ADOPTED RULES An agency may take final action on a section 30 days after a proposal has been published in the Texas Register. The section becomes effective 20 days after the agency files the correct document with the Texas Register, unless a later date is specified or unless a federal statute or regulation requires implementation of the action on shorter notice. If an agency adopts the section without any changes to the proposed text, only the preamble of the notice and statement of legal authority will be published. If an agency adopts the section with changes to the proposed text, the proposal will be republished with the changes. TITLE 4. AGRICULTURE PART I. Texas Department of Agriculture CHAPTER 1.General Procedures SUBCHAPTER G.Interagency Agreements 4 TAC sec.1.300 The Texas Department of Agriculture (the department) adopts the repeal of sec.1.300, concerning the department's memorandum of understanding with the Texas Department of Commerce, and new sec.1.300, concerning the memorandum of understanding among the department, the Texas Agricultural Finance Authority and the Texas Department of Economic Development, formerly the Texas Department of Commerce, without changes to the proposal published in the April 10, 1998, issue of the Texas Register (23 TexReg 3641). The Texas Government Code, sec.481.028, enacted by the 73rd Legislature, required that the Texas Department of Commerce and the Texas Department of Agriculture enter into a memorandum of understanding regarding each agency's international marketing efforts and business finance programs. The Texas Government Code, sec.481.028, further directed that the memorandum of understanding be adopted as a rule by the agencies. Changes made to the Texas Government Code, sec.481.028, during the 75th Legislature make it necessary to adopt a new memorandum of understanding between the Texas Department of Agriculture and the Texas Department of Economic Development. The new section is adopted to implement sec.481.028, as amended, and will serve to increase coordination and communication between the Texas Department of Agriculture and the Texas Department of Economic Development with regard to program planning and budgeting related to economic development. The repeal of sec.1.300 is adopted to allow for the adoption of a new memorandum of understanding in accordance with sec.481.028. No comments were received on the proposal. The repeal is adopted under the Texas Agriculture Code, sec.12.016, which provides the Texas Department of Agriculture with general rulemaking authority; and the Texas Government Code, sec.481.028(d), which directs that the memorandum of understanding between the Texas Department of Agriculture and the Texas Department of Economic Development be adopted as a rule by both agencies. Filed with the Office of the Secretary of State on May 21, 1998. TRD-9808342 Dolores Alvarado Hibbs Deputy General Counsel Texas Department of Agriculture Effective date: June 10, 1998 Proposal publication date: April 10, 1998 For further information, please call: (512) 463-7541 4 TAC sec.1.300 The new section is adopted under the Texas Agriculture Code, sec.12.016, which provides the Texas Department of Agriculture with general rulemaking authority; and the Texas Government Code, sec.481.028(d), which directs that the memorandum of understanding between the Texas Department of Agriculture and the Texas Department of Economic Development be adopted as a rule by both agencies. Filed with the Office of the Secretary of State on May 21, 1998. TRD-9808343 Dolores Alvarado Hibbs Deputy General Counsel Texas Department of Agriculture Effective date: June 10, 1998 Proposal publication date: April 10, 1998 For further information, please call: (512) 463-7541 CHAPTER 19.Quarantines SUBCHAPTER D.Caribbean Fruit Fly Quarantine 4 TAC sec.19.43 The Texas Department of Agriculture (the department) adopts an amendment to sec.19.43, concerning the Caribbean fruit fly quarantine, without changes to the proposed text as published in the April 3, 1998 issue of the Texas Register (23 TexReg 3392). The amendment will not be republished. The department amends its Caribbean fruit fly quarantine to exempt commercial fruit of avocado, bell pepper, lychee, and tomato from the provisions of the Caribbean fruit fly quarantine. The department has determined that when these fruit are commercially produced, cleaned, sorted, and packed, they do not present a risk of harboring Caribbean fruit fly. Further, the department anticipates that the amendment will result in an increase in the availability of avocado, bell pepper, lychee and tomato fruit. No comments were received regarding adoption of the proposal. The amendment is adopted under the Texas Agriculture Code, sec.71.007, which provides the Texas Department of Agriculture with the authority to adopt rules as necessary for the efficient enforcement and administration of Chapter 71, Subchapter A. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on May 21, 1998. TRD-9808344 Dolores Alvarado Hibbs Deputy General Counsel Texas Department of Agriculture Effective date: June 10, 1998 Proposal publication date: April 3, 1998 For further information, please call: (512) 463-7541 TITLE 16. ECONOMIC REGULATION PART VIII. Texas Racing Commission CHAPTER 309.Operation of Racetracks SUBCHAPTER B.Horse Racetracks Operations 16 TAC sec.309.199 The Texas Racing Commission adopts the repeal of sec.309.199, concerning horsemen's bookkeeper, without changes as published in the April 3, 1998, issue of the Texas Register (23 TexReg 3408). The Texas Racing Act was revised by sunset legislation effective September 1, 1997, and in that legislation, the Commission is required to adopt rules developing a system for monitoring the activities and employees of an association relating to the horsemen's account. Contemporaneously with this repeal, the Commission is adopting new sec.309.199 and sec.313.61 which relate to the purse account and the duties of the horsemen's bookkeeper. These rule changes implement the sunset legislation. No comments were received regarding this repeal. The repeal is adopted under the Texas Civil Statutes, Article 179e, sec.3.02, which authorize the Commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act; sec.3.22, which authorizes the Commission to adopt rules relating to the horsemen's account; and sec.6.06, which authorizes the Commission to adopt rules on all matters relating to the operation of racetracks. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on May 22, 1998. TRD-9808454 Roselyn Marcus General Counsel Texas Racing Commission Effective date: June 15,1998 Proposal publication date: April 3, 1998 For further information, please call: (512) 833-6699 Division 4. Operations 16 TAC sec.309.199 The Texas Racing Commission adopts new sec.309.199, concerning the purse account without changes to the proposed text published in the April 3, 1998, issue of the Texas Register (23 TexReg 3409). The Texas Racing Act was revised by sunset legislation effective September 1, 1997, and in that legislation, the Commission is required to adopt rules developing a system for monitoring the activities and employees of an association relating to the horsemen's account. Contemporaneously with this proposal, the Commission is proposing new sec.313.61 which relates to the duties of the horsemen's bookkeeper. These rule changes implement the sunset legislation. No comments were received regarding the adoption of the new rule. The new section is adopted under the Texas Civil Statutes, Article 179e, sec.3.02, which authorize the Commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act; sec.3.22, which authorizes the Commission to adopt rules relating to the horsemen's account; and sec.6.06, which authorizes the Commission to adopt rules on all matters relating to the operation of racetracks. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on May 22, 1998. TRD-9808455 Roselyn Marcus General Counsel Texas Racing Commission Effective date: June 15,1998 Proposal publication date: April 3, 1998 For further information, please call: (512) 833-6699 CHAPTER 313.Officials and Rules of Horse Racing SUBCHAPTER A.Officials Duties of Other Officials 16 TAC sec.313.61 The Texas Racing Commission adopts the repeal of sec.313.61, concerning the duties of the horsemen's bookkeeper without changes, as published in the April 3, 1998, issue of the Texas Register (23 TexReg 3410). The Texas Racing Act was revised by sunset legislation effective September 1, 1997, and in that legislation, the Commission is required to adopt rules developing a system for monitoring the activities and employees of an association relating to the horsemen's account. Contemporaneously with this proposal, the Commission is proposing new sec.sec.309.199 and 313.61 which relates to the purse account and the duties of the horsemen's bookkeeper. These rule changes implement the sunset legislation. No comments were received regarding this repeal. The repeal is adopted under the Texas Civil Statutes, Article 179e, sec.3.02, which authorize the Commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act; sec.3.22, which authorizes the Commission to adopt rules relating to the horsemen's account; and sec.6.06, which authorizes the Commission to adopt rules on all matters relating to the operation of racetracks. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on May 22, 1998. TRD-9808456 Roselyn Marcus General Counsel Texas Racing Commission Effective date: June 15,1998 Proposal publication date: April 3, 1998 For further information, please call: (512) 833-6699 Division 3. Duties of Other Officials 16 TAC sec.313.61 The Texas Racing Commission adopts new sec.313.61, concerning the duties of the horsemen's bookkeeper without changes from the proposed text published in the April 3, 1998, issue of the Texas Register (23 TexReg 3410). The Texas Racing Act was revised by sunset legislation effective September 1, 1997, and in that legislation, the Commission is required to adopt rules developing a system for monitoring the activities and employees of an association relating to the horsemen's account. Contemporaneously with this proposal, the Commission adopts new sec.309.199 which relates to the purse account. These rule changes implement the sunset legislation. No comments were received regarding the adoption of this new rule. The rule is adopted under the Texas Civil Statutes, Article 179e, sec.3.02, which authorize the Commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act; sec.3.22, which authorizes the Commission to adopt rules relating to the horsemen's account; and sec.6.06, which authorizes the Commission to adopt rules on all matters relating to the operation of racetracks. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on May 22, 1998. TRD-9808457 Roselyn Marcus General Counsel Texas Racing Commission Effective date: June 15,1998 Proposal publication date: April 3, 1998 For further information, please call: (512) 833-6699 CHAPTER 321.Pari-mutuel Wagering SUBCHAPTER B.Distribution of Pari-mutuel Pools 16 TAC sec.321.118 The Texas Racing Commission adopts new sec.321.118, concerning special wagers without changes to the proposed text published in the April 3, 1998, issue of the Texas Register (23 TexReg 3411). The new section establishes a procedure for the Commission to approve special wagers designed to promote special racing events. No comments were received regarding the adoption of the new rule. The new section is adopted under the Texas Civil Statutes, Article 179e, sec.3.02, which authorize the Commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act; and sec.11.01, which authorizes the Commission to adopt rules regulating pari-mutuel wagering. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on May 22, 1998. TRD-9808458 Roselyn Marcus General Counsel Texas Racing Commission Effective date: June 15,1998 Proposal publication date: April 3, 1998 For further information, please call: (512) 833-6699 TITLE 19. EDUCATION PART II. Texas Education Agency CHAPTER 53.Regional Education Service Centers The Texas Education Agency (TEA) adopts the repeal of sec.53.1 and new sec.53.1001, concerning regional education service center (RESC) board of directors, without changes to the proposed text published in the March 27, 1998, issue of the Texas Register (23 TexReg 3150). Senate Bill 1158, 75th Texas Legislature, 1997, transferred authority to adopt rules regarding RESC board of directors from the State Board of Education to the commissioner of education. The new section provides a procedure for appointment to fill unexpired terms on RESC board of directors and a procedure for the election of members of RESC board of directors. The new section contains the same language that exists under 19 Texas Administrative Code (TAC) sec.53.1, Board of Directors. The effective date of the adopted repeal will coordinate with the effective date of the new section concerning RESC board of directors so that there will be no overlap of rules. 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 also conducted a review of 19 TAC sec.53.1, Board of Directors, in accordance with Rider 167. The TEA did not find sufficient reason for the rule to continue to exist and adopts the repeal of the rule as indicated. No comments were received regarding adoption of the repeal and the new section. 19 TAC sec.53.1 The repeal is adopted under Texas Education Code, sec.8.003, as amended by Senate Bill 1158, 75th Texas Legislature, 1997, which authorizes the commissioner of education to adopt rules relating to board of directors, 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. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on May 22, 1998. TRD-9808430 Criss Cloudt Associate Commissioner, Policy Planning and Research Texas Education Agency Effective date: September 1, 1998 Proposal publication date: March 27, 1998 For further information, please call: (512) 463-9701 SUBCHAPTER AA.Commissioner's Rules 19 TAC sec.53.1001 The new section is adopted under Texas Education Code, sec.8.003, as amended by Senate Bill 1158, 75th Texas Legislature, 1997, which authorizes the commissioner of education to adopt rules relating to board of directors. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on May 22, 1998. TRD-9808431 Criss Cloudt Associate Commissioner, Policy Planning and Research Texas Education Agency Effective date: September 1, 1998 Proposal publication date: March 27, 1998 For further information, please call: (512) 463-9701 CHAPTER 62.Commissioner's Rules Concerning the Equalized Wealth Level 19 TAC sec.62.1071 The Texas Education Agency (TEA) adopts new sec.62.1071, concerning administration of wealth equalization, without changes to the proposed text as published in the March 27, 1998, issue of the Texas Register (23 TexReg 3154). The new section specifies provisions related to identification of school districts; actions and costs to equalize wealth; administrative requirements; noncompliance; excellence exemption; and property value decline, which are necessary for the implementation of Texas Education Code (TEC), Chapter 41, Equalized Wealth Level. The new section also relates to the administration of the five options for reducing property wealth per student that are available to districts subject to the provisions of TEC, Chapter 41. No comments were received regarding adoption of the new section. The new section is adopted under the Texas Education Code, sec.41.006, which authorizes the commissioner of education to adopt rules relating to equalized wealth level. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on May 22, 1998. TRD-9808432 Criss Cloudt Associate Commissioner, Policy Planning and Research Texas Education Agency Effective date: June 11, 1998 Proposal publication date: March 27, 1998 For further information, please call: (512) 463-9701 CHAPTER 75.Curriculum The Texas Education Agency (TEA) adopts the repeal of sec.sec.75.21-75.32, 75.41-75.52, 75.61-75.70, 75.82- 75.89, and 75.121-75.123, concerning essential elements for prekindergarten-Grade 12, without changes to the proposed text published in the March 27, 1998 issue of the Texas Register (23 TexReg 3164). The Texas Education Code (TEC), sec.28.001 and sec.28.002, directed the State Board of Education (SBOE) to develop essential knowledge and skills for students and to establish a required curriculum. To meet this statutory requirement, the SBOE adopted 19 Texas Administrative Code (TAC) Chapters 110-128, which comprise the enrichment and foundation curriculum. The Texas essential knowledge and skills (TEKS) in 19 TAC Chapters 110- 128 replace applicable rules in 19 TAC Chapter 75, Subchapter B, Essential Elements - Prekindergarten-Grade 6; Subchapter C, Essential Elements - Grades 7-8; and Subchapter D, Essential Elements - Grades 9-12. The effective date of the adopted repeal will coordinate with the effective date of the adopted essential knowledge and skills, which is September 1, 1998. 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 also conducted a review of 19 TAC Chapter 75, Curriculum, Subchapters B-D, in accordance with Rider 167. The TEA did not find sufficient reason for the rules to continue to exist and adopts the repeal of the rules as indicated. No comments were received regarding the adoption of the repeals. SUBCHAPTER B.Essential Elements-Prekindergarten-Grade 6 19 TAC sec.sec.75.21-75.32 The repeals are adopted under Texas Education Code, sec.28.001 and sec.28.002, which authorizes the State Board of Education to adopt rules identifying the essential knowledge and skills of each subject of the foundation and enrichment curriculum, 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. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on May 22, 1998. TRD-9808433 Criss Cloudt Associate Commissioner, Policy Planning and Research Texas Education Agency Effective date: September 1, 1998 Proposal publication date: March 27, 1998 For further information, please call: (512) 463-9701 SUBCHAPTER C.Essential Elements -- Grades 7-8 19 TAC sec.sec.75.41-75.52 The repeals are adopted under Texas Education Code, sec.28.001 and sec.28.002, which authorizes the State Board of Education to adopt rules identifying the essential knowledge and skills of each subject of the foundation and enrichment curriculum, 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. