amendment to a license issued under Chapter 
336, Subchapter F of this title (relating to Alternative Methods of Disposal of 
Radioactive Material) [or Subchapter G of this title (relating to Licensing 
Requirements for Source Material (Uranium or Thorium) Recovery and Processing 
Facilities)], notice shall be mailed in accordance with the requirements of this 
subchapter. The deadline to file public comment, protests, or hearing requests 
is ten days after mailing. 

sec.39.305.Mailed Notice for Radioactive Material Licenses.
When notice by mail is required under this subchapter, the chief clerk shall 
mail notice to: 
(1) the mayor and health authorities of the city in which the facility is or 
will be located[, or, for licenses issued under Chapter 336, Subchapter G of 
this title (relating to Licensing Requirements for Source Material (Uranium or 
Thorium) Recovery and Processing Facilities), the mayor and health authorities 
of each incorporated city whose city limits are within five highway miles of the 
site of the facility]; 
(2)-(4) (No change.)
(5) [for applications under Chapter 336, Subchapter F of this title (relating to 
Licensing of Alternative Methods of Disposal) or Subchapter H of this title 
(relating to Licensing Requirements for Near-Surface Land Disposal of 
Radioactive Waste), ]each owner of property adjacent to the proposed site[; or, 
for licenses under Chapter 336, Subchapter G of this title, owners of property 
within 1,000 feet of the perimeter of the proposed license area]. For the 
purposes of determining property ownership under this subsection, the applicant 
shall provide the chief clerk the names of the relevant landowners from the 
county tax rolls that are available no more than 30 days before the date of 
newspaper publication of the notice;<nl> and <ol> 
[(6) for applications under Chapter 336, Subchapter G of this title, the chief 
executive of each political subdivision and special district levying taxes upon 
all or any part of the site of the facility and each member of the Texas 
Legislature in whose district the facility is or will be located; and] 
<nl>(6)<ol> [(7)] any other person the chief clerk or executive director may 
elect to include. 

sec.39.307.Published Notice.
(a) For applications under Chapter 336, Subchapter F of this title (relating to 
Alternative Methods of Disposal of Radioactive Material)[or Subchapter G of this 
title (relating to Licensing Requirements for Source Material (Uranium or 
Thorium) Recovery and Processing Facilities)], when notice is required to be 
published under this subchapter, the applicant shall publish notice at least 
once in a newspaper of <nl>largest <ol> general circulation in the county in 
which the facility is [or will be ]located[, or, if no newspaper is published in 
the county or counties in which the facility is or will be located, in a 
newspaper of general circulation in each county adjacent to the county in which 
the facility is located. In addition, in the same edition that the notice is 
published, the applicant shall publish an advertisement outside the notice 
section of the newspaper that directs the reader to the notice section for the 
details of the proposed licensing action]. 
(b)-(c) (No change.) 

sec.39.309.Notice of Contested Case Hearing on Application.
(a) (No change.)
(b) For applications under Chapter 336, Subchapter F of this title (relating to 
Licensing of Alternative Methods of Disposal)[or Subchapter G of this title 
(relating to Licensing Requirements for Source Material (Uranium or Thorium) 
Recovery and Processing Facilities)], notice shall be mailed no later than 30 
days before the hearing. For applications under Chapter 336, Subchapter H of 
this title (relating to Licensing Requirements for Near-Surface Land Disposal of 
Radioactive Waste), notice shall be mailed no later than 31 days before the 
hearing. 
[(c) For applications under Chapter 336, Subchapter G of this title, if a 
hearing has been set at the time the notice of application is provided, the 
notice of hearing may be combined with the notice of application.
[(d) A written environmental analysis, if required, shall be made available to 
the public no later than 31 days before the date of hearing.] 

sec.39.313.Public Notification and Public Participation.
Upon the receipt of a license termination plan or decommissioning plan from the 
licensee, or a proposal by the licensee for release of a site under sec.336.603 
of this title (relating to Radiological Criteria for Unrestricted Use) or 
sec.336.607 of this title (relating to Criteria for License Termination under 
Restricted Conditions), or whenever the commission deems notice to be in the 
public interest, the commission shall: 
(1) notify and solicit comments from: 
(A) local and state governments in the vicinity of the site and any Indian 
Nation or other indigenous people that have treaty or statutory rights that 
could be affected by the decommissioning; and 
(B) the Environmental Protection Agency for cases where the licensee proposes to 
release a site under sec.336.609 of this title (relating to Alternate Criteria 
for License Termination); and 
(2) publish a notice in the Texas Register and in a forum, such as local 
newspapers, letters to state or local organizations, or other appropriate forum, 
that is readily accessible to individuals in the vicinity of the site, and 
solicit comments from affected parties. 
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 April 13, 1998.
TRD-9805156
Kevin McCalla
Director, Legal Division
Texas Natural Resource Conservation Commission
Earliest possible date of adoption: May 24, 1998
For further information, please call: (512) 239-6087

CHAPTER 114.Control of Air Pollution From Motor Vehicles
The commission proposes amendments to Subchapter A, sec.114.1 and sec.114.3, 
concerning Definitions; Subchapter E, sec.sec.114.150, 114.151, and 114.153-
114.157, and the repeal of sec.114.152, concerning Low Emission Fleet Vehicle 
Requirements; Subchapter F, sec.114.201 and sec.114.202, concerning Vehicle 
Retirement and Mobile Emission Reduction Credits; and a proposed revision to the 
State Implementation Plan (SIP) concerning this proposal.
EXPLANATION OF PROPOSED RULES
Revisions to Chapter 114, concerning Control of Air Pollution from Motor 
Vehicles, and the corresponding SIP revision are to implement Senate Bill 681 
(SB 681), Acts of the 75th Texas Legislature, 1997, concerning the low emission 
vehicle (LEV) fleet requirements; the Federal Clean Air Act as amended, Acts of 
the 101st U.S. Congress, 1990, concerning provisions for attainment and 
maintenance of health protective, national ambient air quality standards; and 
for other purposes. Sections 114.1, 114.3, 114.151, 114.153, 114.155-114.157, 
and 114.201-114.202 have been previously submitted to EPA as part of the SIP; 
therefore, revisions to these sections are considered to be revisions to the 
SIP. 
Section 114.1 and sec.114.3, concerning Definitions, incorporate numerous 
editorial changes to ensure the definitions are consistent with the Guiding 
Principles and policies of the commission, and are consistent in format, style, 
and tone per commission guidelines. New and amended definitions were also 
numbered to be consistent with new Texas Register rules (23 TexReg 1289). In 
sec.114.1(8), the commission requests specific public comment on the definition 
of "Law enforcement vehicle." The commission is considering the option of 
allowing private law enforcement vehicles to qualify for the exemption from the 
fleet vehicle requirements, but is unsure if there are any private vehicles 
which are truly involved in law enforcement. In order to allow exemptions for 
private law enforcement vehicles, the phrase "controlled by a local government 
and primarily" would be deleted from the definition. Additional clarification 
was added to the definition of "low emission vehicle" in sec.114.1. The title of 
sec.114.3 was changed from "Low Emission Fleet Vehicle Definitions" to "Low 
Emission Vehicle Fleet Definitions" to better reflect the nature of the program. 
Several LEV fleet definitions were added to sec.114.3 to define terms specific 
to the state's substitute LEV program and the requirements of SB 681. These 
added definitions include "affected area," "affected entity," "normally 
operates," "normally parked at the residence of the individual," "private 
entity," "private fleet," "projected net costs," and "purchase date." The 
commission requests specific public comment on the definition for "normally 
parked at the residence of the individual." The intent of the proposed wording 
is to specify how much time a vehicle should be parked at the individual's 
residence after duty hours in order to qualify for the exemption from the fleet 
vehicle requirements. One definition, "mobile emission reduction credit," was 
moved to sec.114.1 because it applied to multiple subchapters of Chapter 114. 
Finally, several definitions were deleted because they were no longer necessary, 
or they were defined in other chapters. These deleted definitions include 
"Beaumont/Port Arthur nonattainment area," "capable of being centrally fueled," 
"centrally fueled," "clean-fuel vehicle," "control," "Dallas/Fort Worth 
nonattainment area," "El Paso nonattainment area," "Houston/Galveston 
nonattainment area," "operate," "own," and "private person." 
Revisions to Subchapters E and F incorporate numerous editorial changes to 
ensure the language is consistent with the Guiding Principles and policies of 
the commission, and is consistent in format, style, and tone per commission 
guidelines. In addition, the term "clean fuel vehicle" was changed to "low 
emission vehicle" or "LEV" throughout the chapter, and the title of Subchapter E 
was changed from "Low Emission Fleet Vehicles" to "Low Emission Vehicle Fleets" 
to better reflect the nature of the program. Other revisions to specific 
sections in Subchapters E and F are discussed below: 
Section 114.150, concerning Requirements for Mass Transit Authorities, contains 
the LEV requirements for mass transit authorities. The basic requirement is for 
the affected mass transit authorities to have 50% of their total fleet vehicles 
certified as LEVs. LEVs, in excess of the 50% requirement, may be eligible for 
Program Compliance Credit (PCC) according to sec.114.157, or Mobile Emission 
Reduction Credits (MERCs) according to sec.114.201. Subsection (a) changed from 
listing specific nonattainment areas to referring to an affected area as defined 
in sec.114.3. Subsection (b) drops the compliance date of September 1, 1996, 
because the date had already passed. Subsection (c) adds the provision that 
requirements may be met by using PCCs and MERCs. Subsection (d) changes the term 
"qualifying vehicles" to include vehicles certified to LEV and EPA standards 
more stringent than LEV. Subsection (e) combines the old subsections (e) and (f) 
and extended the date from September 1, 1998, until September 1, 1999, for those 
vehicles converted, purchased, leased, or otherwise acquired prior to that date 
to be counted toward compliance with percentage requirements. Subsection (e) 
also changes the dual fuel vehicle certification from EPA's Title 40 Code of 
Federal Regulations (40 CFR), Part 88 to Texas' recognized fuels such as 
electricity, ethanol, liquefied petroleum gas, methanol, and natural gas; and 
also added specific emission limits specified by vehicle weight and EPA 
emissions standards. Subsection (g) (formerly subsection (h))adds specific 
reporting requirements for mass transit fleets. 
Section 114.151, concerning Requirements for Local Governments and Private 
Entities, contains LEV requirements for local governments and private entities. 
The LEV requirements for these fleets are 30% of fleet vehicle purchases after 
September 1, 1998, or at least 10% of the total fleet vehicles as of September 
1, 1998; 50% of fleet vehicle purchases after September 1, 2000; 70% of light-
duty fleet vehicle purchases after September 1, 2002; and 50% of heavy-duty 
fleet vehicle purchases after September 1, 2002. Subsection (a) was revised to 
refer to affected areas, as defined in sec.114.3 of this title rather than 
specific nonattainment areas. Subsection (b) was revised to include leased fleet 
vehicles in the requirements. In addition, subsection (b) deleted the 
requirement of 20% of existing fleet vehicles as of September 1, 2000; changed 
the percentages for light-duty fleet vehicles purchased after September 1, 2002, 
from 90% to 70%; added a 50% percentage for heavy-duty fleet vehicle purchases 
after September 1, 2002; and removed the requirement of 45% in the total fleet 
as of September 1, 2002. Subsection (c) reduced the no-purchase exemption from 
90% to 70%. Subsection (e) changed the term "clean-fuel vehicles" to the term 
"low emission vehicles." Subsection (f) clarifies that this section does not 
require the conversion and EPA certification of conventional vehicles to the LEV 
standards. Subsection (g) allows specified Texas fuels and uncertified 
conversions prior to 1995 instead of 1998 to be used as credit. Subsection (i) 
deleted the September 1, 1997 date because it had already passed, and added 
information to be included in fleet registration. Subsection (k) changed the 
first reporting year from 1998 to every even numbered year. 
Section 114.152, concerning Use of Certain Vehicles for Compliance, has been 
repealed, and the applicable requirements and allowances have been moved into 
sec.114.150 and sec.114.151. 
Section 114.153, concerning Exceptions, provides for exceptions from the LEV 
requirements. Affected entities may be granted an exception from the LEV 
requirements, on a case-by-case basis, if: 1) a firm is engaged in a fixed price 
contract with a public works agency where compliance with the fleet 
implementation schedule requirements of the state's substitution program would 
cause economic harm to the firm; 2) adequate fueling required for the operation 
of LEVs is unavailable; 3) financing for the increased cost of operation of LEVs 
is unavailable from fuel suppliers; 4) the costs, over the lifetime of the LEV's 
operation, are more than the costs of the operation of a conventional vehicle; 
or 5) LEVs sufficient to meet business needs are unavailable. Subsection (a) 
added the fifth provision for exception provided that there are insufficient 
LEVs to meet business needs. A new subsection (c) states alternatives to 
applying for an exception to the applicable LEV requirements. 
Section 114.154, concerning Exceptions for Certain Mass Transit Authorities, 
incorporated numerous editorial changes to ensure the language is consistent 
with the Health and Safety Code as amended by SB 681, 75th Legislature, 1997; 
with the Guiding Principles and policies of the commission; and in format, 
style, and tone with commission guidelines. In addition, the term "clean fuel 
vehicle" was changed to "low emission vehicle" throughout the section. 
Section 114.155, concerning Reporting, provides the general reporting 
requirements for local governments and private entities. Each affected entity 
will submit their biennial fleet report to the executive director by September 1 
of each even numbered year. Subsection (a) changed the reporting requirement 
from annually to biennially, and changed some of the reporting information. 
Section 114.156, concerning Record Keeping, was modified to require the affected 
entities to maintain copies of all reports submitted in accordance with 
sec.114.155. 
Section 114.157, concerning Low Emission Vehicle Fleet Program Compliance 
Credits, incorporates numerous editorial changes to ensure the language is 
consistent with the Guiding Principles and policies of the commission, and is 
consistent in format, style, and tone with commission guidelines. The name of 
sec.114.157 was changed by adding "Low Emission Vehicle Fleet" in order to 
clarify the program specific nature of the section. In addition, the term "clean 
fuel vehicle" was changed to "low emission vehicle" throughout the section. 
Section 114.201, concerning the Mobile Emission Reduction Credit Program, 
incorporates editorial changes to ensure the language is consistent with the 
Guiding Principles and policies of the commission, and is consistent in format, 
style, and tone with commission guidelines. In addition, the term "clean fuel 
vehicle" was changed to "low emission vehicle" throughout the section. 
Section 114.202, concerning The Texas Mobile Emission Reduction Credit Fund, was 
changed to specify "low emission vehicle" in place of "clean fuel vehicle." 
FISCAL NOTE
Stephen Minick, Strategic Planning and Appropriations Division, has determined 
that for the first five-year period these rules as proposed are in effect, there 
will be no significant fiscal implications for state or local government as a 
result of administration or enforcement of the rules. There will be no 
significant fiscal implications to the commission. 
PUBLIC BENEFIT
Mr. Minick has also determined that for each year of the first five years the 
rules as proposed are in effect, the public benefit will be minimally changed as 
a result of enforcement of and compliance with the proposed rules. As more and 
more LEVs are purchased and operated, the quality of the ambient air will 
improve slightly in each of the affected areas. There will be no additional 
economic impact on owners and operators of affected fleets. There are no 
anticipated economic costs to persons who are required to comply with the rules 
as proposed. 
DRAFT REGULATORY IMPACT ANALYSIS
The commission has reviewed the proposed 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). The specific intent of the rules is to protect the environment 
and reduce risks to human health from environmental exposure by adopting state 
requirements which are essentially equivalent to federal requirements regarding 
low emission fleet vehicles. However, the rules do not adversely affect the 
economy because they lessen the financial impact of the current rules through 
exceptions. If EPA determines that this program is not essentially equivalent to 
the federal program, it will still be protective of the environment and human 
health because the commission will make up the shortfall through other measures. 
In this way, there is no adverse impact to the environment or the public health 
and safety of the state. Therefore, this proposal does not meet the full 
definition of a major environmental rule. The proposed rulemaking also does note 
meet any of the four applicability requirements for being subject to 
sec.2001.0025 as stated below. It will fulfill an obligation mandated by Part C, 
Subchapter II of the FCAA which requires states to implement a clean fuel fleet 
program, and is essentially equivalent to the federal law. The proposal does not 
exceed requirements specified by Chapter 382, Subchapter F, Health and Safety 
Code. The proposal is not an agreement or contract between the state and the 
federal government which lays out requirements for this program; and is directed 
by Chapter 382, Subchapter F, Health and Safety Code, rather than being proposed 
under the general powers of the commission. The commission invites public 
comment on the draft Regulatory Impact Analysis.
TAKINGS IMPACT ASSESSMENT
The commission has prepared a Takings Impact Assessment for these rules pursuant 
to Texas Government Code, sec.2007.043. The following is a summary of that 
assessment. SB 681, Acts of the 75th Legislature, 1997, modified requirements 
for certain motor vehicle fleets in the Texas Health and Safety Code. Prior to 
the passage of SB 681, the commission adopted LEV fleet requirements based on 
the provisions of SB 200, Acts of the 74th Legislature, 1995. The program was 
adopted as an opt-out of the Federal Clean Fuel Fleet program required by the 
1990 FCAA Amendments. SB 681 was intended to replace the existing program 
requirements of sec.sec.114.1, 114.3, 114.150-155, 114.157, and 114.201-202. The 
primary purpose of this rule is to meet requirements for the commission to adopt 
rules requiring fleets to purchase LEVs. This action is being taken to comply 
with federal and state legislative mandates. This proposed rulemaking does not 
affect private real property, since fleet vehicles are not considered to be 
private real property. Most capital expenditures will involve the purchase of 
vehicles. However, the regulation proposes that the purchase of vehicles for 
compliance is in the affected entity's discretion (sec.382.134(e), Health and 
Safety Code), and the statute has provisions for a cost-effectiveness exception 
(sec.382.136, Health and Safety Code). 
COASTAL MANAGEMENT PLAN CONSISTENCY REVIEW
The commission has determined that the proposed rulemaking relates to an action 
or actions subject to the Texas Coastal Management Program (CMP) in accordance 
with the Coastal Coordination Act of 1991, as amended (Texas Natural Resource 
Code, sec.sec.33.201 et. seq.), 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)(2) and 30 TAC sec.281.45(a)(3), 
relating to actions and rules subject to the CMP, commission rules governing air 
pollutant emissions must be consistent with the applicable goals and policies of 
the CMP. The commission has reviewed this proposed action for consistency with 
the CMP goals and policies in accordance with the rules of the Coastal 
Coordination Council and has determined that the proposed action is consistent 
with the applicable CMP goals and policies. The CMP policy applicable to this 
rulemaking action is the policy that commission rules comply with regulations at 
40 CFR, to protect and enhance air quality in the coastal area, (31 TAC 
sec.501.14(q)). This proposal does not change existing requirements which 
already comply with regulations at 40 CFR, and is therefore consistent with this 
policy. Interested persons may submit comments on the consistency of the 
proposed rules with the CMP during the public comment period. 
PUBLIC HEARINGS
Public hearings on this proposal will be held in Austin on May 19, 1998, at 
10:00 a.m., in Building F, Room 2210 of the commission's central office, located 
at 12100 North IH-35, Park 35 Technology Center, Austin; and in Irving on May 
20, 1998, at 7:00 p.m., at the City of Irving Central Library Auditorium located 
at 801 West Irving Boulevard, Irving. The hearings are structured for the 
receipt of oral or written comments by interested persons. Individuals may 
present oral statements when called upon in order of registration. Open 
discussion will not occur during the hearings; however, a commission staff 
member will be available to discuss the proposal 30 minutes prior to each 
hearing and will answer questions before and after each hearing. 
SUBMITTAL OF COMMENTS
Written comments may be mailed to Heather Evans, 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 97139-114-AI. Comments 
must be received by 5:00 p.m., May 26, 1998. For further information or 
questions concerning this proposal, contact Al Giles, Mobile Source Section, 
Office of Air Quality, (512) 239-1943. Copies of the proposed SIP revision can 
be obtained by calling Ms. Evans at (512) 239-1970 or by accessing the 
"proposals/adoptions" portion of the commission's web site at 
www.tnrcc.state.tx.us/oprd. Persons with disabilities who have special 
communication or other accommodation needs who are planning to attend the 
hearings should contact the commission at (512) 239-4900. Requests should be 
made as far in advance as possible.

SUBCHAPTER A.Definitions
30 TAC sec.sec.114.1, 114.3
STATUTORY AUTHORITY
The amendments are proposed under the TCAA, Texas Health and Safety Code, 
sec.382.017, which provides the commission with the authority to adopt rules 
consistent with the policy and purposes of the TCAA; TCAA, sec.382.019, which 
provides the commission with the authority to adopt rules to control and reduce 
emissions from engines used to propel land vehicles; sec.382.133 which provides 
the commission with the authority to adopt rules regarding fuels in Mass Transit 
Fleet Vehicles; sec.382.134 which provides the commission with the authority to 
adopt rules regarding fuels in local government and private fleet vehicles; 
sec.382.136 which provides the commission with the authority to adopt rules 
regarding exceptions to participation in the clean fuel fleet program; 
sec.382.142 which provides the commission with the authority to adopt rules 
regarding the granting and use of program compliance credits; and sec.382.143 
which provides the commission with the authority to adopt rules regarding the 
Texas mobile emissions reduction credit program. 
The proposed amendments implement TCAA, sec.382, Subchapter F and Texas 
Transportation Code (TTC), Chapter 451, Subchapter G. 

sec.114.1. Definitions. 
Unless specifically defined in the TCAA or in the rules of the <nl> commission 
<ol> [Texas Natural Resource Conservation Commission (commission)], the terms 
used by the commission have the meanings commonly ascribed to them in the field 
of air pollution control. In addition to the terms which are defined by the 
TCAA, the following words and terms, when used in this chapter, shall have the 
following meanings, unless the context clearly indicates otherwise: 
<nl>(1)<ol> Dual-fuel vehicle - Any motor vehicle or motor vehicle engine 
engineered and designed to be operated on two different fuels, but not a mixture 
of the two. 
<nl>(2)<ol> Emergency vehicle - A vehicle defined as an authorized emergency 
vehicle according to Texas Transportation Code, sec.541.201(1). 
<nl>(3)<ol> Emissions - The emissions of oxides of nitrogen, volatile organic 
compounds, carbon monoxide, particulate, or any combination of these substances. 
<nl>(4)<ol> First safety inspection certificate - Initial Department of Public 
Safety (DPS) certificates issued through DPS certified inspection stations for 
every new vehicle found to be in compliance with the rules and regulations 
governing safety inspections.
<nl>(5)<ol> Gross vehicle weight rating (GVWR) - The value specified by the 
manufacturer as the maximum design loaded weight of a vehicle. This is the 
weight as expressed on the vehicle's registration, and includes the weight the 
vehicle can carry or draw. 
<nl>(6)<ol> Heavy-duty vehicle - Any passenger vehicle or truck capable of 
transporting people, equipment, or cargo, that has a GVWR greater than 8,500 
lbs., and is required to be registered under the Texas Transportation Code, 
Section 502.002 . For purposes of the Mobile Emission Reduction Credit (MERC) 
trading program the heavy-duty class is divided into the following subclasses: 
(A) Light heavy-duty vehicle - Any passenger vehicle or truck capable of 
transporting people, equipment, or cargo that has a GVWR greater than 8,500 
lbs., but less than or equal to 10,000 lbs. 
(B) Medium heavy-duty vehicle - Any passenger vehicle or truck capable of 
transporting people, equipment, or cargo that has a GVWR greater than 10,000 
lbs. but less than or equal to 19,500 lbs. 
(C) Heavy heavy-duty vehicle - Any passenger vehicle or truck capable of 
transporting people, equipment, or cargo that has a GVWR greater than 19,500 
lbs. 
<nl>(7)<ol> Inherently low emission vehicle - A vehicle as defined by Title 
40<nl>, <ol> [of the] Code of Federal Regulations (40 CFR), Part 88. 
<nl>(8)<ol> Law enforcement vehicle - Any vehicle controlled by a local 
government and primarily operated by a civilian or military police officer or 
sheriff, or by state highway patrols, or other similar law enforcement agencies, 
and which is used for the purpose of law enforcement activities including, but 
not limited to, chase, apprehension, surveillance, or patrol of people engaged 
in or potentially engaged in unlawful activities.
<nl>(9)<ol> Light-duty vehicle - Any passenger vehicle or truck capable of 
transporting people, equipment, or cargo, that has a GVWR less than or equal to 
8,500 lbs., and <nl>registered or <ol> required to be registered under [the] 
Texas Transportation Code, sec.502.002. For purposes of the MERC trading program 
the light-duty class is divided into the following subclasses: 
(A) Light-duty vehicle - Any passenger vehicle capable of seating 12 or fewer 
passengers that has a GVWR less than or equal to 6,000 lbs. 
(B) Light-duty truck 1 - Any passenger truck capable of transporting people, 
equipment<nl>, <ol> or cargo, that has a GVWR less than or equal to 6,000 lbs. 
(C) Light-duty truck 2 - Any passenger truck capable of transporting people, 
equipment<nl>, <ol> or cargo, that has a GVWR greater than 6,000 lbs. but less 
than 8,500 lbs. 
<nl>(10)<ol> Loaded mode inspection and maintenance (I/M) test - A measurement 
of the tailpipe exhaust emissions of a vehicle while the drive wheel rotates on 
a dynamometer, which simulates the full weight of the vehicle driving down a 
level roadway. Loaded test equipment specifications shall meet EPA requirements 
for Acceleration Simulation Mode equipment. 
<nl>(11)<ol> Low emission vehicle <nl>(LEV) <ol> - A vehicle [as defined by 40 
CFR, Part 88.] <nl>in a class or category of vehicles that has been certified by 
the EPA for any model year to meet:<ol> 
<nl>(A)<ol> <nl> the LEV standards applicable under the Federal Clean Air Act as 
amended Part C, Subchapter II, (U.S.C. 42 Section 7581 et seq.); or <ol>
<nl>(B)<ol> <nl>emission limits at least as stringent as the applicable LEV 
standards for the Federal Clean Fuel Fleet program under 40 CFR, Parts 88.104-
94, 88.105-94, and 88.311-93 as published in the Federal Register on September 
30, 1994 (59 FR 50042). <ol>
<nl>(12)<ol> Mass transit authority - A transportation or transit authority or 
department established under Chapter 141, [Acts of the] 63rd Legislature, 
[Regular Session,] 1973 as defined in the Texas Transportation Code, Chapters 
451<nl>- 453 <ol> (<nl>relating to <ol> Metropolitan Rapid Transit Authorities 
[)] , [452 (] Regional Transportation Authorities [)], and [453 (] Municipal 
Transportation Authorities), that operates a mass transit system under any of 
those laws. 
<nl>(13)<ol> <nl>Mobile emission reduction credit (MERC) - The credit obtained 
from a quantifiable, permanent, enforceable, and surplus (with respect to other 
federal and state regulations) emission reduction generated by a mobile source 
as set forth in Subchapter F of this chapter (relating to Vehicle Retirement and 
Mobile Emission Reduction Credits) and which has been banked in accordance with 
sec.101.29 of this title (relating to Emissions Credit Banking and Trading). 
<ol>
<nl>(14)<ol> Revised Texas I/M State Implementation Plan (SIP) - The portion of 
the Texas SIP which includes the procedures and requirements of the vehicle 
emissions inspection and maintenance program as adopted by the commission May 
29, 1996, in accordance with the 40 CFR Part 51, Subpart S, issued November 5, 
1992; the EPA flexibility amendments dated September 18, 1995; and the National 
Highway Systems Designation Act of 1995. A copy of the revised Texas I/M SIP is 
available at the Texas Natural Resource Conservation Commission, 12100 Park 35 
Circle, Austin, Texas, 78753; mailing address: P.O. Box 13087, MC 166, Austin, 
Texas 78711-3087. 
<nl>(15)<ol> Tier I federal emission standards - The standards are defined in 
the FCAA as amended in Section 202, USC Title 42 Section 7521, and in 40 CFR, 
Part 86. The phase-in of these standards began in model year 1994. 
<nl>(16)<ol> Ultra low emission vehicle - A vehicle as defined by 40 CFR, Part 
88. 
<nl>(17)<ol> Zero emission vehicle - A vehicle as defined by 40 CFR, Part 88. 

sec.114.3. Low Emission [Fleet] Vehicle <nl> Fleet <ol> Definitions. 
Unless specifically defined in the TCAA or in the rules of the <nl> commission 
<ol> [Texas Natural Resource Conservation Commission (commission)], the terms 
used by the commission have the meanings commonly ascribed to them in the field 
of air pollution control. In addition to the terms which are defined by the 
TCAA, the following words and terms, when used in Subchapter E of this chapter 
(relating to Low Emission [Fleet] Vehicle <nl> Fleet <ol> Requirements), shall 
have the following meanings, unless the context clearly indicates otherwise: 
<nl>(1)<ol> <nl>Affected area - Any consolidated metropolitan statistical area 
or metropolitan statistical area with a population of 350,000 or more that, 
under national ambient air quality standards provided by Federal Clean Air Act 
sec.181, as amended (42 United States Code Section 7511 and Table 1), is a 
serious, severe, or extreme nonattainment area. <ol>
<nl>(2) <ol> <nl>Affected entity - Any individual, partnership, firm, company, 
business trust, corporation, organization, or association which operates a fleet 
within an affected area. <ol>
[Beaumont/Port Arthur nonattainment area-Hardin, Jefferson, and Orange 
Counties.]
[Capable of being centrally fueled - A fleet or that part of a fleet consisting 
of vehicles that could be refueled 100% of the time at a location that is owned, 
operated, or controlled by the fleet operator or that is under contract with the 
fleet operator. The fact that one or more vehicles in a fleet are not centrally 
fueled does not exempt an entire fleet from the program.] 
<nl>(3)<ol> Capable of operating - Having the necessary permanently installed 
equipment that enables a vehicle to use a specified fuel.
[Centrally fueled - A fleet or that part of a fleet consisting of vehicles that 
are refueled 100% of the time at a location that is owned, operated, or 
controlled by the fleet operator or that is under contract with the fleet 
operator. The fact that one or more vehicles in a fleet are not centrally fueled 
does not exempt an entire fleet from the program. The term does not include 
retail credit card purchases or commercial fleet card purchases.] 
<nl>(4)<ol> Certified - <nl>A vehicle that has been issued a certificate of 
conformity <ol> [The process established] by the EPA to ensure compliance, 
throughout the entire useful life of a vehicle, with the required <nl>emission 
<ol> standards as defined in Title 40<nl>, <ol> Code of Federal Regulations<nl>, 
Parts 86 and 88 <ol> [40 (CFR)].
[Clean-fuel vehicle - A vehicle in a class or category of vehicles that has been 
certified to meet for any model year:] 
[(A) the clean-fuel vehicle standards applicable under the FCAA as amended Part 
C, Subchapter II, (U.S.C. 42 Section 7581 et seq.);] 
[(B) emission limits at least as stringent as the applicable low-emission 
vehicle standards for the clean-fuel fleet program under 40 CFR, Sections 
88.104-94, 88.105-94, and as published in the Federal Register of September 30, 
1994; and]
[(C) vehicles certified to the inherently low-emission vehicle standards under 
40 CFR, Section 88.311-93 as published in the Federal Register, March 1, 1993, 
will also be considered clean-fuel vehicles.]
[Control -] 
[(A) When it is used to join all entities under common management, means any one 
or a combination of the following:
[(i) a third person or firm has equity ownership of 51% or more in each of two 
or more firms;] 
[(ii) two or more firms have common corporate officers, in whole or in 
substantial part, who are responsible for the day-to-day operation of the 
companies;] 
[(iii) one firm leases, operates, supervises, or in 51% or greater part owns 
equipment and/or facilities used by another person or firm, or has equity 
ownership of 51% or more of another firm.]
[(B) When it is used to refer to the management of vehicles, means a person has 
the authority to decide who can operate a particular vehicle, and the purposes 
for which the vehicle can be operated.
[(C) When it is used to refer to the management of people, means a person has 
the authority to direct the activities of another person or employee in a 
precise situation, such as the workplace.] 
<nl>(5)<ol> Conventional vehicle - A vehicle which meets all applicable federal 
emission standards in place at the time of manufacture<nl>, <ol> but is not 
certified as a <nl>low emission <ol> [clean-fuel] vehicle. 
[Dallas/Fort Worth nonattainment area - Collin, Dallas, Denton, and Tarrant 
Counties.]
[El Paso nonattainment area - El Paso County.
<nl>(6)<ol> Fleet - <nl>The aggregate of the <ol> [all] vehicles <nl>under the 
authority of a mass transit authority, local government, or private entity <ol> 
[that are owned, operated, or controlled by an affected entity and are 
registered under the Texas Transportation Code, sec.502.002] and operated 
primarily within <nl> an affected <ol> [any one nonattainment] area. 
<nl>(7)<ol> Fleet vehicle - A vehicle <nl>registered or <ol> required to be 
registered under [the] Texas Transportation Code <nl>(TTC),<ol> <nl>Chapter 502, 
except a motor bus used to transport pre-primary, primary, or secondary students 
to or from school or for approved extracurricular activities, or a vehicle 
registered under TTC, sec.502.006(c) <ol> [sec.502.002, and that is centrally 
fueled, capable of being centrally fueled, or fueled at facilities serving both 
business customers and the general public]. The term does not include: 
(A) a [fleet] vehicle that, when not in use, is normally parked at the residence 
of the individual who <nl>normally <ol> [usually] operates it [and that is 
available to such individual for personal use]; 
(B) a [fleet] vehicle that <nl>has a gross vehicle weight rating (GVWR) of 
greater than 26,000 pounds <ol> [, when not in use, is normally parked at the 
residence of the individual who usually operates it and who does not report to a 
central location]; [or
(C) a [fleet] vehicle <nl>used in the maintenance or repair of underground mass 
transit facilities which is required by federal law or regulation to operate on 
diesel fuel; or <ol> [that has a gross vehicle weight rating (GVWR) greater than 
26,000 pounds except vehicles owned or operated by mass transit authorities.] 
<nl>(D)<ol> a law enforcement or emergency vehicle, as defined by the Texas 
Transportation Code (TTC) sec.541.201. 
[Houston/Galveston nonattainment area - Brazoria, Chambers, Fort Bend, 
Galveston, Harris, Liberty, Montgomery, and Waller Counties.
<nl>(8)<ol> Lessor - A <nl>private entity <ol> [person] who leases or rents 
vehicles to other entities for the purpose of short-term rental or an extended 
term leasing [(] with or without <nl>a <ol> maintenance <nl>agreement <ol> [)], 
without a driver, <nl>and <ol> under a contract. Fleets <nl>or vehicles <ol> 
[that are owned,] operated[, or controlled] by lessors for operations other than 
lease or rental to other entities may be subject to the requirements of this 
chapter. 
<nl>(9)<ol> Local government - A city, county, municipality, or political 
subdivision of a state. This term does not include school districts.
[Mobile emission reduction credit - The credit obtained from an enforceable, 
permanent, quantifiable, and surplus (to other federal and state regulations) 
emission reduction generated by a mobile source as set forth in sec.114.201 and 
sec.114.202 of this title (relating to the Mobile Emission Reduction Credit 
Program, and The Texas Mobile Emission Reduction Credit Fund) and which has been 
banked in accordance with sec.101.29 of this title (relating to Emissions 
Banking and Trading).] 
<nl>(10)<ol> Non-road vehicle - A vehicle which is not <nl>required to be <ol> 
registered under the Texas Transportation Code, sec.502.002. 
<nl>(11)<ol> <nl>Normally operates - A person is considered to normally operate 
a vehicle if they operate the vehicle more than 50% of the time. <ol>
<nl>(12) <ol> <nl>Normally parked at the residence of the individual - A vehicle 
that is parked more than 75% of the time that it is parked after business hours 
at the residence of the individual who normally operates it. <ol>
[Operate - Use of a vehicle on any public road.] 
<nl>(13)<ol> Operates primarily - Use of a fleet in any one affected 
nonattainment area more than 50% of the <nl>total <ol> [average] annual vehicle 
miles traveled or [operating] time as <nl>measured from January 1 through 
December 31 <ol> [documented by the affected entity from July 1 through June 
30th] of each year.
[Own - Having legal title to a vehicle.]
<nl>(14)<ol> <nl>Private entity - Any individual, partnership, firm, company, 
business trust, corporation, organization, or association which owns, operates, 
or controls a fleet. <ol>
<nl>(15)<ol> <nl> Private fleet - All fleet vehicles operated by a private 
person.<ol>
[Private person - Any individual, partnership, firm, company, business trust, 
corporation, organization, or association which owns, operates, or controls a 
fleet.] 
<nl>(16)<ol> Program compliance credits - Creditsthat may be granted to a 
<nl>fleet <ol> [vehicle owner/] operator <nl> for a vehicle which <ol> [who] 
exceeds the <nl>low emission <ol> [clean-fuel] vehicle provisions and 
requirements of this chapter. 
<nl>(17)<ol> <nl>Projected net costs - All expenses associated with the 
operation of fleet vehicles after deduction of any available state or federal 
funding or incentives for the use of low emission vehicles. <ol> 
<nl>(18) <ol> <nl>Public works agency - A governmental body established by the 
legislative branch, including municipalities and counties acting by ordinance, 
charged with administrating the construction and maintenance of improvements 
constructed with public funds for public use, protection, or enjoyment, and 
those who oversee provision of public services. <ol>
<nl>(19)<ol> <nl> Purchase date - The date the buyer and seller are in a legally 
binding purchase or lease agreement. Payment or delivery of the vehicle is not 
required to have taken place. <ol>
<nl>(20) <ol>Vehicle - A self propelled device designed to operate with four or 
more wheels in contact with the ground, in or by which a person or property is 
or may be transported, and which is registered under the <nl>TTC <ol> [Texas 
Transportation Code], sec.502.002 <nl> excluding vehicles registered under TTC, 
sec.502.006(c).<ol>
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 April 9, 1998.
TRD-9805043
Kevin McCalla
Director, Legal Division
Texas Natural Resource Conservation Commission
Proposed date of adoption: July 29, 1998
For further information, please call: (512) 239-1970