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on May 22, 1998. TRD-9808435 Criss Cloudt Associate Commissioner, Policy Planning and Research Texas Education Agency Effective date: September 1, 1998 Proposal publication date: March 27, 1998 For further information, please call: (512) 463-9701 SUBCHAPTER D.Essential Elements -- Grades 9-12 Essential Elements for English Language Arts; Other Languages; Mathematics; Science; Health; Physical Education; Fine Arts; Social Studies; Texas and United States History; Economics with Emphasis on the Free Enterprise System and its Benefits; and Business Education 19 TAC sec.sec.75.61-75.70 The repeals are adopted under Texas Education Code, sec.28.001 and sec.28.002, which authorizes the State Board of Education to adopt rules identifying the essential knowledge and skills of each subject of the foundation and enrichment curriculum, 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. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on May 22, 1998. TRD-9808436 Criss Cloudt Associate Commissioner, Policy Planning and Research Texas Education Agency Effective date: September 1, 1998 Proposal publication date: March 27, 1998 For further information, please call: (512) 463-9701 Vocational Education 19 TAC sec.sec.75.82-75.89 The repeals are adopted under Texas Education Code, sec.28.001 and sec.28.002, which authorizes the State Board of Education to adopt rules identifying the essential knowledge and skills of each subject of the foundation and enrichment curriculum, 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. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on May 22, 1998. TRD-9808437 Criss Cloudt Associate Commissioner, Policy Planning and Research Texas Education Agency Effective date: September 1, 1998 Proposal publication date: March 27, 1998 For further information, please call: (512) 463-9701 Other Courses 19 TAC sec.sec.75.121-75.123 The repeals are adopted under Texas Education Code, sec.28.001 and sec.28.002, which authorizes the State Board of Education to adopt rules identifying the essential knowledge and skills of each subject of the foundation and enrichment curriculum, 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. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on May 22, 1998. TRD-9808438 Criss Cloudt Associate Commissioner, Policy Planning and Research Texas Education Agency Effective date: September 1, 1998 Proposal publication date: March 27, 1998 For further information, please call: (512) 463-9701 CHAPTER 114.Texas Essential Knowledge and Skills for Languages Other Than English SUBCHAPTER C.High School 19 TAC sec.sec.114.27-114.29 The Texas Education Agency (TEA) adopts new sec.sec.114.27-114.29, concerning Texas essential knowledge and skills (TEKS) for American Sign Language (ASL), without changes to the proposed text published in the March 27, 1998, issue of the type-name="italic">Texas Register (23 TexReg 3166). ASL is defined as a language other than English under Texas Education Code, sec.28.002(e). The new sections will be added to new 19 TAC Chapter 114, Texas Essential Knowledge and Skills for Languages Other Than English, which was adopted in July 1997. Originally, it was the intent to use the TEKS for languages other than English for all other languages, including ASL. As adopted, however, the TEKS are appropriate for all spoken and written languages other than English but not for ASL, which does not have a "written" or "spoken" component. The following public comments have been received regarding adoption of the new sections. Comment. Four ASL teachers commented that the TEKS for ASL are comprehensive and complete. Comment. One ASL teacher commented that the TEKS for ASL were not content specific. Agency Response. The agency disagrees with this comment. The TEKS for ASL are consistent with the TEKS for languages other than English. Comment. A community college instructor stated that the TEKS for ASL are fine but that learning ASL for academic or personal growth is different from learning it for vocational pursuits. Agency Response. Students who take ASL as a foreign language in high school will be taking it to satisfy academic requirements. The new sections are adopted under the Texas Education Code, sec.28.001 and sec.28.002, which direct the State Board of Education to adopt rules identifying essential knowledge and skills of each subject of the enrichment curriculum. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on May 22, 1998. TRD-9808439 Criss Cloudt Associate Commissioner, Policy Planning and Research Texas Education Agency Effective date: September 1, 1998 Proposal publication date: March 27, 1998 For further information, please call: (512) 463-9701 CHAPTER 150.Commissioner's Rules Concerning Educator Appraisal SUBCHAPTER BB.Administrator Appraisal 19 TAC sec.150.1021, sec.150.1022 The Texas Education Agency (TEA) adopts amendments to sec.150.1021 and sec.150.1022, concerning administrator appraisal, without changes to the proposed text published in the March 27, 1998, issue of the Texas Register (23 TexReg 3169). The amendments are necessary to implement a student performance domain for the appraisal of principals and superintendents and to establish requirements for districts to choose to adopt the commissioner-recommended student performance domain. The current sections were originally adopted as commissioner's rules in May 1997 and apply to the appraisal of all administrators. The adopted sections are primarily related to the appraisal of principals and superintendents. The adopted sections reflect current statutory requirements that student performance be a part of the appraisal of principals and superintendents by requiring a student performance domain for those two classes of administrator. The adopted amendments also establish requirements for districts that choose to include the commissioner- recommended student performance domain as a part of their locally developed appraisal instruments for principals. The commissioner- recommended domain for superintendents is scheduled to be completed next fall and the related amendments will be proposed thereafter. The commissioner- recommended domain will fulfill statutory requirements while preserving local options in administrator evaluation. The adopted amendments also delete the requirement for a professional growth plan for all administrators. This deletion has been made because a required intervention plan is being added for principals in need of assistance and because it is anticipated that a professional growth plan will be included in the State Board of Educator Certification rule on assessment. Finally, the proposed amendments include minor technical corrections to align with other rules. No comments were received regarding adoption of the amendments. The amendments are adopted under the Texas Education Code, sec.21.354 and sec.39.054, which authorize the commissioner of education to adopt a recommended appraisal process on which to appraise the performance of various classification of school administrators. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on May 22, 1998. TRD-9808440 Criss Cloudt Associate Commissioner, Policy Planning and Research Texas Education Agency Effective date: June 11, 1998 Proposal publication date: March 27, 1998 For further information, please call: (512) 463-9701 TITLE 22. EXAMINING BOARDS PART X. Texas Funeral Service Commission CHAPTER 203. Licensing and Enforcement - Specific Substantive Rules 22 TAC sec.203.30 The Texas Funeral Service Commission adopts the repeal of sec.203.30 and new sec.203.30, concerning continuing education as a condition for license renewal, without changes to the proposed text as published in the March 27, 1998, issue of the Texas Register (23 TexReg 3173). The section is being repealed and replaced to clarify and update the continuing education requirements of licensees. No comments were received regarding adoption of the repeal and new section. The repeal is adopted under Texas Civil Statutes, Article 4582b, sec.5, which authorizes the Texas Funeral Service Commission to adopt rules to administer the statute. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on May 22, 1998. TRD-9808426 Eliza May, M.S.S.W. Executive Director Texas Funeral Service Commission Effective date: June 11, 1998 Proposal publication date: March 27, 1998 For further information, please call: (512) 479-7222 The new section is adopted under Texas Civil Statutes, Article 4582b, sec.5, which authorizes the Texas Funeral Service Commission to adopt rules to administer the statute. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on May 22, 1998. TRD-9808427 Eliza May, M.S.S.W. Executive Director Texas Funeral Service Commission Effective date: June 11, 1998 Proposal publication date: March 27, 1998 For further information, please call: (512) 479-7222 PART XXII. Texas State Board of Public Accountancy CHAPTER 527. Quality Review 22 TAC sec.527.3 The Texas State Board of Public Accountancy adopts an amendment to sec.527.3, concerning Quality Review, without changes to the proposed text as published in the February 6, 1998, issue of the Texas Register (23 TexReg 892). The amendment allows for a clearer understanding that preparing Special Reports will make a CPA subject to quality review. The amendment will function by codifying the Board's interpretation of this rule by adding Special Reports to the definitions. No comments were received concerning adoption of the rule. The rule is adopted under Texas Civil Statutes, Article 41a-1, sec.6 which provides the Texas State Board of Public Accountancy with the authority to make such rules as may be necessary or advisable to effectuate the purposes of the law and sec.15B which authorizes the board to enact rules for the Quality Review Program. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on May 20, 1998. TRD-9808301 William Treacy Executive Director Texas State Board of Public Accountancy Effective date: June 9, 1998 Proposal publication date: February 6, 1998 For further information, please call: (512) 305-7848 PART XXV. Structural Pest Control Board CHAPTER 595. Compliance and Enforcement 22 TAC sec.595.17 The Structural Pest Control Board adopts new sec.595.17, concerning Compliance and Enforcement, with changes to the proposed text as published in the March 6, 1998, issue of the Texas Register (23 TexReg 2228). Justification for the rule is that the rule will allow more timely response to incidents requiring pest control in the school districts, as more personnel will be available to deal with pest problems requiring immediate response. The rule will function in that the rule will allow school employees to make incidental applications of green list products and some yellow list products with training by the IPM Coordinator and in compliance with the IPM Regulations. Commenters from numerous school districts appeared in support of the rule as proposed. Reggie James, Consumers Union stated that the rule would increase exposure to students in the schools. Susan Pitman, Chemical Connection, stated that if good IPM is followed, incidental use should not be necessary. Names of groups and associations making comments for and against the rule are For-Texas Association of School Boards Against-Consumers Union, Chemical Connection Reasons why the agency disagrees or agrees with the comments. The Structural Pest Control Board disagreed with the comments that the new rule will increase exposure as the IPM Regulations, including all applicable re-entry periods will still have to be followed. The school districts raised the issue that they must have a means to deal with emergency situations without waiting for a licensed person to arrive. The Board proposed the rule because it was in agreement on that issue. The rule requires training of all persons who intend to use the licensing exemption and includes recordkeeping and coordination with the school IPM Program. It also limits pesticide use to green list products in most cases. The rule is designed to complement rather than override good IPM practices. The Board addressed the concern that the rule might be misused by agreeing to review it one (1) year from its effective date. The new rule is adopted under Article 135b-6, which provides the Structural Pest Control Board with the authority to license and regulate structural pest control services in public school districts. sec.595.17. Incidental Use For Schools. (a) The Structural Pest Control Board Incidental Use Situation For Schools Fact Sheet must contain the following text: "This fact sheet must be distributed to all employees of school districts who apply general use Green List pesticides or Yellow List pesticides specific to bee and wasp applications and are not licensed by the Texas Department of Agriculture and do not have a Structural Pest Control Board Noncommercial Applicator's or Technician License. The fact sheet, instruction and training shall be provided upon initial employment by the school district's IPM Coordinator, and thereafter shall be available as needed. These general use Green List pesticides include insecticides and rodenticides only and involve applications made both inside and outside of structures. Incidental Use is not intended for long term or extensive pest control measures. Where long term pest control is required, a trained, licensed person is to make the applications. Incidental Use for Schools is defined as "A pesticide application of a green list product or a Yellow List product specific to bee or wasp applications on an occasional, isolated, site-specific basis that is incidental to the primary duties of an employee and involves the use of general use pesticides after instruction and training as provided by rules adopted by the Structural Pest Control Board". Examples of Incidental Use situations are treating fire ants in a transformer box or treatments for bees or wasps as a non-routine application to protect children or personnel. Incidental is defined as site-specific and incidental to the employee's primary duties. If it is a part of the employee's primary duty to make applications of pesticides, that employee is required, by law, to obtain either a Structural Pest Control Board license or Texas Department of Agriculture license, depending on the location and/or type of application. In all cases of incidental use, the employee should use the least hazardous, effective method of controlling pests. All applications to schools or school grounds must be in compliance with school district IPM policies. If chemicals are to be utilized, they must be applied in strict accordance with manufacturer labels of "General Use" products on the Green or Yellow List being used. Applications made inconsistent with the Structural Pest Control Board Law and Regulations, or applications made inconsistent with the label requirements of the general use product may result in penalties being assessed against the individual and/or the Certified Noncommercial Applicator or Technician responsible. "Incidental Use Situation" applications of pesticides are regulated by the Structural Pest Control Board. If you have any questions or comments, contact the Board at (512) 451-7200; written inquiries may be addressed to the Structural Pest Control Board, 1106 Clayton Lane, Suite 100LW, Austin, Texas 78723. Copies are available from the Structural Pest Control Board. (b) The incidental use fact sheet shall be provided during pesticide instruction and training by the IPM Coordinator to each employee of the school district whose primary duty is not pest control, and whose work may include tasks subject to the incidental use exception. The IPM Coordinator must keep records of the training which is conducted. (c) Primary duty is defined as a job duty that is part of a written job description or is a regularly assigned task of the employee. (d) Pest control use records must be kept for all incidental use applications. (e) Incidental use in school districts is limited to insecticides and rodenticides on the green or Yellow list. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on May 12, 1998. TRD-9807705 Benny M. Mathis, Jr. Executive Director Structural Pest Control Board Effective date: September 1, 1998 Proposal publication date: March 6, 1998 For further information, please call: (512) 451-7200 TITLE 25. HEALTH SERVICES PART I. Texas Department of Health CHAPTER 289. Radiation Control The Texas Department of Health (department), by majority vote of the Texas Board of Health (board) on May 15, 1998, enters this order finally adopting the repeal of existing sec.289.114 and new sec.289.203, concerning requirements for notices, instructions, reports to workers, and inspection protocol, with changes to the proposed text as published in the February 20, 1998, issue of the Texas Register (23 TexReg 1505), as a result of comments received during the 30-day comment period. The repeal of sec.289.114 is adopted without changes and therefore will not be republished. The section adopted for repeal adopts by reference Part 22, titled "Notices, Instructions and Reports to Workers; Inspections" of the Texas Regulations for Control of Radiation. The new section incorporates language from Part 22 that has been rewritten in Texas Register format and includes addition and revision of several subsections of the section. The repeal and new section are part of the renumbering phase in the process of rewriting the department's radiation rules in the Texas Register format. The new section reflects the renumbering. The revision is part of the department's ongoing review of the radiation rules to update them in accordance with current practices and technologies. The new section requires licensees and registrants to provide radiation workers with appropriate notices, instructions, and options available to such individuals regarding department inspections. The requirements for notifying workers of exposure records are being changed to an annual interval to make them consistent with the existing requirements concerning annual exposure limits. References to other sections of this chapter are clarified to reflect the Texas Register format. Other minor grammatical changes are made to the section for clarification. The department is making the following changes due to staff comments to clarify the intent and improve the accuracy of the section. Change: Concerning sec.289.203(d)(1)(D), the department added the words "25 Texas Administrative Code" to more accurately reference the section. Change: Concerning sec.289.203(h)(1), the department deleted the words "Administrative Procedures and Texas Register Act" to be consistent with references to the Government Code in other sections of this chapter. Change: Concerning sec.289.203(i), BRC Form 203-1, the department deleted repetitive references to other rules to avoid repetition when it was not necessary. A reference to 25 TAC sec.289.202 was added to clarify that provision of reports is only applicable when personnel monitoring is required. The text was further changed to clarify that written annual reports are only required to be provided at the written request of the employees. The following comment was received concerning the proposed section. Following the comment is the department's response and the resulting change. Other minor editorial changes were made for clarification purposes. Comment: Concerning sec.289.203, a commenter noted that, contrary to the statement in the preamble that "there will be no anticipated economic costs to persons who are required to comply with the sections as proposed," there in fact will be significant increased personnel and record keeping costs if this section is implemented as proposed. The reason is that on BRC Form 203-1 under "Reports on Your Radiation Exposure History," item 2.