SUBCHAPTER E.Low Emission [Fleet] Vehicle <nl>Fleet <ol> Requirements
30 TAC sec.sec.114.150, 114.151, 114.153-114.157
STATUTORY AUTHORITY
The amendments are proposed under the Texas Clean Air Act (TCAA), Texas Health 
and Safety Code, sec.382.017, which provides the commission with the authority 
to adopt rules consistent with the policy and purposes of the TCAA; and TCAA, 
sec.382.019, which provides the commission with the authority to adopt rules to 
control and reduce emissions from engines used to propel land vehicles. The 
proposed amendments implement TCAA, sec.382, Subchapter F; Texas Transportation 
Code (TTC), Chapter 451, Subchapter G; TTC, Chapter 452, Subchapter F; and TTC, 
Chapter 453, Subchapter F. 

sec.114.150.Requirements for Mass Transit Authorities.
(a) Mass transit authorities, as defined in sec.114.1 of this title (relating to 
Definitions), that [own,] operate[, or control vehicles in the Beaumont/Port 
Arthur, Dallas/Fort Worth, El Paso, and Houston/Galveston nonattainment areas, 
as defined in sec.101.1 of this title (relating to Definitions),] <nl>in an 
affected area <ol> are subject to the low emission [fleet] vehicle <nl>(LEV) 
<ol> provisions and requirements of this <nl>section <ol> [chapter]. 
(b) Mass transit authorities must ensure that at least 50% of their fleet 
vehicles are<nl> certified to meet or certified to exceed the LEV standards <ol> 
[low emission fleet vehicle fleets by September 1, 1996]. 
(c) <nl>The requirements of subsection (b) of this section may be met using <ol> 
Program Compliance Credits (PCCs) or Mobile Emission Reduction Credit (MERCs) 
under sec.sec.114.157, 114.201, or 114.202 of this title (relating to <nl>Low 
Emission Vehicle Fleet <ol> Program Compliance Credits; Mobile Emission 
Reduction Credit Program; and [The] Texas Mobile Emission Reduction Credit Fund) 
[may be used to meet the percentage requirements of subsection (b) of this 
section]. 
(d) The <nl>early <ol> acquisition of <nl>LEVs or acquisition of cleaner LEVs, 
such as ultra low emission vehicles, inherently low emission vehicles, or zero 
emission vehicles <ol> [qualifying low emission fleet vehicles] may qualify for 
both PCCs and MERCs<nl>. <ol> [,] <nl> However, <ol> [however] only one type of 
credit may be used per <nl> generating <ol> vehicle. 
[(e) The percentage requirements of subsection (b) of this section may be met by 
the dual-fuel conversion or capability of conventional gasoline-powered or 
diesel-powered vehicles to be certified as low emission fleet vehicles under the 
dual-fuel standards found in 40 Code of Federal Regulations, Part 88.] 
<nl>(e)<ol> [(f)] Vehicles converted, purchased, leased, or otherwise acquired 
before September 1, <nl>1999, but not certified to the LEV standards, <ol> 
[1998] may be counted towards a mass transit authority's compliance with the 
percentage requirements of subsection (b) of this section, <nl>if the vehicles: 
<ol> [in accordance with sec.114.152 of this title (relating to Use of Certain 
Vehicles for Compliance).
<nl>(1)<ol> <nl>are capable of operating on a fuel or power source recognized by 
any State of Texas fleet or mass transit fuel program prior to September 1, 
1995. These fuels are as follows:<ol> 
<nl>(A)<ol> <nl>electricity;<ol> 
<nl>(B)<ol> <nl>ethanol, or ethanol/gasoline blends of 85% or greater 
ethanol;<ol> 
<nl>(C)<ol> <nl>liquefied petroleum gas, commonly referred to as propane;<ol> 
<nl>(D)<ol> <nl>methanol or methanol/gasoline blends of 85% or greater methanol; 
or <ol>
<nl>(E)<ol> <nl> natural gas; and <ol> 
<nl>(2)<ol> <nl>meet at a minimum the following emission standards: <ol> 
<nl>(A)<ol> <nl>for vehicles under 8,500 pounds gross vehicle weight rating 
(GVWR), the federal Tier I emission standards under Federal Clean Air Act, 
sec.202 as amended (42 U.S.C. Section 7521); or <ol>
<nl>(B)<ol> <nl> for vehicles over 8,500 pounds GVWR, the federal emission 
standards in place at the time of the chassis' manufacture. <ol> 
<nl>(f)<ol> [(g)] Exceptions from the requirements of subsection (b) of this 
section may be granted under sec.114.153 of this title (<nl>relating to <ol> 
[concerning] Exceptions). 
<nl>(g)<ol> [(h)] <nl>Affected <ol> [By September 30 of each year starting in 
1996, mass] transit authorities must submit annual <nl>fleet <ol> reports <nl>by 
September 1 of each year. <ol> [as required under sec.114.155 of this title 
(relating to Reporting).] <nl>The report shall be <ol>submitted to the executive 
director and must contain, at a minimum:
<nl>(1)<ol> <nl> the total number of vehicles registered according to Texas 
Transportation Code (TTC), sec.502.002, excluding vehicles registered under TTC, 
sec.502.006(c); <ol>
<nl>(2)<ol> <nl>the total number of LEVs; <ol>
<nl>(3)<ol> <nl> make, model, year, vehicle license numbers, vehicle 
identification numbers, GVWR, fuel type(s) and certified emission standards of 
each vehicle used for compliance; <ol> 
<nl>(4)<ol> <nl>vehicles offered for lease to the public; <ol>
<nl>(5)<ol> <nl>an estimate of the annual vehicle miles traveled (VMT) for each 
vehicle used for compliance; <ol>
<nl>(6)<ol> <nl> if the vehicle is a dual-fuel vehicle, a percent estimate of 
the vehicle's annual operation on each fuel, measured in VMT or time; and <ol>
<nl>(7)<ol> <nl>a demonstration of compliance with the requirements of 
subsection (b) of this section. <ol> 
<nl>(h)<ol> [(i)] Mass transit authorities must maintain records under 
sec.114.156 of this title (relating to Record Keeping).
<nl>(i)<ol> [(j)] Mass transit authorities are eligible for MERCs under 
<nl>Subchapter F of this chapter (relating to Mobile Emission Reduction Credits) 
<ol> [sec.114.201 or sec.114.202 of this title] for the operation of light rail 
cars which have been demonstrated by the mass transit authority to have no 
direct emissions. 

sec.114.151. Requirements for Local Governments and Private <nl>Entities <ol> 
[Persons].
(a) Local governments that [own,] operate [, or control] a fleet of more than 15 
vehicles, excluding law enforcement and emergency vehicles, and private 
<nl>entities <ol> [persons] that [own,] operate [, or control] a fleet of more 
than 25 fleet vehicles, excluding <nl>law enforcement and <ol> emergency 
vehicles, are subject to the <nl>low emission <ol> [clean-fuel] vehicle <nl> 
(LEV) <ol> provisions and requirements of this chapter when operated primarily 
in <nl>an affected area <ol> [the El Paso and Houston/Galveston nonattainment 
areas]. 
(b) Beginning September 1, 1998, local governments and private <nl> entities 
<ol> [persons], as specified by subsection (a) of this section, must ensure that 
their fleet vehicles<nl>, including leased fleet vehicles, <ol> are 
<nl>certified to meet or are certified to exceed the LEV standards <ol> [clean-
fuel vehicles] in accordance with the following schedule: 
(1) 30% of fleet vehicles purchased after September 1, 1998; or at least 10% of 
the fleet vehicles in the total fleet as of September 1, 1998; 
(2) 50% of fleet vehicles purchased after September 1, 2000; and [at least 20% 
of the fleet vehicles in the total fleet as of September 1, 2000; and] 
(3) <nl>70% <ol> [90%] of <nl>light-duty <ol> fleet vehicles purchased after 
September 1, 2002; and at least <nl> 50% <ol> [45%] of the <nl>heavy-duty <ol> 
fleet vehicles <nl> purchased after <ol> [in the total fleet as of] September 1, 
2002. 
(c) A local government or private <nl>entity <ol> [person] is not required to 
purchase <nl>any additional fleet vehicles certified to meet or certified to 
exceed the LEV standards <ol> [clean-fuel vehicles] if <nl>there are 70% <ol> [a 
proportion of 90%] or more <nl>LEVs <ol> [clean-fuel vehicles is] maintained in 
<nl> the <ol> [their] fleet. 
(d) Program Compliance Credits (PCCs) or Mobile Emission Reduction Credits 
(MERCs) under sec.sec.114.157, 114.201, or 114.202 of this title (relating to 
<nl>Low Emission Vehicle Fleet <ol> Program Compliance Credits; Mobile Emission 
Reduction Credit Program; and [The] Texas Mobile Emission Reduction Credit Fund) 
may be used to meet the percentage requirements of subsection (b) of this 
section. 
(e) The acquisition of <nl>LEVs <ol> [qualifying clean-fuel vehicles] may 
qualify for both PCCs and MERCs; however, only one type of credit may be used 
per <nl>generating <ol> vehicle. 
(f) The percentage requirements of subsection (b) of this section may be met by 
[dual-fuel] <nl>an EPA certified <ol> conversion <nl>of currently owned or newly 
purchased conventional vehicles to meet or exceed the LEV standards <ol> [or 
capability of conventional gasoline-powered or diesel-powered vehicles to be 
certified as clean-fuel vehicles under the dual fuel standards found in 40 Code 
of Federal Regulations, Part 88]. <nl>For purposes of this section, the 
conversion and EPA certification of conventional vehicles to the LEV standards 
shall be treated the same as the purchase of an original equipment 
manufacturer's LEV. Nothing in this section shall be construed as to require the 
conversion and EPA certification of conventional vehicles to the LEV standards. 
<ol> 
(g) <nl>Fleet vehicles <ol> [Vehicles] converted, purchased, leased, or 
otherwise acquired before September 1, <nl>1995 <ol> [1998] <nl>but not 
certified to the LEV standards <ol> may be counted towards a local government's 
or a private <nl>entity's <ol> [person's] compliance with the percentage 
requirements of subsection (b) of this section <nl>if the vehicles are capable 
of operating on a fuel or power source recognized by any State of Texas fleet 
fuel program prior to September 1, 1995. These fuels are as follows: <ol> [in 
accordance with sec.114.152 of this title (relating to Use of Certain Vehicles 
for Compliance).] 
<nl>(1)<ol> <nl>electricity; <ol> 
<nl>(2)<ol> <nl>ethanol, or ethanol/gasoline blends of 85% or greater ethanol; 
<ol> 
<nl>(3)<ol> <nl>liquefied petroleum gas, commonly referred to as propane; <ol> 
<nl>(4)<ol> <nl>methanol or methanol/gasoline blends of 85% or greater methanol; 
or <ol> 
<nl>(5)<ol> <nl> natural gas. <ol> 
(h) Exceptions from the requirements of subsection (b) of this section may be 
granted under sec.114.153 of this title (relating to Exceptions). 
(i) <nl>Within <ol> [By September 1, 1997, or within] 90 days of meeting the 
minimum fleet size<nl>, <ol> where applicable, affected local governments and 
private <nl>entities <ol> [persons] specified under subsection (a) of this 
section must register with the executive director for identification and 
compliance tracking. Registration must include the submission of the following 
information: 
(1) the affected entity's name, mailing address, telephone and fax numbers; 
(2) the name, title, mailing address and telephone number of the specific person 
responsible for the [affected] fleet; [and] 
(3) the total number of vehicles [owned,] operated <nl>primarily in an affected 
area,<ol> [or controlled,] including [non-covered and] exempted vehicles<nl>; 
and <ol>
<nl>(4)<ol> <nl>affected area counties of operation for all fleet vehicles. <ol> 
(j) Upon registration, the executive director will assign each fleet a unique 
identification number for data tracking purposes. 
(k) By September 1 of each <nl>even numbered <ol> year, [starting in 1998,] 
affected local governments and private <nl> entity fleets <ol> [persons] must 
submit reports to the executive director, as required under sec.114.155 of this 
title (relating to Reporting).
(l) Affected local governments and private <nl>entity fleets <ol> [persons] must 
maintain records <nl>as required <ol> under sec.114.156 of this title (relating 
to Record Keeping). 
(m) The requirements <nl>contained in <ol> sec.114.1 of this title (relating to 
Definitions); <nl>Subchapter E of this chapter (relating to Low Emission Vehicle 
Fleet Requirements) <ol> [sec.sec.114.150-114.157 of this title (relating to 
Requirements for Mass Transit Authorities; Requirements for Local Governments 
and Private Persons; Use of Certain Vehicles for Compliance; Exceptions; 
Exceptions for Certain Mass Transit Authorities; Reporting; Record Keeping; and 
Program Compliance Credits)]; and sec.114.201 and sec.114.202 of this title 
[(relating to Mobile Emission Reduction Credit Program and the Texas Mobile 
Emission Reduction Credit Fund)] do not apply to lessors of vehicles with regard 
to vehicles they lease or rent to other entities.

sec.114.153.Exceptions. 
(a) Exceptions from the applicable <nl>low emission <ol> [clean-fuel] vehicle 
<nl>(LEV) <ol> requirements of this chapter may be granted for a period of up to 
two years. Exceptions are based on the determination by the executive director 
that one of the following conditions exist: 
(1) A firm engaged in fixed price contracts with public works agencies can 
demonstrate that compliance with the <nl>LEV <ol> requirements [of clean-fuel 
vehicle provisions and requirements of this chapter] would result in substantial 
economic harm to the firm under a contract entered into before September 1, 
1997. The following documentation must be submitted to the executive director 
when applying for this exception: 
(A) copies of the relevant contracts; and 
(B) a demonstration of how and by what means the firm would be harmed by 
complying with the <nl>LEV <ol> requirements [of the clean-fuel vehicle 
provisions and requirements] of this chapter. 
(2) <nl>Fuels required for LEV operation that meet the normal requirements of 
the principal business of the affected entity are not available in the affected 
areas in which the vehicles are to be operated. <ol> [The affected entity's 
vehicles will be operating primarily in an area that does not have or cannot 
reasonably be expected to establish adequate refueling for the operation of 
clean-fuel vehicles as required by the clean-fuel vehicle provisions and 
requirements of this chapter.] The <nl>affected area where the entity's fleet 
operates must be indicated <ol> [following information must be submitted to the 
executive director] when applying for this exception<nl>. <ol> [:] 
[(A) the name of the county where the affected entity's fleet primarily 
operates;] 
[(B) the physical address of the nearest refueling station that provides fuels 
necessary for clean-fuel operation; and]
[(C) a demonstration of the normal operating range of the affected entity's 
fleet sufficient for the executive director to determine that the fleet will be 
operating primarily in an area that does not have or cannot be reasonably 
expected to establish adequate refueling for the fleet's normal operational 
needs.] 
(3) The affected entity is unable to secure financing provided by or arranged 
through the proposed supplier or suppliers of the <nl> fuels required <ol> [fuel 
necessary] for the operation of <nl> LEVs as <ol> [the clean-fuel vehicles] 
required by the [clean-fuel vehicle] provisions [and requirements] of this 
chapter sufficient to cover the additional costs of such fueling. The following 
information must be submitted to the executive director when applying for this 
exception: 
(A) a description of the financing required by the affected entity; 
(B) a description of the financing offered by the proposed supplier(s) of the 
fuels necessary for the operation of <nl>LEVs <ol> [clean-fuel vehicles]; and 
(C) a demonstration of why the affected entity is unable to secure such 
financing as provided by the fuel supplier sufficient to cover the additional 
costs of fueling <nl>LEVs. <ol> [clean-fuel vehicles.
(4) The projected net costs of the fueling [,] <nl>for EPA certified <ol> 
conversion or replacement [,] and operation of <nl>LEVs are <ol> [clean-fuel 
vehicles] reasonably [is] expected to exceed comparable costs [of the fueling, 
replacement, and operation] of conventional vehicles [when] measured over the 
expected useful life of such vehicles<nl>. Included <ol> [and after including] 
in such cost calculations <nl>are <ol> any available state or federal funding or 
incentives for the use of fuels required to operate <nl>LEVs. <ol> [clean-fuel 
vehicles.] The following information must be submitted to the executive director 
when applying for this exception: 
(A) <nl>the <ol> types of vehicles needed; and 
(B) a demonstration of how the projected net costs of <nl> fueling for LEVs <ol> 
[using clean-fuel vehicles] exceeds the comparable costs of [using] conventional 
vehicles over the useful life of such vehicles, after the identification of any 
available state or federal funding or incentives for the use of fuels required 
to fuel <nl> LEVs. <ol> [clean-fuel vehicles.] 
<nl>(5)<ol> <nl>Original equipment manufacturer's vehicles, or converted 
vehicles, that meet the normal requirements and practices of the local 
government or private entity and have been certified by the EPA as LEVs are not 
available. The following information must be submitted to the executive director 
when applying for this exception: <ol> 
<nl>(A)<ol> <nl> the types of vehicles needed and proof of nonavailability; and 
<ol> 
<nl>(B)<ol> <nl>a justification of why the normal requirements and practices of 
the local government or private entity cannot be met by the use of currently 
available LEVs. <ol>
(b) Exception applications will be reviewed by the executive director in 
accordance with the following process and are subject to the following 
provisions: 
(1) Exception applications will be reviewed on a case by case basis; 
(2) All currently available <nl>LEVs <ol> [vehicle/fuel configurations] must be 
evaluated by the affected entity before an exception application will be 
reviewed; 
(3) The executive director may request additional information in order to 
evaluate an exception application; 
(4) Applications will be accepted by the executive director at any point within 
the 12 months preceding a compliance deadline, provided a current fleet report 
containing the information in sec.114.155 of this title (relating to Reporting) 
is also provided; 
(5) The affected entity receiving a notice of exception must maintain a copy of 
the notice on-site at the reported fleet address for the duration of the 
exception period and must make such copies available to the executive director 
[or local air pollution control agencies] upon request; 
(6) Affected entities <nl>which have been granted <ol> [who are operating under] 
an exception may not trade or sell Program Compliance Credits or Mobile Emission 
Reduction Credits <nl>(MERCs),<ol> or enter into a contract according to 
[sec.sec.114.157, 114.201, or] <nl>sec.<ol>114.202 of this title (relating to 
[Program Compliance Credits; Mobile Emission Reduction Credit Program; and the] 
Texas Mobile Emission Reduction Credit Fund), for the duration of the exception 
period; and 
(7) Affected entities will not be considered in violation of the applicable 
<nl>LEV <ol> [clean-fuel vehicle] requirements of this chapter while an 
exception application is under review by the executive director, if the 
exception application has been submitted to the executive director <nl>within 
the 12 months preceding the <ol> [before] the applicable compliance date. 
<nl>(c)<ol> <nl>Alternatives to applying for an exception to the applicable LEV 
requirements of this chapter are: <ol> 
<nl>(1)<ol> <nl>to meet the requirements through the acquisition of equivalent 
MERC credits under Subchapter F of this chapter (relating to Mobile Emission 
Reduction Credits). Equivalent MERCs are those credits necessary to meet a 
fleet's LEV requirements according to sec.114.150 and sec.114.151 of this title 
(relating to Requirements for Mass Transit Authorities, and to Local Governments 
and Private Entities); or <ol>
<nl>(2)<ol> <nl> to meet the requirements through the acquisition of equivalent 
Program Compliance Credits (PCCs) under sec.114.157  of this title (relating to 
Low Emission Vehicle Fleet Program Compliance Credits). Equivalent PCCs are 
those credits necessary to meet a fleet's LEV requirements according to 
sec.114.150 and sec.114.151 of this title. <ol>

sec.114.154.Exceptions for Certain Mass Transit Authorities. 
(a) This section applies only to a mass transit authority confirmed at a tax 
election before July 1, 1985, and in which the principal city has a population 
of less than 750,000, according to the most recent federal census. 
(b) The executive director may reduce any percentage specified by, or waive the 
requirements of, Texas Transportation Code <nl>(TTC),<ol> <nl> sec.451.3015 <ol> 
[sec.451.301] for up to two years, for an authority on receipt of certification 
supported by evidence acceptable to the executive director that: 
(1) the authority's vehicles will be operating primarily in an area in which 
neither the authority nor a supplier has or can reasonably be expected to 
establish a central refueling station necessary for the operation of <nl>low 
emission vehicles (LEVs) <ol> [clean-fuel vehicles]; or 
(2) the authority is unable to acquire or be provided equipment or refueling 
facilities necessary to operate <nl>LEVs <ol> [clean-fuel vehicles] at a 
projected cost that is reasonably expected to result in no greater net costs 
than the continued use of equipment or refueling facilities used to operate 
conventional vehicles, measured over the expected useful life of the equipment 
or facilities supplied. 
(c) Certification by the executive director that an authority <nl> confirmed at 
a tax election before July 1, 1985, and in which the principal city has a 
population of less than 750,000, according to the most recent federal census, 
<ol> [covered by Texas Transportation Code, sec.451.301,] is unable to 
comply<nl>. This <ol> is accomplished through development of a proposal to be 
submitted to the executive director. The proposal must:
(1) contain an alternative implementation schedule for meeting the percentage 
requirements of <nl>TTC sec.451.3015 <ol> [Texas Transportation Code, 
sec.451.301]; and 
(2) have been the subject of a public meeting held to discuss the authority's 
inability to comply with <nl>TTC sec.451.3015 <ol> [Texas Transportation Code, 
sec.451.301], and the alternative implementation schedule. 

sec.114.155.Reporting.
(a) <nl>Entities affected by sec.114.151 of this title (relating to Requirements 
for Local Governments and Private Entities) <ol> [Affected entities] must submit 
<nl>biennial <ol> [annual] fleet reports <nl>by September 1 of each even 
numbered year. The report shall be submitted <ol> to the executive director 
<nl>and <ol> [. The report] must contain, at a minimum: 
(1) the fleet identification number (when assigned); 
(2) the total number of vehicles registered according to the Texas 
Transportation Code <nl>(TTC),<ol> sec.502.002<nl>, excluding vehicles 
registered under TTC, sec.502.006(c);<ol> 
(3) the total number of [fleet] vehicles registered according to the <nl>TTC 
<ol> [Texas Transportation Code], sec.502.002 <nl> used for compliance;<ol> 
(4) <nl>the affected areas in which the affected fleet vehicles operate 
primarily; <ol> [vehicle license numbers, model years, manufacturers, model 
types, vehicle identification numbers, gross vehicle weight rating, fuel type(s) 
and certified emission standards of each vehicle being used for compliance with 
the requirements of sec.114.150 or sec.114.151 of this title (relating to 
Requirements for Mass Transit Authorities and Requirements for Local Governments 
and Private Persons)]; 
<nl>(5)<ol> <nl>the total number of purchases for the applicable period, 
starting with the biennial report in the year 2000;<ol>
<nl>(6)<ol> <nl>the following information for each vehicle being used for 
compliance with the requirements of sec.114.151 of this title: <ol> 
<nl>(A)<ol> [(5)] <nl>purchase date, make, model, model year, vehicle license 
numbers, vehicle identification numbers, gross vehicle weight rating, fuel 
type(s), certified emissions standards, and <ol> an estimate of the annual 
vehicle miles traveled (VMT) <nl>measured from January 1 through <ol>December 31 
of each year, and averaged over the two consecutive years; and [for each clean-
fuel vehicle;] 
<nl>(B)<ol> [(6)] if the vehicle <nl>used for compliance <ol> is a dual-fuel 
vehicle, <nl>an estimate of <ol> [documentation demonstrating] the percentages 
of the vehicle's <nl> annual <ol> operation on each fuel <nl>measured from 
January 1 through December 31 of each year,<ol> <nl>measured in <ol> [as 
documented by the] VMT <nl>or time <ol> operated on each fuel<nl>. Two 
consecutive years averaged will be used for the biennial fleet report;<ol> and 
(7) a demonstration of compliance with the applicable implementation schedule 
<nl>under sec.114.151 of this title.<ol> 
(b) Affected entities may submit the information required in 
<nl>subsection<ol>[section] (a) of this section for all vehicles in their fleet 
<nl>if the vehicles being used for compliance are so indicated.<ol> 

sec.114.156.Record Keeping. 
Affected entities must maintain copies of <nl>submitted <ol> [the] reports 
required by sec.114.155 of this title (relating to Reporting) on-site at the 
reported fleet address for a minimum of three years and shall make such reports 
available to the executive director or local air pollution control agencies 
having jurisdiction in the area upon request.

sec.114.157. <nl>Low Emission Vehicle Fleet <ol> Program Compliance Credits. 
(a) Program Compliance Credits (PCCs) may be awarded only to <nl>entities <ol> 
affected [entities] <nl>by sec.114.150 or sec.114.151 of this title (relating to 
Requirements for Mass Transit Authorities, and Requirements for Local 
Governments and Private Persons) <ol> for <nl>one <ol> [any of the following,] 
or any combination <nl> of the following actions: <ol> [thereof:] 
(1) The <nl>purchase, lease, or <ol> acquisition of a <nl> low emission <ol> 
[clean-fuel] vehicle <nl>(LEV) <ol> which is certified to a more stringent 
emission standard than the <nl>LEV <ol> [low emission vehicle (LEV)] 
standards<nl>. These vehicles include:<ol> [, which include;]
(A) ultra low emission vehicle (ULEV) <nl>as certified by the EPA <ol> 
[certified clean-fuel vehicles]; 
(B) inherently low emission vehicle (ILEV) <nl>EPA <ol> certified [clean-fuel] 
vehicles; or 
(C) zero emission vehicle (ZEV) <nl>EPA <ol> certified [clean-fuel] vehicles. 
(2) The <nl>purchase, lease, or <ol> acquisition of <nl>LEVs <ol> [clean-fuel 
vehicles] in greater numbers than otherwise required under sec.114.150 or 
sec.114.151 of this title [(relating to Requirements for Mass Transit 
Authorities and Requirements for Local Governments and Private Persons)]; 
(3) The <nl>purchase, lease, or <ol> acquisition of <nl> LEVs <ol> [clean-fuel 
vehicles] in a category not otherwise required under sec.114.150 or sec.114.151 
of this title; or 
(4) The <nl>purchase, lease, or <ol> acquisition of <nl> an LEV <ol> [a clean-
fuel vehicle] before the dates required under sec.114.150 or sec.114.151 of this 
title. 
(b) PCCs will be awarded [in two-year increments from 1998 until 2002. After 
2002, credits will be awarded] according to the estimated remaining useful life 
of the vehicle. 
(c) PCCs may be used to demonstrate compliance with <nl> LEV <ol> [clean-fuel 
vehicle] provisions and requirements of this chapter, [or] may be banked for 
later use, or they may be traded, sold, or purchased, for use by any other 
<nl>entity <ol> [person] in the same nonattainment area, to demonstrate 
compliance with the <nl>LEV <ol> [clean-fuel vehicle] provisions and 
requirements of this chapter. 
(d) PCCs <nl>generated under subsection (a) of this section <ol> have the 
following values: 
(1) LEV - one credit; 
(2) ULEV - two credits; and 
(3) ILEV and ZEV - three credits. 
(e) <nl>Entities affected <ol> [Affected entities] <nl>by sec.114.150 or 
sec.114.151 of this title <ol> proposing to generate PCCs under this chapter may 
apply at any time to the executive director. A current fleet report containing 
the information in <nl>sec.114.150 of this title or <ol> sec.114.155 of this 
title (relating to Reporting) must accompany the application. Affected entities 
may also indicate their desire to obtain PCCs concurrent with fleet registration 
or annual reporting. The submission of additional vehicle or fleet information 
may <nl>also <ol> be required. 
(f) PCCs will be banked with the Mobile Source <nl>Section of the commission 
<ol> [Division]. 
(g) Upon verification by the executive director: 
(1) each fleet will be issued a certificate, where applicable; and 
(2) a total credit summary sheet will be issued to the fleet. 
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 April 9, 1998.
TRD-9805042
Kevin McCalla
Director, Legal Division
Texas Natural Resource Conservation Commission
Proposed date of adoption: July 29, 1998
For further information, please call: (512) 239-1970

30 TAC sec.114.152
(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 Natural 
Resource Conservation Commission or in the Texas Register office, Room 245, 
James Earl Rudder Building, 1019 Brazos Street, Austin.)
STATUTORY AUTHORITY
This repeal is proposed under the Texas Clean Air Act (TCAA), Texas Health and 
Safety Code, sec.382.017, which provides the commission with the authority to 
adopt rules consistent with the policy and purposes of the TCAA. The proposed 
repeal implements Texas Health and Safety Code, sec.382.017.

sec.114.152. Use of Certain Vehicles for Compliance.
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 April 9, 1998.
TRD-9805041
Kevin McCalla
Director, Legal Division
Texas Natural Resource Conservation Commission
Proposed date of adoption: July 29, 1998
For further information, please call: (512) 239-1970

SUBCHAPTER F.[Vehicle Retirement and] Mobile Emission Reduction Credits
Division II. Mobile Emission Reduction Credits
30 TAC sec.sec.114.201, 114.202
STATUTORY AUTHORITY
The amendments are proposed under the Texas Clean Air Act (TCAA), Texas Health 
and Safety Code, sec.382.017, which provides the commission with the authority 
to adopt rules consistent with the policy and purposes of the TCAA; and TCAA, 
sec.382.019, which provides the commission with the authority to adopt rules to 
control and reduce emissions from engines used to propel land vehicles. The 
proposed amendments implement TCAA, sec.382, Subchapter F; Texas Transportation 
Code (TTC), Chapter 451, Subchapter G (relating to Metropolitan Rapid Transit 
Authorities); TTC, Chapter 452, Subchapter F (relating to Regional 
Transportation Authorities); and TTC, Chapter 453, Subchapter F (relating to 
Municipal Transportation Authorities).

sec.114.201. Mobile Emission Reduction Credit Program.
(a) Mobile Emission Reduction Credits (MERCs) will be based on the difference 
between the emissions from the <nl>replacement of a conventional vehicle with a 
low emission vehicle (LEV). <ol> [clean-fuel vehicle and the conventional 
vehicle.] <nl>Program participation is voluntary. MERCs <ol> [, and] will be 
awarded to [affected] entities <nl> which primarily operate vehicles <ol> [and 
to individuals located] within the state's nonattainment areas<nl>, as 
identified in sec.101.1 of this title (relating to Definitions), <ol> for any of 
the following, or combination thereof: 
(1) The <nl>purchase, lease, or <ol> acquisition of <nl> an LEV <ol> [a clean-
fuel vehicle] which is certified to a more stringent emission standard than the 
<nl>LEV <ol> [low emission vehicle (LEV)] standards<nl>. These vehicles include: 
<ol> [, which include:] 
(A) ultra-low emission vehicle <nl>(ULEV) as certified by the EPA <ol> 
[certified clean-fuel vehicles]; 
(B) inherently low emission vehicle <nl>(ILEV) EPA <ol> certified [clean-fuel] 
vehicles, and 
(C) zero emission vehicle <nl>(ZEV) EPA <ol> certified [clean-fuel] vehicles; or 
(2) The <nl>purchase, lease, or <ol> acquisition of <nl>LEVs <ol> [clean-fuel 
vehicles] in greater numbers than otherwise required under sec.114.150 or 
sec.114.151 of this title (relating to Requirements for Mass Transit 
Authorities, and Requirements for Local Governments and Private <nl>Entities 
<ol> [Persons]); 
(3) The <nl>purchase, lease, or <ol> acquisition of <nl> LEVs <ol> [clean-fuel 
vehicles in a category] not required under sec.114.150 or sec.114.151 of this 
title; or 
(4) The <nl>purchase, lease, or <ol> acquisition of <nl> LEVs <ol> [clean-fuel 
vehicles before] <nl>prior to <ol> the dates under sec.114.150 or sec.114.151 of 
this title. 
<nl>(5)<ol> <nl> Entering into a binding contract as specified under sec.114.202 
of this title (relating to Texas Mobile Emission Reduction Credit Fund). <ol>
(b) MERCs may be <nl>used as follows:<ol>
(1) [used] to demonstrate compliance with [the clean-fuel vehicle provisions and 
requirements of this chapter or] any <nl>applicable <ol> [other] mobile source 
<nl>emissions reductions requirements <ol> [program that has marketable 
credits]; <nl> or <ol>
(2) <nl>to satisfy Reasonably Available Control Technology and Federal Clean Air 
Act offset requirements subject to the appropriate trading ratios and other 
commission rules. <ol> [banked for later use; or]
(3) traded, sold, or <nl>banked <ol> [purchased] for <nl>later <ol> use <nl>by 
fleet vehicle owners or other mobile or stationary sources of emissions within 
the same affected area without discount or depreciation of such credits <ol> [by 
any other person in the same nonattainment area to demonstrate compliance with 
the clean-fuel vehicle provisions and requirements of this chapter]. 
(c) The following restrictions apply to the trading or purchasing of fleet to 
fleet MERCs: 
(1) Trades are restricted to the nonattainment area in which they are generated; 
(2) Light-duty vehicle MERCs are restricted to trading within the light-duty 
<nl>vehicle <ol> class; and 
(3) Heavy-duty vehicle MERCs may be traded within their specific subclass or 
from a heavier vehicle to a lighter vehicle (downward trading) within the heavy-
duty <nl>vehicle <ol> class. 
(d) [For fleet to fleet trading or demonstration of compliance,] MERCs will be 
<nl>determined in accordance with EPA rules and guidance as follows: <ol> 
[quantified in terms of fleet to fleet credits using the following equation:] 
<nl>(1)<ol> <nl> For fleet to fleet trading or trading from vehicle owners not 
subject to the requirements for fleets:<ol> 
Figure 30 TAC sec.114.201(d)<nl>(1) <ol>
<nl>(2)<ol> [(e)] For trades to stationary sources, the following methodology is 
used for the calculation of MERCs for volatile organic compounds (VOCs) or 
oxides of nitrogen (NO<sub>x) trades:
Figure: 30 TAC sec.114.201[(e)] <nl>(d)(2)<ol> 
<nl>(e)<ol> [(f)] In order for credits to be certified as tradable for 
stationary sources, fleets must have a minimum of <nl> one [sub]x[sub]x MERCs 
generated under this section in order to make the minimum one ton of emission 
reductions for trades to stationary sources. <nl>However, no minimum is required 
for banking credits tradable among fleets. <ol>
<nl>(f)<ol> [(g)] In order to apply for a MERC <nl> under subsection (a) of this 
section,<ol> an affected entity or individual must submit the following 
information to the executive director: 
(1) the certified emission standard of the vehicle for which the affected entity 
or individual wishes to make an application for credit;
(2) the annual VMT [traveled] by the vehicle;
(3) the amount of time in years this vehicle is expected to be in service; and
(4) a current fleet report containing the information required to be submitted 
under <nl>sec.114.150 of this title or <ol> sec.114.155 of this title (relating 
to Reporting). The submission of additional vehicle or fleet information may be 
required at this time.
<nl>(g)<ol> [(h)] MERCs for trading between fleets will be banked with the 
Mobile Source <nl>Section of the commission <ol> [Division]. 
<nl>(h)<ol> [(i)] MERCs for trading between fleets and stationary sources will 
be banked with the commission Emissions Bank. 
<nl>(i)<ol> [(j)] Upon certification by the executive director, each <nl>credit 
owner <ol> [vehicle] will be issued a certificate indicating, where applicable:
(1) the standard to which the vehicle is certified; 
(2) the weight class of the vehicle; 
(3) the amount of emissions reduced per year in tons <nl> for the fleet;<ol> 
(4) the number of years the emission reductions will be credited; and 
(5) the number of light-duty or heavy-duty vehicle fleet to fleet MERCs. 
<nl>(j)<ol> [(k)] A total emissions credit summary  sheet will be issued to the 
<nl>affected entity <ol> [fleet] upon issuance of any MERC certificate. 
<nl>(k)<ol> [(l)] MERCs <nl>issued under this section <ol> will be awarded in 
two-year increments for the period of 1998 through 2002. After 2002, MERCs will 
be awarded according to the expected remaining useful life of the vehicle. 
<nl>(l)<ol> [(m)] The following are considered violations of the Texas <nl>MERC 
<ol> [Mobile Emission Reduction Credit] Program: 
(1) claiming a MERC without meeting the appropriate acquisition requirements; 
(2) submission of false data as information requested by commission rules; or 
(3) counterfeiting or dealing commercially in counterfeit MERC certificates. 
<nl>(m)<ol> [(n)] Any person found to be in violation of the Texas <nl>MERC <ol> 
[Mobile Emission Reduction Credit] Program is subject to <nl>penalties and 
enforcement as defined by the Health and Safety Code, Chapter 382, Subchapter D. 
<ol> [a civil penalty of not more than $25,000 per violation.] 

sec.114.202. [The] Texas Mobile Emission Reduction Credit Fund. 
(a) Mobile emission reduction credits may be assigned through the Texas Mobile 
Emission Reduction Credit Fund as established by this section to <nl>entities 
<ol> affected [entities] <nl>by sec.114.150 and sec.114.151 of this title 
(relating to Requirements for Mass Transit Authorities, and Requirements for 
Local Governments and Private Persons) <ol> provided: 
(1) the [affected] entity enters into a binding contract with the commission, 
agreeing to purchase and place in service in designated program areas <nl>low 
emission <ol> [clean-fuel] vehicles in accordance with the number of credits 
issued and the time frame specified by the commission; and 
(2) the [affected] entity agrees to name the EPA as a third-party beneficiary of 
its contract with the commission. 
(b) Contracts entered into under this section may be enforced in the courts of 
the State of Texas by an order of specific performance.
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 April 9, 1998.
TRD-9805040
Kevin McCalla
Director, Legal Division
Texas Natural Resource Conservation Commission
Proposed date of adoption: July 29, 1998
For further information, please call: (512) 239-1970