(b), the words, "Upon written request" have been eliminated and the words "advise you annually" have been changed to "furnish to you annually a written report". This now requires providing each person who requires monitoring with an individual exposure report even if no regulatory limits are exceeded and/or the individual has not requested such a report. At the commenter's institution, this would mean an increase from 1-2 reports per year to over 800 reports per year. In reviewing sec.289.203, the commenter could find nothing that requires this change in the form. The commenter recommended that the original wording and intent of the form be retained. Response: The department agreed with the commenter and changed BRC Form 203-1 to clarify that written annual reports are only required to be provided at the written request of the employees. The department received one comment from M.D. Anderson Cancer Center. The commenter was generally in favor of the proposal; however, he presented comments and suggestions for changes to the proposal as previously discussed. SUBCHAPTER D. General 25 TAC sec.289.114 The repeal is adopted under the Health and Safety Code, Chapter 401, which provides the board with authority to adopt rules and guidelines relating to the control of radiation; and sec.12.001, which authorizes the board rules for the performance of every duty imposed by law on the board, the department, and the commissioner of health. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on May 18, 1998. TRD-9808091 Susan K. Steeg General Counsel Texas Department of Health Effective date: June 7, 1998 Proposal publication date: February 20, 1998 For further information, please call: (512) 458-7236 25 TAC sec.289.203 The new section is adopted under the Health and Safety Code, Chapter 401, which provides the board with authority to adopt rules and guidelines relating to the control of radiation; and sec.12.001, which authorizes the board rules for the performance of every duty imposed by law on the board, the department, and the commissioner of health. sec.289.203. Notices, Instructions, and Reports to Workers; Inspections. (a) Scope and purpose. This section establishes requirements for notices, instructions, and reports by licensees or registrants to individuals engaged in activities under a license or certificate of registration, and options available to such individuals in connection with agency inspections of licensees or registrants to ascertain compliance with the provisions of the Texas Radiation Control Act (Act) and rules, orders, licenses, and certificates of registration issued thereunder regarding radiological working conditions. The requirements in this section apply to all persons who receive, possess, use, or transfer sources of radiation licensed by or registered with the agency in accordance with this chapter. (b) Posting of notices to workers. (1) Each licensee or registrant shall post current copies of the following documents: (A) the requirements in this section and in section sec.289.202 of this title (relating to Standards for Protection Against Radiation); (B) the license, certificate of registration, conditions or documents incorporated into the license or certificate of registration by reference, and amendments thereto; (C) the operating procedures applicable to work under the license or certificate of registration; and (D) any notice of violation involving radiological working conditions, or order issued in accordance with section sec.289.112 of this title (relating to Hearing and Enforcement Procedures) and sec.289.201 of this title (relating to General Provisions). (2) If posting of a document specified in paragraph (1) of this subsection is not practicable, the licensee or registrant shall post a notice that describes the document and states where it may be examined. (3) Bureau of Radiation Control (BRC) Form 203-1, "Notice to Employees," as contained in subsection (i) of this section, or an equivalent document containing at least the same wording as BRC Form 203-1, shall be posted by each licensee or registrant as required by this section. (4) Documents, notices, or forms posted in accordance with this subsection shall: (A) appear in a sufficient number of places to permit individuals engaged in work under the license or certificate of registration to observe them on the way to or from any particular work location to which the document applies; (B) shall be conspicuous; and (C) shall be replaced if defaced or altered. (c) Instructions to workers. (1) All individuals likely to receive in a year an occupational dose in excess of 100 millirem (1 millisievert) shall be: (A) kept informed of the storage, transfer, or use of sources of radiation in the licensee's or registrant's workplace; (B) instructed in the health protection problems associated with exposure to sources of radiation, in precautions or procedures to minimize exposure, and in the purposes and functions of protective devices employed; (C) instructed in, and instructed to observe, to the extent within the worker's control, the applicable provisions of agency requirements, licenses, and certificates of registration, for the protection of personnel from exposures to sources or radiation occurring in such areas; (D) instructed of their responsibility to report promptly to the licensee or registrant any condition that may constitute, lead to, or cause a violation of agency requirements, license conditions, or certificate of registration conditions, or unnecessary exposure to sources of radiation; (E) instructed in the appropriate response to warnings made in the event of any unusual occurrence or malfunction that may involve exposure to sources of radiation; and (F) advised as to the radiation exposure reports that workers may request in accordance with subsection (d) of this section. (2) The extent of these instructions shall be commensurate with potential radiological health protection problems associated with the source(s) of radiation in the workplace. (d) Notifications and reports to individuals. (1) Radiation exposure data for an individual and the results of any measurements, analyses, and calculations of radioactive material deposited or retained in the body of an individual shall be reported to the individual as specified in this section. The information reported shall include data and results obtained in accordance with agency requirements, orders, license or certificate of registration conditions, as shown in records maintained by the licensee or registrant in accordance with sec.289.202 of this title. Each notification and report shall: (A) be in writing; (B) include appropriate identifying data such as the name of the licensee or registrant, the name of the individual, and the individual's identification number; (C) include the individual's exposure information; and (D) contain the following statement: "This report is furnished to you under the provisions of the Texas Regulations for Control of Radiation, 25 Texas Administrative Code sec.289.203. You should preserve this report for further reference." (2) Each licensee or registrant shall advise each worker annually of the worker's dose as shown in records maintained by the licensee or registrant in accordance with sec.289.202(yy) of this title. (3) At the request of a worker formerly engaged in activities controlled by the licensee or registrant, each licensee or registrant shall furnish a written report of the worker's exposure to sources of radiation. The report shall include the dose record for each year the worker was required to be monitored in accordance with sec.289.202(f) of this title. Such report shall be furnished within 30 days from the date of the request, or within 30 days after the dose of the individual has been determined by the licensee or registrant, whichever is later. The report shall cover the period of time that the worker's activities involved exposure to sources of radiation and the dates and locations of work under the license or certificate of registration in which the worker participated during this period. (4) When a licensee or registrant is required in accordance with sec.289.202(xx), (yy), and (zz) of this title to report to the agency any exposure of an individual to sources of radiation, the licensee or the registrant shall also provide the individual a written report of that individual's exposure data included therein. Such reports shall be transmitted at a time not later than the transmittal to the agency. (5) At the request of a worker who is terminating employment with the licensee or registrant in work involving exposure to sources of radiation during the current year, each licensee or registrant shall provide at termination to each such worker, or to the worker's designee, a written report regarding the radiation dose received by that worker from operations of the licensee or registrant during the current year or fraction thereof. If the most recent individual monitoring results are not available at that time, a written estimate of the dose shall be provided together with a clear indication that this is an estimate. (e) Presence of representatives of licensees or registrants and workers during inspection. (1) Each licensee or registrant shall afford to the agency at all reasonable times opportunity to inspect materials, machines, activities, facilities, premises, and records in accordance with this chapter. (2) During an inspection, agency inspectors may consult privately with workers as specified in subsection (f) of this section. The licensee or registrant may accompany agency inspectors during other phases of an inspection. (3) If, at the time of inspection, an individual has been authorized by the workers to represent them during agency inspections, the licensee or registrant shall notify the inspectors of such authorization and shall give the workers' representative an opportunity to accompany the inspectors during the inspection of physical working conditions. (4) Each workers' representative shall be routinely engaged in work under control of the licensee or registrant and shall have received instructions as specified in subsection (c) of this section. (5) Different representatives of licensees or registrants and workers may accompany the inspectors during different phases of an inspection if there is no resulting interference with the conduct of the inspection. However, only one workers' representative at a time may accompany the inspectors. (6) With the approval of the licensee or registrant and the workers' representative, an individual who is not routinely engaged in work under control of the licensee or registrant, for example, a consultant to the licensee or registrant or to the workers' representative, shall be afforded the opportunity to accompany agency inspectors during the inspection of physical working conditions. (7) Notwithstanding the other provisions of this section, agency inspectors are authorized to refuse to permit accompaniment by any individual who deliberately interferes with a fair and orderly inspection. With regard to any area containing proprietary information, the workers' representative for that area shall be an individual previously authorized by the licensee or registrant to enter that area. (f) Consultation with workers during inspections. (1) Agency inspectors may consult privately with workers concerning matters of occupational radiation protection and other matters related to applicable provisions of agency regulations and licenses to the extent the inspectors deem necessary for the conduct of an effective and thorough inspection. (2) During the course of an inspection any worker may bring privately to the attention of the inspectors, either orally or in writing, any past or present condition which that individual has reason to believe may have contributed to or caused any violation of the Act, the requirements in this chapter, license or certificate of registration conditions, or any unnecessary exposure of an individual to radiation from any source of radiation under the licensee's or registrant's control. Any such notice in writing shall comply with the requirements of subsection (g)(1) of this section. (3) The provisions of paragraph (2) of this subsection shall not be interpreted as authorization to disregard instructions in accordance with subsection (c) of this section. (g) Requests by workers for inspections. (1) Any worker or representative of workers who believes that a violation of the Act, the requirements of this chapter, or license or certificate of registration conditions exists or has occurred in work under a license or certificate of registration with regard to radiological working conditions in which the worker is engaged, may request an inspection by giving notice of the alleged violation to the agency. Any such notice shall be in writing, shall set forth the specific grounds for the notice, and shall be signed by the worker or representative of the workers. A copy shall be provided to the licensee or registrant by the agency no later than at the time of inspection except that, upon the request of the worker giving such notice, the worker's name and the name(s) of individual(s) referred to therein shall not appear in such copy or on any record published, released, or made available by the agency, except for good cause shown. (2) If, upon receipt of such notice, the agency determines that the request meets the requirements set forth in paragraph (1) of this subsection, and that there are reasonable grounds to believe that the alleged violation exists or has occurred, an inspection shall be made as soon as practicable to determine if such alleged violation exists or has occurred. Inspections in accordance with this section need not be limited to matters referred in the request. (3) No licensee or registrant, contractor or subcontractor of a licensee or registrant shall discharge or in any manner discriminate against any worker because of the following: (A) such worker has filed any request or instituted or caused to be instituted any proceeding under this chapter; (B) such worker has testified or is about to testify in any such proceeding; or (C) because of the exercise by such worker on behalf of that individual or others of any option afforded by this section. (h) Inspections not warranted. (1) If the agency determines, with respect to a request under subsection (g) of this section, that an inspection is not warranted because there are no reasonable grounds to believe that a violation exists or has occurred, the agency shall notify the requestor in writing of such determination. The requestor may obtain review of such determination in accordance with the provisions of the Act and the Government Code, Chapters 2001 and 2002. (2) If the agency determines that an inspection is not warranted because the requirements of subsection (g)(1) of this section have not been met, the agency shall notify the requestor in writing of such determination. Such determination shall be without prejudice to the filing of a new request meeting the requirements of subsection (g)(1) of this section. (i) Notice to employees. The following form, or an equivalent as stated in subsection (b)(3) of this section, shall be posted. Figure: 25 TAC sec.289.203(i) This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on May 18, 1998. TRD-9808090 Susan K. Steeg General Counsel Texas Department of Health Effective date: June 7, 1998 Proposal publication date: February 20, 1998 For further information, please call: (512) 458-7236 25 TAC sec.289.204 The Texas Department of Health (department), by majority vote of the Texas Board of Health (board) on May 15, 1998, enters this order finally adopting an amendment to sec.289.204, concerning fees for certificates of registration, radioactive material(s) licenses, emergency planning and implementation, and other regulatory services, without changes to the proposed text as published in the February 27, 1998, issue of the Texas Register (23 TexReg 1891), and therefore the section will not be republished. The amendment to sec.289.204 adds a definition to clarify a license category, assesses additional fees for licenses that contain authorizations for more than one license category, deletes the provision for proration of fees, restructures the method by which fees for certificates of registration are assessed, and separates the fees for evaluation of sealed sources and devices into fees for initial evaluations and amendments requiring re-evaluation. The amendment also increases the majority of license fees by 50% to correct an imbalance in the percentage of costs recovered from certificate of registration fees versus license fees when compared to the percentage of program costs charged against certification of registration