SUBCHAPTER G.Transportation Planning
30 TAC sec.114.260
The commission proposes amendments to sec.114.260, concerning Transportation 
Conformity, and a proposed revision to the State Implementation Plan (SIP) 
concerning Transportation Conformity. 
EXPLANATION OF PROPOSED RULE
The Texas transportation conformity rule and its associated SIP were adopted on 
October 19, 1994, in response to the Federal Clean Air Act (FCAA) requirements. 
The FCAA required states to submit a revision to their SIP no later than 
November 25, 1994 establishing enforceable criteria and procedures for making 
conformity determinations for metropolitan transportation plans, transportation 
improvement programs, and projects funded by the Federal Highway Administration 
(FHWA) or the Federal Transit Administration (FTA). Emissions estimates of 
transportation plans, programs, and projects must be found to conform with their 
corresponding emissions estimates or budgets contained in the applicable SIP 
before they are approved or funded by the United States Department of 
Transportation or the Metropolitan Planning Organizations (MPOs) in 
nonattainment and maintenance areas. Failure to demonstrate transportation 
conformity will result in a partial loss of federal highway funding. The Texas 
transportation conformity SIP and rule were approved by the United States 
Environmental Protection Agency (EPA) on November 8, 1995. Since their initial 
promulgation, the EPA has amended the federal transportation conformity rules 
three times; on August 7, 1995, November 14, 1995, and August 15, 1997. As a 
result of the August 15, 1997 amendments, Texas is required to amend the SIP and 
state transportation conformity rule to incorporate the federal amendments by 
August 15, 1998. 
The proposed amendments will incorporate, by reference, the August 15, 1997, 
amendments to the federal transportation conformity rule (40 CFR, Part 51 
Subpart T and Part 93 Subpart A) with the exception of sec.93.102(d) and 
sec.93.105. Section 93.102(d) established a grace period for new nonattainment 
areas and has been disallowed as a result of the Sierra Club versus the EPA 
federal court case on November 4, 1997. Section 93.105 requires states to 
develop their own consultation procedures subject to the EPA guidelines. Section 
114.260 establishes the interagency and public consultation procedures 
consistent with the EPA guidelines. 
Most of the amendments to the federal transportation conformity rule are 
organizational or are slightly less stringent in nature. However, the amendment 
that requires a nonattainment area to demonstrate transportation conformity to a 
nitrogen oxide (NO<sub>x) motor vehicle emissions budget, regardless of the 
area's NO<sub>x waiver status, is more stringent than the current Texas 
transportation conformity rule. The proposed revisions to sec.114.260 will adopt 
the new federal NO<sub>x requirements by reference. 
This proposed rule revision will also simplify the transportation control 
measure (TCM) requirements by deleting references to sec.114.270(d), which is 
the TCM Enforcement Rule. Instead of being required to develop new TCMs 
consistent with the transportation conformity process to make up an emissions 
reduction shortfall, the nonattainment and maintenance area MPOs would only be 
required to ensure timely TCM implementation and report the implementation and 
emissions reductions status of adopted TCMs annually to the commission. Finally, 
this proposed rule will clarify the transportation conformity determination 
process by identifying who makes the determinations, who issues the joint 
conformity finding, and when the conformity is effective. MPOs and their 
governing bodies, or the Texas Department of Transportation, if applicable, 
would make the transportation conformity determinations. Upon completion of the 
transportation conformity review process, the FHWA and the FTA would issue a 
joint conformity finding, indicating the transportation conformity status of the 
documents under review. The transportation conformity determination would be 
effective on the date of the joint conformity finding. 
FISCAL NOTE
Mr. Stephen Minick, Strategic Planning and Appropriations Division, has 
determined that for the first five-year period the rule as proposed is in 
effect, there may be significant fiscal implications for state or local 
government as a result of administration or enforcement of the rule. One of the 
federal rules being adopted by reference requires nonattainment or maintenance 
areas to demonstrate transportation conformity to a NO<sub>x mobile source 
emissions budget, regardless of the area's NO<sub>x waiver status. Current MPO 
officials in Texas nonattainment areas predict that it will be extremely 
difficult to demonstrate transportation conformity for NO<sub>x. If they cannot, 
highway sanctions will be imposed, resulting in a partial loss of federal 
highway funding for implementing agencies. Additional resources will be needed 
to develop NO<sub>x mobile source emissions budgets and sufficient on-road 
mobile source NO<sub>x emissions control strategies to ensure an area's 
compliance.
The other portions of the rule being amended will have minimal fiscal impact. 
All of the affected agencies are subject to the requirements of the current 
transportation conformity rule, so the effect of the rule will be minimal. The 
rule amendment would not increase or decrease costs for these agencies. There 
will be no significant fiscal implications to the commission. 
PUBLIC BENEFIT
Mr. Minick has also determined that for each year of the first five years the 
rule as proposed is in effect, the public benefit of this rule will be the 
limitation of on-road mobile source emissions to those specified in the SIP, 
which will result in the reduction and/or stabilization of on-road mobile source 
emissions and contribute to cleaner air. There will be no economic costs to 
persons or small businesses as a result of administration or enforcement of the 
proposed rule. 
DRAFT REGULATORY IMPACT ANALYSIS
The proposed rulemaking is a "major environmental rule" because it deals with 
the construction of highway and other transportation projects within the 
nonattainment and maintenance areas of the state, most of which are major 
metropolitan areas. Incorporation of the new federal transportation conformity 
requirements by reference means that all nonattainment and maintenance areas 
will be required to demonstrate conformance of a budget for NO<sub> x or be 
subject to loss of highway or other transportation funding. Under the existing 
rules, the nonattainment areas have not been required to conform to the NO<sub>x 
budget.
However, the proposed rulemaking does not meet the other criteria for being 
subject to sec.2001.0025 because it does not exceed a standard set by federal 
law, does not exceed an express requirement of state law, does not exceed a 
requirement of a delegation agreement or contract to implement a state and 
federal program, is not being proposed solely under the general powers of the 
commission, and is not being proposed on an emergency basis to reduce risks to 
human health from environmental exposure. Therefore, the commission has reviewed 
the proposed 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.2001.0025. 
The commission invites public comment on the draft Regulatory Impact Analysis.
TAKINGS IMPACT ASSESSMENT
The commission has prepared a Takings Impact Assessment for this rule pursuant 
to Texas Government Code Annotated, sec.2007.043. The following is a summary of 
that assessment. The specific purpose of the rule amendment is to meet the 
federal requirement to incorporate recent EPA changes to the federal 
transportation conformity rule, which requires all transportation plans, 
programs, and projects in nonattainment or maintenance areas to conform to the 
SIP. Other proposed amendments would simplify and reduce TCM requirements and 
clarify the transportation conformity determination process. The rule amendment 
will substantially advance this specific purpose by incorporating the required 
sections of the federal transportation conformity rule, as amended on August 15, 
1997, by reference and including specific language that simplifies TCM 
requirements and clarifies the transportation conformity determination process. 
Promulgation and enforcement of this rule amendment will not affect private real 
property which is the subject of the rule because the proposed rule only serves 
to ensure that transportation plans, programs, and projects in nonattainment and 
maintenance areas conform with the SIP.
COASTAL MANAGEMENT PROGRAM
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.33.201 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)(2) and 30 TAC sec.281.45(a)(3) relating to actions and 
rules subject to the CMP, agency rules governing air pollutant emissions must be 
consistent with the applicable goals and policies of the CMP. The commission has 
reviewed this action for consistency, and has determined that this rulemaking is 
consistent with the applicable CMP goals and policies. The primary CMP policy 
applicable to this rulemaking action is the policy that commission rules comply 
with regulations at 40 CFR to protect and enhance air quality in the coastal 
area. This rule amendment merely adopts the changes the EPA has made to 40 CFR 
Parts 51 and 93, and therefore, is in agreement with the CMP policy governing 
air pollutant emissions. In compliance with 31 TAC sec.505.22(e), the commission 
affirms that this rule is consistent with CMP goals and policies. Interested 
persons may submit comments on the consistency of the proposed rules with the 
CMP during the public comment period.
PUBLIC HEARING
A public hearing on this proposal will be held May 13, 1998 at 3:00 p.m. in 
Building F, Room 5108 at the Texas Natural Resource Conservation Commission 
complex, located at 12100 North IH-35, Park Technology Center, Austin. 
Individuals may present oral statements when called upon in order of 
registration. Open discussion 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 may be mailed to Ms. Heather Evans, 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 98003-
114-AI. Comments must be received by 5:00 p.m., May 25, 1998. For further 
information, please contact Cathy Stephens, Air Quality Planning and Assessment 
Division, (512) 239-1749 or Alan J. (Buddy) Henderson, Air Policy and 
Regulations Division, (512) 239-1510.
Persons with disabilities who have special communication or other accommodation 
needs who are planning to attend the hearing should contact the commission at 
(512) 239-4900. Requests should be made as far in advance as possible. 
STATUTORY AUTHORITY
The amendment is proposed under the Texas Clean Air Act (TCAA), Texas Health and 
Safety Code, sec.382.017, which provides the commission with the authority to 
adopt rules consistent with the policy and purposes of the TCAA. Revisions to 
sec.114.260 are also proposed under TCAA, sec.382.011, which provides the 
commission with the authority to control the quality of the state's air; 
sec.382.012, which provides for the commission to prepare and develop a general, 
comprehensive plan for the proper control of the state's air; sec.382.016, 
concerning monitoring requirements and examinations of records; and sec.382.019, 
which provides the commission with the authority to adopt rules to control and 
reduce emissions from engines used to propel land vehicles. 

sec.114.260.Transportation Conformity. 
(a) Purpose. The purpose of this section is to implement the requirements set 
forth in Title 40 of the Code of Federal Regulations (40 CFR) <nl>Part 93, 
Subpart A <ol> [Part 51, Subpart T] (relating to Conformity to State or Federal 
Implementation Plans of Transportation Plans, Programs, and Projects Developed, 
Funded, or Approved Under Title 23 United States Code or the Federal Transit 
<nl>Laws <ol> [Act]), which are the regulations developed by the EPA under the 
FCAA Amendments of 1990, sec.176(c). It includes policy, criteria, and 
procedures <nl>to demonstrate <ol> [for demonstrating] and <nl>assure <ol> 
[assuring] conformity of transportation planning activities with the State 
Implementation Plan (SIP). 
(b) Applicability. This section applies to transportation-related pollutants for 
which an area is designated nonattainment or is subject to a maintenance plan. 
The pollutants include ozone, carbon monoxide, nitrogen dioxide, particles with 
an aerodynamic diameter of [less than or equal to[sub]10) <nl>and smaller, <ol> 
and the precursors of those pollutants. The affected nonat- tainment and 
maintenance areas are listed in sec.101.1 of <nl>this <ol> title (relating to 
Definitions). 
(c) CFR incorporation. <nl>The Transportation Conformity Rules, as specified in 
40 CFR 93, Subpart A, (62 FR 43780) dated August 15, 1997, are incorporated by 
reference with the exception of sec.93.102(d) and sec.93.105. The requirements 
of sec.93.105 are addressed in this section. <ol> [The provisions promulgated in 
the following listed sections of 40 CFR, Part 51, Subpart T, dated November 24, 
1993, are hereby incorporated by reference: sec.51.392, 51.394, 51.398, 51.400, 
51.404, 51.406, 51.408, 51.410, 51.412, 51.414, 51.416, 51.418, 51.420, 51.422, 
51.424, 51.426, 51.428, 51.430, 51.432, 51.434, 51.436, 51.438, 51.440, 51.442, 
51.444, 51.446, 51.448, 51.450, 51.452, 51.454, 51.456, 51.458, 51.460, 51.462, 
and 51.464.]
(d) Consultation. Under 40 CFR, <nl>sec.93.105, <ol> [sec.51.402] regarding 
consultation, the following procedures shall be undertaken in nonattainment and 
maintenance areas before making conformity determinations and before adopting 
applicable SIP revisions. 
(1) General factors. 
(A) For the purposes of this subsection, concerning consultation, the affected 
agencies shall include: 
(i) EPA; 
(ii) Federal Highway Administration (FHWA); 
(iii) Federal Transit Administration (FTA); 
(iv) Texas Department of Transportation (TxDOT); 
(v) metropolitan planning organizations (MPOs) in nonattainment or maintenance 
areas; 
(vi) local publicly-owned transit services in nonattainment or maintenance areas 
(the designated recipient of FTA sec.9 funds); 
(vii) Texas Natural Resource Conservation Commission (commission)<nl>; and <ol> 
(viii) local air quality agencies in nonattainment or maintenance areas 
(recipients of FCAA, sec.105 funds)<nl>. <ol> [;] 
(B) All correspondence with the affected agencies in subparagraph (A) of this 
paragraph shall be addressed to the following designated <nl> points <ol> 
[point] of contact: 
(i) MPO: executive director or designee; 
(ii) commission: executive director or designee; 
(iii) TxDOT: Director of Transportation Planning and Programming or designee; 
(iv) TxDOT: Director of Environmental Affairs Division or designee; 
(v) FHWA: Administrator of Texas Division or designee; 
(vi) FTA: Director of Office of Program Development <nl> or designee <ol> - FTA 
Region 6 [, or designee]; 
(vii) EPA: Regional Administrator <nl>or designee <ol> - EPA Region 6 [, or 
designee]; 
(viii) TxDOT District: District Engineer or designee; 
(ix) local publicly-owned transit services (the designated recipient of FTA 
sec.9 funds): General Manager or designee; 
(x) local air quality agencies (recipients of FCAA sec.105 funds): Director or 
designee; and 
(xi) commission regions in nonattainment or maintenance areas: regional director 
or designee. 
(2) Roles and responsibilities of affected agencies. 
(A) The MPO, in cooperation with TxDOT and publicly owned transit services, 
shall consult with the agencies in paragraph (1)(A) of this subsection in the 
development of Metropolitan Transportation Plans (MTPs), Transportation 
Improvement Programs (TIPs), projects, technical analyses, travel demand or 
other modeling, and data collection. Specifically, the MPOs shall: 
(i) allow the commission's <nl>Air Quality Planning and Assessment <ol> [Mobile 
Source] Division Director, or a designated representative, to <nl>be a voting 
member of <ol> [participate in meetings of] technical committees on surface 
transportation and air quality in each nonattainment and maintenance area in 
order to consult directly with the particular committee during the development 
of the transportation plans, programs, and projects;
(ii) send information on time and location, an agenda, and supporting materials 
(including preliminary versions of MTPs and TIPs) for all regularly scheduled 
meetings on surface transportation or air quality to each of the agencies 
specified in paragraph (1)(B) of this subsection. <nl> This <ol> [Such] informa- 
tion shall be provided in accordance with the locally adopted public involvement 
process as required by 23 CFR, Part 450, sec.450.316(b)(1); 
(iii) (No change.) 
(iv) for the purposes of regional emissions analysis, initiate a consultation 
process with the affected agencies specified in paragraph (1)(A) of this 
subsection during the development stage of new or revised MTPs and TIPs to 
determine which transportation projects should be considered regionally 
significant and which projects should be considered to have a significant change 
in design concept and scope from the effective MTP and TIP. Regionally 
significant projects will include, at a minimum, all facilities classified as 
principal arterial or higher, or fixed guideway systems or extensions that offer 
an alternative to regional highway travel. Also, these include minor arterials 
included in the travel demand modeling process which serve significant 
interregional and intra regional travel, and connect rural population centers 
not already served by a principal arterial, or connect with intermodal 
transportation terminals not already served by a principal arterial. A 
significant change in design concept and scope is defined as a revision of a 
project in the MTP or TIP that would significantly affect model speeds, vehicle 
miles traveled, or network connec- tions. In addition to new facilities, 
examples [may] include changes in the number of through lanes or length of 
project (more than one mile), access control, addition of major intermodal 
terminal facilities (such as new international bridges, park-and-ride lots, and 
transfer terminals), addition/deletion of inter- changes, or changing between 
free and toll facilities. When a significant change in the design and scope of a 
project is proposed, the MPO shall document the rationale for the change and 
give the affected agencies specified in paragraph (1)(A) of this subsection a 
30-day opportunity to comment on their rationale. The MPO shall consider the 
views of each agency that comments, and respond in writing <nl>before <ol> 
[prior to] any final action on these issues. If the MPO receives no comments 
within 30 days, the MPO may assume concurrence by the agencies specified in 
paragraph (1)(A) of this subsection; 
(v) include in the TIP a list of projects exempted from the requirements of a 
conformity determination under 40 CFR, <nl>Part 93, sec.93.126 and 93.127 <ol> 
[Part 51, sec.51.460 and sec.51.462]. The MPO shall consult with the affected 
agencies specified in paragraph (1)(A) of this subsection in determining if a 
project on the list has potentially adverse emissions for any reason, including 
whether or not the exempt project will interfere with implementation of an 
adopted transportation control measure (TCM). The MPO shall respond in writing 
to all comments within 30 days on final MTP and TIP documents. <nl>In addition, 
if <ol> [If] no comments are received as part of the <nl>subsequent <ol> public 
involvement process for the TIP, the MPO may proceed with implementation of the 
exempt project; 
(vi) notify the affected agencies specified in paragraph (1)(A) of this 
subsection in writing of any MTP or TIP revisions or amendments which add or 
delete the exempt projects identified in 40 CFR, <nl>sec.93.126 <ol> 
[sec.51.460]; 
(vii) as required by 40 CFR, <nl>sec.sec.93.116, and 93.123 <ol> [sec.51.424 and 
sec.51.454 of the final EPA transportation conformity rule],<nl>and in 
cooperation with TxDOT, <ol> make a preliminary identification of those projects 
located at sites in PM<sub>10 nonattainment and maintenance areas that require 
quantitative PM<sub>10 Hot Spot analyses. After these projects have been 
identified, the MPO shall submit a list of these projects and sufficient data to 
the agencies specified in paragraph (1)(A) of this subsection for review and 
comment; 
(viii)- (ix) (No change.) 
(x) [under sec.114.270 of this title (relating to Transportation Control 
Measures),] ensure [the] timely <nl>TCM <ol> implementation [of TCMs] and report 
[to the commission annually] on the <nl>implementation and emissions reductions 
<ol> status of adopted TCMs <nl>annually to the commission.<ol> [If alternative 
TCMs or other reduction measures are deemed necessary, and these are not already 
included in the SIP, the MPO shall develop new TCMs with equal or greater 
emissions reductions consistent with the MTP, TIP, SIP, and conformity 
requirements, pursuant to sec.114.270(d) of this title. Any changes in TCMs will 
be coordinated with the affected agencies specified in paragraph (1)(A) of this 
subsection];
(xi)- (xii) (No change.) 
(B) the commission, as the lead air quality planning agency, shall work in 
consultation with the agencies specified in paragraph (1)(A) of this subsection 
in developing applicable transportation-related SIP revisions, air quality 
modeling, general emissions analysis, emissions inventory, and all related 
activities. Specifically, the commission shall: 
(i) (No change.) 
(ii) schedule public hearings in order to gather public input on the applicable 
transportation-related SIP revisions and notify the agencies specified in 
paragraph (1)(B) of this subsection of the hearings according to 40 CFR, 
<nl>sec.93.105 <ol> [sec.51.102]; 
(iii) (No change.) 
(iv) after consultation with the MPO regarding TCMs [under sec.114.270(a) of 
this title], distribute to all agencies specified in paragraph (1)(B) of this 
subsection and other interested persons the list of TCMs proposed for inclusion 
in the SIP. In consultation with the agencies specified in paragraph (1)(A) of 
this subsection, the commission shall determine whether past obstacles to 
implementation of TCMs have been identified and are being overcome, and 
determine whether the MPOs and the implementing agencies are giving maximum 
priority to approval or funding for TCMs. Also, the commission shall consider, 
in consultation with the affected agencies, whether delays in TCM implementation 
necessitate a SIP revision to remove TCMs or <nl>to <ol> substitute TCMs or 
other emission reduction measures. 
<nl>(v)<ol> <nl> consult with the applicable agencies specified in paragraph 
(1)(A) of this subsection, in order to cooperatively choose conformity tests and 
methodologies for isolated rural nonattainment and maintenance areas, as 
required by 40 CFR, sec.93.109(g)(2)(iii). <ol>
(3) General procedures. 
(A) - (B) (No change.) 
(C) For the purposes of evaluating and choosing a model (or models) and 
associated methods and assumptions to be used in Hot-Spot and Regional Emissions 
Analyses, <nl>agencies specified in paragraph (1)(A) of this subsection shall 
participate in a working group identified as the Technical Working Group for 
Mobile Source Emissions (TWG). The frequency of meetings and agendas for the 
group will be cooperatively determined by the agencies specified in paragraph 
(1)(A) of this subsection. <ol> [the commission shall establish a working group 
identified as the Transportation and Air Quality Technical (TAQT) Technical 
Working Group (TWG). The TAQT Working Group shall include the agencies specified 
in paragraph (1)(A) of this subsection. The frequency of meetings and agendas 
for them will be determined by the commission in cooperation with the agencies 
specified in paragraph (1)(A) of this subsection.] The function of this working 
group may be delegated to an existing group with similar composition and 
purpose. 
(D) The commission, affected MPOs, <nl>affected local air quality agencies, <ol> 
and TxDOT shall cooperatively evaluate events which will trigger the need for 
new conformity determinations. New conformity determinations may be triggered by 
events established in 40 CFR, <nl>sec.93.104 <ol> [sec.51.400] as well as other 
events, including emergency relief projects that require substantial functional, 
locational, and capacity changes, or in the event of any other unforeseeable 
circumstances. 
<nl>(E)<ol> <nl>The MPO and its governing body, or TxDOT if applicable, shall 
make conformity determinations for all MTPs, TIPs, regionally significant 
projects, and all other events as required by 40 CFR, Part 93, Subpart A and 
this section. Upon completion of the transportation conformity determination 
review process, FHWA and FTA will issue a joint conformity finding, indicating 
the transportation conformity status of the document(s) under review. The 
document(s) transportation conformity status is effective on the date of the 
joint conformity finding. <ol>
(4) Conflict resolution. 
(A) The commission and the MPO (or TxDOT where appropriate) shall make a good-
faith effort to address the major concerns of the other party in the event they 
are unable to reach agreement on the conformity determination of a proposed MTP 
or TIP. The efforts shall include meetings of the agency executive 
directors<nl>, <ol> if necessary. 
(B) In the event that the MPO or TxDOT determines that every effort has been 
made to address the <nl>commission's <ol> [commission] concerns, and that no 
further progress is possible, the MPO or TxDOT shall notify the commission 
executive director in writing to this effect. This subparagraph shall be cited 
by the MPO or TxDOT in any notification of a conflict which may require action 
by the Governor, or his or her delegate under subparagraph (C) of this 
paragraph. 
(C) The commission has 14 calendar days from date of receipt of 
notification<nl>, <ol> as required in subparagraph (B) of this paragraph, to 
appeal to the Governor. If the commission appeals to the Governor, the final 
conformity determination must then have the concurrence of the Governor. The 
Governor may delegate his or her role in this process, but not to the commission 
or <nl>commission <ol> staff [of the commission], a local air quality agency, 
the Texas Transportation Commission or [staff of ]TxDOT <nl>staff,<ol> or an 
MPO. This subparagraph shall be cited by the commission in any notification of a 
conflict which may require action by the Governor or his or her delegate. If the 
commission does not appeal to the Governor within 14 calendar days from receipt 
of written notification, the MPO or TXDOT may proceed with the final conformity 
determination.
(5) Public comment on conformity determinations. Consistent with the 
requirements of 23 CFR, Part 450, concerning public involvement, the agencies 
[specified in paragraph (1)(A)of this subsection] <nl> making conformity 
determinations on transportation plans, programs, and projects <ol> shall 
establish a <nl>proactive <ol> public involvement process which provides 
opportunity for public review and comment. <nl>This process shall, at a minimum, 
provide reasonable public access to technical and policy information considered 
by the agency at the beginning of the public comment period and before <ol> 
[prior to] taking formal action on conformity determinations for all MTPs and 
TIPs<nl>, <ol> [.] <nl>as required by 23 CFR sec.450.316 (b) and this section. 
Any charges imposed for public inspection and copying should be consistent with 
the fee schedule contained in 49 CFR 7.95. <ol> In addition, these agencies 
shall address in writing any public comment claiming that a non-FHWA/FTA funded, 
regionally significant project has not been properly represented in the 
conformity determination for a MTP or TIP. <nl>Finally <ol> [Also], these 
agencies shall provide opportunity for public involvement in conformity 
determinations for projects where otherwise required by law. 
(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 April 9, 1998.
TRD-9805044
Kevin McCalla
Director, Legal Division
Texas Natural Resource Conservsation Commission
Proposed date of adoption: July 29, 1998
For further information, please call: (512) 239-1970

CHAPTER 305.Consolidated Permits 
SUBCHAPTER C.Application for Permit
30 TAC sec.305.54
The Texas Natural Resource Conservation Commission (commission) proposes an 
amendment to sec.305.54, concerning Additional Requirements for Radioactive 
Material Licenses. 
EXPLANATION OF PROPOSED RULE 
The purpose of this rule is to implement Senate Bill (SB) 1857, 75th 
Legislature, 1997. On July 20, 1997, SB 1857 transferred jurisdiction over 
licensing of source material and disposal of by-product material from the 
commission to the Texas Department of Health (TDH). 
Section 305.54(e) (relating to Additional Requirements for Radioactive Material 
Licenses) is proposed to be amended to delete language concerning the source 
material licensing and by-product disposal jurisdiction transferred to the TDH 
by SB 1857. 
FISCAL NOTE 
Stephen Minick, Strategic Planning and Appropriations Division, has determined 
that for the first five-year period the section as proposed is in effect, there 
will be no significant fiscal implications for state government as a result of 
administration or enforcement of the rule. There are no fiscal implications for 
units of local government. 
PUBLIC BENEFIT
Mr. Minick has also determined that for the first five years the section as 
proposed is in effect, the public benefit anticipated as a result of enforcement 
of and compliance with the section will be clarification of existing regulations 
relating to regulation of radioactive substances. Compliance with the proposed 
state regulations will result in no significant costs to affected parties. There 
are no direct fiscal implications anticipated for small businesses.
DRAFT REGULATORY IMPACT ANALYSIS
The commission has reviewed the proposed 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). 
Although this rule is to protect the environment and reduce the risk to human 
health from environmental exposure, this is not a major environmental rule 
because it does not adversely affect in a material way the economy, a sector of 
the economy, productivity, competition, jobs, the environment, or the public 
health and safety of the state or a sector of the state. 
In addition, this rule does not exceed a standard set by federal law, exceed an 
express requirement of state law, exceed a requirement of a delegation 
agreement, or adopt a rule solely under the general powers of the agency. The 
rule adds federal requirements that are necessary to maintain compatibility with 
the rules of the Nuclear Regulatory Commission. 
TAKINGS IMPACT ASSESSMENT 
The Commission has prepared a Takings Impact Assessment for this rule pursuant 
to Texas Government Code, sec.2007.043. The following is a summary of that 
Assessment. The specific purpose of the rule is to remove commission rule 
language related to the source material licensing and by-product disposal 
jurisdiction transferred to the Texas Department of Health (TDH) by Senate Bill 
(SB) 1857, 75th Legislature, 1997. The rule will substantially advance this 
specific purpose by removing commission rule language related to the source 
material licensing and by-product disposal jurisdiction transferred to the TDH. 
Promulgation and enforcement of the rule will not burden private real property 
which is the subject of the rule because they merely delete commission rule 
language on a jurisdiction transferred to the TDH by statute.
COASTAL MANAGEMENT PROGRAM CONSISTENCY REVIEW 
The executive director has reviewed the proposed rulemaking and found that the 
rule is neither identified in Coastal Coordination Act Implementation Rules, 31 
TAC sec.505.11, nor will it affect any action/authorization identified in 
Coastal Coordination Act Implementation Rules, 31 TAC sec.505.11. Therefore, the 
proposal is not subject to the Coastal Management Program. 
SUBMITTAL OF COMMENTS
Written comments may be mailed to Bettie Bell, Texas Natural Resource 
Conservation Commission, Office of Policy and Regulatory Development, MC 205, 
P.O. Box 13087, Austin, Texas 78711-3087, or faxed to (512) 239-4808. All 
comments must be received by May 25, 1998 and should reference Rule Log Number 
97154-336-WS. Comments received by 5:00 p.m. on that date will be considered by 
the commission prior to any final action on the proposal. For further 
information, please contact Kathy Vail at (512) 239-6637. 
STATUTORY AUTHORITY
This amendment is proposed under the Texas Radiation Control Act (TRCA), Texas 
Health and Safety Code, sec.sec.401.011, 401.051, and 401.412, and Texas Water 
Code, sec.5.103, which give the commission the authority to adopt rules 
necessary to carry out its responsibilities to regulate and license the disposal 
of radioactive substances. 
This amendment implements Health and Safety Code, Chapter 401 (relating to 
Radioactive Materials and Other Sources of Radiation). 

sec.305.54.Additional Requirements for Radioactive Material Licenses.
(a) - (d) (No change.) 
[(e) For applications under Chapter 336, Subchapter G of this title (relating to 
Licensing Requirements for Source Material (Uranium or Thorium) Recovery and 
Processing Facilities), an application shall include an environmental report 
containing the results of a one-year pre-operational monitoring program. For a 
renewal application, the environmental report shall include the results of the 
operational monitoring program.] 
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 April 13, 1998. 
TRD-9805155
Kevin McCalla
Director, Legal Division
Texas Natural Resource Conservation Commission
Earliest possible date of adoption: May 24, 1998
For further information, please call: (512) 239-6087

CHAPTER 336.<nl>Radioactive Substance Rules <ol>[Radiation Rules]
The Texas Natural Resource Conservation Commission (commission) proposes 
amendments to sec.sec.336.1, 336.2, 336.101, 336.102, 336.107, 336.201, 336.203, 
336.209, 336.211, 336.213, 336.304, 336.331, 336.332, 336.334, 336.341, 336.348, 
336.352, 336.356, 336.501-336.503, 336.512, 336.513, 336.701, 336.702, 336.802-
336.807; repeal of sec.sec.336.104, 336.108, 336.217, 336.357, 336.366, 336.514, 
336.601-336.606, 336.613-336.629, 336.636; and proposes new sec.sec.336.514, 
336.515, 336.517, 336.519, 336.601, 336.603, 336.605, 336.607, 336.609, 336.611, 
336.613, concerning Radioactive Substance Rules. 
In addition, this action constitutes the commission's proposal to review the 
rules contained in 30 TAC Chapter 336, concerning Radioactive Substance, in 
accordance with the General Appropriations Act, Article IX, Rider 167, 75th 
Legislature, 1997. 
EXPLANATION OF PROPOSED RULE
The purpose of these rules is to remove commission rule language related to the 
source material licensing and by-product disposal jurisdiction transferred to 
the Texas Department of Health (TDH) by Senate Bill (SB) 1857, 75th Legislature, 
1997; to incorporate revisions and additions which are needed to maintain 
compatibility with the rules of the United States Nuclear Regulatory Commission 
(NRC); and to continue with agency-wide regulatory reform efforts to simplify 
language and requirements. Compatibility of the commission's rules with the 
federal program is necessary to preserve the status of Texas as an Agreement 
State under Title 10 Code of Federal Regulations Part 150 and the "Articles of 
Agreement between the United States Atomic Energy Commission and the State of 
Texas for Discontinuance of Certain Commission Regulatory Authority and 
Responsibility Within the State Pursuant to Section 274 of the Atomic Energy Act 
of 1954, as Amended." 
Federal requirements that must be incorporated in commission rules to maintain 
compatibility include the "Resolution of Dual Regulation of Airborne Effluents 
of Radioactive Materials, Clean Air Act", 61 Fed. Reg. 65120, December 10, 1996, 
effective January 9, 1997 and "Radiological Criteria for License Termination", 
62 Fed. Reg. 39058, July 21, 1997, effective August 20, 1997. 
Section 336.1(a) (relating to Scope and General Provisions) is proposed to be 
amended to delete references to source material licensing and by-product 
disposal because this jurisdiction was transferred to the TDH by SB 1857. 
Section 336.1(b) is proposed to be amended to correct the title of the 
commission's Underground Injection Control (UIC) and Radioactive Waste Section. 
Section 336.2 (relating to Definitions) is proposed to be amended: by adding new 
definitions of "critical group", "distinguishable from background", and 
"residual radioactivity", and by amending the definitions of "background 
radiation" and "decommission" to maintain compatibility with changes to NRC's 
new 10 Code of Federal Regulations (CFR) sec.20.1003 (relating to Definitions); 
and by amending the definition of "major amendment"(by deleting subparagraph (B) 
with subsequent renumbering) and deleting the definitions of "source material 
recovery", "thorium recovery", and "uranium recovery" to remove references to 
the source material licensing and by-product disposal jurisdiction transferred 
to TDH by SB 1857. 
Section 336.101(b) (relating to Radioactive Substance Fees) is proposed to be 
amended to simplify its language and to remove references to the source material 
licensing and by-product disposal jurisdiction transferred to TDH by SB 1857. 
Section 336.102 (relating to Definitions) is proposed to be amended by deleting 
the definition of "post-closure" because its language concerns the source 
material licensing and by-product disposal jurisdiction transferred to TDH by SB 
1857. 
Section 336.104 (relating to Schedule of Fees for Subchapter G Licenses) is 
proposed to be repealed because it concerns the source material licensing and 
by-product disposal jurisdiction transferred to TDH by SB 1857. 
Section 336.107(a) and (b) (relating to Annual License Fee Due Date and Period 
Covered) are proposed to be amended to delete references to sec.336.104, which 
is proposed to be repealed. 
Section 336.108 (relating to Proration of Annual Fee Adjustments) is proposed to 
be repealed because it concerns sec.336.104, which is proposed to be repealed. 
Section 336.201 (relating to Additional Application Requirements) is proposed to 
be amended to add a new subsection (d) to maintain compatibility with NRC's 10 
CFR 20.1406 (relating to Minimization of Contamination). 
Section 336.203 (relating to Environmental Analysis) is proposed to be amended 
by deleting subsection (a) to remove a requirement solely related to the source 
material licensing and by-product disposal jurisdiction transferred to TDH by SB 
1857 and by renumbering the remaining subsections. 
Section 336.209 (relating to Records and Reports) is proposed to be amended by 
deleting subsection (e) because it relates to the source material licensing and 
by-product disposal jurisdiction transferred to TDH by SB 1857; it is replaced 
by a new subsection (e) that allows the executive director the option of 
requesting copies of all records prior to termination. 
Section 336.211(a)(3)(A) (relating to Reporting Requirements for Incidents) is 
proposed to be amended to add a requirement that a confirming facsimile 
accompany telephone incident reports to document the facts provided. Section 
336.211 is also proposed to be amended by deleting subsection (b) to remove 
reporting requirements related to the source material licensing and by-product 
disposal jurisdiction transferred to TDH by SB 1857 and to remove the subsection 
(a) designation now that there is no accompanying subsection (b). 
Section 336.213 (relating to Tests) is proposed to be amended by deleting the 
word "reasonable" from before the word "tests" that the executive director can 
request the licensee to perform. This change is proposed to eliminate disputes 
as to what tests are "reasonable." 
Section 336.217 (relating to Expiration and Termination of Licenses and 
Decomissioning of Sites and Separate Buildings or Outdoor Areas) is proposed to 
be repealed. Its language is proposed to be moved, with revisions, to become new 
sec.336.519 (relating to Expiration and Termination of Licenses) and new 
sec.336.613 (relating to Additional Requirements). This will separate and 
clarify expiration and the termination of licenses requirements from the 
decommissioning requirements. 
Section 336.304 (relating to Radiation Protection Programs) is proposed to be 
amended to add a new subsection (d), to maintain compatibility with NRC's new 10 
CFR sec.20.1101(d) (relating to Radiation Protection Programs) by imposing a 
constraint on air emissions of radioactive material to the environment. Section 
336.331(a)(2) and (c) (relating to General Requirements for Waste Disposal) are 
proposed to be amended to delete language concerning the source material 
licensing and by-product disposal jurisdiction transferred to TDH by SB 1857. 
Subsection (a) paragraphs are also proposed to be renumbered due to the deletion 
of subsection (a)(2). 
Section 336.332(b)-(f) (relating to Method of Obtaining Approval of Proposed 
Disposal Procedures) are proposed to be amended by deleting references to the 
source material licensing and by-product disposal jurisdiction transferred to 
TDH by SB 1857, with old subsection (f) being renumbered due to the deletion of 
subsection (e). 
Section 336.334 (relating to Disposal by Burial in Soil) is proposed to be 
amended to delete a reference to the source material licensing jurisdiction 
transferred to TDH by SB 1857. 
Section 336.341(a) (relating to General Requirements for Recordkeeping) is 
proposed to be amended to correct a cross-reference. 
Section 336.348(a) (relating to Records of Waste Disposal) is proposed to be 
amended: to correct a cross reference to sec.331(a) where old paragraph (2) was 
proposed to be deleted, to delete a reference to the source material licensing 
and by-product disposal jurisdiction transferred to the TDH by SB 1857, and to 
simplify the subsection by removal of unnecessary cross references. Section 
336.352(a)(2)(F) (relating to Reports of Exposures, Radiation Levels, and 
Concentrations of Radioactive Material Exceeding the Limits) is proposed to be 
amended to add language to maintain compatibility with NRC's new 10 CFR 
sec.20.2203(a)(2)(vi) (relating to Reports of Exposures, Radiation Levels, and 
Concentrations of Radioactive Material Exceeding the Constraints or Limits) with 
respect to as low as is reasonably achievable (ALARA) constraints on air 
emissions. Subsection (b)(1)(D) is proposed to be amended to add language to 
maintain compatibility with NRC's new 10 CFR sec.20.2203(b)(1)(iv), also with 
respect to ALARA constraints. Subsection (b)(2) is proposed to be amended to 
maintain compatibility with NRC's new 10 CFR sec.20.2203(b)(2) with respect to 
the content of reports. 
Section 336.356(a)-(e) (relating to Soil and Vegetation Contamination Limits) 
are proposed to be amended to maintain compatibility with NRC's new 10 CFR 
sec.20.1402 (relating to Radiological Criteria for Unrestricted Use) regarding 
the maximum dose to a member of the public from an unrestricted use area. 
Subsection (f) is proposed to be deleted and a portion of its language on 
decomissioning and release for unrestricted use moved to proposed new 
sec.336.603 (relating to Radiological Criteria for Unrestricted Use) to clarify 
and consolidate the decommissioning requirements. 
Section 336.357 (relating to Surface Contamination Limits for Facilities and 
Equipment) is proposed to be repealed and moved to new sec.336.605 (relating to 
Surface Contamination Limits for Facilities, Equipment, and Materials) to 
consolidate the decommissioning requirements. 
Section 336.366 (relating to Appendix I. Soil and Vegetation Contamination 
Limits for Selected Radionuclides) is proposed to be repealed because it is no 
longer necessary with NRC's new 10 CFR sec.20.1402 (relating to Radiological 
Criteria for Unrestricted Use) and should be removed to maintain compatibility 
with the federal rule. 
Section 336.501(a) (relating to Scope and General Provisions) is proposed to be 
amended to clarify the intent of Subchapter F (relating to Licensing of 
Alternative Methods of Disposal of Radioactive Material), which is to provide 
criteria under which the commission may issue, amend or renew a license for on-
site disposal of radioactive material or waste, and to require that all inactive 
disposal sites must comply with the decommissioning criteria for unrestricted 
use or apply for and obtain a license to decommission by a later date. Section 
336.501(a) is also proposed to be amended to clarify that this rule does not 
apply to inactive disposal sites where diffuse NORM waste having concentrations 
of radium-226 or radium-228 of less than 2,000 pCi/g was disposed. Due to recent 
changes in the federal decommissioning criteria, sec.336.501(c) is also proposed 
to be amended to extend the deadline for filing an application to decommission 
an inactive burial site from January 1, 1999 to January 1, 2000, to allow time 
for the regulated public and the commission to benefit from and participate in 
the NRC decommissioning guidance document development process. Proposed new 
sec.336.501(c)(1)-(3) states that before January 1, 2000, owners or operators of 
unlicensed inactive disposal sites are required to: (1) demonstrate that an 
unlicensed inactive disposal site already meets the criteria for unrestricted 
use, thereby avoiding licensing and all application and license fees; (2) 
decommission an unlicensed inactive disposal site according to the criteria for 
unrestricted use before January 1, 2000, also avoiding all application and 
license fees; or (3) apply for a license and begin decommissioning, according to 
the criteria proposed in this rulemaking, within 90 days of license issuance. 
Subsection (c)(2) also includes a requirement that any decommissioning performed 
prior to January 1, 2000 shall be performed by a qualified, licensed individual 
to ensure that appropriate radiation protection standards for workers and the 
public are met, including the maintenance of records. Incorporating NRC's new 
sec.10 CFR 20.1401(c) (relating to General provisions and scope), 
sec.336.501(c)(1)-(3) proposes that once a site is decommissioned according to 
the proposed standards of new Subchapter G (relating to Decommissioning 
Standards) and the executive director verifies that the criteria have been met, 
the executive director will "certify in writing that the owner is in compliance 
with the decommissioning requirements and will not require any further cleanup, 
unless there is new evidence that the decommissioning standards for unrestricted 
use were not met and that residual radioactivity remaining at the site could 
result in significant threat to public health and safety". Section 336.501(d) is 
proposed to be amended to delete a reference to the source material jurisdiction 
transferred to TDH by SB 1857 and to delete the last sentence, to eliminate 
redundancy.
Section 336.502 (relating to Definitions) is proposed to be amended to add a 
definition for "funding plan", which is equivalent to the decommissioning 
funding plan of new NRC 10 CFR sec.30.35 (relating to Financial Assurance and 
Recordkeeping for Decommissioning) and sec.40.36 (relating to Financial 
Assurance and Recordkeeping for Decommissioning). The definition of "funding 
plan" is proposed to prevent confusion between the "decommissioning funding 
plan" and the "decommissioning plan" in the federal rules. 
Section 336.503(b) (relating to Filing of Application) is proposed to be deleted 
because it refers to sec.336.514, which is proposed to be repealed and is 
proposed to be replaced by a new sec.336.514 (relating to Financial Assurance 
for Decommissioning) that will clarify that funding plans are required to be 
submitted with an application for license. The deleted subsection (b) is then 
replaced by a new subsection (b) stating that applications are to be accompanied 
by the appropriate application fee. 
Section 336.512(a) (relating to Technical Requirements for Inactive Disposal 
Sites) is proposed to be amended to clarify that an applicant for a license to 
authorize possession of disposed radioactive material must also address 
subsequent decommissioning criteria (per the new federal requirements) and the 
applicant is to use a form provided by the agency for consistency in the 
information provided and more efficient review. Subsection (a)(4) is proposed to 
add the requirement to provide the identity of the personnel responsible for 
radiation safety functions in case the commission needs to contact them. 
Subsection (a)(7) is proposed to be amended to state that the application shall 
include a decommissioning plan that meets the new decommissioning standards in 
the proposed new Subchapter G (relating to Decommissioning Standards).
New sec.336.512(a)(8) is proposed to require that information regarding 
financial assurance be submitted with the application in accordance with 
proposed new sec.336.514 (relating to Financial Assurance for Decommissioning). 
New Subsection (a)(9) is proposed to be added to require that the applicant 
submit information as to how facility design and operation minimize 
contamination of the facility and the environment and facilitate eventual 
decommissioning. This is necessary to maintain compatibility with NRC's new 10 
CFR sec.20.1406 (relating to Minimization of Contamination). Section 
336.512(b)(1) is proposed to be amended to clarify that an application for 
renewal of a license at an inactive disposal site includes a commitment on 
behalf of the owner to decommission the inactive site in a timely manner, and 
that the applicant is to use forms provided by the agency (to assure consistency 
in the type and format of information received and efficient review of the 
information provided). Section 336.512(b)(1)(E) is proposed to be added to 
maintain consistency with sec.336.512(a)(4).
Section 336.512(b)(1)(F) and (G) propose to add provisions that a 
decommissioning plan meeting the criteria of proposed new Subchapter G (relating 
to Decommissioning Standards) is to be submitted with the application for 
renewal, along with information regarding financial assurance for 
decommissioning as required in proposed new sec.336.514 (relating to Financial 
Assurance for Decommissioning). Section 336.512(b)(2) is proposed to be amended 
to include the requirement that applicants are to provide new information if the 
information previously submitted to the agency is not current. Section 
336.512(c)(1) is proposed to be amended to make the provision consistent with 
the specific dose limit for unrestricted release. 
Section 336.513(a)(21) and (b)(1)(H) (relating to Technical Requirements for 
Active Disposal Sites) are proposed to be amended to maintain consistency with 
the proposed reorganization and clarification of sec.336.514 (relating to 
Financial Assurance for Decommissioning), by clarifying that financial assurance 
information for decommissioning is to be submitted with an application.
Section 336.513(b)(1)(I) is proposed to be amended to maintain consistency with 
sec.336.512(a)(7) (relating to Technical Requirements for Inactive Disposal 
Sites), which requires an applicant to submit information on the evaluation of 
the alternative of disposing of the radioactive material at a licensed disposal 
facility. Section 336.513(b)(2) is proposed to be amended to include the 
requirement that applicants are to provide new information if the information 
previously submitted to the commission is not current to keep commission files 
updated. Section 336.513(c)(1) is proposed to be amended to make the provision 
consistent with the specific dose limit for unrestricted release. 
Old sec.336.514 (relating to Financial Assurance and Recordkeeping for 
Decommissioning) is proposed to be repealed and its modified language reused in 
proposed new sec.336.514 (relating to Financial Assurance for Decommissioning) 
to narrow the focus of the provision to financial assurance requirements and to 
clarify those requirements. The recordkeeping portion in sec.336.514(f) is moved 
to proposed new sec.336.515 (relating to Recordkeeping for Decommissioning). New 
sec.336.514(a) (relating to Financial Assurance for Decommissioning) is proposed 
to require financial assurance for decommissioning and maintain compatibility 
with NRC's new 10 CFR sec.30.35(f)(5). New sec.336.514(b)-(e) are proposed to 
replace the old sec.336.514 language proposed to be repealed and to reorganize, 
simplify, and clarify financial assurance requirements for active and inactive 
sites. 
Proposed new sec.336.515 (relating to Recordkeeping for Decommissioning) is the 
language moved from repealed sec.336.514(f) (relating to Financial Assurance and 
Recordkeeping for Decommissioning) with a slight modification to 
sec.336.514(f)(4) for consistency with other proposed language. 
New sec.336.517 (relating to Financial Assurance for Control and Maintenance) is 
proposed to clarify the financial assurance requirements for the institutional 
control and maintenance of sites not released for unrestricted use in accordance 
with 10 CFR 20.1403(c) (relating to Criteria for License Termination Under 
Restricted Conditions). 
Proposed new sec.336.519 (relating to Expiration and Termination of Licenses) 
contains the expiration and termination language of repealed sec.336.217(a)-(g), 
(l) and (o) (relating to Expiration and Termination of Licenses and 
Decommissioning of Sites and Separate Buildings or Outdoor Areas), rewritten for 
clarification. Proposed new sec.336.519(f) is proposed to add a requirement that 
licensees of inactive disposal sites begin decommissioning within 90 days of 
license renewal; and owners and operators of inactive disposal sites without a 
license must apply for a license to decommission and must begin decommissioning 
within 90 days of license approval. These changes are proposed to maintain 
compatibility with NRC's regulations "Timeliness in Decommissioning of Materials 
Facilities", 59 Fed Reg 36026, published July 15, 1994, effective August 15, 
1994, and "Radiological Criteria for License Termination", 62 Fed Reg 39058, 
published July 21, 1995, effective August 20, 1997. The preamble for "Timeliness 
in Decommissioning of Materials Facilities" explains: "When decommissioning is 
delayed for long periods following cessation of operations, there is a risk that 
safety practices may become lax as key personnel relocate and management 
interest wanes. In addition, bankruptcy, corporate takeover, or other unforseen 
changes in the company's financial status may complicate and perhaps further 
delay decommissioning...The lack of definitive criteria as to when licensees 
should commence and complete decommissioning their facilities has resulted in 
instances where the NRC has had to issue orders to establish schedules for 
timely decommissioning. Because timeliness in decommissioning is a generic 
issue, the NRC is amending its regulations to clearly delineate the licensee's 
responsibility for timely decommissioning." Since the inactive disposal sites 
regulated by Subchapter F (relating to Licensing of Alternative Methods of 
Disposal of Radioactive Material) have been inactive for many years, proposed 
sec.336.519(f) requires that decommissioning commence within 90 days after 
license renewal or decommissioning license approval. Proposed sec.336.519(g) 
language is derived from repealed sec.336.217(f) and (f)(1) (relating to 
Expiration and Termination of Licenses and Decommissioning of Sites and Separate 
Buildings or Outdoor Areas) with slight modification for consistency with the 
other new provisions. Proposed sec.336.519(h) allows the executive director to 
extend the date of commencement of decommissioning in limited circumstances. 
Because the deadline for submittal of a decommissioning license on an unlicensed 
site is proposed to be extended until January 1, 2000, and the average time of 
processing of an application is expected to be longer than one year, the 
earliest date that an applicant should expect to be required to begin 
decommissioning would be in the year 2002. The preamble for "Radiological 
Criteria for License Termination", states near the end of page 39080 in 
III.F.2.3. that "sites that were not previously licensed but are discovered to 
have radioactivity levels that are licensable or are in excess of the levels 
presented here as appropriate for unrestricted site use...It is intended that 
the criteria of this rule will also apply, as appropriate, to residual 
radioactivity at sites that were not previously licensed." The new 
decommissioning standards of proposed new Subchapter G, therefore apply to all 
radioactive material or waste disposal sites, including licensed and unlicensed 
sites. Proposed sec.336.519(i) is derived from repealed sec.336.217(l), with the 
addition of sec.336.519(i)(5) to assure that the licensee has complied with all 
decommissioning criteria prior to license termination. Proposed sec.336.519(j) 
is derived from repealed sec.336.217(o), with the cross-reference updated. 
Old sec.sec.336.601-336.606, 336.613-336.629, 336.636, which make up Subchapter 
G (relating to Licensing Requirements for Source Material (Uranium or Thorium) 
Recovery and Processing Facilities), are proposed to be repealed due to the 
transfer of the source material jurisdiction to the TDH by SB 1857. Proposed new 
Subchapter G (relating to Decommissioning Standards) incorporates the federal 
standards for decommissioning to maintain compatibility with Radiological 
Criteria for License Termination, 62 Fed Reg 39058, published July 21, 1997, 
effective August 20, 1997, as well as existing applicable decommissioning 
standards relocated from repealed sec.336.271 and sec.336.357 and amended 
sec.336.356. 
Proposed new sec.336.601 (relating to Applicability) incorporates the 
requirements of NRC's 10 CFR sec.20.1401(a) (relating to General Provisions and 
Scope). Proposed new sec.336.601(b) incorporates and modifies NRC's 
grandfathering clause in 10 CFR sec.20.1401(b) to allow any licensees who have 
submitted a decommissioning plan and have received approval of that plan before 
the effective date of these new criteria to choose to decommission according to 
the rules in place at the time of filing of the plan or the newer criteria. 
Because current commission regulations are already compatible with NRC's 10 CFR 
sec.20.1402 (relating to Radiological Criteria for Unrestricted Use) and there 
are no decommissioning plans currently under review at the commission, an exact 
incorporation of the federal grandfathering clause would be meaningless. 
Proposed sec.336.601(c) is derived from NRC's new 10 CFR sec.20.1401(c) to 
maintain compatibility with the federal rule. Proposed sec.336.601(d) is also 
derived from NRC's new 10 CFR sec.20.1401(d) to maintain compatibility with the 
federal rule. 
Proposed new sec.336.603(a) (relating to Radiological Criteria for Unrestricted 
Use) incorporates NRC's new 10 CFR sec.20.1402 (relating to Radiological 
Criteria for Unrestricted Use) to maintain consistency with the federal rule, 
and the last sentence is moved from deleted sec.336.356(f) (relating to Soil and 
Vegetation Contamination Limits). Proposed new sec.336.603(b) incorporates the 
last sentence of 10 CFR sec.20.1402 to maintain consistency with the federal 
rule. Proposed new sec.336.603(c) is language moved from the second to the last 
sentence of deleted sec.336.356(f). 
Proposed new sec.336.605 (relating to Surface Contamination Limits for 
Facilities, Equipment, and Materials) contains language moved from repealed 
sec.336.357 (relating to Surface Contamination Limits for Facilities and 
Equipment) with slight modification to correct cross references. 
Proposed new sec.336.607 (relating to Criteria for License Termination under 
Restricted Conditions) is derived from NRC's new 10 CFR sec.20.1403 (relating to 
Criteria for License Termination under Restricted Conditions) to maintain 
compatibility with the federal rule. 
Proposed new sec.336.609 (relating to Alternate Criteria for License 
Termination) is derived from NRC's new 10 CFR sec.20.1404 (relating to Alternate 
Criteria for License Termination) to maintain compatibility with the federal 
rule. 
Proposed new sec.336.611 (relating to Public Notification and Public 
Participation) is derived from NRC's new 10 CFR 20.1405 (relating to Public 
Notification and Public Participation) to maintain compatibility with the 
federal rule. 
Proposed new sec.336.613 (relating to Additional Requirements) is language moved 
from repealed sec.336.217(f) and (h)-(k), which has also been reorganized for 
clarification; however, sec.336.613(l) is a simplified version of the language 
moved from the last sentence of sec.336.356(f), which is proposed to be deleted. 
Proposed sec.336.701(d) (relating to Scope and General Provisions) is amended to 
require that all licensees, unless otherwise specified, also meet the new 
Subchapter G (relating to Decommissioning Standards). 
Proposed sec.336.701(e) (relating to Scope and General Provisions) is amended to 
delete the last sentence concerning the source material licensing and by-product 
disposal jurisdiction transferred to the TDH by SB 1857. 
Proposed sec.336.702 (relating to Definitions) is amended to number definitions. 
Section 336.802 (relating to definitions), the definition of "long-term care," 
is proposed to be amended to delete language related to the source material 
jurisdiction transferred to the TDH in SB 1857. 
Section 336.803(a) and (a)(4), (a)(8), and (b) (related to Financial Assurance 
Requirements) are proposed to be amended to remove references to the source 
material licensing and by-product disposal jurisdiction transferred to the TDH 
by SB 1857. Old subsection (c) is deleted for the same reason and old subsection 
(d) is renumbered to (c), accordingly. 
Section 336.804(g) (relating to Financial Assurance Mechanisms) is proposed to 
be deleted because it pertains to the source material licensing and by-product 
disposal jurisdiction transferred to the TDH by SB 1857. Old subsection (h) is 
then renumbered to subsection (g). 
Section 336.805 (relating to Long-Term Care Requirements) is proposed to be 
amended to delete a reference to the source material licensing and by-product 
disposal jurisdiction transferred to the TDH by SB 1857. 
Section 336.806(h) and (i) (relating to Wording of Financial Mechanisms) are 
proposed to be deleted because they apply to sec.336.804(g), which is proposed 
to be deleted. 
Section 336.807(h) and (i) (relating to Appendix A. Wording of Financial 
Assurance Instruments) are proposed to be deleted because they apply to 
sec.336.804(g) and sec.336.806(h) and (i), which are also proposed to be 
deleted. 
REVIEW OF AGENCY RULES 
The commission also proposes to review the rules contained in 30 TAC Chapter 
336, concerning Radioactive Substance, as mandated by the General Appropriations 
Act, Article IX, Section 167. Section 167 requires state agencies, every four 
years, to review and consider for readoption rules adopted under the APA. At a 
minimum, the reviews must include an assessment that the reason for the rules 
continues to exist. The commission has reviewed the rules in Chapter 336 and 
determined that those rules are still necessary. Chapter 336 applies to any 
application to issue, amend, modify, renew, correct, endorse, or transfer a 
license, or other authorization or approval of the commission relating to the 
disposal of radioactive material under Texas Health and Safety Code, Chapter 
401. 
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 no significant fiscal implications for state government as a 
result of administration or enforcement of the rules. There are no fiscal 
implications for units of local government, except those that may own or operate 
an inactive radioactive disposal site subject to the provisions of these 
sections. For these local governments, the fiscal implications of these sections 
will be equivalent to those for any affected public or private entity, except 
governments are not required to submit financial assurance. They may provide a 
statement of intent containing a cost estimate for decommissioning and indicate 
that funds will be obtained when necessary. 
PUBLIC BENEFIT
Mr. Minick has also determined that for the first five years the sections as 
proposed are in effect the public benefit anticipated as a result of enforcement 
of and compliance with the sections will be more efficient decommissioning of 
inactive radioactive material disposal sites and consistency between state and 
federal regulations. Compliance with the proposed state regulations will result 
in no significant increase in costs to affected parties that would not otherwise 
result from compliance with the existing federal regulations proposed for 
incorporation and may result in a cost decrease. Cost savings anticipated to any 
person, including any small business, required to comply with these sections as 
proposed is proportionate to the savings for a larger business. 
DRAFT REGULATORY IMPACT ANALYSIS 
The commission has reviewed the proposed 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). 
Although this rule is to protect the environment and reduce the risk to human 
health from environmental exposure, this is not a major environmental rule 
because it does not adversely affect in a material way the economy, a sector of 
the economy, productivity, competition, jobs, the environment, or the public 
health and safety of the state or a sector of the state. 
In addition, this rule does not exceed a standard set by federal law, exceed an 
express requirement of state law, exceed a requirement of a delegation 
agreement, or adopt a rule solely under the general powers of the agency. The 
rule adds federal requirements that are necessary to maintain compatibility with 
the rules of the Nuclear Regulatory Commission. 
TAKINGS IMPACT ASSESSMENT 
The commission has prepared a Takings Impact Assessment for these rules pursuant 
to Texas Government Code, sec.2007.043. The following is a summary of that 
Assessment. The specific purpose of the rules is to remove commission rule 
language related to the source material licensing and by-product disposal 
jurisdiction transferred to the TDH by SB 1857, 75th Legislature, 1997, to 
incorporate revisions and additions which are needed to maintain compatibility 
with the rules of the NRC, and to continue with agency-wide regulatory reform 
efforts to simplify language and requirements. Compatibility of the commission's 
rules with the federal program is necessary to preserve the status of Texas as 
an Agreement State under Title 10 Code of Federal Regulations Part 150 and the 
"Articles of Agreement between the United States Atomic Energy Commission and 
the State of Texas for Discontinuance of Certain Commission Regulatory Authority 
and Responsibility Within the State Pursuant to the Atomic Energy Act sec.274 of 
1954, as Amended." The rules will substantially advance this specific purpose by 
removing commission rule language related to the source material licensing and 
by-product disposal jurisdiction transferred to the TDH and by incorporating 
into commission rules the new federal requirements contained in "Resolution of 
Dual Regulation of Airborne Effluents of Radioactive Materials, Clean Air Act", 
61 Fed. Reg. 65120, December 10, 1996, effective January 9, 1997 and 
"Radiological Criteria for License Termination", 62 Fed. Reg. 39058, July 21, 
1997, effective August 20, 1997. Promulgation and enforcement of these rules 
will not burden private real property which is the subject of the rules because 
they primarily implement less stringent federal decommissioning requirements. 
Section 336.501 extends the deadline to apply for a license to decommission from 
January 1, 1999, to January 1, 2000. If these existing, unlicensed sites 
decommission before January 1, 2000, owners or operators will avoid license 
application and annual fees. For both licensed and unlicensed disposal sites, 
new alternatives for decommissioning without meeting the criteria for 
unrestricted use are offered in new sections sec.336.607 (relating to Criteria 
for License Termination under Restricted Conditions) and sec.336.609 (relating 
to Alternate Criteria for License Termination). A site using one of these 
alternatives may save on decommissioning cost. 
Also, the following exceptions to the application of Chapter 2007 of the Texas 
Government Code listed in Texas Government Code, sec.2007.003(b) apply to these 
rules: Section 2007.003(b)(4)--an action that is reasonably taken to fulfill an 
obligation mandated by federal law. 
COASTAL MANAGEMENT PROGRAM CONSISTENCY REVIEW 
The executive director has reviewed the proposed rulemaking and found that the 
rule is neither identified in Coastal Coordination Act Implementation Rules, 31 
TAC sec.505.11, nor will it affect any action/authorization identified in 
Coastal Coordination Act Implementation Rules, 31 TAC sec.505.11. Therefore, the 
proposal is not subject to the Coastal Management Program. 
SUBMITTAL OF COMMENTS 
Written comments may be mailed to Bettie Bell, Texas Natural Resource 
Conservation Commission, Office of Policy and Regulatory Development, MC 205, 
P.O. Box 13087, Austin, Texas 78711-3087, or faxed to (512) 239-4808. All 
comments must be received by May 25, 1998 and should reference Rule Log Number 
97154-336-WS. Comments received by 5:00 p.m. on that date will be considered by 
the commission prior to any final action on the proposal. The commission 
requests the comments on the results of the review of its rules be clearly 
distinguished from comments on the proposed changes in order to facilitate their 
assessment. For further information, please contact Kathy Vail at (512) 239-
6637. 

SUBCHAPTER A.General Provisions
30 TAC sec.336.1, sec.336.2
STATUTORY AUTHORITY 
These amendments are proposed under the Texas Radiation Control Act (TRCA), 
Texas Health and Safety Code, sec.sec.401.011, 401.051, and 401.412, and Texas 
Water Code, sec.5.103, which give the commission the authority to adopt rules 
necessary to carry out its responsibilities to regulate and license the disposal 
of radioactive substances. The review of the commission's rules is proposed 
under Article IX, Rider 167, General Appropriations Act, 75th Legislature. 
These amendments implement Health and Safety Code, Chapter 401 (relating to 
Radioactive Materials and Other Sources of Radiation). 

sec.336.1.Scope and General Provisions.
(a) Except as otherwise specifically provided, the rules in Chapter 336 of this 
title (relating to Radioactive Substance Rules) apply to all persons who [engage 
in source material recovery and processing or the disposal of radioactive 
substances, as defined in this subchapter, and for that purpose receive, 
possess, use, process, transfer, or ]dispose of radioactive substances 
<nl>except by-product material defined by sec.336.2(13)(B) of this title 
(relating to Definitions).<ol> However, nothing in these rules shall apply to 
any person to the extent that person is subject to regulation by the United 
States Nuclear Regulatory Commission (USNRC) or to radioactive material in the 
possession of federal agencies. The rules in this chapter do not apply to the 
disposal of radiation machines as defined in this subchapter or electronic 
devices which produce non-ionizing radiation. 
(b) Regulation by the State of Texas of source material, byproduct material, and 
special nuclear material in quantities not sufficient to form a critical mass is 
subject to the provisions of the agreement between the State of Texas and the 
USNRC and to Part 150 of Title 10 Code of Federal Regulations (10 CFR Part 150) 
(relating to Exemptions and Continued Regulatory Authority in Agreement States 
and in Offshore Waters Under Section 274). (A copy of the Texas agreement, 
"Articles of Agreement between the United States Atomic Energy Commission and 
the State of Texas for Discontinuance of Certain Commission Regulatory Authority 
and Responsibility Within the State Pursuant to Section 274 of the Atomic Energy 
Act of 1954, as Amended" (Agreement), may be obtained from the UIC[, Uranium] 
and Radioactive Waste Section, MC 131, Industrial and Hazardous Waste Division, 
Texas Natural Resource Conservation Commission, P.O. Box 13087, Austin, Texas 
78711-3087.) Under the Agreement and 10 CFR Part 150, the USNRC retains certain 
regulatory authorities over source material, byproduct material, and special 
nuclear material in the State of Texas. Persons in the State of Texas are not 
exempt from the regulatory requirements of the USNRC with respect to these 
retained authorities. 
(c)-(e) (No change.) 