activities versus license activities. This amendment is part of the department's ongoing evaluation of program fees to comply with the provisions of Health and Safety Code sec.401.301. The department made no changes to the text of the proposed rule. The following comments were received concerning the proposed section. Following each comment is the department's response. Comment: Concerning sec.289.204, one commenter suggested that the increased fees were apparently initiated to further shift the funding of the Bureau of Radiation Control to those entities possessing sources of radiation. The commenter noted that this may not adversely affect entities that can easily pass on costs of these fees to the ultimate consumers of the benefits of radiation. However, for medical programs, these increases will have to come from cuts from some other internal funds and will not be recovered. The commenter recommended that the proposed increases not be instituted for medical and/or state-funded institutions. Response: The department acknowledged the commenter's statements. The department is directed to recover as close to 100% of its regulatory costs, including indirect costs, as possible. The issue of exempting certain entities, such as state-funded institutions, has been raised in previous fee revisions. With the recommendation of the Texas Radiation Advisory Board, the department does not exempt specific license or registration categories from the fee requirements because there are regulatory costs associated with all licenses and registrations. Recovering those costs results in a more accurate accounting of cost recovery versus expenditures. No change was made as a result of the comment. Comment: Concerning sec.289.204, a commenter noted an understanding that fees are changing to more accurately reflect costs to regulate registrants and radioactive material licensees and there is also a shift required to fairly spread the costs based upon that portion of resources allocated to each area of cost. The shift is an overall increase to radioactive materials licensees due to costs being supposedly higher to administer this area of oversight. The commenter stated that these increased costs are a result of excessive oversight and needlessly long processes in obtaining radioactive materials licenses (both new and renewals) and amendments. The consistently small group of reviewers have been very inconsistent and arbitrary in what is required to obtain medical radioactive materials licenses and/or amendments, resulting in increased correspondence. The commenter noted that constant requests which exceed what the rules require for public safety and continual requests exceeding what is suggested in approved licensing guides has been a source of frustration for years and does nothing but generate more and more cost. The commenter stated that policy is often dictated on a whim with no regard to the rules and advantage is taken to require whatever is wanted or to deny a license request if the personal requests of a particular reviewer are not adhered to. As a consultant, the commenter has reviewed and written numerous procedures and provided facilities with these for submission to the department. The commenter stated that procedures requested by one reviewer may not be accepted by another, and vice versa and what is requested above and beyond the rules for one licensee may or may not change for another. The commenter noted that the average 50% increases in fees to medical licensees are hard to accept when the increases can most likely be related to fundamental gaps in consistency as described by the commenter. The commenter expressed a hope that through the annual evaluation of fees, the area of medical licensing will be reviewed prior to further fee increases or shifting of costs and that appropriate changes will be made. The changes should result in lowered license fees next year. Response. The department acknowledged the commenter's concerns and agreed that the overall increase to radioactive license fees is due to expenditure of resources being higher than the costs recovered from radioactive licenses. The department is implementing several changes in order to improve the accounting for staff time and efficiency of license review processes. The Bureau of Radiation Control's expenditures, cost recovery, and fee structure will be reviewed on an annual basis. Staff time accounting methods are now designed to be more accurate in assigning staff time spent on each license or registration category. The Bureau of Radiation Control is currently revising medical licensing guidance documents. That revision, along with pending medical rule revisions, should provide a greater consistency in the regulation of medical licenses. No change was made as a result of the comment. Comment: Concerning sec.289.204(e)(1)-(2), a commenter stated that the rule should clarify that certain activities are subsumed into a radioactive material license and are fee exempt. These should include in-house services such as calibration, leak tests and training, as those are activities that are required of each license. The fees should only apply to those providing these activities as a commercial service. Likewise, similar activities that are rated depending on mode, such as manufacturing, are subsumed into a radioactive material license and should be fee exempt. For example, a licensee authorized for loose processing of radioactive material should not also be charged a license fee for radiopharmaceutical manufacturing. It is not equitable for a radiopharmaceutical manufacturer to be doubly penalized for processing pharmaceutical or non- radiopharmaceutical grade radiochemicals. Similarly, a licensed accelerator production facility is also authorized for processing of loose radioactive material. Response: The department acknowledged the commenter's statements. However, licensed authorizations additional to the primary licensed authorization involve additional regulatory costs, such as increased inspection and license review time. For this reason, the licensee is required to pay a fee equal to 25% of the specified fee for each additional authorization. No change was made as a result of the comment. Comment: Concerning sec.289.204, a commenter asked if the base fee calculations include activities that do not directly benefit fee-paying licensees or registrants, such as public information, radon, or fuel cycle emergency response. The commenter noted that these activities should not be included in the fee base. Response: The department agreed with most of the commenter's statement. Based on the revised fee rules, the Bureau of Radiation Control will recover approximately 95.5% of it regulatory costs. The remaining 4.5% of costs can be attributed to activities such as public information and radon. However, the fixed nuclear facilities are charged actual costs for emergency response activities. No change was made as a result of the comment. Comment: Concerning sec.289.204, a commenter voiced support of the department's efforts in modifying time sheets so as to document actual time spent on activities. However, the commenter expressed concerns on the accuracy of those numbers. Response: The department acknowledged the commenter's support and concern. The required annual review of regulatory expenditures, cost recovery and fees will provide a more frequent review. Also, staff documentation of time allocation is reviewed within the Bureau of Radiation Control on a monthly basis. No change was made as a result of the comment. Comment: Concerning sec.289.204, one commenter noticed references to other regulations only in the revised Texas Administrative Code format. The commenter recommended that either the TAC format not be used or dual reference be used until the TAC format becomes the official, formal version of the radiation safety regulations and the regulations are supplied to Texas licensees and registrants in that format. Response: The department acknowledged the commenter's statements. This revision is part of an on-going process to reformat the Texas Regulations for Control of Radiation in the required Texas Register format. Licensees and registrants will soon be receiving the reformatted sections. The department will use a dual referencing system to ease the transition from the old format to the new format. No change was made as a result of the comment. Commenters included representatives from M.D. Anderson Cancer Center, International Isotopes, Inc., and John R. Pickett. The commenters were neither for nor against the rule in its entirety; however, they presented comments and suggestions for changes to the proposal as previously discussed. The amendment is adopted under the Health and Safety Code, Chapter 401, which provides the board with authority to adopt rules and guidelines relating to the control of radiation; and sec.12.001, which authorizes the board rules for the performance of every duty imposed by law on the board, the department, and the commissioner of health. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on May 18, 1998. TRD-9808095 Susan K. Steeg General Counsel Texas Department of Health Effective date: September 1, 1998 Proposal publication date: February 27, 1998 For further information, please call: (512) 458-7236 TITLE 30. ENVIRONMENTAL QUALITY PART I. Texas Natural Resource Conservation Commission CHAPTER 117. Control of Air Pollution from Nitrogen Compounds The Texas Natural Resource Conservation Commission (commission) adopts amendments to sec.117.105, concerning Emission Specifications, sec.117.113, concerning Continuous Demonstration of Compliance, sec.117.205, concerning Emission Specifications, sec.117.211, concerning Initial Demonstration of Compliance, sec.117.213, concerning Continuous Demonstration of Compliance, sec.117.451, concerning Applicability, sec.117.510, concerning Compliance Schedule for Utility Electric Generation, sec.117.520, concerning Compliance Schedule For Commercial, Institutional, and Industrial Combustion Sources, sec.117.530, concerning Compliance Schedule For Nitric Acid and Adipic Acid Manufacturing Sources, sec.117.540, concerning Phased Reasonably Available Control Technology (RACT), and sec.117.601, concerning Gas-Fired Steam Generation. Sections 117.105, 117.113, 117.213, 117.451, 117.510, 117.520, 117.530, 117.540, and 117.601 are adopted with changes to the proposed text as published in the January 9, 1998, issue of the Texas Register (23 TexReg 319). Sections 117.205 and 117.211 are adopted without changes and will not be republished. EXPLANATION OF ADOPTED RULES The Federal Clean Air Act (FCAA), sec.182(f), specifies that required measures for major sources of volatile organic compounds (VOCs) must also be applied to major sources of nitrogen oxides (NOx) in ozone nonattainment areas, unless a demonstration is made that NOx reductions would not contribute to attainment of the ozone standard. One of the measures for existing major sources of VOCs is implementation of reasonably available control technology (RACT) in moderate, serious, and severe ozone nonattainment areas, required by sec.182(b)(2), (c), and (d). On April 9, 1993, the Texas Air Control Board adopted revisions to Chapter 117 implementing the federal sec.182(f) NOx requirements in the Houston/Galveston (HGA) and Beaumont/Port Arthur (BPA) ozone nonattainment areas. On April 12, 1995, the United States Environmental Protection Agency (EPA) approved under sec.182(f) a temporary exemption from the federally required NOx RACT measures in HGA and BPA. The EPA's approval was based on the state's preliminary demonstration, using Urban Airshed Model (UAM) modeling, that NOx reductions in HGA and BPA would not lower ozone levels. The temporary exemption allowed more time to conduct UAM modeling, using data from the Coastal Oxidant Assessment for Southeast Texas (COAST), an intensive 1993 field study. These UAM results were judged critical in determining whether, and to what extent, NOx reductions are needed to attain the ozone standard. The EPA specified that the temporary sec.182(f) exemption would expire on December 31, 1996. On May 23, 1997, the EPA extended the exemption to December 31, 1997. This additional year allowed the commission to accommodate improvements in the UAM, using COAST data, and to better substantiate whether NOx emission reductions would be required. In the Fall of 1997, the TNRCC staff completed the COAST modeling analysis of the airshed of the upper Texas Gulf Coast. The study indicated that NOx reductions are a necessary step toward the area's attaining the federal air quality standard for ozone. Because of the modeling and the rate-of-progress (ROP) requirement under the FCAA, sec.182(c)(2), which requires continuing steady reductions of the pollutants that contribute to ozone smog, on November 24, 1997, the commission determined not to seek further federal waivers from the NOx reduction requirements of the FCAA for HGA and BPA. Chapter 117 remained effective during this period of federal exemption. The final compliance date was extended twice, first to May 31, 1997, then to May 31, 1999. Therefore, after the expiration of the temporary federal exemption on December 31, 1997, no additional rulemaking was required to make the NOx RACT requirements of Chapter 117 fully effective. This rulemaking smooths the transition to an ozone control strategy for HGA and BPA which includes NOx reduction. The amendments extend the final compliance date of the Chapter 117 NOx RACT requirements from May 31, 1999 to November 15, 1999. The extension provides approximately a two-year period to implement NOx reductions, from the November 24, 1997, date that the commission decided to implement a NOx-based strategy. A two-year period is necessary for industry to purchase, install, and test the emission control equipment and monitoring systems required by Chapter 117. The other changes to smooth the implementation of the Chapter 117 RACT requirements eliminate the requirement to monitor carbon monoxide (CO) continuously for certain units. While CO emissions in some cases may increase as a result of NOx abatement, checking CO emissions periodically will also be an effective, but less expensive, means of avoiding problems with excessive CO. The adopted revision to sec.117.105(j) adjusts the compliance averaging period for CO for any electric utility unit which does not use continuous emissions monitors (CEMS) or predictive emissions monitors (PEMS) for CO. The amendments to this subsection also revise the compliance period to an hourly period, necessary for these units since compliance must be determined by manual stack sampling methods. Twenty-four hours of continuous manual sampling is impractical. The adopted new sec.117.113(k) adds an option to conduct periodic sampling of CO instead of using CEMS or PEMS for CO for electric utility units. In addition to the initial compliance demonstration for CO, indicator of compliance sampling for CO with a hand-held analyzer is required following certain manual combustion tuning or burner adjustments. This procedure will identify any excessive emission that could occur as a result of an effort to minimize NOx emissions. In addition, the acid rain monitoring rules require an annual stack test (relative accuracy test audit) for NOx emissions. The concurrent test of CO emissions during this audit will not add to expense and will confirm compliance with the CO limit on a periodic basis. The adopted revisions to sec.117.205(e) and sec.117.211(f)(3) add the option of a 24-hour compliance averaging period for CO for any industrial unit which uses a CEMS or PEMS for CO. A 24-hour compliance period, which is practical for units which use CEMS or PEMS, is somewhat easier to comply with than an hourly period. The adopted revision creates an incentive to use CEMS or PEMS for CO. The adoption of new sec.117.213(l) adds an option to conduct periodic sampling of CO from industrial units instead of using CEMS or PEMS for CO. In addition to the initial compliance demonstration for CO, indicator of compliance sampling for CO with a hand-held analyzer is required following certain manual combustion tuning or burner adjustments. This procedure will identify any excessive emission that could occur as a result of an effort to minimize NOx emissions. A concurrent test of CO emissions during the annual relative accuracy test audit will confirm compliance on a periodic basis. The adopted amendments to sec.sec.117.451, 117.510, 117.520, 117.530, 117.540, and 117.601 extend the final compliance date to November 15, 1999. As previously discussed in this preamble, this extension creates roughly a two-year implementation period, which industry needs. This period is consistent with the original two-year implementation time for the rules and will serve to minimize the use of the case-specific phased RACT provisions of sec.117.540. The adopted revisions to sec.117.510(5) and sec.117.520(4) will consistently extend to January 15, 2000, the submittal date for 30-day rolling average compliance data from CEMS or PEMS. Various other dates in sec.117.540 have also been consistently revised. The commission notes that the adopted final compliance date of November 15, 1999, is 15 days earlier than the compliance date proposed in the January 9, 1998, Texas Register. This change was made to assure that the emission reductions will be fully creditable toward 1999 ROP requirements under the FCAA, sec.182(c)(2). The FCAA, sec.182(c)(2)(B), requires the 1999 ROP reductions to occur by November 15, 1999. FINAL REGULATORY IMPACT ANALYSIS The commission has reviewed the rulemaking in light of the regulatory analysis requirements of Texas Government Code (the Code), sec.2001.0225, and has determined that it is not subject to sec.2001.0225 because it does not meet the definition of a "major environmental rule" as defined in the Code. The amendments, which ease the implementation of the FCAA, sec.182(b)(2), (c), (d), and (f), do not meet the definition of "major environmental rule" because the amendments are designed to make the transition to the federally required NOx[sub]x RACT requirements became effective by operation of federal law upon the December 31, 1997, expiration of the temporary sec.182(f) exemption. No comments on the regulatory impact analysis were received. TAKINGS IMPACT ASSESSMENT The commission has prepared a takings impact assessment for these rules under Texas Government Code, sec.2007.043. The following is a summary of that assessment. The specific purpose of the amendments is to extend the compliance date for NOx RACT requirements and reduce the cost of emission monitoring. As adopted, sources located in the HGA and BPA ozone nonattainment areas of the state will have less expensive monitoring requirements and additional time to comply with the rules. There is no restriction or taking of private real property associated with the adopted amendments. COASTAL MANAGEMENT PLAN The commission has determined that this rulemaking action 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 Resources 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 rulemaking action for consistency with the CMP goals and policies in accordance with the rules of the Coastal Coordination Council, and has determined that this rulemaking action 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 Code of Federal Regulations, Title 40, to protect and enhance air quality in the coastal area. Adoption of these amendments should result in reductions of ambient NOx and ozone concentrations. Therefore, in compliance with 31 TAC sec.505.22(e), the commission affirms that this rulemaking is consistent with CMP goals and policies. HEARING AND COMMENTERS A public hearing for this rulemaking was held in Austin on February 9, 1998. A representative of the Southeast Texas Regional Planning Commission (SETRPC) and an equipment vendor, Pavilion Technologies, Inc. (Pavilion) provided oral testimony and written comments at the hearing. Nine commenters submitted written comments on the proposal: Amoco Corporation (Amoco), Entergy Services, Inc. (Entergy), EPA, Houston Lighting & Power (HL&P), an individual, Pavilion, the Southeast Texas Environmental Managers (STEM), SETRPC, and the Texas Chemical Council (TCC). Commenters generally supported the proposal to extend the final compliance date and to reduce the CO monitoring, but recommended revisions to the proposed periodic CO monitoring. The individual opposed the rule proposals. Beyond the proposed revisions, the commenters from the BPA area (SETRPC, STEM, and Entergy) questioned the need for the underlying Chapter 117 NOx RACT requirements to apply in BPA. Amoco, Entergy, EPA, HL&P, and the TCC supported the proposal to extend the final compliance date six months. An individual opposed the extension as an unnecessary delay in implementation, saying that the companies have already prepared for NOx controls and have been aware of the need for NOx controls for many years. The commission appreciates the support for the extension of the final compliance date. The commission disagrees with the comment that an extension is unnecessary. Although initial control plans were submitted by the companies in 1994, the commission's policy from then, until late 1997, was based on modeling results which suggested that NOx reductions would not contribute to attainment of the ozone standard. The 1994 planning should still provide a fairly accurate estimate of the reductions required, but source owners now need time to update and optimize their control strategies. The November 24, 1997, commission consideration of the COAST modeling and decision not to pursue further NOx exemptions provided industry the formal signal that the RACT reductions would be needed. A formal policy or rule change is often required for the private sector to allocate resources to externalities such as air emissions. Finally, as noted by EPA, establishing a November 15, 1999, compliance date is consistent with the original implementation schedule. This schedule recognizes that approximately two years are required for industry to purchase, install, and test the emission control equipment and monitoring systems required by Chapter 117. TCC supported the proposed alternative to CO monitoring. Entergy, HL&P, Amoco, EPA, and Pavilion supported the proposal to provide an alternative to CO monitoring, but suggested revisions to clarify the periodic sampling alternative. The two affected utilities, Entergy and HL&P, recommended clarifying that the periodic CO checks be limited to tuning or adjustments made for the purpose of minimizing NOx emissions. Entergy said that performance tuning is occasionally done with boilers that is not related to NOx emissions and should not significantly affect CO emissions. Amoco said that it would not be feasible to monitor for CO every time an adjustment is made to burner air; and if this is the intent, most operators would likely be forced to use a CEMS because of the manpower requirements. Amoco suggested allowing documentation of the observed relationship between oxygen and CO to establish when the allowable level of CO is exceeded, using a permit process. The individual was opposed to the proposal to reduce the monitoring requirements. The commission agrees with the utilities' recommended clarification of when CO checks should be performed and has incorporated their suggested language in the electric utility requirements of sec.117.113(k). The commission also incorporated this language in the industrial source requirements of sec.117.213(l), since the issue is very similar. This revision addresses Amoco's comment, which is very similar to the utility comment. In response to clarifications suggested by EPA and HL&P, the commission has revised the references in sec.117.113(k) and sec.117.213(l) to refer to the EPA test methods and procedures of 40 CFR Part 60. In response to the commenter who opposed reducing the monitoring requirements, the commission believes that the changes will maintain the benefit of CO CEMS, which is to ensure that NOx controls do not inadvertently increase CO emissions, while reducing the cost to achieve this goal. Excessive CO emissions tend to be sporadic rather than chronic. The change will allow the affected sources to focus more of their resources on the central goal of the rule, which is to reduce NOx emissions and ambient ozone in HGA and BPA. Pavilion commented that sampling CO emissions with a portable analyzer after manual combustion tuning or burner adjustment should not be required for units using PEMS that predict NOx only. Instead, the commenter said, when data gathering is performed in order to create the NOx PEMS, CO emissions data should be required to be collected to ensure that CO exceedances will not occur. The PEMS data gathering scheme includes combustion tuning and burner adjustments that are typically done during normal operations. Therefore, if compliance with the CO limit is demonstrated during the entire data gathering scheme, then future measurements with a portable analyzer are not needed for operations within this documented range. The commission agrees with the thrust of Pavilion's comments and has further revised the periodic CO sampling requirements in response to those comments. The commission is aware that PEMS may be used to finely adjust, either automatically or manually, boiler process control setpoints to minimize NOx[sub]x would be defeated if manual CO sampling were required each time the control system were adjusted. Pavilion said that CO sampling is needed when burner adjustments are made which reduce NOx to levels lower than for which CO emissions data was previously gathered. The commission has adopted this approach to the alternative CO monitoring requirements in sec.117.113(k)(1)(A) and sec.117.213(l)(1)(A). [sub]x[sub]x analyzers or a standard EPA reference method test apparatus to measure the NOx emissions. These measurement devices easily accommodate CO measurement. Under these circumstances, the commission has retained the requirement to sample CO, in sec.117.113(k)(1)(B) and sec.117.213(l)(1)(B). The EPA said that it was unclear what recordkeeping and reporting would be required for periodic CO sampling to demonstrate compliance. The recordkeeping sections of Chapter 117 were inadvertently not proposed for revision to address the new alternative. The commission believes that addition of a recordkeeping requirement for periodic CO monitoring should be addressed in future rulemaking to maintain consistency in the placement of requirements and to allow all affected parties the opportunity to comment on the proposed change. Pavilion commented that sec.117.510(3) and (5) contain conflicting dates for submittal of CEMS or PEMS performance evaluation and quality assurance procedures. The commenter recommended that the procedures of sec.117.510(3) be eliminated. The commission agrees with Pavilion. The intended submittal date requirements for the results of the CEMS or PEMS performance evaluation and quality assurance procedures are in sec.117.510(5) and (6), so the reference to this in sec.117.510(3) has been deleted. SETRPC, STEM, and Entergy proposed that the commission apply to EPA for an FCAA, sec.182(f) waiver for the BPA area and suspend the Chapter 117 requirements in the BPA area until at least 2007. The commenters stated that the commission's UAM modeling supported the continuation of a waiver from the NOx requirements for the BPA area through the year 2007 under the EPA's "overwhelming transport" policy, which recognizes the contribution of transported ozone from upwind areas. They said that NOx controls are a disbenefit through the attainment date and would not contribute to attainment of the ozone national ambient air quality standard (NAAQS). SETRPC said that NOx controls would not contribute significantly to attainment of the ozone NAAQS. The commission agrees that there is considerable evidence demonstrating a strong influence of HGA upon the air quality in BPA. It also believes that sources in BPA contribute significantly to the air quality in BPA and disagrees with the assessment that sources in the area have little or no remaining role to play in improving the area's or the region's ozone air quality. The evidence, including ambient monitoring data and computer modeling, is more supportive of the view that further NOx reductions in BPA are necessary for it, and the regions adjacent to it, to attain or maintain the federal air quality standards for ozone. The commission disagrees that NOx reductions in BPA are a disbenefit, based on the COAST modeling. The commission also believes the modeling does not justify a federal NOx waiver for the area under the EPA's policy guidance for determining the applicability of NOx requirements under sec.182(f). The information SETRPC submitted regarding monitored ozone exceedances in BPA in 1997 suggests that BPA plays a significant role in ozone formation even when there is transport from HGA. It is not clear that all the exceedances in 1997 were caused by transport from HGA. Although one of these days, March 21, 1997, had the necessary conditions, including strong enough surface winds from HGA to cause ozone transport from that area, the other two days had more stagnant conditions in which BPA itself would have had time to contribute significantly to the ozone formed. Further, on March 21, 1997, the monitor data suggests that the BPA area contributed to additional downwind exceedances of the 120 parts per billion (ppb) ozone standard as the pollutants carried further downwind. The monitored peak ozone levels on that date increased from 133 ppb at the Beaumont monitor, on the west side of BPA and nearest Houston, to 169 ppb at the West Orange monitor, on the east side of BPA. Since BPA is classified as a moderate ozone nonattainment area, the federal NOx RACT requirements are applicable, unless a federal waiver can be justified on the basis that NOx reductions do not contribute to attainment of the ozone standard. The EPA's guidance for conditions for obtaining a sec.182(f) waiver are contained in "Guideline for Determining the Applicability of NOx Requirements under sec.182(f)," issued December 1993. The guidance specifies very similar tests for areas within, and not within, an ozone transport region. The test requires using a photochemical grid model (such as the COAST modeling that the commission completed in 1997) to simulate conditions resulting from three emission reduction scenarios: substantial VOC reductions; substantial NOx reductions; and both the VOC and NOx reductions. If the areawide (or regionwide, for transport regions) maximum one-hour ozone concentration for each day modeled under the first scenario is less than or equal to that from the second and third scenarios for the same day, the test is passed and the sec.182(f) requirements would not apply. The results from the COAST modeling for the ozone episode of September 8-11, 1993, show the opposite; that is, the areawide maximum one-hour ozone concentrations are greater under the first scenario than under the second and third scenarios. Therefore, the COAST modeling does not support a further EPA NOx waiver. [sub]x reductions in BPA do not provide "significant" ozone reductions is not an issue, since the test is built on a comparison of the relative effectiveness of NO x and VOC reductions, and does not establish a significance level for ozone benefit. The modeling also shows that NOx reductions in BPA will reduce ozone more effectively than in HGA, since the initial ozone "disbenefit" of NOx reductions is not observed in BPA. The EPA's overwhelming transport policy, if applicable, would enable an extension of the attainment date, but would not allow waiver of the sec.182(f) NOx[sub]x RACT requirements are mandatory for moderate ozone nonattainment areas such as BPA under the FCAA, sec.182(b)(2) and (f). Among other conditions, the EPA overwhelming transport policy requires of a nonattainment area, "adoption of all mandatory control requirements for an area of its classification" (memo from EPA assistant administrator for air and radiation, "Ozone Attainment Dates for Areas Affected by Overwhelming Transport," September 1, 1994). SUBCHAPTER B. Combustion at Existing Major Sources Division 1. Utility Electric Generation 30 TAC sec.117.105, sec.117.113 STATUTORY AUTHORITY The amendments are adopted under the Texas Health and Safety Code, the Texas Clean Air Act TCAA), sec.382.012, which requires the commission to prepare and develop a general, comprehensive plan for the proper control of the state's air, and sec.382.017, which authorizes the commission to adopt rules consistent with the policy and purposes of the TCAA. sec.117.105. Emission Specifications. (a)-(i) (No change.) (j) No person shall allow the discharge into the atmosphere from any utility boiler, steam generator, or auxiliary steam boiler subject to the NOx emission limits specified in subsections (a)-(e) of this section, carbon monoxide (CO) emissions in excess of 400 ppmv, based on a one-hour average for units not equipped with continuous emissions monitoring systems (CEMS) or predictive emissions monitoring systems (PEMS) for CO, or on a rolling 24-hour averaging period for units equipped with CEMS or PEMS for CO. (k)-(n) (No change.) sec.117.113. Continuous Demonstration of Compliance. (a)-(j) (No change.) (k) Instead of using CEMS or PEMS for CO, the owner or operator may substitute periodic sampling of CO as follows: (1) sample CO emissions with a portable analyzer (or 40 CFR 60, Appendix A reference method test apparatus) after manual combustion tuning or burner adjustments conducted for the purpose of minimizing NOx emissions: [sub]x emissions measured by CEMS or predicted by PEMS are lower than levels for which CO emissions data was previously gathered; and [sub]x emissions are sampled with a portable analyzer or 40 CFR 60, Appendix A reference method test apparatus; and (2) sample CO emissions using the test methods and procedures of 40 CFR 60 in conjunction with the annual relative accuracy test audit of the NOx and diluent analyzer. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on May 21, 1998. TRD-9808323 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: June 10, 1998 Proposal publication date: January 9, 1998 For further information, please call: (512) 239-1966 Division 2. Commercial, Institutional, and Industrial Sources 30 TAC sec.sec.117.205, 117.211, 117.213 STATUTORY AUTHORITY The amendments are adopted under the Texas Health and Safety Code, the Texas Clean Air Act (TCAA), sec.382.012, which requires the commission to prepare and develop a general, comprehensive plan for the proper control of the state's air, and sec.382.017, which authorizes the commission to adopt rules consistent with the policy and purposes of the TCAA. sec.117.213. Continuous Demonstration of Compliance. (a)-(k) (No change.) (l) Instead of using CEMS or PEMS for CO, the owner or operator may substitute periodic sampling of CO as follows: (1) sample CO emissions with a portable analyzer (or 40 CFR 60, Appendix A reference method test apparatus) after manual combustion tuning or burner adjustments for the purpose of minimizing NOx emissions: [sub]x emissions measured by CEMS or predicted by PEMS are lower than levels for which CO emissions data was previously gathered; and [sub]x emissions are sampled with a portable analyzer or 40 CFR 60, Appendix A reference method test apparatus; and (2) sample CO emissions using the test methods and procedures of 40 CFR 60 in conjunction with an annual relative accuracy test audit of the NOx and diluent analyzer. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on May 21, 1998. TRD-9808324 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: June 10, 1998 Proposal publication date: January 9, 1998 For further information, please call: (512) 239-1966 SUBCHAPTER C. Acid Manufacturing Division 3. Nitric Acid Manufacturing - General 30 TAC sec.117.451 STATUTORY AUTHORITY The amendment is adopted under the Texas Health and Safety Code, the Texas Clean Air Act (TCAA), sec.382.012, which requires the commission to prepare and develop a general, comprehensive plan for the proper control of the state's air, and sec.382.017, which authorizes the commission to adopt rules consistent with the policy and purposes of the TCAA. sec.117.451. Applicability. The emission limitations specified in sec.117.455 of this title (relating to Emission Specifications) shall apply to all nitric acid production units in the state, with the exception that for nitric acid production units located in applicable ozone nonattainment areas, the emission limitations of sec.117.405 of this title (relating to Emission Specifications) shall apply after November 15, 1999. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on May 21, 1998. TRD-9808325 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: June 10, 1998 Proposal publication date: January 9, 1998 For further information, please call: (512) 239-1966 SUBCHAPTER D. Administrative Provisions 30 TAC sec.sec.117.510, 117.520, 117.530, 117.540 STATUTORY AUTHORITY The amendments are adopted under the Texas Health and Safety Code, the Texas Clean Air Act (TCAA), sec.382.012, which requires the commission to prepare and develop a general, comprehensive plan for the proper control of the state's air, and sec.382.017, which authorizes the commission to adopt rules consistent with the policy and purposes of the TCAA. sec.117.510. Compliance Schedule For Utility Electric Generation. All persons affected by the provisions of sec.sec.117.101, 117.103, 117.105, 117.107, 117.109, 117.111, 117.113, 117.115, 117.117, 117.119, and 117.121 of this title (relating to Utility Electric Generation) shall be in compliance as soon as practicable, but no later than November 15, 1999 (final compliance date). Additionally, all affected persons shall meet the following compliance schedules and submit written notification to the executive director: (1) (No change.) (2) conduct applicable continuous emissions monitoring system (CEMS) or predictive emissions monitoring systems (PEMS) evaluations and quality assurance procedures as specified in sec.117.113 of this title (relating to Continuous Demonstration of Compliance) according to the following schedules: (A) (No change.) (B) for equipment and software not required under 40 Code of Federal Regulations (CFR) 75, no later than November 15, 1999. [sub]x[sub]x control techniques no later than November 15, 1999; (4) for units operating without CEMS or PEMS, conduct applicable tests for initial demonstration of compliance as specified in sec.117.111 of this title (relating to Initial Demonstration of Compliance); and submit the results by April 1, 1994, or as early as practicable, but in no case later than November 15, 1999; (5) for units operating with CEMS or PEMS and complying with the NOx emission limit on a rolling 30-day average, conduct the applicable tests for the initial demonstration of compliance as specified in sec.117.111 of this title and submit the results of the applicable CEMS or PEMS performance evaluation and quality assurance procedures as specified in sec.117.113 of this title no later than January 15, 2000; (6) for units operating with CEMS or PEMS and complying with the NOx emission limit in pounds per hour on a block one-hour average, conduct the applicable tests for the initial demonstration of compliance as specified in sec.117.111 of this title and submit the results of the applicable CEMS or PEMS performance evaluation and quality assurance procedures as specified in sec.117.113 of this title by November 15, 1999; (7) (No change.) (8) no later than November 15, 1999, submit a final control plan for compliance in accordance with sec.117.115 of this title (relating to Final Control Plan Procedures). sec.117.520. Compliance Schedule For Commercial, Institutional, and Industrial Combustion Sources. All persons affected by the provisions of sec.sec.117.201, 117.203, 117.205, 117.207-117.209, 117.211, 117.213, 117.215, 117.217, 117.219, 117.221, and 117.223 of this title (relating to Commercial, Institutional, and Industrial Sources) shall be in compliance as soon as practicable, but no later than November 15, 1999 (final compliance date). All affected persons shall meet the following compliance schedules and submit written notification to the executive director: (1) (No change.) [sub]x abatement equipment and implement all NOx control techniques no later than November 15, 1999; (3) for units operating without continuous emissions monitoring system (CEMS) or predictive emissions monitoring systems (PEMS), conduct applicable tests for initial demonstration of compliance as specified in sec.117.211 of this title (relating to Initial Demonstration of Compliance); and submit the results by April 1, 1994, or as early as practicable, but in no case later than November 15, 1999; (4) for units operating with CEMS or PEMS and complying with the NOx emission limit on a rolling 30-day average, conduct the applicable tests for the initial demonstration of compliance as specified in sec.117.211 of this title and submit the results of the applicable CEMS or PEMS performance evaluation and quality assurance procedures as specified in sec.117.213 of this title (relating to Continuous Demonstration of Compliance) no later than January 15, 2000; (5) for units operating with CEMS or PEMS and complying with the NOx emission limit in pounds per hour on a block one-hour average, conduct the applicable tests for the initial demonstration of compliance as specified in sec.117.211 of this title and submit the results of the applicable CEMS or PEMS performance evaluation and quality assurance procedures as specified in sec.117.213 of this title by November 15, 1999; and (6) no later than November 15, 1999, submit a final control plan for compliance in accordance with sec.117.215 of this title (relating to Final Control Plan Procedures). sec.117.530. Compliance Schedule For Nitric Acid and Adipic Acid Manufacturing Sources. All persons affected by the provisions of sec.sec.117.301, 117.305, 117.309, 117.311, 117.319, and 117.321 of this title (relating to Adipic Acid Manufacturing) or the provisions of sec.sec.117.401, 117.405, 117.409, 117.411, 117.413, 117.419, and 117.421 of this title (relating to Nitric Acid Manufacturing - Ozone Nonattainment Areas) shall be in compliance as soon as practicable, but no later than November 15, 1999 (final compliance date). All affected persons shall meet the following compliance schedules and submit written notification to the executive director: (1) (No change.) (2) conduct applicable continuous emissions monitoring system (CEMS) or predictive emissions monitoring systems (PEMS) performance evaluation and quality assurance procedures as specified in sec.117.313 of this title (relating to Continuous Demonstration of Compliance) and sec.117.413 of this title (relating to Continuous Demonstration of Compliance); provide previous testing documentation for any claimed test waiver as allowed by sec.117.311(d) of this title (relating to Initial Demonstration of Compliance) or sec.117.411(d) of this title (relating to Initial Demonstration of Compliance); and conduct applicable initial demonstration of compliance testing as specified in sec.117.311 and sec.117.411 of this title, by: (A) (No change.) (B) no later than November 15, 1999, for affected facilities performing process modification or installation of a CEMS or PEMS device as part of the control plan specified in sec.117.309 and sec.117.409 of this title; (3) (No change.) sec.117.540. Phased Reasonably Available Control Technology (RACT). The owner or operator affected by the provisions of this chapter (relating to Control of Air Pollution from Nitrogen Compounds) who determines that compliance by November 15, 1999, is not practicable may submit a petition for phased RACT. The process for submitting a petition and receiving approval shall be based on the following. (1) The petition shall be submitted by March 15, 1999, or as soon as possible after such date upon a demonstration by the owner or operator that the petition was not submitted by March 15, 1999, due to unforeseen circumstances. (2) The owner or operator of the affected unit or units shall submit information in the petition to the commission and a copy to the EPA regional office in Dallas which will demonstrate all of the following: (A) (No change.) (B) compliance by November 15, 1999, is impracticable due to the unavailability of nitrogen oxides (NOx) abatement equipment, engineering services, or construction labor; system unreliability; manufacturing unreliability; equipment unreliability; or other technological and economic factors as the commission determines are appropriate; (C) (No change.) (D) there is a commitment to implement the portion of the phased RACT petition that can be implemented by November 15, 1999; and (E) the final compliance date specified in the petition shall be as soon as practicable, but in no case later than February 15, 2001, except as approved by the executive director. (3) Each petition for phased RACT shall contain the information required by at least one of the following criteria. (A) If compliance by November 15, 1999, is impracticable due to the unavailability of NOx abatement equipment, engineering services, or construction labor, the following information shall be included in the petition for phased RACT: (i) a list of the company names, addresses, and telephone numbers of vendors who are qualified to provide the services and equipment capable of meeting the applicable emission limitation under this chapter and who have been contacted to obtain the required services and equipment. A copy of the request for bids along with the dates of contact shall also be provided to show a good-faith effort to obtain the required services and equipment necessary to meet the requirements of this chapter by November 15, 1999; and (ii) copies of responses from each of the vendors listed in clause (i) of this subparagraph showing that they cannot provide the necessary services and install the appropriate equipment in time for the unit to comply by November 15, 1999. Such responses shall include the reasons why the services cannot be provided and why the equipment cannot be installed in a timely manner. (iii) (No change.) (B) If compliance by November 15, 1999, is impracticable due to system unreliability for sources in the utility industry, defined as the inability or threatened inability of a utility grid system to fulfill obligations to supply electric power, the following information shall be included in the petition for phased RACT: (i) standard load forecasts, based on standard forecasting models available throughout the utility industry, applied to the period November 15, 1997- November 14, 1999; (ii) (No change.) (iii) specific reasons why an outage for the purpose of installing NOx emission control equipment cannot be scheduled by November 15, 1999. (C) If compliance by November 15, 1999, is impracticable due to manufacturing unreliability, defined as the inability or threatened inability of a source to fulfill contractual obligations to supply a product or products, the following information shall be included in the petition for phased RACT: (i)-(ii) (No change.) (iii) specific reasons why an outage for the purpose of installing NOx emission control equipment cannot be scheduled by November 15, 1999. (D) If compliance by November 15, 1999, is impracticable due to equipment unreliability, defined as the reduced availability and operating reliability of a unit resulting from the operation of NOx control equipment on that unit, the following information shall be included in the petition for phased RACT: (i)-(iv) (No change.) (E) If compliance by November 15, 1999, is impracticable due to other technical factors, the petition for phased RACT shall contain such documentation as the executive director establishes is appropriate for such technical factors. (F) If compliance by November 15, 1999, is unreasonable due to economic considerations, excluding the time value of money, the petition for phased RACT shall contain the following information showing comparisons of the cost of compliance by November 15, 1999, and the cost of compliance by the final compliance date specified in the petition: (i) the costs of additional outages, if applicable, necessitated by compliance with the emission specifications of this chapter by November 15, 1999, as demonstrated by comparison to costs of actual historical and planned outages; [sub]x abatement equipment, engineering services, or construction labor necessary to comply by November 15, 1999, and the cost of obtaining the NOx abatement equipment, engineering services, or construction labor by the final compliance date specified in the petition. Copies of legally binding contracts, signed by an authorized official of the company, shall be submitted to document these costs. If the required NOx abatement equipment, engineering services, or construction labor will be provided by the owner or operator, as provided for in paragraph (4) of this subsection, certification by an authorized official of the company may be submitted in lieu of contracts to document these costs; or (iii) (No change.) (4) (No change.) (5) All petitions for phased RACT shall include copies of legally binding contracts with the primary vendors for each project, signed by an authorized official of the company, showing a detailed design or installation schedule for the required services or equipment to be provided by that vendor, with a completion date no later than February 15, 2001, except as approved by the executive director. Any commercially sensitive financial information or trade secrets should be excised from the contracts. (6) (No change.) (7) The executive director shall approve or deny the petition within 90 days of receiving an administratively complete phased RACT petition. The executive director shall approve a petition for phased RACT if the executive director determines that compliance is not practicable by November 15, 1999, because of either the unavailability of nitrogen oxides abatement equipment, engineering services, or construction labor; system unreliability; manufacturing unreliability; equipment unreliability; or other technological and economic factors as the executive director determines are appropriate. (8)-(10) (No change.) This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on May 21, 1998. TRD-9808326 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: June 10, 1998 Proposal publication date: January 9, 1998 For further information, please call: (512) 239-1966 SUBCHAPTER E. Gas-Fired Steam Generation 30 TAC sec.117.601 STATUTORY AUTHORITY The amendment is adopted under the Texas Health and Safety Code, the Texas Clean Air Act (TCAA), sec.382.012, which requires the commission to prepare and develop a general, comprehensive plan for the proper control of the state's air, and sec.382.017, which authorizes the commission to adopt rules consistent with the policy and purposes of the TCAA. sec.117.601. Gas-Fired Steam Generation. (a) Subsections (b), (c), and (d) of this section shall apply only in the Dallas/Fort Worth Air Quality Control Region which consists of Collin, Cooke, Dallas, Denton, Ellis, Erath, Fannin, Grayson, Hood, Hunt, Johnson, Kaufman, Navarro, Palo Pinto, Parker, Rockwall, Somervell, Tarrant, and Wise counties and in the Houston/Galveston Air Quality Control Region which consists of Austin, Brazoria, Chambers, Colorado, Fort Bend, Galveston, Harris, Liberty, Matagorda, Montgomery, Waller, and Wharton counties. For gas-fired steam generators located in applicable ozone nonattainment areas, only the emission limitations of sec.117.105 of this title (relating to Emission Specifications), sec.117.107 of this title (relating to Alternative System-Wide Emission Specifications), sec.117.205 of this title (relating to Emission Specifications), and sec.117.207 of this title (relating to Alternative Plant-Wide Emission Specifications) shall apply after November 15, 1999. (b)-(e) (No change.) This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on May 21, 1998. TRD-9808327 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: June 10, 1998 Proposal publication date: January 9, 1998 For further information, please call: (512) 239-1966 TITLE 31. NATURAL RESOURCES AND CONSERVATION PART X. Texas Water Development Board CHAPTER 371.Drinking Water State Revolving Fund The Texas Water Development Board (board) adopts amendments to sec.sec.371.1 - 371.3, 371.13, 371.20, 371.37, 371.39, 371.40, 371.52, 371.71, 371.72, the repeal of sec.sec.371.32-371.34, and new sec.371.26 and sec.371.32. Section 371.2 is adopted with changes to the proposed text as published in the March 27, 1998 issue of the Texas Register (23 TexReg 3221). Sections 371.1, 371.3, 371.13, 371.20, 371.37, 371.39, 371.40, 371.52, 371.71, 371.72, the repeal of sec.sec.371.32-371.34, and new sec.371.26 and sec.371.32 are adopted without changes to the proposed text as published in the March 27, 1998, issue of the Texas Register (23 TexReg 3221) and will not be republished. The changes provide the framework pursuant to which the board may provide financial assistance for the construction of water system improvements to privately owned water systems and certain nonprofit entities as provided by the Safe Drinking Water Act. Amendments to sec.371.13 and sec.371.20 correctly express the intent of the board relating to certain elements of the Drinking Water State Revolving Fund as well as the Disadvantage Communities Program and the Nonprofit Noncommunity Water Supply Program. In August of 1996, the United States Congress passed the Safe Drinking Water Act Amendments of 1996 (or SDWA) which provided new financial assistance to states for the purpose of providing this financial assistance to publicly and privately owned "community water systems" and "public water systems," both terms being defined in the SDWA. In 1997, the Texas Legislature amended the Water Code to create the safe drinking water revolving fund (SDWSRF) in order to make available to political subdivisions and persons financial assistance provided pursuant to the SDWA. The statutory amendments require the board to create the community/noncommunity water system financial assistance account and authorize the board to adopt rules to provide financial assistance to political subdivisions for nonprofit noncommunity water systems and to persons, other than political subdivisions, for community water systems and nonprofit noncommunity water systems, which are collectively referred to herein as the privately owned water system program. As currently stated, sec.371.1 identifies the scope of the Chapter 371 rules as governing financial assistance applications from the SDWSRF as well as satisfying the