sec.336.2.Definitions.
The following words and terms when used in this chapter shall have the following 
meanings, or as described in Chapter 3 of this title (relating to Definitions), 
unless the context clearly indicates otherwise. Additional definitions used only 
in a certain subchapter will be found in that subchapter.
<nl>(1)<ol> Absorbed dose - The energy imparted by ionizing radiation per unit 
mass of irradiated material. The units of absorbed dose are the rad and the gray 
(Gy). 
<nl>(2)<ol> Accelerator-produced radioactive material - Any material made 
radioactive by exposing it to the radiation from a particle accelerator. 
<nl>(3)<ol> Activity - The rate of disintegration (transformation) or decay of 
radioactive material. The units of activity are the curie (Ci) and the becquerel 
(Bq). 
<nl>(4)<ol> Adult - An individual 18 or more years of age. 
<nl>(5)<ol> Agreement state - Any state with which the United States Nuclear 
Regulatory Commission (USNRC) or the Atomic Energy Commission has entered into 
an effective agreement under the Atomic Energy Act of 1954, sec.274b, as amended 
through October 24, 1992 (Public Law 102-486).
<nl>(6)<ol> Airborne radioactive material - Any radioactive material dispersed 
in the air in the form of dusts, fumes, particulates, mists, vapors, or gases. 
<nl>(7)<ol> Airborne radioactivity area - A room, enclosure, or area in which 
airborne radioactive materials, composed wholly or partly of licensed material, 
exist in concentrations: 
(A) in excess of the derived air concentrations (DACs) specified in sec.336.359, 
Appendix B, Table I, Column 1, of this title (relating to Annual Limits on 
Intake (ALI) and Derived Air Concentrations (DAC) of Radionuclides for 
Occupational Exposure; Effluent Concentrations; Concentrations for Release to 
Sanitary Sewerage); or 
(B) to a degree that an individual present in the area without respiratory 
protective equipment could exceed, during the hours an individual is present in 
a week, an intake of 0.6% of the ALI or 12 DAC-hours. 
<nl>(8)<ol> Annual limit on intake (ALI) - The derived limit for the amount of 
radioactive material taken into the body of an adult worker by inhalation or 
ingestion in a year. ALI is the smaller value of intake of a given radionuclide 
in a year by the "reference man" that would result in a committed effective dose 
equivalent of 5 rems (0.05 sievert) or a committed dose equivalent of 50 rems 
(0.5 sievert) to any individual organ or tissue. ALI values for intake by 
ingestion and by inhalation of selected radionuclides are given in Table I, 
Columns 1 and 2, of sec.336.359, Appendix B, of this title. 
<nl>(9)<ol> As low as is reasonably achievable (ALARA) - Making every reasonable 
effort to maintain exposures to radiation as far below the dose limits in this 
chapter as is practical, consistent with the purpose for which the licensed 
activity is undertaken, taking into account the state of technology, the 
economics of improvements in relation to the state of technology, the economics 
of improvements in relation to benefits to the public health and safety, and 
other societal and socioeconomic considerations, and in relation to utilization 
of ionizing radiation and licensed radioactive materials in the public interest. 
<nl>(10)<ol> Background radiation - Radiation from cosmic sources; non-
technologically enhanced naturally-occurring radioactive material, including 
radon (except as a decay product of source or special nuclear material) and 
global fallout as it exists in the environment from the testing of nuclear 
explosive devices <nl>or from past nuclear accidents such as Chernobyl that 
contribute to background radiation and are not under the control of the 
licensee.<ol> "Background radiation" does not include radiation from radioactive 
materials regulated by the commission, Texas Department of Health, USNRC, or an 
Agreement State. 
<nl>(11)<ol> Becquerel (Bq) - See sec.336.4 of this title (relating to Units of 
Radioactivity). 
<nl>(12)<ol> Bioassay - The determination of kinds, quantities, or 
concentrations, and, in some cases, the locations of radioactive material in the 
human body, whether by direct measurement (in vivo counting) or by analysis and 
evaluation of materials excreted or removed from the human body. For purposes of 
the rules in this chapter, "radiobioassay" is an equivalent term. 
<nl>(13)<ol> Byproduct material - 
(A) A radioactive material, other than special nuclear material, that is 
produced in or made radioactive by exposure to radiation incident to the process 
of producing or using special nuclear material; and 
(B) The tailings or wastes produced by or resulting from the extraction or 
concentration of uranium or thorium from ore processed primarily for its source 
material content, including discrete surface wastes resulting from uranium 
solution extraction processes, and other tailings having similar radiological 
characteristics. Underground ore bodies depleted by these solution extraction 
processes do not constitute "byproduct material" within this definition.
<nl>(14)<ol> CFR - Code of Federal Regulations.
<nl>(15)<ol> Class - A classification scheme for inhaled material according to 
its rate of clearance from the pulmonary region of the lung. Materials are 
classified as D, W, or Y, which applies to a range of clearance half-times: for 
Class D (Days) of less than 10 days, for Class W (Weeks) from 10 to 100 days, 
and for Class Y (Years) of greater than 100 days. For purposes of the rules in 
this chapter, "lung class" and "inhalation class" are equivalent terms. 
<nl>(16)<ol> Collective dose - The sum of the individual doses received in a 
given period of time by a specified population from exposure to a specified 
source of radiation. 
[sub]T,50) (CDE) - The dose equivalent to organs or tissues of reference (T) 
that will be received from an intake of radioactive material by an individual 
during the 50-year period following the intake. 
<nl>(18)<ol> Committed effective dose equivalent (H<sub>E,50) (CEDE) - The sum 
of the products of the weighting factors applicable to each of the body organs 
or tissues that are irradiated and the committed dose equivalent to each of 
these organs or tissues.
<nl>(19)<ol> <nl>Critical group - The group of individuals reasonably expected 
to receive the greatest exposure to residual radioactivity for any applicable 
set of circumstances. <ol>
<nl>(20)<ol> Curie (Ci) - See sec.336.4 of this title. 
<nl>(21)<ol> Declared pregnant woman - A woman who has voluntarily informed her 
employer, in writing, of her pregnancy and the estimated date of conception. 
<nl>(22)<ol> Decommission - To remove (as a facility) safely from service and 
reduce residual radioactivity to a level that permits:
<nl>(A)<ol> release of the property for unrestricted use and termination of 
license<nl>; or <ol>
<nl>(B)<ol> <nl> release of the property under restricted conditions and 
termination of the license. <ol>
[sub]d) (which applies to external whole- body exposure) - The dose equivalent 
at a tissue depth of 1 centimeter (1,000 milligrams/square centimeter). 
<nl>(24)<ol> Depleted uranium - The source material uranium in which the isotope 
uranium-235 is less than 0.711%, by weight, of the total uranium present. 
Depleted uranium does not include special nuclear material. 
<nl>(25)<ol> Derived air concentration (DAC) - The concentration of a given 
radionuclide in air which, if breathed by the "reference man" for a working year 
of 2,000 hours under conditions of light work (inhalation rate of 1.2 cubic 
meters of air/hour), results in an intake of one ALI. DAC values are given in 
Table I, Column 3, of sec.336.359, Appendix B, of this title. 
<nl>(26)<ol> Derived air concentration-hour (DAC-hour) - The product of the 
concentration of radioactive material in air (expressed as a fraction or 
multiple of the derived air concentration for each radionuclide) and the time of 
exposure to that radionuclide, in hours. A licensee may take 2,000 DAC-hours to 
represent one ALI, equivalent to a committed effective dose equivalent of 5 rems 
(0.05 sievert). 
<nl>(27)<ol> <nl>Distinguishable from background - The detectable concentration 
of a radionuclide is statistically different from the background concentration 
of that radionuclide in the vicinity of the site or, in the case of structures, 
in similar materials using adequate measurement technology, survey, and 
statistical techniques. <ol> 
<nl>(28)<ol> Dose - A generic term that means absorbed dose, dose equivalent, 
effective dose equivalent, committed dose equivalent, committed effective dose 
equivalent, total organ dose equivalent, or total effective dose equivalent. For 
purposes of the rules in this chapter, "radiation dose" is an equivalent term. 
[sub]T) - The product of the absorbed dose in tissue, quality factor, and all 
other necessary modifying factors at the location of interest. The units of dose 
equivalent are the rem and sievert (Sv). 
<nl>(30)<ol> Dose limits - The permissible upper bounds of radiation doses 
established in accordance with the rules in this chapter. For purposes of the 
rules in this chapter, "limits" is an equivalent term.
<nl>(31)<ol> Dosimetry processor - An individual or organization that processes 
and evaluates individual monitoring devices in order to determine the radiation 
dose delivered to the monitoring devices.
[sub]E) - The sum of the products of the dose equivalent to each organ or tissue 
(H<sub>T) and the weighting factor (w<sub>T) applicable to each of the body 
organs or tissues that are irradiated.
<nl>(33)<ol> Embryo/fetus - The developing human organism from conception until 
the time of birth. 
<nl>(34)<ol> Entrance or access point - Any opening through which an individual 
or extremity of an individual could gain access to radiation areas or to 
licensed radioactive materials. This includes portals of sufficient size to 
permit human access, irrespective of their intended use. 
<nl>(35)<ol> Exposure - Being exposed to ionizing radiation or to radioactive 
material. 
<nl>(36)<ol> Exposure rate - The exposure per unit of time. 
<nl>(37)<ol> External dose - That portion of the dose equivalent received from 
any source of radiation outside the body. 
<nl>(38)<ol> Extremity - Hand, elbow, arm below the elbow, foot, knee, and leg 
below the knee. The arm above the elbow and the leg above the knee are 
considered part of the whole body. 
<nl>(39)<ol> Eye dose equivalent - The external dose equivalent to the lens of 
the eye at a tissue depth of 0.3 centimeter (300 milligrams/square centimeter). 
<nl>(40)<ol> General license - An authorization granted by an agency under its 
rules which is effective without the filing of an application with that agency 
or the issuance of a licensing document to the particular person. 
<nl>(41)<ol> Generally applicable environmental radiation standards - Standards 
issued by the United States Environmental Protection Agency under the authority 
of the Atomic Energy Act of 1954, as amended through October 4, 1996, that 
impose limits on radiation exposures or levels, or concentrations or quantities 
of radioactive material, in the general environment outside the boundaries of 
locations under the control of persons possessing or using radioactive material. 
<nl>(42)<ol> Gray (Gy) - See sec.336.3 of this title (relating to Units of 
Radiation Exposure and Dose). 
<nl>(43)<ol> High radiation area - An area, accessible to individuals, in which 
radiation levels could result in an individual receiving a dose equivalent in 
excess of 0.1 rem (1 millisievert) in 1 hour at 30 centimeters from any source 
of radiation or from any surface that the radiation penetrates.
<nl>(44)<ol> Individual - Any human being. 
<nl>(45)<ol> Individual monitoring - The assessment of: 
(A) dose equivalent by the use of individual monitoring devices; or 
(B) committed effective dose equivalent by bioassay or by determination of the 
time-weighted air concentrations to which an individual has been exposed, that 
is, DAC-hours; or 
(C) dose equivalent by the use of survey data. 
<nl>(46)<ol> Individual monitoring devices - Devices designed to be worn by a 
single individual for the assessment of dose equivalent. For purposes of the 
rules in this chapter, "individual monitoring equipment," "personnel dosimeter," 
and "dosimeter" are equivalent terms. Examples of individual monitoring devices 
are film badges, thermoluminescent dosimeters (TLDs), pocket ionization 
chambers, and personal ("lapel") air sampling devices.
<nl>(47)<ol> Inhalation class - See "Class." 
<nl>(48)<ol> Inspection - An official examination and/or observation including, 
but not limited to, records, tests, surveys, and monitoring to determine 
compliance with the Texas Radiation Control Act (TRCA) and rules, orders, and 
license conditions of the commission. 
<nl>(49)<ol> Internal dose - That portion of the dose equivalent received from 
radioactive material taken into the body. 
<nl>(50)<ol> Land disposal facility - The land, buildings and structures, and 
equipment which are intended to be used for the disposal of radioactive wastes 
into the subsurface of the land. For purposes of this chapter, a "geologic 
repository" as defined in 10 CFR 60.2 as amended through October 27, 1988 (53 
FedReg 43421) (relating to Definitions - high-level radioactive wastes in 
geologic repositories) is not considered a "land disposal facility." 
<nl>(51)<ol> License - See "Specific license." 
<nl>(52)<ol> Licensed material - Radioactive material received, possessed, used, 
processed, transferred, or disposed of under a license issued by the commission. 
<nl>(53)<ol> Licensee - Any person who holds a license issued by the commission 
in accordance with the TRCA and the rules in this chapter. For purposes of the 
rules in this chapter, "radioactive material licensee" is an equivalent term. 
Unless stated otherwise, "licensee" as used in the rules of this chapter means 
the holder of a "specific license." 
<nl>(54)<ol> Licensing state - Any state with rules equivalent to the Suggested 
State Regulations for Control of Radiation relating to, and having an effective 
program for, the regulatory control of naturally-occurring or accelerator-
produced radioactive material (NARM) and which has been designated as such by 
the Conference of Radiation Control Program Directors, Inc. 
<nl>(55)<ol> Lost or missing licensed radioactive material - Licensed material 
whose location is unknown. This definition includes material that has been 
shipped but has not reached its planned destination and whose location cannot be 
readily traced in the transportation system.
<nl>(56)<ol> Low-level radioactive waste - See "Radioactive waste." 
<nl>(57)<ol> Lung class - See "Class." 
<nl>(58)<ol> Major amendment - 
(A) An amendment to a license issued under Subchapter F of Chapter 336 of this 
title (relating to Licensing of Alternative Methods of Disposal of Radioactive 
Material) which: 
(i) authorizes a transfer of a license to another person;
(ii) authorizes enlargement of the disposal area beyond that authorized in the 
existing license or addition of disposal areas; or 
(iii) authorizes a substantive change in the nature of the wastes to be disposed 
of or the method of disposal. 
[(B) An amendment to a license issued under Subchapter G of Chapter 336 of this 
title (relating to Licensing Requirements for Source Material (Uranium or 
Thorium) Recovery and Processing Facilities) which:] 
[(i) authorizes a transfer of the license to another person;] 
[(ii) authorizes enlargement of the licensed site beyond that authorized in the 
existing license;] 
[(iii) authorizes a method of disposal of byproduct material, as defined in 
subparagraph (B) of the definition of "byproduct material" of this section which 
is different from that specified in the existing license or authorizes a change 
to substantive provisions concerning an existing disposal method;] 
[(iv) grants an exemption from or an alternative to any specific technical 
requirement of Subchapter G of Chapter 336 of this title, or sec.sec.336.627-
336.629 of this title (relating to Financial Assurance Requirements, Long-Term 
Care and Surveillance Requirements, and Land Ownership of Tailings or Waste 
Disposal Sites);] 
[(v) authorizes disposal of byproduct material from others or authorizes other 
commercial activity not proposed in the application for the initial issuance of 
the license;] 
[(vi) authorizes alternate concentration limits under sec.336.615(e) of this 
title (relating to Secondary Groundwater Protection);
[(vii) approves a reclamation plan for a tailings or waste disposal site under 
sec.336.622 of this title (relating to Closure Completion Milestones and 
Schedule);] 
[(viii) approves a change in the date set in the license for completion of the 
final radon barrier or interim milestones under sec.336.622 of this title; or] 
[(ix) authorizes a portion of a uranium mill tailings impoundment to accept 
materials from others for disposal during the closure process or after the final 
radon barrier is complete under sec.336.622 of this title.] 
<nl>(B)<ol> [ (C)] An amendment to a license issued under Subchapter H of 
Chapter 336 of this title (relating to Licensing Requirements for Near-Surface 
Land Disposal of Radioactive Waste) which: 
(i) authorizes a change in the type or concentration limits of wastes to be 
received; 
(ii) authorizes receipt of wastes from other states not authorized in the 
existing license; 
(iii) authorizes a change in the operator of the facility;
(iv) authorizes closure and the final closure plan for the disposal site; or 
(v) transfers the license to the custodial agency. 
<nl>(C)<ol> [(D)] Any other amendment for which the executive director has 
prepared a written environmental analysis or has determined that an 
environmental analysis is required. 
<nl>(59)<ol> Member of the public - Any individual except when that individual 
is receiving an occupational dose. 
<nl>(60)<ol> Minor - An individual less than 18 years of age. 
<nl>(61)<ol> Minor amendment - Any amendment to a license issued under this 
chapter which is not defined as a major amendment in this section and does not 
have a significant impact or effect on the human environment. 
<nl>(62)<ol> Monitoring - The measurement of radiation levels, radioactive 
material concentrations, surface area activities, or quantities of radioactive 
material and the use of the results of these measurements to evaluate potential 
exposures and doses. For purposes of the rules in this chapter, "radiation 
monitoring" and "radiation protection monitoring" are equivalent terms. 
<nl>(63)<ol> Naturally-occurring or accelerator-produced radioactive material 
(NARM) - Any naturally-occurring or accelerator-produced radioactive material 
except source material or special nuclear material. 
<nl>(64)<ol> Naturally-occurring radioactive material (NORM) waste - Solid, 
liquid, or gaseous material or combination of materials, excluding source 
material, special nuclear material, and byproduct material, that: 
(A) in its natural physical state spontaneously emits radiation;
(B) is discarded or unwanted; and 
(C) is not exempt under rules of the Texas Department of Health adopted under 
Health and Safety Code, sec.401.106. 
<nl>(65)<ol> Near-surface disposal facility - A land disposal facility in which 
radioactive waste is disposed of in or within the upper 30 meters of the earth's 
surface. 
<nl>(66)<ol> Nonstochastic effect - A health effect, the severity of which 
varies with the dose and for which a threshold is believed to exist. Radiation-
induced cataract formation is an example of a nonstochastic effect. For purposes 
of the rules in this chapter, "deterministic effect" is an equivalent term. 
<nl>(67)<ol> Occupational dose - The dose received by an individual in the 
course of employment in which the individual's assigned duties involve exposure 
to radiation and/or to radioactive material from licensed and unlicensed sources 
of radiation, whether in the possession of the licensee or other person. 
Occupational dose does not include dose received from background radiation, as a 
patient from medical practices, from voluntary participation in medical research 
programs, or as a member of the public. 
<nl>(68)<ol> Oil and gas naturally-occurring radioactive material (NORM) waste - 
Naturally-occurring radioactive material (NORM) waste that constitutes, is 
contained in, or has contaminated oil and gas waste as that term is defined in 
the Texas Natural Resources Code sec.91.1011. 
<nl>(69)<ol> Personnel monitoring equipment - See "Individual monitoring 
devices." 
<nl>(70)<ol> Planned special exposure - An infrequent exposure to radiation, 
separate from and in addition to the annual occupational dose limits. 
<nl>(71)<ol> Principal activities - Activities authorized by the license which 
are essential to achieving the purpose(s) for which the license is issued or 
amended. Storage during which no licensed material is accessed for use or 
disposal and activities incidental to decontamination or decommissioning are not 
principal activities. 
<nl>(72)<ol> Public dose - The dose received by a member of the public from 
exposure to radiation and/or radioactive material released by a licensee, or to 
any other source of radiation under the control of the licensee. It does not 
include occupational dose or doses received from background radiation, as a 
patient from medical practices, or from voluntary participation in medical 
research programs. 
<nl>(73)<ol> Quality factor (Q) - The modifying factor listed in Table I or II 
of sec.336.3 of this title that is used to derive dose equivalent from absorbed 
dose. 
<nl>(74)<ol> Quarter (Calendar quarter) - A period of time equal to one-fourth 
of the year observed by the licensee (approximately 13 consecutive weeks), 
providing that the beginning of the first quarter in a year coincides with the 
starting date of the year and that no day is omitted or duplicated in 
consecutive quarters. 
<nl>(75)<ol> Rad - See sec.336.3 of this title.
<nl>(76)<ol> Radiation - Alpha particles, beta particles, gamma rays, x-rays, 
neutrons, high-speed electrons, high-speed protons, and other particles capable 
of producing ions. For purposes of the rules in this chapter, "ionizing 
radiation" is an equivalent term. Radiation, as used in this chapter, does not 
include non-ionizing radiation, such as radio- or microwaves or visible, 
infrared, or ultraviolet light. 
<nl>(77)<ol> Radiation and Perpetual Care Fund - A fund established in the 
treasury of the State of Texas for the purposes set forth in the TRCA 
sec.401.305. 
<nl>(78)<ol> Radiation area - Any area, accessible to individuals, in which 
radiation levels could result in an individual receiving a dose equivalent in 
excess of 0.005 rem (0.05 millisievert) in 1 hour at 30 centimeters from the 
source of radiation or from any surface that the radiation penetrates. 
<nl>(79)<ol> Radiation machine - Any device capable of producing ionizing 
radiation except those devices with radioactive material as the only source of 
radiation. 
<nl>(80)<ol> Radioactive material - A naturally-occurring or artificially-
produced solid, liquid, or gas that emits radiation spontaneously.
<nl>(81)<ol> Radioactive substance - Includes byproduct material, radioactive 
material, radioactive waste, source material, special nuclear material, and NORM 
waste, excluding oil and gas NORM waste. 
<nl>(82)<ol> Radioactive waste - Radioactive material other than byproduct 
material as defined in subparagraph (B) of the definition of "byproduct 
material" of this section, uranium ore, NORM waste, or oil and gas NORM waste, 
that is discarded or unwanted and is not exempt under rules of the Texas 
Department of Health adopted under Health and Safety Code, sec.401.106, or would 
require processing before it could have beneficial reuse. For purposes of the 
rules in this chapter, radioactive waste also excludes waste classified as high-
level radioactive waste, transuranic waste, or spent nuclear fuel. For purposes 
of the rules in this chapter, radioactive waste means "low-level radioactive 
waste" as that term is used in 10 CFR Part 61 as amended through May 9, 1995 (60 
FedReg 24552) (relating to Licensing Requirements for Land Disposal of 
Radioactive Waste). For purposes of the rules in this chapter, "radioactive 
waste" and "low-level radioactive waste" are equivalent terms. For purposes of 
the rules in this chapter, radioactive waste and low-level radioactive waste 
include accelerator-produced radioactive material. 
<nl>(83)<ol> Radioactivity - The disintegration of unstable atomic nuclei with 
the emission of radiation. 
<nl>(84)<ol> Radiobioassay - See "Bioassay." 
<nl>(85)<ol> Reference man - A hypothetical aggregation of human physical and 
physiological characteristics determined by international consensus. These 
characteristics may be used by researchers and public health workers to 
standardize results of experiments and to relate biological insult to a common 
base. A description of "reference man" is contained in the International 
Commission on Radiological Protection report, ICRP Publication 23, "Report of 
the Task Group on Reference Man." 
<nl>(86)<ol> Rem - See sec.336.3 of this title.
<nl>(87)<ol> <nl>Residual radioactivity - Radioactivity in structures, 
materials, soils, groundwater, and other media at a site resulting from 
activities under the licensee's control. This includes radioactivity from all 
licensed and unlicensed sources used by the licensee, but excludes background 
radiation. It also includes radioactive materials remaining at the site as a 
result of routine or accidental releases of radioactive material at the site and 
previous burials at the site, even if those burials were made in accordance with 
the provisions of 10 CFR Part 20. <ol> 
<nl>(88)<ol> Respiratory protection equipment - An apparatus, such as a 
respirator, used to reduce an individual's intake of airborne radioactive 
materials. For purposes of the rules in this chapter, "respiratory protective 
device" is an equivalent term. 
<nl>(89)<ol> Restricted area - An area, access to which is limited by the 
licensee for the purpose of protecting individuals against undue risks from 
exposure to radiation and radioactive materials. Restricted area does not 
include areas used as residential quarters, but separate rooms in a residential 
building may be set apart as a restricted area. 
<nl>(90)<ol> Roentgen (R) - See sec.336.3 of this title. 
<nl>(91)<ol> Sanitary sewerage - A system of public sewers for carrying off 
waste water and refuse, but excluding sewage treatment facilities, septic tanks, 
and leach fields owned or operated by the licensee.
<nl>(92)<ol> Sealed source - Radioactive material that is permanently bonded or 
fixed in a capsule or matrix designed to prevent release and dispersal of the 
radioactive material under the most severe conditions that are likely to be 
encountered in normal use and handling. 
[sub]s) (which applies to the external exposure of the skin or an extremity) - 
The dose equivalent at a tissue depth of 0.007 centimeter (7 milligrams/square  
centimeter) averaged over an area of 1 square centimeter. 
<nl>(94)<ol> SI - The abbreviation for the International System of Units. 
<nl>(95)<ol> Sievert (Sv) - See sec.336.3 of this title. 
<nl>(96)<ol> Site boundary - That line beyond which the land or property is not 
owned, leased, or otherwise controlled by the licensee. 
<nl>(97)<ol> Source material - 
(A) Uranium or thorium, or any combination thereof, in any physical or chemical 
form; or 
(B) Ores that contain, by weight, 0.05% or more of uranium, thorium, or any 
combination thereof. Source material does not include special nuclear material. 
[Source material recovery - Uranium or thorium recovery as defined in this 
section.] 
<nl>(98)<ol> Special form radioactive material - Radioactive material which is 
either a single solid piece or is contained in a sealed capsule that can be 
opened only by destroying the capsule and which has at least one dimension not 
less than 5 millimeters and which satisfies the test requirements of 10 CFR 
71.75 as amended through September 28, 1995 (60 FedReg 50264) (relating to 
Transportation of License Material). 
<nl>(99)<ol> Special nuclear material - 
(A) Plutonium, uranium-233, uranium enriched in the isotope 233 or in the 
isotope 235, and any other material that the USNRC, under the provisions of the 
Atomic Energy Act of 1954, sec.51, as amended through November 2, 1994 (Pub.L. 
103-437), determines to be special nuclear material, but does not include source 
material; or 
(B) Any material artificially enriched by any of the foregoing, but does not 
include source material. 
<nl>(100)<ol> Special nuclear material in quantities not sufficient to form a 
critical mass - uranium enriched in the isotope 235 in quantities not exceeding 
350 grams of contained uranium-235; uranium-233 in quantities not exceeding 200 
grams; plutonium in quantities not exceeding 200 grams; or any combination of 
these in accordance with the following formula: For each kind of special nuclear 
material, determine the ratio between the quantity of that special nuclear 
material and the quantity specified above for the same kind of special nuclear 
material. The sum of such ratios for all of the kinds of special nuclear 
material in combination shall not exceed 1. For example, the following 
quantities in combination would not exceed the limitation: (175 grams contained 
U-235/350 grams) + (50 grams U-233/200 grams) + (50 grams Pu/200 grams) = 1. 
<nl>(101)<ol> Specific license - A licensing document issued by an agency upon 
an application filed under its rules. For purposes of the rules in this chapter, 
"radioactive material license" is an equivalent term. Unless stated otherwise, 
"license" as used in this chapter means a "specific license." 
<nl>(102)<ol> State - The State of Texas. 
<nl>(103)<ol> Stochastic effect - A health effect that occurs randomly and for 
which the probability of the effect occurring, rather than its severity, is 
assumed to be a linear function of dose without threshold. Hereditary effects 
and cancer incidence are examples of stochastic effects. For purposes of the 
rules in this chapter, "probabilistic effect" is an equivalent term. 
<nl>(104)<ol> Survey - An evaluation of the radiological conditions and 
potential hazards incident to the production, use, transfer, release, disposal, 
and/or presence of radioactive materials or other sources of radiation. When 
appropriate, this evaluation includes, but is not limited to, physical 
examination of the location of radioactive material and measurements or 
calculations of levels of radiation or concentrations or quantities of 
radioactive material present. 
<nl>(105)<ol> Termination - As applied to a license, a release by the commission 
of the obligations and authorizations of the licensee under the terms of the 
license. It does not relieve a person of duties and responsibilities imposed by 
law.
[Thorium recovery - Any activity that results in the production of byproduct 
material as defined in subparagraph (B) of the definition of "byproduct 
material" of this section, excluding other tailings having similar radiological 
characteristics. As used in this definition, "thorium recovery" has the same 
meaning as "uranium milling" in 10 CFR 40.4 as amended through July 15, 1994 (59 
FedReg 36035) (relating to Definitions).] 
<nl>(106)<ol> Total effective dose equivalent (TEDE) - The sum of the deep-dose 
equivalent for external exposures and the committed effective dose equivalent 
for internal exposures. 
<nl>(107)<ol> Total organ dose equivalent (TODE) - The sum of the deep-dose 
equivalent and the committed dose equivalent to the organ receiving the highest 
dose as described in sec.336.346(a)(6) of this title (relating to Records of 
Individual Monitoring Results). 
<nl>(108)<ol> Type A quantity (for packaging) - A quantity of radioactive 
material, the aggregate radioactivity of which does not exceed A<sub>1 for 
special form radioactive material or A<sub>2 for normal form radioactive 
material, where A<sub>1[sub]2 are given in or may be determined by procedures in 
Appendix A to 10 CFR Part 71 as amended through September 28, 1995 (60 FedReg 
50264) (relating to Packaging and Transportation of Radioactive Material). 
<nl>(109)<ol> Type B quantity (for packaging) - A quantity of radioactive 
material greater than a Type A quantity. 
<nl>(110)<ol> Unrefined and unprocessed ore - Ore in its natural form before any 
processing, such as grinding, roasting, beneficiating, or refining. 
<nl>(111)<ol> Unrestricted area - Any area that is not a restricted area. 
[Uranium recovery - Any activity that results in the production of byproduct 
material as defined in subparagraph (B) of the definition of "byproduct 
material" of this section, excluding other tailings having similar radiological 
characteristics. As used in this definition, "uranium recovery" has the same 
meaning as "uranium milling" in 10 CFR 40.4 as amended through July 15, 1994 (59 
FedReg 36035) (relating to Definitions).] 
<nl>(112)<ol> Very high radiation area - An area, accessible to individuals, in 
which radiation levels could result in an individual receiving an absorbed dose 
in excess of 500 rads (5 grays) in 1 hour at 1 meter from a source of radiation 
or from any surface that the radiation penetrates. (At very high doses received 
at high dose rates, units of absorbed dose (rad and gray) are appropriate, 
rather than units of dose equivalent (rem and sievert).)
<nl>(113)<ol> Violation - An infringement of any provision of the TRCA or of any 
rule, order, or license condition of the commission issued under the TRCA or 
this chapter. 
<nl>(114)<ol> Week - Seven consecutive days starting on Sunday. 
[sub]T) for an organ or tissue (T) - The proportion of the risk of stochastic 
effects resulting from irradiation of that organ or tissue to the total risk of 
stochastic effects when the whole body is irradiated uniformly. For calculating 
the effective dose equivalent, the values of w<sub>T are: 
Figure: 30 TAC sec.336.2<nl>(115)<ol>&mdash;(No change.)
<nl>(116)<ol> Whole body - For purposes of external exposure, head, trunk 
including male gonads, arms above the elbow, or legs above the knee. 
<nl>(117)<ol> Worker - An individual engaged in activities under a license 
issued by the commission and controlled by a licensee, but does not include the 
licensee. 
<nl>(118)<ol> Working level (WL) - Any combination of short-lived radon 
daughters in 1 liter of air that will result in the ultimate emission of 1.3 x 
10<sup>5 million electron volts (MeV) of potential alpha particle energy. The 
short-lived radon daughters are: for radon-222: polonium-218, lead-214, bismuth-
214, and polonium-214; and for radon-220: polonium-216, lead-212, bismuth-212, 
and polonium-212.
<nl>(119)<ol> Working level month (WLM) - An exposure to 1 working level for 170 
hours (2,000 working hours per year divided by 12 months per year is 
approximately equal to 170 hours per month). 
<nl>(120)<ol> Year - The period of time beginning in January used to determine 
compliance with the provisions of the rules in this chapter. The licensee may 
change the starting date of the year used to determine compliance by the 
licensee provided that the change is made at the beginning of the year and that 
no day is omitted or duplicated in consecutive years. 
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 April 13, 1998.
TRD-9805168
Kevin McCalla
Director, Legal Division
Texas Natural Resource Conservation Commission
Earliest possible date of adoption: May 24, 1998
For further information, please call: (512) 239-6087

SUBCHAPTER B.Radioactive Substance Fees 
30 TAC sec.sec.336.101, 336.102, 336.107
STATUTORY AUTHORITY 
These amendments are proposed under the Texas Radiation Control Act (TRCA), 
Texas Health and Safety Code, sec.sec.401.011, 401.051, and 401.412, and Texas 
Water Code, sec.5.103, which give the commission the authority to adopt rules 
necessary to carry out its responsibilities to regulate and license the disposal 
of radioactive substances. 
These amendments implement Health and Safety Code, Chapter 401 (relating to 
Radioactive Materials and Other Sources of Radiation). 

sec.336.101.Purpose and Scope.
(a) (No change.) 
(b) Except as otherwise specifically provided, this subchapter applies to any 
person who is: 
(1) an applicant for or holder of a radioactive material license issued under 
<nl>this chapter <ol> [Subchapter F of Chapter 336 of this title (relating to 
Licensing of Alternative Methods of Disposal of Radioactive Material), 
Subchapter G of Chapter 336 of this title (relating to Licensing Requirements 
for Source Material (Uranium or Thorium) Recovery and Processing Facilities), or 
Subchapter H of Chapter 336 of this title (relating to Licensing Requirements 
for Near-Surface Land Disposal of Radioactive Waste)]; or 
(2)-(3) (No change.) 

sec.336.102.Definitions.
Terms used in this subchapter are defined in sec.336.2 of this title (relating 
to Definitions). Additional terms used in this subchapter have the following 
definitions: 
<nl>(1)<ol> Emergency response - The application of those capabilities necessary 
for the protection of the public and the environment from the effects of an 
accidental or uncontrolled release of radioactive materials, including the 
equipping, training, and periodic retraining of response personnel.
<nl>(2)<ol> Fixed nuclear facility - 
(A) Any nuclear reactor(s) at a single site; 
(B) Any facility designed or used for the assembly or disassembly of nuclear 
weapons; or 
(C) Any other facility using special nuclear material for which emergency 
response activities, including training, are conducted to protect the public 
health and safety or the environment. 
[Post-closure - The period of time following completion of closure of a uranium 
mill tailings impoundment or byproduct material disposal site by a licensee 
under Subchapter G of Chapter 336 of this title (relating to Licensing 
Requirements for Source Material (Uranium or Thorium) Recovery and Processing 
Facilities) and before transfer of land ownership to the State or the United 
States government and termination of the license.] 

sec.336.107.Annual License Fee Due Date and Period Covered.
(a) Payment for annual fees set forth in[ sec.336.104(b) and (c) of this title 
(relating to Schedule of Fees for Subchapter G Licenses) and] sec.336.105(b) of 
this title (relating to Schedule of Fees for Subchapter F Licenses) shall be due 
in full each year on or before the last day of the expiration month of the 
license. As an example, if the license expires on May 31, 1999, annual fees are 
due on or before May 31 of each year.
(b) The period covered by each annual fee set forth in [sec.336.104(b) and (c) 
of this title and] sec.336.105(b) of this title shall be the 12 months preceding 
the fee payment due date. 
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 April 13, 1998.
TRD-9805210
Kevin McCalla
Director, Legal Division
Texas Natural Resource Conservation Commission
Earliest possible date of adoption: May 24, 1998
For further information, please call: (512) 239-6087

30 TAC sec.336.104, sec.336.108
(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 Natural 
Resource Conservation Commission or in the Texas Register office, Room 245, 
James Earl Rudder Building, 1019 Brazos Street, Austin.)
These repeals are proposed under the Texas Radiation Control Act, Texas Health 
and Safety Code, sec.sec.401.011, 401.051, and 401.412, and Texas Water Code, 
sec.5.103, which give the commission the authority to adopt rules necessary to 
carry out its responsibilities to regulate and license the disposal of 
radioactive substances. 
These repeals implement Health and Safety Code, Chapter 401 (relating to 
Radioactive Materials and Other Sources of Radiation). 
sec.336.104.Schedule of Fees for Subchapter G Licenses.
sec.336.108.Proration of Annual Fee Adjustments.
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 April 13, 1998.
TRD-9805167
Kevin McCalla
Director, Legal Division
Texas Natural Resource Conservation Commission
Earliest possible date of adoption: May 24, 1998
For further information, please call: (512) 239-6087

SUBCHAPTER C.Additional Application, Operation, and License Requirements 
30 TAC sec.sec.336.201, 336.203, 336.209, 336.211, 336.213
STATUTORY AUTHORITY 
These amendments are proposed under the Texas Radiation Control Act (TRCA), 
Texas Health and Safety Code sec.sec.401.011, 401.051, and 401.412, and Texas 
Water Code sec.5.103, which give the commission the authority to adopt rules 
necessary to carry out its responsibilities to regulate and license the disposal 
of radioactive substances. 
These amendments implement Health and Safety Code Chapter 401 (relating to 
Radioactive Materials and Other Sources of Radiation).

sec.336.201.Additional Application Requirements.
(a)-(c) (No change.) 
<nl>(d)<ol> <nl>Applicants for licenses other than renewals, after August 20, 
1997, shall describe in the application how facility design and procedures for 
operation will minimize, to the extent practicable, contamination of the 
facility and the environment, facilitate eventual decommissioning, and minimize, 
to the extent practicable, the generation of radioactive waste.<ol> 

sec.336.203.Environmental Analysis.
[(a) When the executive director is considering an application under Subchapter 
G of Chapter 336 of this title (relating Licensing Requirements for Source 
Material (Uranium or Thorium) Recovery and Processing Facilities) and determines 
that the licensed activity may have a significant impact on the human 
environment, the executive director shall prepare or have prepared a written 
environmental analysis.] 
<nl>(a)<ol> [(b)] When the executive director is considering an application 
under Subchapter H of this chapter (relating to Licensing Requirements for Near-
Surface Land Disposal of Radioactive Waste) and determines that the licensed 
activity may have a significant effect on the human environment, the executive 
director shall prepare or have prepared a written analysis of the effect on the 
environment. 
<nl>(b)<ol> [(c)] An environmental analysis, if prepared, shall be included as 
part of the record of the commission's proceedings. 

sec.336.209.Records and Reports.
(a)-(d) (No change.) 
(e) <nl>The executive director may require the licensee to provide the 
commission with copies of all records prior to termination of the license. <ol> 
[For licenses issued under Subchapter G of Chapter 336 of this title (relating 
to Licensing Requirements for Source Material (Uranium or Thorium) Recovery and 
Processing Facilities), each licensee shall submit a report to the executive 
director within 60 days after January 1 and July 1 of each year specifying the 
quantity of each of the principal radionuclides released to unrestricted areas 
in liquid and in gaseous effluents during the previous 6 months of operation, 
and other information the executive director may require to estimate maximum 
potential annual radiation doses to the public resulting from effluent releases. 
If quantities of radioactive materials released during the reporting period are 
significantly above the licensee's design objectives previously reviewed as part 
of the licensing action, the report shall cover this specifically. On the basis 
of those reports and any additional information the executive director may 
obtain from the licensee or others, the executive director or commission may 
from time to time require the licensee to take such action as the executive 
director or commission deems appropriate.
(f) (No change.) 

sec.336.211.Reporting Requirements for Incidents.
[(a)] This <nl>section <ol>[subsection] sets forth the incident reporting 
requirements for licenses issued under Subchapter F of this chapter (relating to 
Licensing of Alternative Methods of Disposal of Radioactive Material). 
(1) Immediate report. Each licensee shall notify the executive director or staff 
as soon as possible but not later than 4 hours after the discovery of an event 
that prevents immediate protective actions necessary to avoid exposures to 
radiation or radioactive materials that could exceed regulatory limits or 
releases of radioactive materials that could exceed limits (e.g., events may 
include fires, explosions, toxic gas releases, etc.). 
(2) Twenty-four hour report. Each licensee shall notify the executive director 
or staff within 24 hours after the discovery of any of the following events 
involving licensed material: 
(A) an unplanned contamination event that: 
(i) requires access to the contaminated area, by workers or the public, to be 
restricted for more than 24 hours by imposing additional radiological controls 
or by prohibiting entry into the area; 
(ii) involves a quantity of material greater than five times the lowest annual 
limit on intake specified in sec.336.359, Appendix B, of this title (relating to 
Annual Limits on Intake (ALI) and Derived Air Concentrations (DAC) of 
Radionuclides for Occupational Exposure; Effluent Concentrations;
Concentrations for Release to Sanitary Sewerage); and 
(iii) has access to the area restricted for a reason other than to allow 
isotopes with a half-life of less than 24 hours to decay prior to 
decontamination; 
(B) an event in which equipment is disabled or fails to function as designed 
when: 
(i) the equipment is required by rule or license condition to prevent releases 
exceeding regulatory limits, to prevent exposures to radiation and radioactive 
materials exceeding regulatory limits, or to mitigate the consequences of an 
accident; 
(ii) the equipment is required to be available and operable when it is disabled 
or fails to function; and 
(iii) no redundant equipment is available and operable to perform the required 
safety function; 
(C) an event that requires unplanned medical treatment at a medical facility of 
an individual with spreadable radioactive contamination on the individual's 
clothing or body; or 
(D) an unplanned fire or explosion damaging any radioactive material or any 
device, container, or equipment containing radioactive material when: 
(i) the quantity of material involved is greater than five times the lowest 
annual limit on intake specified in sec.336.359, Appendix B, of this title; and 
(ii) the damage affects the integrity of the radioactive material or its 
container. 
(3) Preparation and submission of reports. Reports made by licensees in response 
to the requirements of this section must be made as follows: 
(A) Telephone report. Licensees shall make reports required by paragraphs (1) 
and (2) of this subsection by telephone<nl>, accompanied by a facsimile, <ol> to 
the executive director or staff. To the extent that the information is available 
at the time of notification, the information provided in these reports must 
include: 
(i) the caller's name and telephone number; 
(ii) a description of the event, including date and time;
(iii) the exact location of the event; 
(iv) the isotopes, quantities, and chemical and physical form of the radioactive 
material involved; and 
(v) any personnel radiation exposure data available. 
(B) Written report. Each licensee who makes a report required by paragraphs (1) 
and (2) of this subsection shall submit a written follow-up report to the 
executive director within 30 days of the initial report. Written reports 
prepared under other regulations may be submitted to fulfill this requirement if 
the reports contain all of the necessary information. These written reports must 
be sent to the executive director or staff. The reports must include the 
following: 
(i) a description of the event, including the probable cause and the 
manufacturer and model number (if applicable) of any equipment that failed or 
malfunctioned; 
(ii) the exact location of the event; 
(iii) the isotopes, quantities, and chemical and physical form of the 
radioactive material involved; 
(iv) date and time of the event; 
(v) corrective actions taken or planned and the results of any evaluations or 
assessments; and 
(vi) the extent of exposure of individuals to radiation or to radioactive 
materials without identification of individuals by name. 
[(b) This subsection sets forth the incident reporting requirements for licenses 
issued under Subchapter G of Chapter 336 of this title (relating to Licensing 
Requirements for Source Material (Uranium or Thorium) Recovery and Processing 
Facilities).] 
[(1) Immediate report. Each licensee shall notify the executive director or 
staff as soon as possible but not later than 4 hours after the discovery of:] 
[(A) any failure in a tailings or waste retention system which results in a 
release of tailings or waste into unrestricted areas or of any unusual 
conditions which if not corrected could indicate the potential for or lead to 
failure of the system and result in a release of tailings or waste into 
unrestricted areas;] 
[(B) any release of radioactive material which exceeds the concentrations for 
water listed in sec.336.359, Appendix B, Table II, Column 2, of this title and 
which extends beyond the licensed boundary;
[(C) any spill which exceeds 20,000 gallons and which exceeds the concentrations 
for water listed in sec.336.359, Appendix B, Table II, Column 2, of this title;] 
[(D) any release of solids which exceeds the contamination limits in sec.336.356 
of this title (relating to Soil and Vegetation Contamination Limits) and which 
extends beyond the licensed boundary; or] 
[(E) an event that prevents immediate protective actions necessary to avoid 
exposures to radiation or radioactive materials that could exceed regulatory 
limits or releases of licensed materials that could exceed regulatory limits 
(e.g., events may include fires, explosions, toxic gas releases, etc.).] 
[(2) Twenty-four hour report. Each licensee shall notify the executive director 
or staff within 24 hours after the discovery of any of the following events 
involving licensed material:
[(A) any spill that extends:] 
[(i) beyond the wellfield monitor well ring;
[(ii) more than 400 feet from an injection or production well pipe artery to or 
from a recovery plant; or] 
[(iii) more than 200 feet from a recovery plant;] 
[(B) any spill which exceeds 2,000 gallons and which exceeds the concentrations 
for water listed in sec.336.359, Appendix B, Table II, Column 2, of this title;] 
[(C) an unplanned contamination event that:
[(i) requires access to the contaminated area, by workers or the public, to be 
restricted for more than 24 hours by imposing additional radiological controls 
or by prohibiting entry into the area;]
[(ii) involves a quantity of material greater than five times the lowest annual 
limit on intake specified in sec.336.359, Appendix B, of this title; and] 
[(iii) has access to the area restricted for a reason other than to allow 
isotopes with a half-life of less than 24 hours to decay prior to 
decontamination;] 
[(D) an event in which equipment is disabled or fails to function as designed 
when:] 
[(i) the equipment is required by rule or license condition to prevent releases 
exceeding regulatory limits, to prevent exposures to radiation and radioactive 
materials exceeding regulatory limits, or to mitigate the consequences of an 
accident;] 
[(ii) the equipment is required to be available and operable when it is disabled 
or fails to function; and] 
[(iii) no redundant equipment is available and operable to perform the required 
safety function;] 
[(E) an event that requires unplanned medical treatment at a medical facility of 
an individual with spreadable radioactive contamination on the individual's 
clothing or body; or] 
[(F) an unplanned fire or explosion damaging any licensed material or any 
device, container, or equipment containing licensed material when:] 
[(i) the quantity of material involved is greater than five times the lowest 
annual limit on intake specified in sec.336.359, Appendix B, of this title; and] 
[(ii) the damage affects the integrity of the licensed material or its 
container.] 
[(3) Preparation and submission of reports. Reports made by licensees in 
response to the requirements of this section must be made as follows:] 
[(A) Telephone report. Licensees shall make reports required by paragraphs (1) 
and (2) of this subsection by telephone to the executive director or staff. To 
the extent that the information is available at the time of notification, the 
information provided in these reports must include:] 
[(i) the caller's name and telephone number;
[(ii) a description of the event, including date and time;] 
[(iii) the exact location of the event;]
[(iv) the isotopes, quantities, and chemical and physical form of the licensed 
material involved; and] 
[(v) any personnel radiation exposure data available.] 
[(B) Written report. Each licensee who makes a report required by paragraphs (1) 
and (2) of this subsection shall submit a written follow-up report to the 
executive director within 30 days of the initial report. Written reports 
prepared under other regulations may be submitted to fulfill this requirement if 
the reports contain all of the necessary information. The reports must include 
the following:] 
[(i) a description of the event, including the probable cause and the 
manufacturer and model number (if applicable) of any equipment that failed or 
malfunctioned;] 
[(ii) the exact location of the event;]
[(iii) the isotopes, quantities, and chemical and physical form of the licensed 
material involved;] 
[(iv) date and time of the event;] 
[(v) corrective actions taken or planned and the results of any evaluations or 
assessments; and] 
[(vi) the extent of exposure of individuals to radiation or to radioactive 
materials without identification of individuals by name.] 

sec.336.213.Tests.
(a) Each licensee shall perform, upon instructions from the executive director, 
or shall permit the executive director to perform such [reasonable] tests as the 
executive director deems appropriate or necessary for the administration of the 
rules in this chapter, including, but not limited to, tests of: 
(1)-(4) (No change.) 
(b) (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 April 13, 1998.
TRD-9805166
Kevin McCalla
Director, Legal Division
Texas Natural Resource Conservation Commission
Earliest possible date of adoption: May 24, 1998
For further information, please call: (512) 239-6087

30 TAC sec.336.217 
(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 Natural 
Resource Conservation Commission or in the Texas Register office, Room 245, 
James Earl Rudder Building, 1019 Brazos Street, Austin.)
STATUTORY AUTHORITY
The repeal is proposed under the Texas Radiation Control Act, Texas Health and 
Safety Code sec.sec.401.011, 401.051, and 401.412, and Texas Water Code 
sec.5.103, which give the commission the authority to adopt rules necessary to 
carry out its responsibilities to regulate and license the disposal of 
radioactive substances. 
The repeal implements Health and Safety Code Chapter 401 (relating to 
Radioactive Materials and Other Sources of Radiation). 
sec.336.217.Expiration and Termination of Licenses and Decommissioning of Sites 
and Separate Buildings or Outdoor 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 April 13, 1998.
TRD-9805165
Kevin McCalla
Director, Legal Division
Texas Natural Resource Conservation Commission
Earliest possible date of adoption: May 24, 1998
For further information, please call: (512) 239-6087

SUBCHAPTER D. Standards for Protection Against Radiation
30 TAC sec.sec.336.304, 336.331, 336.332, 336.334, 336.341, 336.348, 336.352, 
336.356 
STATUTORY AUTHORITY 
These amendments are proposed under the Texas Radiation Control Act (TRCA), 
Texas Health and Safety Code, sec.sec.401.011, 401.051, and 401.412, and Texas 
Water Code, sec.5.103, which give the commission the authority to adopt rules 
necessary to carry out its responsibilities to regulate and license the disposal 
of radioactive substances. 
These amendments implement Health and Safety Code, Chapter 401 (relating to 
Radioactive Materials and Other Sources of Radiation). 

sec.336.304.Radiation Protection Programs.
(a)-(c) (No change.) 
<nl>(d)<ol> <nl> To implement the ALARA requirement of subsection (b) of this 
section, and notwithstanding the requirements in sec.336.313 of this title 
(relating to Dose Limits for Individual Members of the Public), a constraint on 
air emissions of radioactive material to the environment, excluding Radon-222 
and its daughters, shall be established by licensees other than nuclear power 
reactors, such that the individual member of the public likely to receive the 
highest dose will not be expected to receive a total effective dose equivalent 
in excess of 10 mrem (0.1 mSv) per year from these emissions. If a licensee 
subject to this requirement exceeds this dose constraint, the licensee shall 
report the exceedence as provided in sec.336.352 of this title (relating to 
Reports of Exposures, Radiation Levels, and Concentrations of Radioactive 
Material Exceeding the Limits) and promptly take appropriate corrective action 
to ensure against recurrence. <ol>

sec.336.331.General Requirements for Waste Disposal.
(a) Unless otherwise exempted, a licensee shall dispose of licensed material, as 
appropriate to the type of licensed material, only:
(1) by transfer to an authorized recipient as provided in sec.336.338 of this 
title (relating to Transfer for Disposal at Licensed Land Disposal Facility and 
Manifests) or in Subchapter H of this chapter (relating to Licensing 
Requirements for Near-Surface Land Disposal of Radioactive Waste);
[(2) by transfer to a recipient authorized by commission license for receipt and 
disposal of byproduct material, as defined in sec.336.2, subparagraph (B), of 
this title (relating to Definitions), under Subchapter G of Chapter 336 of this 
title (relating to Licensing Requirements for Source Material (Uranium or 
Thorium) Recovery and Processing Facilities);
<nl>(2)<ol> [ (3)] by transfer to a recipient authorized in another state by 
license issued by the United States Nuclear Regulatory Commission or an 
Agreement State or to the United States Department of Energy; 
<nl>(3)<ol> [(4)] by decay in storage;
<nl>(4)<ol> [(5)] by release in effluents within the limits specified in 
sec.336.313 of this title (relating to Dose Limits for Individual Members of the 
Public);
<nl>(5)<ol> [(6)] as authorized under sec.336.332 of this title (relating to 
Method of Obtaining Approval of Proposed Disposal Procedures), sec.336.333 of 
this title (relating to Disposal by Release into Sanitary Sewerage), or 
sec.336.337 of this title (relating to Disposal of Specific Wastes); or 
<nl>(6)<ol> [(7)] as specifically authorized by commission license issued under 
<nl>this chapter <ol> [Subchapter F of Chapter 336 of this title (relating to 
Licensing of Alternative Methods of Disposal of Radioactive Material), or 
Subchapters G or H of Chapter 336 of this title.] 
(b) (No change.) 
(c) Processing or storage of waste containing licensed material from other 
persons at a disposal facility by a person licensed for disposal under 
<nl>Subchapter <ol> [Subchapters G or] H of this chapter shall be regulated in 
accordance with the provisions of sec.336.11, Appendix A, of this title 
(relating to Memorandum of Understanding Between the Texas Department of Health 
and the Texas Natural Resource Conservation Commission Regarding Radiation 
Control Functions). 

sec.336.332.Method of Obtaining Approval of Proposed Disposal Procedures.
(a) (No change.) 
(b) A person holding a license issued under [Subchapter F of] this chapter 
[(relating to Licensing of Alternative Methods of Disposal of Radioactive 
Material), Subchapter G of Chapter 336 of this title (relating to Licensing 
Requirements for Source Material (Uranium or Thorium) Recovery and Processing 
Facilities), or Subchapter H of Chapter 336 of this title (relating to Licensing 
Requirements for Near-Surface Land Disposal of Radioactive Waste)] may apply for 
approval of proposed disposal procedures in accordance with subsection (a) of 
this section by requesting amendment of the license. 
(c) A person applying for a license to be issued under [Subchapter F, Subchapter 
G, or Subchapter H of] this chapter may request approval of proposed disposal 
procedures in accordance with subsection (a) of this section as part of the 
license application. 
(d) A person not subject to licensing under [Subchapter G or] Subchapter H of 
this chapter may request approval of proposed disposal procedures in accordance 
with subsection (a) of this section either by filing an application for a 
license under Subchapter F of this chapter or by requesting approval without a 
license. In some cases, approval of a limited disposal which meets the standards 
of this subchapter may be granted by the executive director to a person without 
a license, as authorized by law. Requests for approval without a license must be 
reviewed by the executive director on a case-by-case basis. 
[(e) Notwithstanding the provisions of this section, the commission shall not 
approve any application for a license to dispose of byproduct material on land 
that does not meet the transfer of land requirements under Subchapter G of 
Chapter 336 of this title.] 
<nl>(e)<ol> [ (f)] Notwithstanding the provisions of this section, the 
commission shall not approve any application for a license to receive 
radioactive waste from other persons for disposal on land not owned by the state 
or the federal government. The commission shall not issue a license to dispose 
of radioactive waste received from others except to a public entity specifically 
authorized by law for radioactive waste disposal. 

sec.336.334.Disposal by Burial in Soil.
No licensee may dispose of radioactive material by burial in soil except as 
provided by sec.336.337 of this title (relating to Disposal of Specific Wastes) 
or by specific license authorization by the commission under sec.336.332 of this 
title (relating to Method of Obtaining Approval of Proposed Disposal 
Procedures), Subchapter F of Chapter 336 of this title (relating to Licensing of 
Alternative Methods of Disposal of Radioactive Material), [Subchapter G of 
Chapter 336 of this title (relating to Licensing Requirements for Source 
Material (Uranium or Thorium) Recovery and Processing Facilities),] or 
Subchapter H of this chapter (relating to Licensing Requirements for Near-
Surface Land Disposal of Radioactive Waste). 

sec.336.341.General Requirements for Recordkeeping.
(a) Each licensee shall use the units curie, rad, and rem, including multiples 
and subdivisions, and shall clearly indicate the units of all quantities on 
records required by this subchapter. Disintegrations per minute may be indicated 
on records of surveys performed to determine compliance with <nl>sec.336.605 
<ol> [ sec.336.357] of this title (relating to Surface Contamination Limits for 
Facilities, [and] Equipment<nl>, and Materials)<ol> and sec.336.364, Appendix G, 
of this title (relating to Acceptable Surface Contamination Levels). 
(b)-(c) (No change.)

sec.336.348.Records of Waste Disposal.
(a) Each licensee shall maintain records of the disposal of licensed materials 
made under sec.336.332 of this title (relating to Method of Obtaining Approval 
of Proposed Disposal Procedures), sec.336.333 of this title (relating to 
Disposal by Release into Sanitary Sewerage), sec.336.336 of this title (relating 
to Treatment or Disposal by Incineration), sec.336.337 of this title (relating 
to Disposal of Specific Wastes); made by transfer to an authorized recipient 
under sec.336.331(a)(1) <nl>and (2) <ol> [- (3)] of this title (relating to 
General Requirements for Waste Disposal); or made under license authorization 
issued under <nl>this chapter <ol> [Subchapter F of this chapter (relating to 
Licensing of Alternative Methods of Disposal of Radioactive Material), 
Subchapter G of this chapter (relating to Licensing Requirements for Source 
Material (Uranium or Thorium) Recovery and Processing Facilities), or Subchapter 
H of this chapter (relating to Licensing Requirements for Near-Surface Land 
Disposal of Radioactive Waste)]. Each licensee shall also maintain records of 
the disposal of licensed materials by burial in soil, including burials 
authorized by Texas Department of Health rules before May 1977. 
(b) (No change.) 

sec.336.352.Reports of Exposures, Radiation Levels, and Concentrations of 
Radioactive Material Exceeding the Limits.
(a) Reportable events. In addition to the notification required by sec.336.351 
of this title (relating to Notification of Incidents), each licensee shall 
submit a written report to the executive director within 30 days after learning 
of any of the following occurrences: 
(1) (No change.) 
(2) doses in excess of any of the following: 
(A)-(E) (No change.) 
<nl>(F)<ol> <nl>the ALARA constraints for air emissions established under 
sec.336.304(d); or <ol>
(3)-(4) (No change.) 
(b) Contents of reports. 
(1) Each report required by subsection (a) of this section shall describe the 
extent of exposure of individuals to radiation and radioactive material, 
including, as appropriate: 
(A)-(C) (No change.) 
(D) corrective steps taken or planned to ensure against a recurrence, including 
the schedule for achieving conformance with applicable limits, <nl>ALARA 
constraints, <ol> generally applicable environmental standards, and associated 
license conditions. 
(2) Each report filed under subsection (a) of this section shall include for 
each <nl>occupationally overexposed <ol> individual<nl>: <ol> [exposed ] the 
name, social security number, and date of birth. With respect to the limit for 
the embryo/fetus in sec.336.312 of this title, the identifiers should be those 
of the declared pregnant woman. The report shall be prepared so that this 
information is stated in a separate and detachable part of the report. 

sec.336.356.Soil and Vegetation Contamination Limits.
(a) No licensee may possess, receive, use, or transfer licensed radioactive 
material in such a manner as to cause contamination of soil or vegetation in 
unrestricted areas <nl>that causes a member of the public to receive a total 
effective dose equivalent in excess of 25 mrem/year from all pathways (excluding 
radium and its decay products) and <ol> to the extent that the contamination 
exceeds the background level by more than: 
[(1) the concentration limits, based on dry weight, specified in sec.336.366, 
Appendix I, of this title (relating to Soil and Vegetation Contamination Limits 
for Selected Radionuclides);]
[(2) the concentration limits, based on dry weight, taken from the 
concentrations in Table III of sec.336.359, Appendix B, of this title (relating 
to Annual Limits on Intake (ALI) and Derived Air Concentrations (DAC) of 
Radionuclides for Occupational Exposure; Effluent Concentrations; Concentrations 
for Release to Sanitary Sewerage) with the units converted from microcuries per 
milliliter (&aelig;Ci/ml) to microcuries per gram (&aelig;Ci/g), for 
radionuclides not specified in sec.336.366, Appendix I, of this title, except as 
provided in paragraphs (3) and (4) of this subsection;] 
<nl>(1)<ol> [ (3)] for radium-226 or radium-228 in soil, the following limits, 
based on dry weight, averaged over any 100 square meters of area: 
(A) 5 picocuries/gram (pCi/g), averaged over the first 15 centimeters of soil 
below the surface; 
(B) 15 pCi/g, averaged over <nl>each <ol>15-centimeter thick <nl>layer <ol> 
[layers] of soil <nl>below the first <ol> [more than] 15 centimeters below the 
surface; and 
<nl>(2)<ol> [ (4)] for radium-226 or radium-228 in vegetation, 5 pCi/g, based on 
dry weight. 
[(b) Where combinations of radionuclides are involved, the sum of the ratios 
between the concentrations present and the limits specified in subsection (a) of 
this section shall not exceed 1.]
<nl>(b)<ol> [ (c)] Notwithstanding the limits set forth in subsection (a) of 
this section, each licensee shall make every reasonable effort to maintain any 
contamination of soil or vegetation as low as is reasonably achievable (ALARA). 
<nl>(c)<ol> [(d)] If contamination caused by the licensee is detected in an 
unrestricted area, the licensee shall decontaminate any unrestricted area which 
is contaminated above the limits specified in subsection (a) of this section. 
[(e) Not withstanding the limits set forth in subsection (a) of this section, 
contamination levels must be maintained in unrestricted areas so that no 
individual member of the public will receive an effective dose equivalent in 
excess of 0.1 rem above background (100 mrem/year) in a year.] 
[(f) A licensee shall decommission its licensed facilities and land for release 
for unrestricted use. No licensee shall vacate a facility or land, or release a 
facility or land for unrestricted use, until the annual total effective dose 
equivalent to a member of the public resulting from radioactive material 
remaining from licensed activities (excluding radium and its decay products) 
does not exceed 0.025 rem/year (25 mrem/year) above background. The 
concentration for radium in soil shall be equivalent to or below the limits set 
forth in subsection (a) of this section. Notwithstanding the limits set forth in 
this subsection, each licensee shall make every reasonable effort to maintain 
any contamination of soil or vegetation ALARA. The licensee shall conduct all 
necessary radiation surveys and modeling and shall provide reports and 
documentation to demonstrate that the requirements for release for unrestricted 
use have been met. The executive director may require the licensee to provide 
any other information necessary to demonstrate that the facilities and land are 
suitable for release for unrestricted use.]
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 April 13, 1998.
TRD-9805164
Kevin McCalla
Director, Legal Division
Texas Natural Resource Conservation Commission
Earliest possible date of adoption: May 24, 1998
For further information, please call: (512) 239-6087

30 TAC sec.336.357, sec.336.366 
(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 Natural 
Resource Conservation Commission or in the Texas Register office, Room 245, 
James Earl Rudder Building, 1019 Brazos Street, Austin.)
STATUTORY AUTHORITY
These repeals are proposed under the Texas Radiation Control Act, Texas Health 
and Safety Code, sec.sec.401.011, 401.051, and 401.412, and Texas Water Code, 
sec.5.103, which give the commission the authority to adopt rules necessary to 
carry out its responsibilities to regulate and license the disposal of 
radioactive substances. 
These repeals implement Health and Safety Code, Chapter 401 (relating to 
Radioactive Materials and Other Sources of Radiation). 
sec.336.357.Surface Contamination Limits for Facilities and Equipment.
sec.336.366.Appendix I. Soil and Vegetation Contamination Limits for Selected 
Radionuclides. 
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 April 13, 1998.
TRD-9805163
Kevin McCalla
Director, Legal Division
Texas Natural Resource Conservation Commission
Earliest possible date of adoption: May 24, 1998
For further information, please call: (512) 239-6087

SUBCHAPTER F.Licensing of Alternative Methods of Disposal of Radioactive 
Material 
30 TAC sec.sec.336.501-336.503, 336.512-336.515, 336.517, 336.519 
STATUTORY AUTHORITY 
These new and amended sections are proposed under the Texas Radiation Control 
Act (TRCA), Texas Health and Safety Code, sec.sec.401.011, 401.051, and 401.412, 
and Texas Water Code, sec.5.103, which give the commission the authority to 
adopt rules necessary to carry out its responsibilities to regulate and license 
the disposal of radioactive substances. 
These new and amended sections implement Health and Safety Code, Chapter 401 
(relating to Radioactive Materials and Other Sources of Radiation). 

sec.336.501.Scope and General Provisions.
(a) This subchapter establishes the criteria, terms and conditions under which 
the commission may issue<nl>, amend or renew <ol> a license for on-site disposal 
of radioactive material or waste <nl>or to decommission an inactive disposal 
site. This subchapter does not apply to disposal of diffuse NORM waste having 
concentrations of radium-226 or radium-228 of less than 2,000 pCi/g. <ol> 
[Subject to the limitations provided in this subchapter, the commission may 
issue a new license, or amend or renew an existing license, for the on-site 
disposal of radioactive material or waste.] 
(b) (No change.) 
(c) Any person who owns, operates, controls, or possesses an inactive 
<nl>disposal <ol> site [on which disposed radioactive material or waste is 
located] and who does not hold a current radioactive material license for the 
inactive disposal site shall apply for a license<nl> to decommission by January 
1, 2000 <ol> [by January 1, 1999]. <nl> Any decommissioning performed to fulfill 
this provision shall be performed by an individual who is qualified and licensed 
to perform the activities, ensuring that all appropriate radiation protection 
standards for workers and the public are met, including the maintenance of 
records. <ol> 
<nl>(1)<ol> <nl>If the site meets the requirements for unrestricted use of 
sec.336.603 of this title, (relating to Radiological Criteria for Unrestricted 
Use), the owner shall submit to the executive director the information required 
by sec.336.603(c) of this title before January 1, 2000. Once the executive 
director verifies that the criteria have been met, the executive director will 
certify in writing that the owner is in compliance with the regulations and will 
not require any further cleanup, unless there is new evidence that the 
decommissioning standards for unrestricted use were not met and that residual 
radioactivity remaining at the site could result in significant threat to public 
health and safety.<ol> 
<nl>(2)<ol> <nl> If a site is decommissioned for unrestricted use under 
sec.336.603 of this title before January 1, 2000, a license is not required. If 
decommissioning is completed before January 1, 2000, proof of decommissioning 
must be submitted to the agency before January 1, 2000, or the owner shall 
submit an application for license by that date. Once the executive director 
verifies that the criteria have been met, the executive director will certify in 
writing that the owner is in compliance with the regulations and will not 
require any further cleanup, unless there is new evidence that the 
decommissioning standards for unrestricted use were not met and that residual 
radioactivity remaining at the site could result in significant threat to public 
health and safety. <ol> 
<nl>(3)<ol> <nl>If a site does not meet the requirements for unrestricted use 
and the owner does not decommission before January 1, 2000, or if the owner 
plans to decommission under sec.336.607 of this title (relating to Criteria for 
License Termination under Restricted Conditions) or sec.336.609 of this title 
(relating to Alternate Criteria for License Termination), the owner shall apply 
for a license to decommission by January 1, 2000. The applicant shall provide 
the information required by this subchapter using a form provided by the agency. 
<ol>
(d) Any person whose possession of disposed radioactive material is authorized 
by the Texas Department of Health is exempt from the requirements of this 
subchapter. This subchapter does not apply to persons licensed or subject to 
licensing under [Subchapter G of Chapter 336 of this title (relating to 
Licensing Requirements for Source Material (Uranium or Thorium) Recovery and 
Processing Facilities) or] Subchapter H of this chapter (relating to Licensing 
Requirements for Near-Surface Land Disposal of Radioactive Waste). [This 
subchapter also does not apply to sites that meet commission requirements for 
release for unrestricted use in accordance with the rules of this chapter.] 
(e) (No change.) 

sec.336.502.Definitions.
Terms used in this subchapter are defined in sec.336.2 of this title (relating 
to Definitions). Additional terms used in this subchapter have the following 
definitions: 
<nl>(1)<ol> Inactive disposal site - A site or facility that: 
(A) contains radioactive material or waste disposed of below the surface, or 
soils or structures contaminated with radioactive material or waste; and 
(B) no longer disposes or will dispose of, or accepts or will accept for the 
purpose of disposal, additional radioactive material or waste.
<nl>(2)<ol> <nl> Funding plan - a plan, equivalent to the decommissioning 
funding plan of 10 Code of Federal Regulations sec.30.35 (relating to Financial 
assurance and recordkeeping for decommissioning) and sec.40.36 (relating to 
Financial assurance and recordkeeping for decommissioning), submitted by the 
holder of an existing license before the development of a detailed 
decommissioning plan. The funding plan includes: <ol> 
<nl>(A)<ol> <nl>an initial cost estimate for decommissioning;<ol> 
<nl>(B)<ol> <nl> a description of the financial mechanism(s) utilized; and <ol>
<nl>(C)<ol> <nl> a certification by the licensee that a signed original of the 
financial assurance mechanism for decommissioning was submitted to the executive 
director. <ol>
<nl>(3)<ol> On-site - The same or geographically contiguous property that may be 
divided by public or private rights-of-way, provided the entrance and exit 
between the properties is at a cross-roads intersection, and access is by 
crossing, as opposed to going along, the right-of-way. Noncontiguous properties 
owned by the same person but connected by a right-of-way that the property owner 
controls and to which the public does not have access, is also considered on-
site property. 

sec.336.503.Filing of Application.
(a) (No change.) 
(b) <nl>An application for a license, or amendment of a license shall be 
accompanied by the appropriate fee as specified in sec.336.105 of this title 
(relating to Schedule of Fees for Subchapter F Licenses). <ol> [As provided in 
sec.336.514 of this title (relating to Financial Assurance and Recordkeeping for 
Decommissioning), an application may be required to include a proposed 
decommissioning funding plan or a certification of financial assurance for 
decommissioning.] 

sec.336.512.Technical Requirements for Inactive Disposal Sites.
(a) Content of license application. An applicant for a license to authorize 
possession of disposed radioactive material <nl>and subsequent decommissioning 
of <ol> [in] an inactive disposal site [ which was formerly used] shall submit 
the following <nl>using the application form provided by the agency<ol>: 
(1)-(3) (No change.) 
(4) the technical qualifications <nl>and identity <ol>of personnel responsible 
for radiation safety functions at the site; 
(5) (No change.) 
(6) information on land ownership and any covenants on land use imposed by 
recorded title documents; [and] 
(7) <nl>a decommissioning plan that meets the standards in Subchapter G of this 
chapter (relating to Decommissioning Standards), including <ol> an evaluation of 
the alternative of [decommissioning the site and] disposing of the radioactive 
material at a licensed disposal facility<nl>;<ol>[.] 
<nl>(8)<ol> <nl>information regarding financial assurance for decommissioning as 
provided for in sec.336.514 of this title (relating to Financial Assurance for 
Decommissioning); and <ol>
<nl>(9)<ol> <nl> for license applications other than renewals, a description of 
how facility design and procedures for operation minimize, to the extent 
practicable, contamination of the facility and the environment, facilitate 
eventual decommissioning, and minimize, to the extent practicable, the 
generation of radioactive wastes. <ol>
(b) Content of application for renewal of license. 
(1) An applicant for renewal of a license authorizing possession of disposed 
radioactive material in an inactive disposal site <nl>or to decommission an 
inactive disposal site <ol> [which was formerly used] shall submit information 
<nl>using the application form provided by the agency <ol> on: 
(A)-(B) (No change.) 
(C) the methods of restricting access to the site; [and] 
(D) any changes in or additions to the procedures or information contained in 
previous applications<nl>;<ol>[.] 
<nl>(E)<ol> <nl> the technical qualifications and identity of personnel 
responsible for radiation safety functions at the site;<ol>
<nl>(F)<ol> <nl>a decommissioning plan that meets the standards in Subchapter G 
of this chapter, if not previously submitted, including an evaluation of the 
alternative of disposing of the radioactive material at a licensed disposal 
facility; and <ol>
<nl>(G)<ol> <nl>financial assurance for decommissioning as provided for in 
sec.336.514 of this title (relating to Financial Assurance for Decommissioning). 
<ol>
(2) The executive director may request additional information, such as that 
required by subsection (a) of this section, if this information was not 
previously provided for the site<nl> or is not current.<ol> 
(c) Performance objectives. The applicant's submittal shall include sufficient 
information to enable the executive director to assess the potential hazard to 
public health and safety and to determine whether the disposal site will have a 
significant impact on the environment. The executive director shall evaluate 
existing inactive disposal sites on a case-by-case basis and may consider the 
following general criteria and performance objectives in making the evaluation: 
(1) Radiation exposure and release of radioactive materials from a disposal site 
shall be maintained as low as is reasonably achievable. Reasonable assurance 
must be provided that the potential dose to an individual on or near the site 
will be within acceptable limits. The estimated committed effective dose 
equivalent resulting from a radiological assessment of a site will usually be 
the determining factor in the granting of authorization for a disposal site. If 
the projected dose to a member of the public exceeds <nl> 25 millirems <ol> [a 
few millirems] per year, the executive director <nl> shall <ol> [may] consider 
other factors in determining whether to grant authorization for the site, 
including, but not limited to, the use of institutional controls to restrict 
access for a specified period of time.
(2)-(9) (No change.) 

sec.336.513.Technical Requirements for Active Disposal Sites.
(a) Content of license application. An applicant for a license to authorize 
disposal of radioactive material shall submit the following:
(1)-(18) (No change.)
(19) the applicant's justification for the proposed disposal method; [ and] 
(20) an evaluation of other disposal alternatives, <nl> including <ol> [such as] 
disposal of the radioactive material at a licensed disposal facility<nl>; 
and<ol>[.] 
<nl>(21)<ol> <nl> financial assurance for decommissioning as provided for in 
sec.336.514 of this title (relating to Financial Assurance for Decommissioning). 
<ol>
(b) Content of application for renewal of license. 
(1) An applicant for renewal of a license authorizing disposal of radioactive 
material shall submit information on: 
(A)-(E) (No change.) 
(F) the results of any radiological monitoring performed at the site;[ and] 
(G) any changes in or additions to the procedures or information contained in 
previous applications<nl>;<ol>[.] 
<nl>(H)<ol> <nl>financial assurance for decommissioning as provided for in 
sec.336.514 of this title (relating to Financial Assurance for Decommissioning); 
and <ol>
<nl>(I)<ol> <nl> an evaluation of the alternative of disposing of the 
radioactive material at a licensed disposal facility. <ol>
(2) The executive director may request additional information, such as that 
required by subsection (a) of this section, if that information was not 
previously provided for the site <nl>or is not current.<ol> 
(c) Performance objectives. The applicant's submittal shall include sufficient 
information to enable the executive director to assess the potential hazard to 
public health and safety and to determine whether the disposal site will have a 
significant impact on the environment. General criteria and performance 
objectives which the executive director shall apply in the evaluation of a 
proposed disposal site include the following: 
(1) Radiation exposure and release of radioactive materials from a disposal site 
shall be maintained as low as is reasonably achievable. Reasonable assurance 
must be provided that the potential dose to an individual on or near the site 
will be within acceptable limits. The estimated committed effective dose 
equivalent resulting from a radiological assessment of a site will usually be 
the determining factor in the granting of authorization for a disposal site. If 
the projected dose to a member of the public exceeds <nl> 25 millirems <ol> [a 
few millirems] per year, the executive director <nl> shall <ol> [may] consider 
other factors in determining whether to grant authorization for the site, 
including, but not limited to, the use of institutional controls to restrict 
access for a specified period of time.
(2)-(9) (No change.) 

sec.336.514.Financial Assurance for Decommissioning.
(a) A financial assurance mechanism or combination of mechanisms in accordance 
with Subchapter I of this chapter (relating to Financial Assurance) is required 
for all entities currently licensed or proposed to be licensed. Federal, State 
or local government licensees may submit a statement of intent containing a cost 
estimate for decommissioning based upon the appropriate criteria listed below 
and indicating that funds for decommissioning will be obtained when necessary. 
(b) Applicants for a new license to decommission an inactive disposal site shall 
submit with the application a signed statement regarding how the applicant will 
provide financial assurance for decommissioning using one or more of the 
mechanisms specified in Subchapter I of this chapter. The amount of financial 
assurance shall be based upon the detailed cost estimate included in the 
decommissioning plan submitted with the application. The financial assurance for 
decommissioning shall be provided at least 30 days prior to license issuance and 
be effective upon license issuance. 
(c) Holders of licenses issued before January 1, 1998 shall submit a funding 
plan before January 1, 1998. Each funding plan must contain:
(1) a cost estimate for decommissioning; 
(A) Each holder of a license authorizing the disposal of unsealed radioactive 
material with a half-life greater than 120 days and in quantities exceeding 
10<sup>5 times the applicable quantities set forth in sec.336.521, Appendix A, 
of this title (relating to Radionuclide Quantities for Use in Determining 
Financial Assurance for Decommissioning) or when a combination of isotopes is 
involved if R divided by 10<sup>5 is greater than 1 (unity rule), where R is 
defined as the sum of the ratios of the quantity of each isotope to the 
applicable value in sec.336.521, Appendix A of this title, shall submit a 
certification of financial assurance for decommissioning in an amount at least 
equal to $750,000, in accordance with the criteria set forth in this subchapter 
and Subchapter I of this chapter; or 
(B) Each holder of a license authorizing disposal of radioactive material with a 
half-life greater than 120 days shall provide certification of financial 
assurance for decommissioning based on the quantity of material as follows: 
[sup]4 but less than or equal to 10<sup>5 times the applicable quantities in 
sec.336.521, Appendix A, of this title, in unsealed form. (For a combination of 
isotopes, if R, as defined in subsection (c)(1)(A), divided by 10<sup>4 is 
greater than 1 but R divided by 10<sup>5 is less than or equal to 1.); or 
[sup]3 but less than or equal to 10<sup>4 times the applicable quantities in 
sec.336.521, Appendix A of this title in unsealed form. (For a combination of 
isotopes, if R, as defined in subsection (c)(1)(A) of this section, divided by 
10<sup>3 is greater than 1 but R divided by 10<sup>4 is less than or equal to 
1.).
(C) Nothwithstanding the requirements of subparagraph (A) and (B) of this 
paragraph, 
(i) each holder for a license authorizing the disposal of more than 100 
millicuries of source material in a readily dispersible form shall submit 
certification that financial assurance has been provided in the amount of 
$750,000. 
(ii) each holder for a license authorizing the disposal of quantities of source 
material greater than 10 millicuries but less than or equal to 100 millicuries 
in a readily dispersible form shall submit certification that financial 
assurance has been provided in the amount of $150,000; 
(2) a description of the financial assurance mechanism of assuring funds for 
decommissioning as specified in Subchapter I of this chapter, including means 
for adjusting cost estimates and associated funding levels annually over the 
life of the facility; and 
(3) a certification by the licensee that a signed original of the financial 
assurance mechanism for decommissioning, in accordance with criteria set forth 
in this section and Subchapter I of this chapter, has been submitted to the 
executive director in the amount specified in paragraph (1) of this subsection.
(d) Holders of existing licenses for inactive disposal sites shall, as part of 
the license renewal process, submit a signed statement adjusting the amount of 
financial assurance based upon the detailed cost estimate included in the 
decommissioning plan submitted with the renewal application. The adjusted amount 
of financial assurance for decommissioning shall be effective upon license 
renewal. 
(e) Holders of licenses for active disposal sites shall submit a signed 
statement adjusting the amount of financial assurance based upon the detailed 
cost estimate included in the decommissioning plan submitted no later than the 
date specified in sec.336.519(e) of this title (relating to Expiration and 
Termination of Licenses). 

sec.336.515.Recordkeeping for Decommissioning.
Each person licensed under this subchapter shall keep records of information 
important to the safe and effective decommissioning of the facility in an 
identified location until the license is terminated by the commission. If 
records of relevant information are kept for other purposes, reference to these 
records and their locations may be used. Information important to 
decommissioning consists of: 
(1) records of spills or other unusual occurrences involving the spread of 
contamination in and around the disposal facility, equipment, or site. These 
records may be limited to instances when contamination remains after any cleanup 
procedures or when there is reasonable likelihood that contaminants may have 
spread to inaccessible areas, as in the case of possible seepage into porous 
materials such as concrete. These records must include any known information on 
identification of involved nuclides, quantities, forms, and concentrations. 
(2) as-built drawings and modifications of structures and equipment in 
restricted areas where radioactive materials are disposed of and of locations of 
possible inaccessible contamination (e.g., buried pipes) that may be subject to 
contamination. If required drawings are referenced, each relevant document need 
not be indexed individually. If drawings are not available, the licensee shall 
substitute appropriate records of available information concerning these areas 
and locations. 
(3) except for areas containing only radioactive materials having half-lives of 
less than 65 days, a list contained in a single document and updated every two 
years of the following: 
(A) all areas designated as restricted areas, as defined in sec.336.2 of this 
title (relating to Definitions), and all areas formerly designated as restricted 
areas under rules in effect before January 1, 1994;
(B) all areas outside of restricted areas that require documentation under 
paragraph (1) of this subsection; 
(C) all areas outside of restricted areas where current and previous wastes have 
been buried as documented under sec.336.348 of this title (relating to Records 
of Waste Disposal); and 
(D) all areas outside of restricted areas which contain material such that, if 
the license expired, the licensee must be required to either decontaminate the 
area to unrestricted release levels or apply for approval for disposal under 
sec.336.332 of this title (relating to Method of Obtaining Approval of Proposed 
Disposal Procedures). 
(4) records of the cost estimate performed for the funding plan or of the amount 
certified for decommissioning, and records of the financial assurance mechanism 
used for assuring funds. 

sec.336.517.Financial Assurance for Control and Maintenance.
(a) An applicant or licensee required to demonstrate financial assurance for 
control and maintenance of a site shall maintain financial assurance for control 
and maintenance upon license issuance and during the decommissioning period. The 
applicant or licensee shall provide sufficient financial assurance to enable an 
independent third party, including a governmental custodian of a site, to assume 
and carry out responsibilities for any necessary control and maintenance of the 
site. The financial assurance mechanism(s) for control and maintenance shall 
comply with Subchapter I of this chapter (relating to Financial Assurance) 
including increasing annually the financial assurance amount for inflation or 
whenever modifications to the control and maintenance activities or changes to 
the amount being demonstrated causes the amounts for control and maintenance to 
increase. 
(b) Prior to license termination, the licensee shall deposit a sum of cash 
acceptable to the executive director into the Texas Treasury Safekeeping Control 
and Maintenance account to assume and carry out responsibilities for any 
necessary surveillance, monitoring, control, maintenance and other care of the 
decommissioned disposal site on a continual basis during the institutional 
control period. Upon receipt of the deposit, the executive director shall 
release the existing financial assurance mechanism(s) for control and 
maintenance. If a deposit is not made into the Control and Maintenance account, 
the executive director shall draw on the existing financial assurance 
mechanism(s) and deposit the cash into the Texas Safekeeping Treasury Control 
and Maintenance account.

sec.336.519.Expiration and Termination of Licenses.
(a) Each license expires at the end of the day on the expiration date stated in 
the license unless the licensee has filed an application for renewal not less 
than 30 days before the expiration date stated in the existing license. If an 
application for renewal in proper form has been filed at least 30 days before to 
the expiration date stated in the existing license, the existing license shall 
not expire until the application has been finally determined by the commission. 
For the purposes of this section, "proper form" shall mean that the application 
includes the information required by sec.336.512 of this title (relating to 
Technical Requirements for Inactive Disposal Sites) or sec.336.513 of this title 
(relating to Technical Requirements for Active Disposal Sites). The existing 
license expires at the end of the day on which the commission makes a final 
determination to deny the renewal application or, if the determination states an 
expiration date, the expiration date stated in the determination. 
(b) Each license revoked by the commission expires at the end of the day on the 
date of the commission's final determination to revoke the license, or on the 
expiration date stated in the determination, or as otherwise provided by 
commission order. 
(c) Each license continues in effect, beyond the expiration date if necessary, 
with respect to possession of source material, byproduct material, or other 
radioactive material until the commission notifies the licensee in writing that 
the license is terminated. During this time, the licensee shall: 
(1) limit actions involving source material, byproduct material, or other 
radioactive material to those related to decommissioning; and 
(2) continue to control entry to restricted areas until they are suitable for 
release in accordance with commission requirements.
(d) Within 60 days of the occurrence of any of the following, each licensee of 
an active disposal site shall provide written notification to the executive 
director: 
(1) The license has expired under subsection (a) or (b) of this section; or 
(2) The licensee has decided to permanently cease principal activities at the 
entire site or in any separate building or outdoor area that contains residual 
radioactivity such that the building or outdoor area is unsuitable for 
unrestricted release in accordance with commission requirements; or 
(3) No principal activities under the license have been conducted for a period 
of 24 months; or 
(4) No principal activities have been conducted for a period of 24 months in any 
separate building or outdoor area that contains residual radioactivity such that 
the building or outdoor area is unsuitable for release in accordance with 
commission requirements. 
(e) The licensee of an active disposal site shall either:
(1) within 60 days of the occurrence for which notification is required by 
subsection (d) of this section, begin decommissioning its site or any separate 
building or outdoor area that contains residual radioactivity, according to an 
approved decommissioning plan, so that the building or outdoor area is suitable 
for release in accordance with commission requirements; or
(2) if no decommissioning plan has been submitted, submit a decommissioning plan 
to the executive director, including a signed statement adjusting the amount of 
financial assurance based upon the detailed cost estimate included in the 
decommissioning plan, within 12 months of the notification required by 
subsection (d) of this section and request an amendment of the license to 
incorporate the plan into the license; and 
(3) begin decommissioning within 60 days of the approval of that plan by the 
commission. 
(f) The licensee of an inactive disposal site licensed under sec.336.501(c) of 
this title (relating to Scope and General Provisions), shall provide notice of 
and begin decommissioning within 90 days of license renewal. The owner or 
operator of an unlicensed inactive disposal site must apply for a license to 
decommission the site and begin decommissioning with 90 days of license 
approval. 
(g) All licensees shall follow a commission-approved closure plan for 
decontamination, decommissioning, restoration, and reclamation of buildings and 
the site. 
(1) Coincident with the notification required by subsections (d) or (f) of this 
section, the licensee shall continue to maintain in effect all decommissioning 
financial assurance until the license is terminated by the commission. 
(2) The amount of the financial assurance must be increased, or may be 
decreased, as appropriate, to cover the detailed cost estimate for 
decommissioning established under sec.336.613(f)(5) of this title (relating to 
Additional Requirements). 
(3) Any licensee who has not provided financial assurance to cover the detailed 
cost estimate submitted with the decommissioning plan shall do so on or before 
January 1, 1998.
(4) Following approval of the decommissioning plan, with the approval of the 
executive director, a licensee may reduce the amount of the financial assurance 
as decommissioning proceeds and radiological contamination is reduced at the 
site. 
(h) The executive director may grant in writing a request to extend the time 
periods established in subsections (d), (e) or (f) of this section, or to delay 
or postpone the decommissioning process, if the executive director determines 
that this relief is not detrimental to the public health and safety and is 
otherwise in the public interest. The request must be submitted in writing no 
later than 30 days before notification under subsection (d) or (f) of this 
section. The schedule for decommissioning set forth in subsection (e) or (f) of 
this section may not commence until the executive director has made a 
determination on the request. 
(i) Licenses, including expired licenses, will be terminated by the commission 
by written notice to the licensee when the executive director determines that: 
(1) Source material, byproduct material, and other radioactive material has been 
properly disposed; 
(2) Reasonable effort has been made to eliminate residual radioactive 
contamination, if present; 
(3) The site is suitable for release. 
(A) A radiation survey has been performed which demonstrates that the premises 
are suitable for release in accordance with commission requirements; or 
(B) Other information submitted by the licensee is sufficient to demonstrate 
that the premises are suitable for release in accordance with commission 
requirements; 
(4) The licensee has paid any outstanding fees required by Subchapter B of this 
chapter (relating to Radioactive Substance Fees) and has resolved any 
outstanding notice(s) of violation issued to the licensee; and 
(5) The licensee has complied with all other applicable decommissioning criteria 
required by Subchapter G of this chapter (relating to Decommissioning 
Standards). 
(j) A licensee may request that a subsite or a portion of a licensed area be 
released for unrestricted use before full license termination as long as release 
of the area of concern will not adversely impact the remaining unaffected areas 
and will not be recontaminated by ongoing authorized activities. When the 
licensee is confident that the area of concern will be acceptable to the state 
for release for unrestricted use, a written request for release for unrestricted 
use and agency confirmation of close-out work performed must be submitted to the 
executive director. The request should include a comprehensive report, 
accompanied by survey and sample results which show contamination is less than 
the limits specified in sec.336.603 of this title (relating to Radiological 
Criteria for Unrestricted Use), and an explanation of how ongoing authorized 
activities will not adversely affect the area proposed to be released. Upon 
confirmation by the executive director that the area of concern is indeed 
releasable for unrestricted use, the licensee may apply for a license amendment, 
if 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 April 13, 1998.
TRD-9805162
Kevin McCalla
Director, Legal Division
Texas Natural Resource Conservation Commission
Earliest possible date of adoption: May 24, 1998
For further information, please call: (512) 239-6087