federal requirements necessary to receive funds under the SDWA. Since the provisions relating to privately owned systems are not necessary in order to receive funds under the SDWA, new sec.371.1 amends the scope of Chapter 371 by broadening it in recognition of the inclusion of the privately owned water system program. Existing provisions of sec.371.2 define applicant in anticipation that only political subdivisions would be eligible for financial assistance under the Chapter. With the advent of eligibility of privately owned water systems, sec.371.2 is amended to change the existing definition for applicant so that entities eligible for assistance from the community/noncommunity water system financial assistance account, both public and private, are included as applicants. Eligible applicant is amended to eligible public applicants and a definition of eligible private applicants is added so that public and private may be distinguished as necessary under the rules. In order to fully identify all ownership interests of a private applicant, a definition of affiliated interest or affiliate is added and is based on the definition used by the Texas Natural Resource Conservation Commission due to its experience with these types of entities and a policy of maintaining consistency with other state agencies whenever feasible. Since political subdivisions and privately owned systems are both eligible for assistance from the community/noncommunity water system financial assistance account, a separate definition for NPNC applicants is added. As originally proposed, the definition of NPNC applicant specifically excluded political subdivisions under the belief that there were no political subdivisions which would be operating a noncommunity water system. The lone comment that the board has received is from Paul Shinkawa, attorney with the Texas Parks and Wildlife Department, who stated that there are state parks that operate noncommunity water systems and may seek financial assistance from this program if the definition of NPNC is clarified to include political subdivisions. The definition of NPNC applicant has therefore been amended from that proposed in the Texas Register of March 27, 1998 at 23 TexReg 3223 to delete the exclusion of political subdivisions. In order to identify the entities that are NPNC applicants, definitions for nonprofit organization, and nonprofit noncommunity water system are added. The definition of nonprofit organization relies on the determination by the State Comptrollers Office under its rules in order to maintain consistency. The definition of application for assistance is amended to reflect the consolidation of all application requirements into sec.371.32 and the elimination of sec.sec.371.33 and 371.34. Section 371.2 was further changed to number definitions in accordance with new Texas Register requirements. The reference to political subdivisions in sec.371.3 is amended to be a reference to applicants so that it includes privately owned water systems. Section 371.13 is amended to change the eligibility of organizational restructuring as a project expense to only be eligible as a project expense when the restructuring is done in conjunction with other eligible project expenses because mere restructuring will not further the purposes for which SDWA was enacted. Section 371.20 is amended such that the estimated loan amount necessary for a project to be included on the Intended Use Plan is not required to be certified when the estimated loan amount is $100,000 or less. It was determined that for public water systems, which are by definition smaller systems than community water systems, a certification would impose an unnecessary burden to participate in the program and the additional accuracy gained by a certification would not materially assist the program as would be the case when project estimates exceed $100,000. A new sec.371.26 was added to identify the funds allocated to the nonprofit noncommunity water system financial assistance account and to identify the criteria and method for distribution of funds of the nonprofit noncommunity water systems financial assistance account. Pursuant to Under sec.371.21, applicants have six months from notification of available funds to receive a commitment from the board. Under sec.371.26, private applicants and eligible NPNC applicants seeking funding from the nonprofit noncommunity water systems financial assistance account are given six months from notification of available funds to submit an application and 12 months to receive a commitment from the board. Experience with the board's other programs indicates that smaller water system applicants may not have sufficient access to the technical expertise necessary to both prepare an application and receive a commitment within six months. Because of this, additional time is allotted for the preparation of an application and to receive a commitment. Subsequent reviews of the required application information requested in sec.sec.371.31 - 371.33 indicates substantial overlap and duplication of information needed for evaluation. Section 371.31 is amended to consolidate all application requirements into one section. Subsection (a) includes all application requirements for eligible public applicants and is based on many years of experience in analyzing financial assistance applications for political subdivisions. New sec.sec.371.31(b)(1) - 371.31(b)(6), 371.31(b)(10), 371.31(b)(11), and 371.31(b)(13) include the application requirements for private applicants that correspond to application requirements for public applicants. New sec.371.31(b)(7) requires the submission of a business plan which will identify past revenues and expenses as well as anticipated revenues and expenses which is necessary for an evaluation of the ability of the private applicant to repay the loan. New sec.371.31(b)(8) requires the submission of income tax returns in order to verify income for the preceding two years by a sufficiently reliable method. New sec.371.31(b)(9) requires reporting of bankruptcy proceedings which will serve as an indication of past business practice of the private applicant as well as the business ability of the private applicant. New sec.371.31(b)(12) requires an verifiable indication of the intent of the private applicant to secure additional revenues for loan repayment in those instances where the applicant has indicated an intent to rely on such revenues. Sections 371.32 and 371.33 were deleted since the application information previously required in these sections is now covered in sec.371.31(a). Section 371.37 is amended to require private applicants to adopt a water conservation plan and to require any private or public applicant which will provide water service to any private or public entity who then retails water service and the retail provider to adopt an acceptable water conservation plan. The imposition of this requirement continues the policy of the state reflected in statute which requires entities that obtain financial assistance for water supply projects to take reasonable and appropriate steps to conserve water. Section 371.40 is amended to allow the board to provide financial assistance to eligible NPNC applicants and eligible private applicants by either purchasing bonds or entering into a loan agreement. Currently, this section allows water supply corporations the option of evidencing indebtedness with the board by either bonds or loan agreements for the purpose of reducing the additional expense that may be associated with the issuance of bonds and thereby reducing an obstacle to implementation of the purposes of the SDWA. Section sec.371.39, relating to the application review by the executive administrator, is amended to reflect the consolidation of the application requirements in sec.371.32 and the elimination of sec.371.33 and sec.371.34. Section 371.52 is amended by adding a new subsection (d) to set the interest rates for loans to private or NPNC applicants. The interest rate for funds from the nonprofit noncommunity water system financial assistance account is determined by subtracting 185 basis points from the prime interest rate as published in the Wall Street Journal. It was determined that this rate best recognized the risk associated with the typically higher risk of loaning funds to privately owned water systems balanced with public policy goal of attracting systems most in need of these funds. Sections 371.71 - 371.72 were amended to apply the same requirements applied to water supply corporations, which are defined as political subdivisions pursuant to the Water Code, to private or NPNC applicants for closing and release of funds since these entities have the same characteristics of water supply corporations. As previously indicated, only one comment was received from Paul Shinkawa, attorney with the Texas Parks and Wildlife Department, who stated that there are state parks that operate noncommunity water systems and may seek financial assistance from this program if the definition of NPNC is clarified to include political subdivisions. The definition of NPNC applicant has therefore been amended from that proposed in the Texas Register of March 27, 1998, at 23 TexReg 3223 to delete the exclusion of political subdivisions. SUBCHAPTER A.Introductory Provisions 31 TAC sec.sec.371.1-371.3 The amendments are adopted under the authority of the Texas Water Code, sec.6.101 and sec.15.605 which provide the Texas Water Development Board with the authority to adopt rules necessary to carry out the powers and duties in the Water Code and other laws of the State. sec.371.2.Definitions of Terms. The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise. Words defined in the Texas Water Code, Chapter 15 and not defined here shall have the meanings provided by Chapter 15. (1) Act - The federal Safe Drinking Water Act, as amended 1996, and its subsequent amendments or successor provisions. (2) Administrative costs - All reasonable and necessary costs of administering any aspect of the DWSRF program, including administrative costs associated with servicing debt obligations of recipients of DWSRF financial assistance. (3) Administrator - The chief officer of the Environmental Protection Agency appointed by the President of the United States. (4) Affiliated interest or affiliate - (A) any person or corporation owning or holding directly or indirectly 5.0% or more of the voting securities of an eligible private applicant; (B) any person or corporation in any chain of successive ownership of 5.0% or more of the voting securities of a eligible private applicant; (C) any corporation 5.0% or more of the voting securities of which is owned or controlled directly or indirectly by a eligible private applicant; (D) any corporation 5.0% or more of the voting securities of which is owned or controlled directly or indirectly by any person or corporation that owns or controls directly or indirectly 5.0% or more of the voting securities of any eligible private applicant or by any person or corporation in any chain of successive ownership of 5.0% of those eligible private applicant securities; (E) any person who is an officer or director of a eligible private applicant or of any corporation in any chain of successive ownership of 5.0% or more of voting securities of a eligible private applicant; (F) any person or corporation that the commission, after notice and hearing, determines actually exercises any substantial influence or control over the policies and actions of a eligible private applicant or over which a eligible private applicant exercises such control or that is under common control with a eligible private applicant, such control being the possession directly or indirectly of the power to direct or cause the direction of the management and policies of another, whether that power is established through ownership or voting of securities or by any other direct or indirect means; or (G) any person or corporation that the commission, after notice and hearing, determines is exercising substantial influence over the policies and action of the eligible private applicant in conjunction with one or more persons or corporations with which they are related by ownership or blood relationship, or by action in concert, that together they are affiliated within the meaning of this section, even though no one of them alone is so affiliated. (5) Applicant - An eligible NPNC, public, or private applicant which files an application with the board for financial assistance or associated actions. (6) Application for assistance - All the information required for submittal in: sec.371.32 of this title (relating to Required Application Information), sec.371.35 of this title (relating to Required Environmental Review and Determinations), sec.371.36 of this title (relating to Required DWSRF Engineering Feasibility Report), and sec.371.37 (relating to Required Water Conservation Plan), or sec.371.38 of this title (relating to Pre-Design Funding Option) for those applicants choosing the pre-design funding option. (7) Authorized representative - The signatory agent of the applicant authorized and directed by the applicant's governing body to make application for assistance and to sign documents required to undertake and complete the project, on behalf of the applicant. (8) Board - The Texas Water Development Board. (9) Bonds - All bonds, notes, certificates, book-entry obligations, and other obligations issued or authorized to be issued by any political subdivision. (10) Building - The erection, acquisition, alteration, remodeling, improvement or extension of a water project. (11) Capitalization grant - Federal grant assistance awarded to the state for capitalization of the Drinking Water State Revolving Fund. (12) Closing - The time at which the requirements for loan closing have been completed pursuant to sec.371.71 of this title (relating to Loan Closing) and an exchange of debt for funds to either the applicant, an escrow agent bank, or a trust agent has occurred. (13) Commission - The Texas Natural Resource Conservation Commission. (14) Commitment - An action of the board evidenced by a resolution approving a request for financial assistance from the fund. (15) Community water system - A public water system that: (A) serves at least 15 service connections used by year-round residents of the area served by the system; or (B) regularly serves at least 25 year-round residents. (16) Consolidation - Any one of the following activities: (A) a public water system acquiring another public water system; (B) a public water system providing retail service to another public water system; or (C) a public water system providing wholesale service, which may include operation of the system, to another public water system. (17) Construction - Any one or more of the following activities: (A) preliminary planning to determine the feasibility of a water project; (B) engineering, architectural, environmental, legal, title, fiscal, and economic or other pertinent studies; (C) surveys, designs, plans, working drawings, specifications, procedures; (D) building or the inspection or supervision thereof; and (E) activities authorized under sec.371.14 of this title (relating to Other Authorized Activities). (18) Construction fund - A dedicated source of funds, created and maintained by the applicant at an official depository, or a designated depository approved by the executive administrator, used solely for the purposes of construction of a project as approved by the board. (19) Contaminant - Any physical, chemical, biological, or radiological substance or matter in water. (20) Contract documents - The engineering description of the project including engineering drawings, maps, technical specifications, design reports, instructions and other contract conditions and forms that are in sufficient detail to allow contractors to bid on the work. (21) Corporation - A nonprofit water supply corporation created and operating under Chapter 76, Acts of the 43rd Legislature, 1st Called Session, 1933 as amended (Article 1434a, Vernon's Texas Civil Statutes). (22) Cost-effectiveness determination - A determination based on engineering, environmental, and financial analyses that a proposed project or component part will result in the minimum total monetary (resources) costs over time, but without overriding adverse social, economic and environmental considerations. (23) Debt - All bonds issued or to be issued by any political subdivision. (24) Delivery - The time at which payment is made by the board to the loan recipient against the purchase price of the loan recipient's debt and at which the board takes possession of the instruments evidencing the loan recipient's debt. Delivery may occur simultaneously with a release of funds, or without release of funds pursuant to an escrow agreement. (25) DWSRF - Drinking Water State Revolving Fund, a program of financial assistance administered by the board for water projects pursuant to the Act and Texas Water Code, Chapter 15. (26) Eligible applicant - A collective reference to NPNC, private, and public applicants. (27) Eligible NPNC applicant - A nonprofit organization that operates a public water system that is not a community water supply system. (28) Eligible private applicant - Any legal entity that owns and operates a community water system that is not an eligible public applicant or a nonprofit organization as those terms are defined herein. (29) Eligible public applicant - A political subdivision as defined pursuant to Texas Water Code, Chapter 15. (30) Environmental determination - A finding by the executive administrator regarding the potential environmental impacts of a proposed project and describing what mitigative measures, if any, the applicant will be required to implement as a condition of financial assistance. (31) Environmental information document - A written analysis prepared by the applicant describing the potential environmental impacts of a proposed project, sufficient in scope to enable the executive administrator to prepare an environmental assessment to allow an environmental determination to be made by the executive administrator. (32) Environmental review - The process whereby an evaluation is undertaken by the board, consistent with the National Environmental Policy Act and other