30 TAC sec.336.514 
(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 Natural 
Resource Conservation Commission or in the Texas Register office, Room 245, 
James Earl Rudder Building, 1019 Brazos Street, Austin.)
STATUTORY AUTHORITY 
The repeal is proposed under the Texas Radiation Control Act, Texas Health and 
Safety Code, sec.sec.401.011, 401.051, and 401.412, and Texas Water Code, 
sec.5.103, which give the commission the authority to adopt rules necessary to 
carry out its responsibilities to regulate and license the disposal of 
radioactive substances. 
The repeal implements Health and Safety Code, Chapter 401 (relating to 
Radioactive Materials and Other Sources of Radiation). 
sec.336.514.Financial Assurance and Recordkeeping for Decommissioning.
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 April 13, 1998.
TRD-9805161
Kevin McCalla
Director, Legal Division
Texas Natural Resource Conservation Commission
Earliest possible date of adoption: May 24, 1998
For further information, please call: (512) 239-6087

SUBCHAPTER G.Licensing Requirements for Source Material (Uranium or Thorium) 
Recovery and Processing Facilities 
30 TAC sec.sec.336.601-336.606, 336.613-336.629, 336.636
(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 Natural 
Resource Conservation Commission or in the Texas Register office, Room 245, 
James Earl Rudder Building, 1019 Brazos Street, Austin.)
STATUTORY AUTHORITY 
These repeals are proposed under the Texas Radiation Control Act, Texas Health 
and Safety Code, sec.sec.401.011, 401.051, and 401.412, and Texas Water Code, 
sec.5.103, which give the commission the authority to adopt rules necessary to 
carry out its responsibilities to regulate and license the disposal of 
radioactive substances. 
These repeals implement Health and Safety Code, Chapter 401 (relating to 
Radioactive Materials and Other Sources of Radiation).
sec.336.601.Scope and General Provisions.
sec.336.602.Definitions.
sec.336.603.Filing of Application.
sec.336.604.General Requirements for Issuance of a License.
sec.336.605.Special Requirements for Issuance of a License.
sec.336.606.Issuance of License.
sec.336.613.Site and Design Requirements.
sec.336.614.Groundwater Protection.
sec.336.615.Secondary Groundwater Protection.
sec.336.616.Corrective Action Program.
sec.336.617.Other Considerations for Groundwater Protection.
sec.336.618.Seepage Control Systems.
sec.336.619.Tailings or Waste Disposal System.
sec.336.620.Ore Stockpiling.
sec.336.621.Disposal Area Cover and Closure.
sec.336.622.Closure Completion Milestones and Schedule.
sec.336.623.Monitoring Requirements.
sec.336.624.Airborne Emission and Discharge Control Requirements.
sec.336.625.Daily Inspections of Tailings or Waste Retention Systems.
sec.336.626.Requirement Alternatives.
sec.336.627.Financial Assurance Requirements.
sec.336.628.Long-Term Care and Surveillance Requirements.
sec.336.629.Land Ownership of Tailings or Waste Disposal Sites.
sec.336.636.Appendix A. Maximum Concentrations for Groundwater Protection. 
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 April 13, 1998.
TRD-9805160
Kevin McCalla
Director, Legal Division
Texas Natural Resource Conservation Commission
Earliest possible date of adoption: May 24, 1998
For further information, please call: (512) 239-6087

SUBCHAPTER G.Decommissioning Standards
30 TAC sec.sec.336.601, 336.603, 336.605, 336.607, 336.609, 336.611, 336.613 
STATUTORY AUTHORITY 
These new sections are proposed under the Texas Radiation Control Act (TRCA), 
Texas Health and Safety Code, sec.sec.401.011, 401.051, and 401.412, and Texas 
Water Code, sec.5.103, which give the commission the authority to adopt rules 
necessary to carry out its responsibilities to regulate and license the disposal 
of radioactive substances. 
These new sections implement Health and Safety Code, Chapter 401 (relating to 
Radioactive Materials and Other Sources of Radiation). 

sec.336.601.Applicability.
(a) The criteria in this subchapter apply to the decommissioning of facilities 
regulated under Subchapter F of this chapter (relating to Licensing of 
Alternative Methods of Disposal of Radioactive Material) and to the ancillary 
surface facilities that support radioactive waste disposal activities at 
facilities licensed under Subchapter H of this chapter (relating to Licensing 
Requirements for Near-surface Land Disposal of Radioactive Waste). 
(b) Licensees who have submitted a decommissioning plan to the commission and 
have received commission approval of the plan before the effective date of these 
criteria may decommission according to the regulations in place at the time of 
filing of the plan or according to these criteria.
(c) After a site has been decommissioned and the license terminated in 
accordance with the criteria in this subchapter, the commission may require 
additional cleanup only if, based on new information, it determines that the 
criteria of this subchapter have not been met and residual radioactivity 
remaining at the site could result in significant threat to public health and 
safety.
(d) When calculating the total effective dose equivalent (TEDE) to the average 
member of the critical group, the licensee shall determine the peak annual TEDE 
expected within the first 1000 years after decommissioning.

sec.336.603.Radiological Criteria for Unrestricted Use.
(a) A site will be considered acceptable for unrestricted use if the residual 
radioactivity that is distinguishable from background radiation results in a 
total effective dose equivalent (TEDE) to an average member of the critical 
group that does not exceed 25 mrem (0.25 mSv) per year (excluding radium and its 
decay products), including that from groundwater sources of drinking water, and 
the residual radioactivity has been reduced to levels that are as low as 
reasonably achievable (ALARA). The concentration for radium in soil shall be 
equivalent to or below the limits set forth in sec.336.356(a) of this title 
(relating to Soil and Vegetation Contamination Limits). 
(b) Determination of the levels which are ALARA must take into account 
consideration of any detriments expected to potentially result from 
decontamination and waste disposal (e.g. deaths from transportation accidents).
(c) The licensee shall conduct all necessary radiation surveys and modeling, and 
shall provide reports and documentation to demonstrate that the requirements for 
release for unrestricted used have been met. 

sec.336.605.Surface Contamination Limits for Facilities, Equipment, and 
Materials.
(a) Before vacating any facility or releasing any facility, equipment, or 
materials for unrestricted use, each licensee shall ensure that radioactive 
contamination has been removed to levels as low as is reasonably achievable. 
(b) No licensee may vacate a facility or release a facility, equipment, or 
materials for unrestricted use until radioactive surface contamination levels 
are below the limits specified in sec.336.364, Appendix G, of this title 
(relating to Acceptable Surface Contamination Levels). The licensee shall 
conduct radiation surveys and provide reports and documentation to demonstrate 
that the requirements for release have been met. The executive director may also 
require the licensee to provide other information as may be necessary to 
demonstrate that the facilities and equipment are suitable for release.
(c) In addition to meeting the surface contamination limits of subsection (b) of 
this section, porous materials (e.g., concrete), which are to be released for 
unrestricted use, shall be evaluated to determine whether radioactive materials 
have penetrated to the interior of the material. If radioactive contamination 
has penetrated into the material, analysis of the average concentration, in 
picocuries per gram, shall be made. The material may be released for 
unrestricted use if the radionuclide concentrations do not exceed the limits 
specified for soil in sec.336.356(a) of this title (relating to Soil and 
Vegetation Contamination Limits) and sec.336.603 of this title (relating to 
Radiological Criteria for Unrestricted Use). 

sec.336.607.Criteria for License.
Termination under Restricted Conditions. A site will be considered acceptable 
for license termination under restricted conditions if all of the following 
conditions are met: 
(1) The licensee can demonstrate that further reductions in residual 
radioactivity would result in net public or environmental harm or were not being 
made because the residual levels associated with restricted conditions are as 
low as reasonably achievable (ALARA). Determination of the levels which are 
ALARA must take into account consideration of any detriments expected to 
potentially result from decontamination and waste disposal (e.g. traffic 
accidents); 
(2) The licensee has made provisions for legally enforceable institutional 
controls that provide reasonable assurance that the total effective dose 
equivalent (TEDE) from residual radioactivity distinguishable from background to 
the average member of the critical group will not exceed 25 mrem (0.25mSv) per 
year; 
(3) The licensee has provided sufficient financial assurance to enable an 
independent third party, including a governmental custodian of a site, to assume 
and carry out responsibilities for any necessary control and maintenance of the 
site. Acceptable financial assurance mechanisms are listed in Subchapter I of 
this chapter (relating to Financial Assurance);
(4) The licensee has submitted a decommissioning plan to the commission 
indicating the licensee's intent to decommission and specifying that the 
licensee intends to decommission by restricting use of the site. The licensee 
shall document in the decommissioning plan how the advice of individuals and 
institutions in the community who may be affected by the decommissioning has 
been sought and incorporated, as appropriate, following analysis of that advice. 
(A) Licensees proposing to decommission by restricting use of the site shall 
seek advice from affected parties regarding the following matters concerning the 
proposed decommissioning. 
(i) Whether provisions for institutional controls proposed by the licensee: 
(I) will provide reasonable assurance that the TEDE from residual radioactivity 
distinguishable from background to the average member of the critical group will 
not exceed 25 mrem (0.25 mSv) TEDE per year; 
(II) will be enforceable; and 
(III) will not impose undue burdens on the local community or other affected 
parties. 
(ii) Whether the licensee has provided sufficient financial assurance to enable 
an independent third party, including a governmental custodian of a site, to 
assume control and maintenance of the site. 
(B) In seeking advice on the issues identified in subparagraph (A) of this 
paragraph, the licensee shall provide for: 
(i) participation by representatives of a broad cross section of community 
interests who may be affected by the decommissioning; 
(ii) an opportunity for a comprehensive, collective discussion on the issues by 
the participants represented; and 
(iii) a publicly available summary of the results of all discussions, including 
a description of the individual viewpoints of the participants on the issues and 
the extent of agreement and disagreement among the participants on the issues; 
and 
(5) Residual radioactivity at the site has been reduced so that if the 
institution controls were no longer in effect, there is reasonable assurance 
that the TEDE from residual radioactivity distinguishable from background to the 
average member of the critical group is ALARA and would not exceed either: 
(A) 100 mrem (1 mSv) per year; or 
(B) 500 mrem (5 mSv) per year provided the licensee: 
(i) demonstrates that further reductions in residual radioactivity necessary to 
comply with the 100 mrem/y (1 mSv/y) value of subparagraph (A) of this paragraph 
are not technically achievable, would be prohibitively expensive, or would 
result in net public or environmental harm; 
(ii) makes provisions for durable institutional controls; and 
(iii) provides sufficient financial assurance to enable a responsible government 
entity or independent third party, including a governmental custodian of a site, 
both to carry out periodic rechecks of the site no less frequently than every 5 
years to assure that the criteria of sec.336.603(a) of this title (relating to 
Radiological Criteria for Unrestricted Use) are met and to assume and carry out 
responsibilities for any necessary control and maintenance of those controls. 
Acceptable financial assurance mechanisms are those in Subchapter I of this 
chapter. 

sec.336.609.Alternate Criteria for License Termination.
(a) The commission may terminate a license using alternate criteria greater than 
the dose criterion of sec.sec.336.603 of this title (relating to Radiological 
Criteria for Unrestricted Use) and 336.607(2) and (4)(A)(i)(I) of this title 
(relating to Criteria for License Termination under Restricted Conditions), if 
the licensee: 
(1) provides assurance that public health and safety would continue to be 
protected, and that it is unlikely that the dose from all manmade sources 
combined, other than medical, would be more than the 1 mSv/y (100 mrem/y) limit 
of sec.sec.336.314-315 of this title (relating to Compliance with Dose Limits 
for Individual Members of the Public and General Requirements for Surveys and 
Monitoring, respectively), by submitting an analysis of possible sources of 
exposure; 
(2) has employed, to the extent practical, restrictions on site use according to 
the provisions of sec.336.607 of this title in minimizing exposures at the site; 
(3) reduces doses to ALARA levels, taking into consideration any detriments such 
as traffic accidents expected to potentially result from decontamination and 
waste disposal; and 
(4) has submitted a decommissioning plan to the commission indicating the 
licensee's intent to decommission the facility, and specifying that the licensee 
proposes to decommission by use of alternate criteria. The licensee shall 
document in the decommissioning plan how the advice of individuals and 
institutions in the community who may be affected by the decommissioning has 
been sought and addressed, as appropriate, following analysis of that advice. In 
seeking such advice, the licensee shall provide for: 
(A) participation by representatives of a broad cross section of community 
interests who may be affected by the decommissioning; 
(B) an opportunity for a comprehensive, collective discussion on the issues by 
the participants represented; and 
(C) a publicly available summary of the results of all discussions, including a 
description of the individual viewpoints of the participants on the issues and 
the extent of agreement and disagreement among the participants on the issues. 
(b) The use of alternate criteria to terminate a license requires approval of 
the commission after consideration of the executive director's recommendations 
that will address any comments provided by the Environmental Protection Agency 
and any other public comments submitted under sec.336.611 of this title 
(relating to Public Notification and Public Participation).

sec.336.611.Public Notification and Public Participation.
Upon the receipt of a decommissioning plan from the licensee, or a proposal by 
the licensee for release of a site under sec.336.607 of this title (relating to 
Criteria for License Termination under Restricted Conditions) or 336.609 of this 
title (relating to Alternate Criteria for License Termination), or whenever the 
commission deems notice to be in the public interest, the commission shall 
publish notice in accordance with sec.39.313 of this title (relating to Public 
Notification and Public Participation). 

sec.336.613.Additional Requirements.
(a) The requirements of this section apply only to licenses issued under 
Subchapter F of this chapter (relating to Licensing of Alternative Methods of 
Disposal of Radioactive Material). 
(b) A decommissioning plan shall be submitted with the license application 
required by sec.336.501(c) of this title (relating to Scope and General 
Provisions). Holders of licenses of inactive disposal sites shall submit a 
decommissioning plan with the renewal application. Holders of licenses of active 
disposal sites shall submit a decommissioning plan no later than the date 
specified in sec.336.519(e)(2) of this title (relating to Expiration and 
Termination of Licenses). 
(c) The executive director may approve an alternate schedule for submittal of a 
decommissioning plan required under sec.336.519(e)(2) of this title if the 
executive director determines that: 
(1) the alternative schedule is necessary for the effective conduct of 
decommissioning operations; and 
(2) presents no undue risk from radiation to the public health and safety and is 
otherwise in the public interest. 
(d) A licensee shall request a license amendment to amend a decommissioning plan 
if revised procedures could increase potential health and safety impacts to 
workers or to the public. Examples of procedures that require a license 
amendment include, but are not limited to: 
(1) procedures that involve techniques not applied routinely during cleanup or 
maintenance operations; 
(2) workers entering areas not normally occupied where surface contamination and 
radiation levels are significantly higher than routinely encountered during 
operation; 
(3) procedures that could result in significantly greater airborne 
concentrations of radioactive materials than are present during operation; or 
(4) procedures that could result in significantly greater releases of 
radioactive material to the environment than those associated with operation. 
(e) Procedures with potential health and safety impacts, such as those listed in 
subsection (d) of this section, may not be carried out prior to approval by the 
commission of the decommissioning plan. 
(f) The proposed decommissioning plan for the site or separate building or 
outdoor area shall include: 
(1) a description of the conditions of the site or separate building or outdoor 
area sufficient to evaluate the acceptability of the plan;
(2) a description of planned decommissioning activities;
(3) a description of methods used to ensure protection of workers and the 
environment against radiation hazards during decommissioning;
(4) a description of the planned final radiation survey;
(5) an updated detailed cost estimate for decommissioning, comparison of that 
estimate with present funds set aside for decommissioning, and a plan for 
assuring the availability of adequate funds for completion of decommissioning; 
(6) for decommissioning plans calling for completion of decommissioning later 
than 24 months after plan approval, a justification for the delay based on the 
criteria in subsection (h) of this section; and
(7) a description of the quality assurance/quality control program. 
(g) The proposed decommissioning plan may be approved by the commission by 
license amendment if the information demonstrates that the decommissioning will 
be completed as soon as practicable and that the health and safety of workers 
and the public will be protected. 
(h) Except as provided in subsection (j) of this section, the licensee shall 
complete decommissioning of the site or separate building or outdoor area as 
soon as practicable but no later than 24 months following the initiation of 
decommissioning. 
(i) Except as provided in subsection (j) of this section, when decommissioning 
involves the entire site, the licensee shall request license termination as the 
final step in decommissioning, which shall be as soon as practicable but no 
later than 24 months following the initiation of decommissioning. 
(j) The commission may approve by license amendment a request for an alternate 
schedule for completion of decommissioning of the site or separate building or 
outdoor area, and license termination if appropriate, if the commission 
determines that the alternative is warranted by consideration of the following: 
(1) whether it is technically feasible to complete decommissioning within the 
allotted 24-month period; 
(2) whether sufficient waste disposal capacity is available to allow completion 
of decommissioning within the allotted 24-month period;
(3) whether a significant volume reduction in wastes requiring disposal will be 
achieved by allowing short-lived radionuclides to decay; 
(4) whether a significant reduction in radiation exposure to workers can be 
achieved by allowing short-lived radionuclides to decay; and 
(5) other site-specific factors which the commission may consider appropriate on 
a case-by-case basis, such as the regulatory requirements of other government 
agencies, lawsuits, groundwater treatment activities, monitored natural 
groundwater restoration, actions that could result in more environmental harm 
than deferred cleanup, and other factors beyond the control of the licensee. 
(k) As the final steps in decommissioning, the licensee shall:
(1) certify the disposition of all licensed material, including accumulated 
wastes; 
(2) conduct a radiation survey of the premises where the licensed activities 
were carried out and submit a report of the results of this survey unless the 
licensee demonstrates that the premises are suitable for release in some other 
commission approved manner. The licensee shall, as appropriate: 
(A) report levels of gamma radiation in units of microroentgens (millisieverts) 
per hour at 1 meter from surfaces, and report levels of radioactivity (removable 
and fixed), including alpha and beta, in units of disintegrations per minute or 
microcuries (megabecquerels) per 100 square centimeters for surfaces, 
microcuries (megabecquerels) per milliliter for water, and picocuries 
(becquerels) per gram for solids such as soils or concrete; and 
(B) specify the survey instrument(s) used and certify that each instrument is 
properly calibrated and tested; and 
(3) submit a request for license termination, which includes, but is not limited 
to, the information required by paragraphs (1) and (2) of this subsection. 
(l) The executive director may require the licensee to provide any other 
information necessary to demonstrate that the facilities and land are suitable 
for release.
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 April 13, 1998.
TRD-9805159
Kevin McCalla
Director, Legal Division
Texas Natural Resource Conservation Commission
Earliest possible date of adoption: May 24, 1998
For further information, please call: (512) 239-6087

SUBCHAPTER H.Licensing Requirements for Near-Surface Land Disposal of 
Radioactive Waste
30 TAC sec.336.701, sec.336.702 
STATUTORY AUTHORITY
These amendments are proposed under the Texas Radiation Control Act (TRCA), 
Texas Health and Safety Code sec.sec.401.011, 401.051, and 401.412, and Texas 
Water Code sec.5.103, which give the commission the authority to adopt rules 
necessary to carry out its responsibilities to regulate and license the disposal 
of radioactive substances. 
The amendments implement Health and Safety Code Chapter 401 (relating to 
Radioactive Materials and Other Sources of Radiation). 

sec.336.701.Scope and General Provisions.
(a)-(c) (No change.) 
(d) In addition to the requirements of this subchapter, all licensees, unless 
otherwise specified, are subject to the requirements of Subchapters A-E <nl>and 
G <ol> of this chapter (relating to General Provisions; Radioactive Substance 
Fees; Additional Application, Operation, and License Requirements; Standards for 
Protection Against Radiation; [and] Notices, Instructions, and Reports to 
Workers and Inspections<nl>; and Decommissioning Standards)<ol> . 
(e) Requirements for disposal of radioactive waste by an individual waste 
generator are set forth in Subchapter D of this chapter and Subchapter F of this 
chapter (relating to Licensing of Alternative Methods of Disposal of Radioactive 
Material), and this disposal is not subject to licensing under this subchapter. 
[Requirements for disposal of byproduct material as defined in sec.336.2, 
subparagraph (B) of this title, are set forth in Subchapter G of Chapter 336 of 
this title (relating to Licensing Requirements for Source Material (Uranium or 
Thorium) Recovery and Processing Facilities), and this disposal is not subject 
to licensing under this subchapter, except as provided in subsection (c) of this 
section.] 

sec.336.702.Definitions.
Terms used in this subchapter are defined in sec.336.2 of this title (relating 
to Definitions). Additional terms used in this subchapter have the following 
definitions: 
<nl>(1)<ol> Active maintenance - Any significant remedial activity needed during 
the period of institutional control to maintain a reasonable assurance that the 
performance objectives in sec.336.724 of this title (relating to Protection of 
the General Population from Releases of Radioactivity) and sec.336.725 of this 
title (relating to Protection of Individuals from Inadvertent Intrusion) are 
met. Active maintenance includes ongoing activities such as the pumping and 
treatment of water from a disposal unit or one-time measures such as replacement 
of a disposal unit cover. Active maintenance does not include custodial 
activities such as repair of fencing, repair or replacement of monitoring 
equipment, revegetation, minor additions to soil cover, minor repair of disposal 
unit covers, and general disposal site upkeep such as mowing grass. 
<nl>(2)<ol> Buffer zone - A portion of the disposal site that is controlled by 
the licensee and that lies under the disposal units and between the disposal 
units and the boundary of the site. 
<nl>(3)<ol> Chelating agent - A chemical or complex which causes an ion, usually 
a metal, to be joined in the same molecule by relatively stable bonding, e.g., 
amine polycarboxylic acids (e.g., EDTA, DTPA), hydroxycarboxylic acids, and 
polycarboxylic acids (e.g., citric acid, carbolic acid, and gluconic acid). 
<nl>(4)<ol> Commencement of major construction - Any clearing of land, 
excavation, or other substantial action that would adversely affect the 
environment of a land disposal facility. The term does not mean disposal site 
exploration, necessary roads for disposal site exploration, borings to determine 
foundation conditions, or other preconstruction monitoring or testing to 
establish background information related to the suitability of the disposal site 
or the protection of environmental values. 
<nl>(5)<ol> Custodial agency - A government agency designated to act on behalf 
of the government owner of the disposal site.
<nl>(6)<ol> Disposal - The isolation of radioactive waste from the biosphere 
inhabited by man and containing his food chains by emplacement in a land 
disposal facility. 
<nl>(7)<ol> Disposal site - That portion of a land disposal facility which is 
used for disposal of waste. It consists of disposal units and a buffer zone. 
<nl>(8)<ol> Disposal unit - A discrete portion of the disposal site into which 
waste is placed for disposal. For near-surface disposal, the disposal unit is 
usually a trench. 
<nl>(9)<ol> Engineered barrier - A man-made structure or device that is intended 
to improve the land disposal facility's ability to meet the performance 
objectives in this subchapter. 
<nl>(10)<ol> Explosive material - Any chemical compound, mixture, or device 
which produces a substantial instantaneous release of gas and heat spontaneously 
or by contact with sparks or flame. 
<nl>(11)<ol> Government agency - Any executive department, commission, 
independent establishment, or corporation, wholly or partly owned by the United 
States of America or the State of Texas and which is an instrumentality of the 
United States or the State of Texas; or any board, bureau, division, service, 
office, officer, authority, administration, or other establishment in the 
executive branch of the government. 
<nl>(12)<ol> Hazardous wastes - Those wastes designated as hazardous by United 
States Environmental Protection Agency rules in 40 CFR Part 261 as amended 
through July 1, 1996 (61 FedReg 34278) (relating to Identification and Listing 
of Hazardous Waste). 
<nl>(13)<ol> Hydrogeologic unit - Any soil or rock unit or zone which by virtue 
of its porosity or permeability, or lack thereof, has a distinct influence on 
the storage or movement of groundwater. 
<nl>(14)<ol> Inadvertent intruder - A person who might occupy the disposal site 
after closure and engage in normal activities, such as agriculture, dwelling 
construction, or other pursuits in which the person might be unknowingly exposed 
to radiation from the waste. 
<nl>(15)<ol> Intruder barrier - A sufficient depth of cover over the waste that 
inhibits contact with waste and helps to ensure that radiation exposures to an 
inadvertent intruder meet the performance objectives set forth in this 
subchapter, or engineered structures that provide equivalent protection to the 
inadvertent intruder. 
<nl>(16)<ol> Monitoring - Observing and making measurements to provide data to 
evaluate the performance and characteristics of the disposal site. 
<nl>(17)<ol> Pyrophoric material - 
(A) Any liquid that ignites spontaneously in dry or moist air at or below 130 
degrees Fahrenheit (54.5 degrees Celsius); or 
(B) Any solid material, other than one classed as an explosive, which under 
normal conditions is liable to cause fires through friction, retained heat from 
manufacturing or processing, or which can be ignited readily and when ignited 
burns so vigorously and persistently as to create a serious transportation, 
handling, or disposal hazard. Included are spontaneously combustible and water-
reactive materials. 
<nl>(18)<ol> Reconnaissance-level information - Any information or analysis that 
can be retrieved or generated without the performance of new comprehensive site-
specific investigations. Reconnaissance-level information includes but is not 
limited to relevant published scientific literature; drilling records required 
by the commission or other state agencies, such as the Railroad Commission of 
Texas and the Texas Natural Resources Information System; and reports of 
governmental agencies. 
<nl>(19)<ol> Site closure and stabilization - Those actions that are taken upon 
completion of operations that prepare the disposal site for custodial care and 
that assure that the disposal site remain stable and not need ongoing active 
maintenance. 
<nl>(20)<ol> Stability - Structural stability. 
<nl>(21)<ol> Surveillance - Observation of the disposal site for purposes of 
visual detection of need for maintenance, custodial care, evidence of intrusion, 
and compliance with other license and regulatory requirements.
<nl>(22)<ol> Waste - Radioactive waste, or low-level radioactive waste, as 
defined in sec.336.2 of this title (relating to Definitions) which is acceptable 
for disposal in a land disposal facility. Notwithstanding the definitions in 
sec.336.2 of this title, the term "waste" as used in this subchapter includes 
transuranics in concentrations less than 10 nanocuries per gram, as provided in 
sec.336.701(b)(3) of this title (relating to Scope and General Provisions), and 
byproduct material which meets the limitations of sec.336.701(c) of this title 
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 April 13, 1998.
TRD-9805158
Kevin McCalla
Director, Legal Division
Texas Natural Resource Conservation Commission
Earliest possible date of adoption: May 24, 1998
For further information, please call: (512) 239-6087

SUBCHAPTER I.Financial Assurance 
30 TAC sec.sec.336.802-336.807 
STATUTORY AUTHORITY 
These amendments are proposed under the Texas Radiation Control Act (TRCA), 
Texas Health and Safety Code, sec.sec.401.011, 401.051, and 401.412, and Texas 
Water Code, sec.5.103, which give the commission the authority to adopt rules 
necessary to carry out its responsibilities to regulate and license the disposal 
of radioactive substances. 
These amendments implement Health and Safety Code, Chapter 401 (relating to 
Radioactive Materials and Other Sources of Radiation). 

sec.336.802.Definitions.
Terms used in this subchapter are defined in sec.sec.336.2, 336.502,[ 336.602,] 
and 336.702 of this title (relating to Definitions), except where terms used in 
this subchapter have the following definitions: 
<nl>(1)<ol> Annual review - Conducted on the anniversary date of the license. 
<nl>(2)<ol> Assets - All existing and all probable future economic benefits 
obtained or controlled by a particular entity. 
<nl>(3)<ol> Closure - Any one or combination of the following: closure, 
dismantlement, decontamination, decommissioning, reclamation, disposal, 
restoration, stabilization, monitoring, or post-closure, excluding long-term 
care. 
<nl>(4)<ol> Current assets - Cash or other assets or resources commonly 
identified as those which are reasonably expected to be realized in cash or sold 
or consumed during the normal operating cycle of the business. 
<nl>(5)<ol> Current cost estimate - The most recent estimates prepared in 
accordance with this chapter and approved by the executive director for the 
purpose of demonstrating financial assurance for closure and, if applicable, 
long-term care. 
<nl>(6)<ol> Current liabilities - Obligations whose liquidation is reasonably 
expected to require the use of existing resources properly classifiable as 
current assets or the creation of other current liabilities.
<nl>(7)<ol> Independently audited - An audit performed by an independent 
certified public accountant in accordance with generally accepted auditing 
standards. 
<nl>(8)<ol> Liabilities - Probable future sacrifices of economic benefits 
arising from present obligations to transfer assets or provide services to other 
entities in the future as a result of past transactions or events. 
<nl>(9)<ol> Long-term care - Shall mean the same [as long-term care and 
surveillance as used in Subchapter G of this chapter (relating to Licensing 
Requirements for Source Material (Uranium or Thorium) Recovery and Processing 
Facilities) and the same] as institutional control as used in Subchapter H of 
this chapter (relating to Licensing Requirements for Near-Surface Land Disposal 
of Radioactive Waste). 
<nl>(10)<ol> Net working capital - Current assets minus current liabilities. 
<nl>(11)<ol> Net worth - Total assets minus total liabilities and is equivalent 
to owner's equity. 
<nl>(12)<ol> Parent corporation - A corporation which directly owns at least 50% 
of the voting stock of the corporation which is the licensee; the latter 
corporation is deemed a "subsidiary" of the parent corporation. 
<nl>(13)<ol> Tangible net worth - The tangible assets that remain after 
deducting liabilities; such assets would not include intangibles, such as 
goodwill and rights to patents or royalties. Requirements. 

sec.336.803.Financial Assurance.
(a) This subchapter applies to licensees with closure and, if applicable, long-
term care requirements. The licensee must choose from one or more of the 
mechanisms as specified in sec.336.804 of this title (relating to Financial 
Assurance Mechanisms). The mechanisms available to licensees under Subchapter F 
of this chapter (relating to Licensing of Alternative Methods of Disposal of 
Radioactive Material) include cash deposit, certificate of deposit, deposit of 
government securities, trust fund, surety bond, letter of credit, insurance, 
financial test and corporate guarantee, or external sinking fund. [The 
mechanisms available to licensees under Subchapter G of Chapter 336 of this 
title (relating to Licensing Requirements for Source Material (Uranium or 
Thorium) Recovery and Processing Facilities) include cash deposit, certificate 
of deposit, deposit of government securities, trust fund, surety bond, letter of 
credit, financial test and corporate guarantee, or external sinking fund.] The 
mechanisms available to licensees under Subchapter H of this chapter (relating 
to Licensing Requirements for Near-Surface Land Disposal of Radioactive Waste) 
include cash deposit, certificate of deposit, deposit of government securities, 
trust fund, surety bond, letter of credit, or external sinking fund. 
(1)-(3) (No change.) 
(4) The current cost estimate is subject to annual review by the executive 
director in accordance with [sec.336.627 of this title (relating to Financial 
Assurance Requirements) and] sec.336.736 of this title (relating to Funding for 
Disposal Site Closure and Stabilization). Whenever the required financial 
assurance amount increases to an amount greater than the amount being provided 
in the financial assurance mechanism, the licensee must either cause the amount 
of the mechanism to be increased or obtain additional financial assurance to 
cover the increase. The licensee shall submit evidence of such increase to the 
executive director. 
(5)-(7) (No change.) 
(8) For <nl>Subchapter <ol> [Subchapters G and] H of this chapter, the executive 
director may accept financial assurance established to meet requirements of 
other federal or state agencies and/or local governing bodies for closure, and 
if applicable long-term care, provided such mechanism complies with the 
requirements of this subchapter and the full amount of financial assurance 
required for the specific license is clearly identified and committed for use 
for the purposes of <nl>Subchapter <ol> [Subchapters G and] H of this chapter. 
(9)-(13) (No change.) 
(b) A licensee [ under Subchapters G or H of Chapter 336 of this title] must 
adjust the current cost estimate for inflation at least 60 days before the 
anniversary date of the license. The adjustment must be made as specified in 
paragraphs (1) and (2) of this subsection, using an inflation factor derived 
from the most recent Implicit Price Deflator for Gross National Product 
published by the United States Department of Commerce in its Survey of Current 
Business. The inflation factor is the result of dividing the latest published 
annual Deflator by the Deflator for the previous year. 
(1)-(2) (No change.) 
[(c) A licensee under Subchapter G of Chapter 336 of this title may not use 
self-insurance, or any arrangement which essentially constitutes self insurance 
(e.g., a contract with a state or federal agency) will not satisfy the financial 
assurance requirement as specified in this subchapter since this provides no 
additional assurance other than that which already exists through license 
requirements.] 
<nl>(c)<ol> [ (d)] On a case-by-case basis, the executive director may approve 
other alternative financial assurance mechanisms.

sec.336.804.Financial Assurance Mechanisms.
(a)-(f) (No change.) 
[(g) Financial test and corporate guarantee for Subchapter G of Chapter 336 of 
this title (relating to Licensing Requirements for Source Material (Uranium or 
Thorium) Recovery and Processing Facilities).
[(1) A parent company of a licensee under Subchapter G of Chapter 336 of this 
title may satisfy the requirements of financial assurance by demonstrating that 
it passes a financial test as specified in this subsection, in addition to the 
requirements specified in sec.336.803 of this title. To pass the test the parent 
company must meet the criteria of either paragraph (2) or (3) of this 
subsection.] 
[(2) The parent company must have:]
[(A) two of the following three ratios]:
[(i) a ratio of total liabilities to net worth less than 2.0;] 
[(ii) a ratio of the sum of net income plus depreciation, depletion, and 
amortization to total liabilities greater than 0.1; and] 
[(iii) a ratio of current assets to current liabilities greater than 1.5; and] 
[(B) net working capital and tangible net worth each at least six times the 
current cost estimate; and] 
[(C) tangible net worth of at least $20 million; and] 
[(D) assets located in the United States amounting to at least 90% of total 
assets or at least six times the current cost estimates.
[(3) The parent company must have:
[(A) a current rating for its most recent bond issuance of AAA, AA, A or BBB as 
issued by Standard and Poor's or Aaa, Aa, A or Baa as issued by Moody's; and] 
[(B) tangible net worth at least six times the sum of the current cost 
estimates; and] 
[(C) tangible net worth of at least $20 million; and] 
[(D) assets located in the United States amounting to at least 90% of total 
assets or at least six times the current cost estimates.
[(4) To demonstrate that it meets the test, the parent company must submit the 
following items to the executive director:] 
[(A) a letter signed by the parent company's chief financial officer and worded 
identical to the wording specified in sec.336.806(h) of this title; and] 
[(B) a copy of the independent certified public accountant's report on 
examination of its financial statements for the latest completed fiscal year; 
and] 
[(C) a special report from its independent certified public accountant stating 
that:] 
[(i) He has compared the data which the letter from the chief financial officer 
specifies as having been derived from the independently audited, year-end 
financial statements for the latest fiscal year with the amounts in such 
financial statements; and] 
[(ii) In connection with that procedure, he found such amounts to be in 
agreement.] 
[(5) After the initial submission of items specified in paragraph (4) of this 
subsection, the licensee or parent company must send updated information to the 
executive director within 90 days after the close of each succeeding fiscal 
year. This information must consist of all three items specified in paragraph 
(4) of this subsection.
[(6) If the parent company no longer meets the requirements of paragraph (2) or 
(3) of this subsection, he must send notice to the executive director of intent 
to establish alternate financial assurance as specified in this section. The 
notice must be sent by certified mail within 90 days after the end of the fiscal 
year for which the year-end financial data show that the parent company no 
longer meets the requirements. The licensee shall provide the alternate 
financial assurance within 120 days after the end of such fiscal year.] 
[(7) The executive director may, based on a reasonable belief that the parent 
company may no longer meet the requirements of paragraph (2) or (3) of this 
subsection, require reports of financial condition at any time from the parent 
company in addition to those specified in paragraph (4) of this subsection. If 
the executive director finds, on the basis of such reports or other information, 
that the parent company no longer meets the requirements of paragraph (2) or (3) 
of this subsection, the licensee must provide alternate financial assurance as 
specified in this subchapter within 30 days after notification of such a 
finding.] 
[(8) The executive director may disallow use of this test on the basis of 
qualifications in the opinion expressed by the independent certified public 
accountant in his report on examination of the parent company's financial 
statements. An adverse opinion or disclaimer of opinion will be cause for 
disallowance. The executive director will evaluate other qualifications on an 
individual basis. The licensee shall provide alternate financial assurance as 
specified in this subchapter within 30 days after notification of the 
disallowance.] 
[(9) The licensee must obtain a written guarantee, hereafter referred to as 
"corporate guarantee," from its parent company, hereafter referred to as 
"guarantor." The guarantor must meet the requirements in paragraphs (1)-(11) of 
this subsection and must comply with the terms of the corporate guarantee. The 
wording of the corporate guarantee must be identical to the wording specified in 
sec.336.806(i) of this title. The corporate guarantee must accompany the items 
sent to the executive director as specified in paragraph (4) of this subsection. 
The terms of the corporate guarantee must provide that:] 
[(A) If the licensee fails to perform final closure of the facility or site 
covered by the corporate guarantee in accordance with the license, the guarantor 
will do so or establish a trust fund as specified in subsection (a) of this 
section in the name of the licensee.] 
[(B) The corporate guarantee will remain in force unless the guarantor sends 
notice of cancellation by certified mail to the licensee and to the executive 
director. Cancellation may not occur, however, during the 120 days beginning on 
the date of receipt of the notice of cancellation by both the licensee and the 
executive director, as evidenced by the return receipts.] 
[(C) If the licensee fails to provide alternate financial assurance as specified 
in this section and obtain the written approval of such alternate assurance from 
the executive director within 90 days after receipt by both the licensee and the 
executive director of a notice of cancellation of the corporate guarantee from 
the guarantor, the guarantor will provide such alternative financial assurance 
in the name of the licensee.] 
[(10) Two officers of the licensee and two officers of the guarantor who are 
authorized to bind the respective entity should sign the corporate guarantee. A 
copy of such authorization for each persons signing should be attached to the 
corporate guarantee. The corporate seal should be affixed.] 
[(11) The guarantor should certify and demonstrate that it has full authority 
under the laws of the state of its incorporation, its articles of incorporation 
and bylaws to enter into this corporate guarantee; and, that the guarantor has 
full approval from its board of directors to enter into this guarantee.] 
<nl>(g)<ol> [ (h)] External sinking fund. 
(1) The licensee may satisfy the requirements of financial assurance by 
establishing an external sinking fund. 
(2) An external sinking fund is an account segregated from the licensee's assets 
and outside the licensee's administrative control.
(3) An external sinking fund, such as a trust, is combined with a financial 
assurance mechanism as specified in subsections (b)-(e) of this section. 
(4) The external sinking fund is established and maintained by setting aside 
funds periodically. Deposits are made at least annually.
(5) The value of the external sinking fund and the combined financial assurance 
mechanism, is equal to the current cost estimate. 
(6) As the value of the sinking fund increases, the value of the combined 
financial assurance mechanism decreases. When the external sinking fund is equal 
to the current cost estimate, the combined financial assurance mechanism will no 
longer be required to be maintained. 

sec.336.805.Long-Term Care Requirements.
The long-term care requirements of this chapter shall apply to <nl> the <ol> 
[those] licensees [as] specified under<nl> Subchapter <ol> [Subchapters G and] H 
of this chapter (relating to [ Licensing Requirements for Source Material 
(Uranium or Thorium) Recovery and Processing Facilities, and] Licensing for 
Near-Surface Land Disposal of Radioactive Waste) whose ownership of the site is 
subject to being transferred to the state or federal government. 

sec.336.806.Wording of Financial Assurance Mechanisms.
(a)-(g) (No change.) 
[(h) A letter from the chief financial officer for the parent company, as 
specified in sec.336.804(g) of this title, must be worded as specified in 
sec.336.807(h), Appendix A of this title, except that instructions in 
parenthesis are to be replaced with the relevant information and the parenthesis 
deleted.] 
[(i) A corporate guarantee, as specified in sec.336.804(g) of this title, must 
be worded as specified in sec.336.807(i), Appendix A of this title, except that 
instructions in parenthesis are to be replaced with the relevant information and 
the parenthesis deleted.]

sec.336.807.Appendix A. Wording of Financial Assurance Instruments. 
(a)-(g) (No change.) 
[(h) Letter from chief financial officer.]
[Figure: 30 TAC 336.807(h)]
[(i) Corporate guarantee.]
[Figure: 30 TAC 336.807(i)]
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 April 13, 1998.
TRD-9805157
Kevin McCalla
Director, Legal Division
Texas Natural Resource Conservation Commission
Earliest possible date of adoption: May 24, 1998
For further information, please call: (512) 239-6087

TITLE 37. PUBLIC SAFETY AND CORRECTIONS
PART I. Texas Department of Public Safety
CHAPTER 19.Breath Alcohol Testing Regulations
SUBCHAPTER A.Breath Alcohol Testing Regulations
37 TAC sec.sec.19.1-19.5, 19.7
The Texas Department of Public Safety proposes amendments to sec.sec.19.1 - 
19.5, 19.7, concerning breath alcohol testing regulations. Amendments to these 
sections include the renumbering of paragraphs and subsections in order to 
delete and add language and further alphabetize the sections relating to the 
explanation of terms and actions. The amendments are necessary due to 
technological advances in instrumentation software and hardware. The amendments 
also bring the regulations into compliance with statutory changes that were 
effected during the 74th Legislature, 1995, which moved the Driving While 
Intoxicated (DWI) laws from Texas Civil Statutes to the Texas Transportation 
Code and recodified these laws. 
Tom Haas, Chief of Finance, has determined that for each year of the first five-
year period the rule is in effect, there will be no fiscal implications for 
state or local government as a result of enforcing or administering the rule. 
Mr. Haas also has determined that for each year of the first five years the rule 
is in effect the public benefit anticipated as a result of enforcing the rule 
will be clarification in the state courts as to the interpretation of these 
regulations concerning contested cases of driving while intoxicated, other 
statutory related cases, and compliance with legislative changes. The 
anticipated cost to small and large businesses who are required to comply with 
the rules as proposed will be the $500 nonrefundable processing fee required to 
be submitted along with the request for approval of the breath test instrument, 
as well as instrument mailing and shipping cost(s). There are no anticipated 
economic costs to persons who are required to comply with the section as 
proposed.
Comments on the proposal may be submitted to Duncan R. Fox, Senior Assistant 
General Counsel, Legal Services, Texas Department of Public Safety, Box 4087, 
Austin, Texas 78773-0140, (512) 424-2890. 
The amendments are proposed pursuant to Texas Transportation Code, sec.724.003 
which authorizes the department and the State Office of Administrative Hearings 
to adopt rules to administer this chapter; and Texas Transportation Code, 
sec.724.016. 
Texas Transportation Code, sec.724.003 and sec.724.016 are affected by this 
proposal. 

sec.19.1 Instrument Certification. 
(a) All breath testing instruments to be used for evidential purposes must have 
the approval of and/or be certified by brand and/or model by the office of the 
Scientific Director, Alcohol Testing Program, Texas Department of Public Safety 
(hereinafter referred to as the scientific director). 
(1) (No Change.)
(2) If application is made for approval or certification of an instrument by 
brand and/or model not on the approved list, the scientific director shall 
examine and evaluate the instrument to determine if it meets the criteria for 
approval or certification. <nl>A manufacturer or designated manufacturer's 
representative requesting approval of an instrument must submit a production 
model of the instrument, along with a written request for approval. It shall be 
the responsibility of the manufacturer or the designated manufacturer's 
representative to incur costs of mailing or shipping of the instrument to and 
from the department. It shall also be the responsibility of the manufacturer or 
the designated manufacturer's representative to submit a certified check or 
money order in the amount of $500 payable to the Texas Department of Public 
Safety (this is an administrative approval processing fee and is 
nonrefundable).<ol> 
(b) In order to be certified each brand and/or model of breath testing 
instrument must meet the following criteria: 
[(1) The quantity of breath analyzed for its alcohol content shall be 
established only by direct volumetric measurement, by collection and analysis of 
a fixed breath volume, or any method approved by the scientific director.] 
<nl>(1)<ol> [(2)] Breath specimens collected for analysis shall be essentially 
alveolar in composition. 
<nl>(2)<ol> [(3)] The instrument shall analyze a reference sample, such as 
headspace gas from a mixture of water and a known weight of alcohol [held] at a 
<nl>known<ol>[constant] temperature, the result of which must agree with the 
reference sample predicted value within plus or minus 0.01g/210L or such limits 
as set by the scientific director. 
<nl>(3)<ol> [(4)] The specificity of the procedure shall be adequate and 
appropriate for the analyses of breath specimens for the determination of 
alcohol concentration for law enforcement. 
<nl>(4)<ol> [(5)] Any other tests deemed necessary by the scientific director to 
correctly and adequately evaluate the instrument to give correct results in 
routine breath alcohol testing and be practical and reliable for traffic law 
enforcement purposes. 
(c) Upon proof of compliance with subsection (b) of this section an instrument 
will be certified by brand and/or model and placed on the list of certified 
instruments. 
(1)-(2) (No Change.)
(d) The technical supervisor, as the field agent of the scientific director, 
shall determine if the individual instrument by serial number is the same brand 
and/or model that is shown on the scientific director's approved list and meets 
the criteria for certification as stated in subsection <nl> (b)(2)<ol>[(b) (3)] 
of this section and when required, shall provide direct testimony or written 
affidavit of this information in accordance with 
<nl>sec.19.7(y)(7)<ol>[sec.19.7(x)(7)] of this title (relating to Explanation of 
Terms and Actions). 
(e) After approval and/or certification if it is determined by the scientific 
director, or a designated representative or technical supervisor, that a 
specific instrument is unreliable and unserviceable, the specific instrument 
will be removed from service and certification and/or approval may be withdrawn.

sec.19.2 Approval of Reference Sample Devices. 
(a) All reference sample devices as defined in <nl>sec.19.7(o) <ol>[sec.19.7(r)] 
of this title (relating to Explanation of Terms and Actions) used in conjunction 
with evidential breath alcohol testing must be approved by the scientific 
director. 
(1)-(2) (No Change.)
(b) (No Change.)
(c) (No Change.)
(d) The technical supervisor, as the field agent of the scientific director, 
shall determine if the individual reference sample device meets the requirements 
of subsection (b) of this section and when required, shall provide direct 
testimony or written affidavit in accordance with <nl>sec.19.7(y)(7) 
<ol>[sec.19.7(x)(7)] of this title (relating to Explanation of Terms and 
Actions). 
(e) (No Change.)

sec.19.3Certification of Techniques, Methods, and Programs.
(a)-(b) (No Change.)
(c) All breath alcohol testing techniques, in order to be approved, shall meet, 
but not be limited to, the following: 
(1) a period during which <nl>an<ol>[the] operator is required to remain in the 
presence of the subject<nl>. An operator shall remain in the presence of the 
subject at least 15 minutes before the test and should exercise reasonable care 
to ensure that the subject does not place any substances in the mouth. Direct 
observation is no longer necessary to ensure the validity or accuracy of the 
test result<ol>; 
(2)-(3) (No Change.)
(4) the analysis of a reference sample, prepared by the technical supervisor or 
a designee of the scientific director, such as headspace gas from a mixture of 
water and a known weight of alcohol at a<nl>known<ol>[constant] temperature, the 
results of which must agree with the reference sample predicted value within 
plus or minus 0.01g/210L, or such limits as set by the scientific director. This 
reference analysis shall be performed in conjunction with subject analyses; 
(5) all analytical results shall be expressed in grams of alcohol per 210 liters 
of breath <nl>(g/210L)<ol>[(gms/210L)];
(6)-(7) (No Change.)
(8) designation that the instrumentation will be used only: 
(A) for testing subjects that are suspected of <nl>violating any statute or rule 
that defines intoxication in terms of alcohol concentration; and <ol>[:] 
[(i) driving while intoxicated; 
[(ii) involuntary manslaughter; 
[(iii) boating while intoxicated; 
[(iv) a violation of Vernon's Civil Statutes, Article 6687b-2 (Texas Commercial 
Driver's License Act); 
[(v) a violation of a rule or regulation adopted under the authority of Vernon's 
Civil Statutes, Article 6701d, Section 139; or 
[(vi) any other statute or rule that defines intoxication in terms of alcohol 
concentration; and] 
(B) (No Change.)
(d)-(f) (No Change.)
(g) Certification of a breath alcohol testing program may be denied or withdrawn 
by the scientific director if, based on information obtained by the scientific 
director, a designated representative of the scientific director, or a technical 
supervisor, the certified agency or laboratory fails to meet all criteria stated 
in [subsections (a)-(c) of ]this section.
(h) Technical supervisors, when required, shall provide expert testimony 
verifying the certification of techniques, methods, and programs under their 
supervision in accordance with <nl>sec.19.7(y)(7)<ol>[sec.19.7(x)(7)] of this 
title (relating to Explanation of Terms and Actions). 
[(i) Subsection (c)(1) of this section requires an operator to remain in the 
presence of the subject. An operator shall remain in the presence of the subject 
at least 15 minutes before the test and should exercise reasonable care to 
ensure that the subject does not place any substances in the mouth. Direct 
observation is no longer necessary to ensure the validity or accuracy of the 
test result.] 

sec.19.4 Operator Certification. 
(a) Initial certification. 
(1) In order to apply for certification as an operator of a breath alcohol 
testing instrument, an applicant must successfully complete a course of 
instruction approved by the scientific director which must include as a minimum 
the following: 
(A)-(C) (No Change.)
(D) three hours of instruction on supplemental information [,] which is to 
include nomenclature appropriate [in] <nl> to<ol> the field of breath alcohol 
testing; 
(E) 10 hours of laboratory participation using appropriate equipment. Laboratory 
practice will include the analysis of reference alcohol samples, as stated in 
sec.19.3(c)(4) of this title (relating to Certification of Techniques, Methods 
[,] and Programs), as well as the analysis of breath samples from actual 
drinking subjects and completion of all required records and reports needed for 
documentation; 
(F)-(G) (No Change.)
(2) Prior to initial certification as an operator of a breath alcohol testing 
instrument, an applicant must satisfactorily complete examinations, to be 
prepared and given by the scientific director or a designated representative, 
which shall include the following: 
(A) (No Change.)
(B) a practical examination that shall encompass actual operation of the 
instrument and reference sample device on which the operator is to be certified. 
The examination will consist of analyzing[unknown] reference samples and 
obtaining results on all samples within limits as set by the scientific 
director, plus proper completion of all required records and/or reports. If the 
correct value is not obtained within the prescribed limits on all of the samples 
and/or there is an error on any of the required records and/or reports, then the 
operator will be given a second set of test samples. If the correct value is not 
obtained on all of the second test samples within the prescribed limits and/or 
there is an error on any of the required records or reports the applicant has 
failed the examination; 
(C) (No Change.)
(3) Prior to certification an applicant must establish proof of participation in 
a breath testing program that meets the requirements <nl> set forth in<ol> [of] 
sec.19.3 of this title (relating to Certification of Techniques, Methods, and 
Programs) and has been approved by the scientific director. 
<nl>(4)<ol> <nl> Persons who have been convicted of a felony, theft, or a crime 
of moral turpitude shall not be eligible to become a certified operator. <ol>
<nl>(5)<ol> [(4)] Upon successful completion of the requirements for initial 
certification, the scientific director will issue the individual an operator's 
certificate valid for a period of time designated by the scientific director or 
until the next examination for renewal unless inactivated, suspended, or 
revoked. 
(b) Renewal of current certification. The operator is required to renew 
certification prior to its expiration date. The minimum requirement for renewal 
of operator certification will be: 
(1) <nl>An annual<ol>[a] demonstration by the operator of competence to perform 
satisfactory reference analyses as stated in sec.l9.3(c)(4) of this title 
(relating to Certification of Techniques, Methods, and Programs). The practical 
examination as stated in subsection (a)(2)(B) of this section will be conducted 
under the supervision of a technical supervisor. The operator will be evaluated 
on the basis of ability to: 
(A)-(C) (No Change.)
(2) the satisfactory <nl>biennial<ol> completion of a course of instruction at 
least four hours in duration, the contents of which should include, but not be 
limited to, topics such as: 
(A)-(E) (No Change.)
(3) [The] Renewal of<nl>certification <ol>[the certificate] will be denied and 
[the operator's] current certification will be inactivated<nl>in accordance with 
subsection (d) of this section<ol> when the operator: 
(A)-(B) (No Change.)
(C) fails the <nl>practical examination<ol>[laboratory examination as stated in 
subsection (a)(2)(B) of this section]; or 
(D) (No Change.)
(4)-(5) (No Change.)
(c) Proficiency requirements. 
(1)-(2) (No Change.)
(3) Failure to pass a proficiency test as defined in <nl> 
sec.19.7(l)<ol>[sec.19.7 (m)] of this title (relating to Explanation of Terms 
and Actions) will result in the operator's certification being suspended for 30 
days. 
(d) Certification inactivation, suspension[,]and revocation. 
(1) Inactivation of certification will be utilized <nl>for <ol>[in conjunction 
with] administrative program control pursuant to 
<nl>sec.19.7(g)<ol>[sec.19.7(h)] of this title (relating to Explanation of Terms 
and Actions). 
(2)-(4) (No Change.)
(e) Recertification. 
(1) Certification that has been inactivated, suspended, or revoked must be 
regained before evidential analyses can be administered. It will be the 
responsibility of the inactivated, suspended, or revoked operator to notify the 
scientific director in writing of such intent. This notification shall be 
submitted in close proximity to the completion of any mandatory waiting period 
imposed under certification cancellation. Recertification shall take place 
pursuant to the following: 
(A) Recertification after voluntary inactivation [or for nonproficiency] (and 
the period of inactivation is less than six months) will be pursuant to 
subsection (a)(2)(B) of this section[or sec.19.7(m) of this title (relating to 
Explanation of Terms and Actions)
(B)-(D) (No Change.)
(2) (No Change.)
(f) (No Change.)
(g) Verification. The technical supervisor, when required, shall provide 
testimony in accordance with<nl>sec.19.7(y)(7)<ol>[sec.19.7(x)(7)] of this title 
(relating to Explanation of Terms and Actions) verifying all aspects of 
certification of operators within an assigned area. 

sec.19.5 Technical Supervisor Certification.
(a) The minimum qualifications for certification as a technical supervisor are: 
(1) a baccalaureate degree from an accredited college or university with a major 
in chemistry, or as an alternative, a major in another scientific field with 
sufficient semester hours in chemistry or other qualifications as determined by 
the scientific director. (For the purposes of these regulations, sufficient 
hours in chemistry shall be defined as successful completion of the equivalent 
of a minimum of 18 semester hours of chemistry <nl>, no more than 8 of which may 
be freshman level<ol>.); 
(2)-(5) (No Change.)
<nl>(6)<ol> <nl> Persons who have been convicted of a felony, theft, or a crime 
of moral turpitude shall not be eligible to become a certified technical 
supervisor. <ol>
(b)-(c) (No Change.)

sec.19.7Explanation of Terms and Actions. 
(a)-(b) (No Change.)
(c) Certification. 
(1) Certification refers to meeting and maintaining the requirements set forth 
in these regulations. Under the provisions of these regulations, certification 
is granted to: 
(A)-(D) (No Change.)
(E) courses of <nl>instruction<ol>[training].
(2) (No Change.)
(3) Certificates are issued to operators, technical supervisors,<nl> breath 
alcohol test instruments, courses of instruction<ol>and breath alcohol test 
programs. Certificates are not issued for [breath alcohol test instruments,] 
reference sample devices[, or courses of instruction].
(d) (No Change.)
[(e) Certified operator. Certified operator refers to an individual who has 
successfully completed the requirements stated in these regulations and has 
received certification from the scientific director to operate a specific 
instrument(s). Operator certification is contingent upon compliance with all 
provisions stated in sec.19.4 of this title (relating to Operator 
Certification).] 
<nl>(e)<ol> [(f)] Certified course of instruction. Refers to any school, 
college, agency, institution, or laboratory which meets the requirements stated 
in sec.19.6 of this title (relating to Certification of Courses of Instructions) 
for certification of courses of training. Operator schools will be certified for 
instruction on specific instrument(s). Applications for school certification 
must be approved by the scientific director prior to the school's commencement. 
Certification of operators successfully completing a certified school can only 
be made by the office of the scientific director through the administration of 
appropriate examinations. The scientific director has the authority to limit 
enrollment of any school or deny individual enrollment if, in the opinion of the 
scientific director, such enrollment would not be in the best interest of the 
scientific integrity of the breath alcohol test program; for example, if 
enrollment in a certified operator school would produce more operators than 
could be supervised by the number of available technical supervisors. 
<nl>(f)<ol> <nl>Certified operator. Certified operator refers to an individual 
who has successfully completed the requirements stated in these regulations and 
has received certification from the scientific director to operate a specific 
instrument(s). Operator certification is contingent upon compliance with all 
provisions stated in sec.19.4 of this title (relating to Operator 
Certification).<ol> 
[(g) Expendable supplies. Expendable supplies are those items that are used or 
consumed in the process of performing an analysis on the instrumentation and 
cannot be used again. Expendable supplies are supplies such as mouthpieces, test 
records, etc., that are used one time only in performing breath alcohol 
analyses.] 
<nl>(g)<ol> [(h)] Inactivation. 
(1) Inactivation refers to the voluntary or temporary discontinuance of 
certification. Unless specifically stated otherwise, this loss of certification 
will be an administrative program control as opposed to suspension or revocation 
for violation of these regulations or for unreliability or incompetence. 
Inactivation may be initiated by anyone having authority to suspend or revoke, 
by the certified operator in case of voluntary surrender of certification, or by 
the technical supervisor in case of voluntary surrender of technical supervisor 
certification. In questionable cases, the decision to accept inactivation or 
invoke suspension or revocation will be determined by the scientific director. 
Recertification of an inactivated certificate will require a written request 
from the applicant to the scientific director and successful completion of the 
requirements outlined in sec.19.4(e) of this title (relating to Operator 
Certification) for recertification and/or other requirements determined by the 
scientific director. Inactivation will be used in, but not limited to, the 
following situations: 
(A) an operator or technical supervisor transfers to a position where 
certification as a breath test operator or technical supervisor is no longer 
needed; 
(B) an operator temporarily becomes physically incapable to perform tests for 
either medical or administrative reasons; 
(C) an operator fails to renew current certification and reverts to an inactive 
status; 
(D) an operator terminates employment under which certification was acquired and 
new employment does not require certification as an operator, or the new 
location of the operator cannot be ascertained; or 
(E) a technical supervisor resigns from an approved or certified program<nl>, or 
is no longer supervising a certified program<ol>. 
(2) Inactivation will not be considered by the office of the scientific director 
as a disciplinary action. It is for administrative program control to safeguard 
the scientific integrity of the breath alcohol test program. 
<nl>(h)<ol> [(i)] Instruments. Instruments are defined as the device(s) which 
measure or quantitate the breath alcohol concentration pursuant to sec.19.1 of 
this title (relating to Instrument Certification). Certification of instruments 
is only in conjunction with breath alcohol analysis for evidential purposes as 
stated in Texas <nl>Transportation Code,sec.724 <ol>[Civil Statutes, Article 
67011-5]. Approval of breath alcohol test instruments will be made by brand 
and/or model by the scientific director.
<nl>(i)<ol> [(j)] Office of the scientific director. Refers to the scientific 
director or his staff. 
<nl>(j)<ol> [(k)] Practice test. Practice test refers to a properly conducted 
reference analysis by the operator on a certified breath alcohol test instrument 
using an approved reference sample device. Analyses must be conducted in 
accordance with provisions stated in sec.19.3(c)(4) of this title (relating to 
Certification of Techniques, Methods, and Programs).
<nl>(k)<ol> [(l)] Predicted value. The predicted value refers to the known value 
of the reference sample. It is the result, <nl> within plus or minus 0.01 
gms/210 Liters<ol> [within tolerance], which should be obtained in analyzing the 
reference sample. 
<nl>(l)<ol> [(m)] Proficiency test. A test administered by, and in the presence 
of, a technical supervisor to establish and/or ascertain the competency of an 
operator to obtain valid results on breath testing instrumentation.
<nl>(m)<ol> [(n)] Public information and demonstration. Public information and 
demonstration refers to public demonstrations of certified evidential breath 
testing equipment. Certified evidential instruments should not 
<nl>ordinarily<ol> be used for public information programs and/or 
demonstrations. To utilize the equipment in this manner could violate the 
scientific integrity and validity of the analytical result in evidential subject 
analyses. <nl> When necessary, <ol>public information programs and 
demonstrations of <nl> certified<ol> equipment should only be performed <nl>by a 
certified technical supervisor<ol>[ on noncertified, nonevidential equipment and 
then only under the supervision of a technically qualified and/or certified 
individual
<nl>(n)<ol> <nl> Recertification. Recertification refers to the renewal of lost 
certification; for example, certification loss by inactivation, suspension, or 
revocation. Unless provided for by specific provision in these regulations, 
application for recertification requires a written request from the applicant to 
the scientific director. Upon receipt of the request, the applicant will be 
advised of the necessary procedure to regain certification. Recertification 
requires the successful completion of requirements stated in sec.19.4(e) of this 
title (relating to Operator Certification) and/or additional requirements as 
stated by the scientific director. <ol>
<nl>(o)<ol> <nl> Reference Sample Device (simulator). A device that contains and 
delivers a temperature controlled headspace alcohol/water gas sample to a breath 
testing instrument, a device that artificially simulates the alveolar breath of 
a human being. <ol> 
<nl>(p)<ol> [(o)] Renewal of current certification. Renewal of current 
certification is referred to as certification renewal. Renewal of certification 
refers to the continuance of active certification by meeting the requirements 
stated in sec.19.4(b) of this title (relating to Operator Certification). 
Operator certificates have an expiration date and in order to be kept current 
require renewal. Failure or inability to renew current certification will result 
in inactivation or suspension. It is the responsibility of the certificate 
holder to renew certification. The scientific director, through the technical 
supervisor, will make available opportunities for certification renewal on a 
mass basis but cannot accept responsibility for individual renewal. 
<nl>(q)<ol> [(p)] Reports and records. Reports and records refer to all 
documents and reports required in breath alcohol testing. The scientific 
director, through the technical supervisor, supervises all reports and records 
of analyses conducted and/or documents relating to instruments and reference 
sample devices. Each specific brand and/or model of instrument requires specific 
records and forms which are explained in detail in the basic course of 
instruction for the specific instrument and which should be approved by the 
scientific director. Certification of a breath alcohol test program requires the 
completion and proper filing of certain documents relating to arrest. The 
scientific director, through the technical supervisor, is responsible to see 
that such documents are completed and filed but does not supervise these 
documents in regard to content. In addition to any forms, records, or documents 
required in the breath alcohol test program, the scientific director may require 
additional specific reports from the technical supervisors or other reports and 
records in regard to certifications and compliance with program regulations. 
[(q) Recertification. Recertification refers to the renewal of lost 
certification; for example, certification loss by inactivation, suspension, or 
revocation. Unless provided for by specific provision in these regulations, 
application for recertification requires a written request from the applicant to 
the scientific director. Upon receipt of the request, the applicant will be 
advised of the necessary procedure to regain certification. Recertification 
requires the successful completion of requirements stated in sec.19.4(e) of this 
title (relating to Operator Certification) and/or additional requirements as 
stated by the scientific director.] 
<nl>(r)<ol> <nl>Revisions. The changes which are adopted with the revision of 
these regulations apply only to breath tests that are done after the date of 
this revision. Previous revisions of these regulations are not nullified and 
nothing herein should be construed as limiting or canceling the effect of old 
regulations on tests done under these previous regulations. <ol>
[(r) Reference Sample Device (simulator). A device that contains and delivers a 
temperature controlled headspace alcohol/water gas sample to a breath testing 
instrument, a device that artificially simulates the alveolar breath of a human 
being.] 
(s)-(w) (No Change.)
<nl>(x)<ol> <nl> System blank analysis (Sample Chamber Purge). An analysis of 
ambient air, free of alcohol and other interfering substances, that yields a 
result of 0.00. <ol>
<nl>(y)<ol> [(x)] Technical supervisor and technical supervision. This term 
refers to an individual meeting the minimum requirements set forth in sec.19.5 
of this title (relating to Technical Supervisor Certification) and certified by 
the scientific director. Technical supervisor certification, like operator 
certification, is limited to specific instrumentation. Technical supervisors 
have the responsibility and the authority to inactivate, suspend, or recommend 
revocation of any certification under their supervision. Inactivation, 
suspension, or recommended revocation by the technical supervisor will not be 
considered a disciplinary action, but a means to enforce these regulations and 
safeguard the scientific integrity of the breath alcohol testing program. 
Certification as a technical supervisor does not in itself imply disciplinary 
control or administrative in-line supervision over certified operators. However, 
technical supervisors must exercise complete technical supervisory authority 
over all operators in their assigned areas in all matters pertaining to breath 
alcohol testing and in enforcement of all provisions stated in these 
regulations. Certification of the technical supervisor and the program in which 
the technical supervisor operates is contingent upon the technical supervisor's 
ability to communicate directly with the office of the scientific director in 
accordance with the provisions stated in these regulations and by directives 
issued by the scientific director. The primary function of the technical 
supervisor is to provide the technical, administrative, and supervisory 
expertise in safeguarding the scientific integrity of the breath alcohol testing 
program and to assure the breath alcohol testing program's acceptability for 
evidential purposes. The technical supervisor, in matters pertaining to breath 
alcohol testing, is the field agent of the scientific director. Supervision by 
the technical supervisor in accordance with the provisions stated in these 
regulations shall include, but not be limited to: 
(1) supervision of certified operators in performance of breath alcohol test 
operations, including the proper completion of forms and records, and operator's 
compliance with the provisions stated in these regulations;
(2) supervision of data gathered for initial certification and/or approval of 
individual instruments and reference sample devices in an assigned area; 
(3) supervision of techniques of testing, maintaining scientific integrity and 
upholding these regulations as they apply to the certification of a total 
testing program; 
(4) selection and supervision of a testing location as it applies to security 
and technical suitability for testing; 
(5) supervision of compliance with the policy of public information and/or 
demonstrations of breath alcohol testing instruments and equipment; 
(6) all technical, administrative, and regulatory aspects of breath alcohol 
testing within a designated area; and 
(7) expert testimony by direct testimony or by written affidavit concerning all 
aspects of breath alcohol testing within an assigned area. 
[(y) Tolerance. Refers to the difference between the predicted value and the 
actual reference analysis results, established by the scientific director, to be 
acceptable for evidential purposes or for purposes of certification.] 
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 April 9, 1998.
TRD-9805055
Dudley M. Thomas
Director
Texas Department of Public Safety
Earliest possible date of adoption: May 24, 1998
For further information, please call: (512) 424-2890

PART XI. Texas Juvenile Probation Commission
CHAPTER 346.Case Management Standards
SUBCHAPTER A.Case Planning and Supervision
37 TAC sec.sec.346.1-346.5
The Texas Juvenile Probation Commission proposes new sec.sec.346.1-346.5, 
concerning case management standards for juvenile justice practitioners. The 
standards provide uniform procedures for planning and managing probation 
caseloads.
Lisa Capers, Deputy Executive Director and General Counsel, has determined that 
for the first five year period the standards are in effect there will be no 
fiscal implications for state or local government as a result of enforcing or 
administering the new standards. 
Ms. Capers has also determined that for each year of the first five years the 
new standards are in effect, the public benefit anticipated as a result of 
enforcement will be to ensure the delivery, quality, and uniformity of probation 
services throughout the state. There are no anticipated economic costs to 
persons who are required to comply with these standards as proposed.
There will be no effect on small businesses. 
Comments on the proposed standards may be submitted to Maribeth Powers at the 
Texas Juvenile Probation Commission, P. O. Box 13547, Austin, Texas 78711. 
The standards are proposed under sec.141.042 of the Texas Human Resource Code, 
which provides the Texas Juvenile Probation Commission with the authority to 
adopt reasonable rules, including those which provide uniform procedures for 
caseload management and which provide minimum standards for juvenile boards. 
No other code or article is affected by these new standards. 

sec.346.1.Definitions.
The following words or terms, when used in this subchapter, shall have the 
following meanings unless the context clearly indicates otherwise.
(1) Assessment. Assessment is the process by which relevant and valid 
information is compiled in order to determine the juvenile's needs, risk of 
offending, strengths, and weaknesses. The assessment process is intended to 
assist the supervising juvenile probation field officer in developing and 
implementing an effective case plan, appropriate level of supervision, and 
utilization of appropriate resources. 
(2) Case Planning. Case planning involves the process of determining the post-
adjudication needs of a juvenile. This includes all appropriate and available 
assessment and intake information, SJS findings, preliminary investigation 
information, family dynamics, school history, and victim impact statements. A 
written case plan outlines services to be provided during the juvenile's term of 
court ordered probation. Case planning also includes the reassessment, 
reevaluation, and review of the juvenile's risks, needs and initial case plan, 
in order to make any subsequent changes necessary to best meet the juvenile's 
status and circumstances over time. 
(3) Comprehensive Assessment Instrument (COMPASS). An instrument developed by 
the Texas Juvenile Probation Commission that assesses the juvenile's needs in 
the areas of mental health, education and family domains and the juvenile's risk 
of reoffending. 
(4) Formal Intake Interview. The interview with the juvenile who is the subject 
of the referral and the juvenile's parent, guardian or custodian wherein the 
intake officer or juvenile probation officer develops a dispositional 
recommendation for the juvenile's case. The formal intake interview occurs 
subsequent to the formal referral. 
(5) Formal Referral. A referral of a juvenile to the juvenile court for conduct 
defined in Texas Family Code Section 51.03 that results in a face to face 
interview between the juvenile and the authorized staff of the juvenile 
probation department. 
(6) Progressive Sanctions Assigned Level. The level of sanctions actually 
assigned to a juvenile by the juvenile court that corresponds with the 
progressive sanctions guidelines contained in Chapter 59, Texas Family Code. 
(7) Release Plan. The release plan is the written document developed for each 
juvenile that identifies the juvenile's needs for post-supervision reintegration 
and specifies the community resources available to meet those needs. The purpose 
of the release plan is to facilitate a continuum of community services to the 
juvenile and the juvenile's family after probation supervision ends. 
(8) Strategies in Juvenile Supervision (SJS)&copy;. SJS is a case assessment and 
correctional management process designed to provide a structured method for 
gathering and organizing information about the juvenile and translating that 
information into appropriate case management strategies.
(9) Supervision. Supervision involves the case management of a juvenile by the 
assigned juvenile probation supervising field officer or designee through 
contacts (face to face, telephone, office, home, collateral) with the juvenile, 
juvenile's family, and other case planning participants.
(10) Title IV-E Standards. Standards promulgated by the Texas Juvenile Probation 
Commission related to the federal foster care reimbursement program as detailed 
in Chapter 347 of this title (relating to Title IV-E Federal Foster Care 
Program). 

sec.346.2.Assessment.
(a) A TJPC Comprehensive Assessment Instrument (COMPASS), or an assessment tool 
approved by TJPC, shall be completed for all juveniles who receive a disposition 
from the juvenile court or juvenile probation department. If the COMPASS (or a 
comparable instrument approved by TJPC) has been completed within the previous 
six months and contained in the juvenile's case record, the department is not 
required to complete an additional assessment. 
(1) Time of Assessment. The assessment instrument shall be administered at the 
formal intake interview. 
(2) Administration of Instrument. The instrument shall be administered by a 
certified juvenile probation officer who conducts the formal intake interview. 
(b) A Strategies in Juvenile Supervision (SJS)&copy; worksheet shall be 
completed on all juveniles under court ordered supervision who are assigned to 
Progressive Sanctions levels two through five. The SJS worksheet shall be 
completed subsequent to the disposition of the juvenile's case but prior to the 
formulation of the written case plan. The juvenile probation supervising field 
officer should administer the SJS worksheet. Mandatory timelines for compliance 
with this standard are: 
(1) Beginning September 1, 1998, a SJS worksheet shall be completed on all 
juveniles assigned to Progressive Sanctions Level Four and Five; 
(2) Beginning September 1, 1999, a SJS worksheet shall be completed on all 
juveniles assigned to Progressive Sanctions Level Three;
(3) Beginning September 1, 2000, a SJS worksheet shall be completed on all 
juveniles court-ordered to Progressive Sanctions Level Two. 

sec.346.3.Case Planning and Review.
(a) Case Plan. A written case plan shall be developed and implemented for 
juveniles assigned to court-ordered Progressive Sanctions levels two through 
five. The written case plan shall be developed with all appropriate and 
available parties present and participating including, but not limited to, the 
juvenile; any parent, guardian, or custodian of the child; the supervising 
juvenile probation field officer; and the Community Resource Coordination Group 
Liaison. A written case plan for each juvenile assigned to court-ordered 
Progressive Sanctions level two shall be developed within 30 calendar days of 
the juvenile's disposition. Written case plans for juveniles assigned to 
Progressive Sanctions levels three through five shall be developed within 60 
calendar days of the disposition. The original case plan shall be maintained in 
the juvenile's case file. Copies of the written case plan shall be provided to 
the juvenile and the juvenile's parent, guardian, or custodian.
Mandatory timelines for compliance with this standard are: 
(1) Beginning September 1, 1998, a SJS worksheet and case plan shall be 
completed on all juveniles assigned to Progressive Sanctions Levels four and 
five; 
(2) Beginning September 1, 1999, a SJS worksheet and case plan shall be 
completed on all juveniles assigned to Progressive Sanctions Level three ; 
(3) Beginning September 1, 2000, a SJS worksheet and case plan shall be 
completed on all juveniles court-ordered to Progressive Sanctions Level two 
cases. 
(b) Case Review. Written case plans shall be reviewed every 90 days after 
implementation of the initial case plan or at any time when significant changes 
take place in the juvenile's situation. The juvenile and at least one parent, 
guardian or custodian shall be present for the case review. The written case 
plan shall be revised to address any changes in risks and needs identified 
during the review process. Upon acceptance a juvenile's case from other county 
for courtesy supervision, a review of the current written case plan shall be 
conducted by the receiving county in accordance with this section. All original 
revised case plans shall be maintained in the juvenile's case file. Copies of 
the revised written case plan shall be provided to the juvenile and the 
juvenile's parent, guardian, or custodian. This does not apply to Title IV-E 
cases, which shall comply with Title IV-E standards. The case review, with 
appropriate documentation in the case file, shall discuss and consider the 
following: 
(1) Appropriateness of the juvenile's current level of supervision and services; 
(2) Extent of compliance with the individualized case plan; 
(3) Extent of compliance with the conditions of probation;
(4) Extent of progress made with the juvenile and family toward solving or 
reducing the factors that necessitated the juvenile's placement on probation; 
(5) A projection of a likely date by which the juvenile may be ready for court-
ordered release from probation supervision; and 
(6) Services accessed, offered or provided to the juvenile and family to address 
risks and needs identified on the COMPASS or equivalent assessment tool. 

sec.346.4.Supervision.
The level of supervision provided to a juvenile by the probation department 
shall be defined by the results of the COMPASS (or other approved assessment 
tool), SJS, and the juvenile's written case plan. A minimum of one face to face 
contact per month with the juvenile is mandatory unless otherwise noted in the 
case plan. 

sec.346.5.Release Plan.
A release plan is to be provided following the successful completion of a 
juvenile's probation period. A written release plan shall be developed within 30 
days prior to the juvenile's scheduled release from probation. The written 
release plan shall be formulated by all involved and available parties. The 
original release plan shall be maintained in the juvenile's case file. Copies of 
the release plan shall be provided to the juvenile and the juvenile's parent, 
guardian, or custodian. The release plan shall include a copy of the 
notification of the juvenile of his/her sealing rights as required by the Texas 
Family Code, sec.58.003(i) 
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 April 13, 1998.
TRD-9805145
Lisa Capers
Deputy Executive Director and General Counsel
Texas Juvenile Probation Commission
Earliest possible date of adoption: May 24, 1998
For further information, please call: (512) 424-6681