federal, state, and local laws and requirements, to determine whether a proposed project may have significant impacts on the environment and therefore require the preparation of an environmental impact statement, as detailed in sec.371.35 of this title (relating to Required Environmental Review and Determinations). (33) EPA - The Environmental Protection Agency. (34) Escrow - The transfer of funds to a custodian of the funds which will act as the escrow agent or trust agent. (35) Escrow agent - The third party appointed to hold the funds which are not eligible for release to the loan recipient. (36) Escrow agent bank - The financial institution which has been appointed to hold the funds which are not eligible for release to the loan recipient. (37) Executive administrator - The executive administrator of the board or a designated representative. (38) Financial assistance - Loans by the board from the DWSRF to eligible applicants. (39) Fund - The DWSRF created pursuant to the Texas Water Code, Subchapter J, Chapter 15. (40) Funding year - The particular federal fiscal year (October 1 - September 30) for which funds are made available to the DWSRF. (41) Intended use plan - A plan identifying the intended uses of the amount of funds available through the DWSRF for financial assistance and administrative costs for each fiscal year as described in the Act, sec.1452. (42) Lending rate - Interest rate assessed to loan applicants for loans through the DWSRF. (43) Market interest rates - Interest rates comparable to those attained for municipal securities in an open market offering. (44) Municipality - A city, town, or other public body created by or pursuant to State law, or an Indian Tribe. (45) Nonprofit organization - Any legal entity that is recognized as a tax exempt organization by the Texas Comptroller of Public Accounts pursuant to 34 Texas Administrative Code, Chapter 3, Subchapter O. (46) Nonprofit noncommunity (NPNC) water system - A public water system that is not a community water system and that owned and operated by a nonprofit organization. (47) Population - That number of people who reside within the territorial boundaries of or receive wholesale or retail water service from the applicant based upon data that is acceptable to the executive administrator and which includes the following: (A) information in the DWSRF engineering feasibility report or latest official census for an incorporated city; or (B) information on the population for which the project is designed, where the applicant is not an incorporated city or town. (48) Primary drinking water regulation - A regulation promulgated by EPA which: (A) applies to public water systems; (B) specifies contaminants which, in the judgment of the administrator, may have any adverse effect on the health of persons; (C) specifies for each such contaminant either: (i) a maximum contaminant level, if, in the judgment of the administrator, it is economically and technologically feasible to ascertain the level of such contaminant in water in public water systems, or (ii) if, in the judgment of the administrator, it is not economically or technologically feasible to so ascertain the level of such contaminant, each treatment technique known to the administrator which leads to a reduction in the level of such contaminant sufficient to satisfy the requirements of the Act, sec.300f; and (D) contains criteria and procedures to assure a supply of drinking water which dependably complies with such maximum contaminant levels; including quality control and testing procedures to insure compliance with such levels and to insure proper operation and maintenance of the system, and requirements as to: (i) the minimum quality of water which may be taken into the system; and (ii) siting for new facilities for public water systems. (49) Priority list - A list of projects, ranked according to priority order, for which DWSRF assistance may be requested. (50) Project - The scope of work describing a construction endeavor for which financial assistance is sought. (51) Project engineer - The engineer or engineering firm retained by the applicant to provide professional engineering services during the planning, design, and/or construction of a project. (52) Public water system - (A) In General. The system for the provision to the public of water for human consumption through pipes or other constructed conveyances, if such system has at least fifteen service connections or regularly serves at least twenty-five individuals. Such term includes: (i) any collection, treatment, storage, and distribution facilities under control of the operator of such system and used primarily in connection with such system; and (ii) any collection or pretreatment storage facilities not under such control which are used primarily in connection with such system. (B) Connections. A connection to a system that delivers water by a constructed conveyance other than a pipe shall not be considered a connection, if: (i) the water is used exclusively for purposes other than residential uses (consisting of drinking, bathing, and cooking, or other similar uses); (ii) the administrator or the commission determines that alternative water to achieve the equivalent level of public health protection provided by the applicable national primary drinking water regulation is provided for residential or similar uses for drinking and cooking; or (iii) the administrator or the commission determines that the water provided for residential or similar uses for drinking, cooking, and bathing is centrally treated or treated at the point of entry by the provider, a pass-through entity, or the user to achieve the equivalent level of protection provided by the applicable national primary drinking water regulations. (C) Irrigation Districts. An irrigation district in existence prior to May 18, 1994, that provides primarily agricultural service through a piped water system with only incidental residential or similar use shall not be considered to be a public water system if the system or the residential or similar users of the system comply with subparagraphs (B)(ii) and (B)(iii) of this paragraph. (D) Transition Period. A water supplier that would be a public water system only as a result of modifications made shall not be considered a public water system until two years after August 6, 1996. If a water supplier does not serve 15 service connections or 25 people at any time after the conclusion of the two- year period, the water supplier shall not be considered a public water system. (53) Release - The time at which funds are made available to the loan recipient. (54) Secondary drinking water regulation - A regulation promulgated by EPA which applies to public water systems and which specifies the maximum contaminant levels which, in the judgment of the administrator, are requisite to protect the public welfare. Such regulations may vary according to geographic and other circumstances and may apply to any contaminant in drinking water: (A) which may adversely affect the odor or appearance of such water and consequently may cause a substantial number of the persons served by the public water system providing such water to discontinue its use; or (B) which may otherwise adversely affect the public welfare. (55) State - State of Texas. (56) State allotment - The sum allocated to the State of Texas for a federal fiscal year, from funds appropriated by congress pursuant to the Act. (57) Trust agent - The party appointed by the applicant and approved by the executive administrator to hold the funds which are not eligible for release to the loan recipient. (58) Water conservation plan - A report outlining the methods and means by which water conservation may be achieved in an area, as further defined in sec.371.37 of this title (relating to Required Water Conservation Plan). (59) Water conservation program - A comprehensive description and schedule of the methods and means to implement and enforce a water conservation plan. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on May 21, 1998. TRD-9808365 Suzanne Schwartz General Counsel Texas Water Development Board Effective date: June 10, 1998 Proposal publication date: March 27, 1998 For further information, please call: (512) 463-7981 SUBCHAPTER B.Program Requirements 31 TAC sec.sec.371.13, 371.20, 371.26 The amendments and new section are adopted under the authority of the Texas Water Code, sec.6.101 and sec.15.605 which provide the Texas Water Development Board with the authority to adopt rules necessary to carry out the powers and duties in the Water Code and other laws of the State. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on May 21, 1998. TRD-9808364 Suzanne Schwartz General Counsel Texas Water Development Board Effective date: June 10, 1998 Proposal publication date: March 27, 1998 For further information, please call: (512) 463-7981 SUBCHAPTER C.Application for Assistance 31 TAC sec.sec.371.32 - 371.34 The repeals are adopted under the authority of the Texas Water Code, sec.6.101 and sec.15.605 which provide the Texas Water Development Board with the authority to adopt rules necessary to carry out the powers and duties in the Water Code and other laws of the State. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on May 21, 1998. TRD-9808366 Suzanne Schwartz General Counsel Texas Water Development Board Effective date: June 10, 1998 Proposal publication date: March 27, 1998 For further information, please call: (512) 463-7981 31 TAC sec.sec.371.32, 371.37, 371.39, 371.40 The amendments and new section are adopted under the authority of the Texas Water Code, sec.6.101 and sec.15.605 which provide the Texas Water Development Board with the authority to adopt rules necessary to carry out the powers and duties in the Water Code and other laws of the State. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on May 21, 1998. TRD-9808363 Suzanne Schwartz General Counsel Texas Water Development Board Effective date: June 10, 1998 Proposal publication date: March 27, 1998 For further information, please call: (512) 463-7981 SUBCHAPTER D.Board Action on Application 31 TAC sec.371.52 The amendment is adopted under the authority of the Texas Water Code, sec.6.101 and sec.15.605 which provide the Texas Water Development Board with the authority to adopt rules necessary to carry out the powers and duties in the Water Code and other laws of the State. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on May 21, 1998. TRD-9808362 Suzanne Schwartz General Counsel Texas Water Development Board Effective date: June 10, 1998 Proposal publication date: March 27, 1998 For further information, please call: (512) 463-7981 SUBCHAPTER F.Prerequisites to Release of Funds 31 TAC sec.371.71, sec.371.72 The amendments are adopted under the authority of the Texas Water Code, sec.6.101 and sec.15.605 which provide the Texas Water Development Board with the authority to adopt rules necessary to carry out the powers and duties in the Water Code and other laws of the State. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on May 21, 1998. TRD-9808361 Suzanne Schwartz General Counsel Texas Water Development Board Effective date: June 10, 1998 Proposal publication date: March 27, 1998 For further information, please call: (512) 463-7981 PART XIII. Board for Lease of University Lands CHAPTER 401. Organization of the Board 31 TAC sec.sec.401.1-401.7 The Board for Lease of University Lands adopts the repeal of Chapter 401, sec.sec.401.1-401.7, concerning Organization of the Board, as published in the April 3, 1998, issue of the Texas Register (23 TexReg 3417). The justification for the repeals is to delete rules that are out of date and to replace them with rules that are consistent with law, more comprehensively address the administration and enforcement of Texas Education Code, Chapter 66, Subchapter D, and provide for consistent and uniform application of the rules. The Board for Lease of University Lands undertook a complete review of its rules in response to Senate Bill 1354, as adopted by the 75th Legislature. No comments were received regarding adoption of the repeals. The repeal is adopted under authority granted in Texas Education Code, Chapter 66, Subchapter D. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on May 20, 1998. TRD-9808224 Pamela S. Bacon Secretary Board for Lease of University Lands Effective date: June 9, 1998 Proposal publication date: April 3, 1998 For further information, please call: (512) 499-4462 CHAPTER 403. Sale of Oil and Gas Leases 31 TAC sec.sec.403.1-403.8 The Board for Lease of University Lands adopts the repeal of Chapter 403, sec.sec.403.1-403.8, concerning Sale of Oil and Gas Leases, as published in the April 3, 1998, issue of the Texas Register (23 TexReg 3418). The justification for the repeals is to delete rules that are out of date and to replace them with rules that are consistent with law, more comprehensively address the administration and enforcement of Texas Education Code, Chapter 66, Subchapter D, and provide for consistent and uniform application of the rules. The Board for Lease of University Lands undertook a complete review of its rules in response to Senate Bill 1354, as adopted by the 75th Legislature. No comments were received regarding adoption of the repeals. The repeal is adopted under authority granted in Texas Education Code, Chapter 66, Subchapter D. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on May 20, 1998. TRD-9808225 Pamela S. Bacon Secretary Board for Lease of University Lands Effective date: June 9, 1998 Proposal publication date: April 3, 1998 For further information, please call: (512) 499-4462 CHAPTER 405. Disposition of Bonuses, Rentals, Royalties, Fees 31 TAC sec.sec.405.1-405.4 The Board for Lease of University Lands adopts the repeal of Chapter 405, sec.sec.405.1-405.4, concerning Disposition of Bonuses, Rentals, Royalties, Fees, as published in the April 3, 1998, issue of the Texas Register (23 TexReg 3418). The justification for the repeals is to delete rules that are out of date and to replace them with rules that are consistent with law, more comprehensively address the administration and enforcement of Texas Education Code, Chapter 66, Subchapter D, and provide for consistent and uniform application of the rules. The Board for Lease of University Lands undertook a complete review of its rules in response to Senate Bill 1354, as adopted by the 75th Legislature. No comments were received regarding adoption of the repeals. The repeal is adopted under authority granted in Texas Education Code, Chapter 66, Subchapter D. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on May 20, 1998. TRD-9808226 Pamela S. Bacon Secretary Board for Lease of University Lands Effective date: June 9, 1998 Proposal publication date: April 3, 1998 For further information, please call: (512) 499-4462 CHAPTER 407. Operational Matters 31 TAC sec.sec.407.1-407.17 The Board for Lease of University Lands adopts the repeal of Chapter 407, sec.sec.407.1-407.17, concerning Operational Matters, as published in the April 3, 1998, issue of the Texas Register (23 TexReg 3419). The justification for the repeals is to delete rules that are out of date and to replace them with rules that are consistent with law, more comprehensively address the administration and enforcement of Texas Education Code, Chapter 66, Subchapter D, and provide for consistent and uniform application of the rules. The Board for Lease of University Lands undertook a complete review of its rules in response to Senate Bill 1354, as adopted by the 75th Legislature. No comments were received regarding adoption of the repeals. The repeal is adopted under authority granted in Texas Education Code, Chapter 66, Subchapter D. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on May 20, 1998. TRD-9808227 Pamela S. Bacon Secretary Board for Lease of University Lands Effective date: June 9, 1998 Proposal publication date: April 3, 1998 For further information, please call: (512) 499-4462 CHAPTER 409. Special Actions by the Board 31 TAC sec.sec.409.1-409.4 The Board for Lease of University Lands adopts the repeal of Chapter 409, sec.sec.409.1-409.4 concerning Special Actions by the Board, as published in the April 3, 1998, issue of the Texas Register (23 TexReg 3420). The justification for the repeals is to delete rules that are out of date and to replace them with rules that are consistent with law, more comprehensively address the administration and enforcement of Texas Education Code, Chapter 66, Subchapter D, and provide for consistent and uniform application of the rules. The Board for Lease of University Lands undertook a complete review of its rules in response to Senate Bill 1354, as adopted by the 75th Legislature. No comments were received regarding adoption of the repeals. The repeal is adopted under authority granted in Texas Education Code, Chapter 66, Subchapter D. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on May 20, 1998. TRD-9808228 Pamela S. Bacon Secretary Board for Lease of University Lands Effective date: June 9, 1998 Proposal publication date: April 3, 1998 For further information, please call: (512) 499-4462 PART XVI. Coastal Coordination Council CHAPTER 506. Coastal Procedures for Federal Consistency with Coastal Management Program Goals and Priorities 31 TAC sec.506.12, sec.506.20 The Coastal Coordination Council (Council) adopts amendments to sec.506.12(a)(1)(F) (relating to Goals) and sec.506.20 (relating to Council Review and Certification of Existing Agency Rules), concerning federal restoration plans developed pursuant to the federal Oil Pollution Act of 1990 (OPA) and Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), without changes to the proposed text as published in the March 6, 1998, issue of the Texas Register (23 TexReg 2255). The text will not be republished. OPA and CERCLA require federal agencies to assess injuries to natural resources from spills of oil or hazardous substances and require responsible parties to compensate for the damage; this process is known generally as natural resource damage assessment (NRDA). In Texas, NRDA usually is performed by U.S. Fish and Wildlife Service and National Oceanic and Atmospheric Administration in conjunction with the state trustees. The state trustees are the General Land Office, Texas Natural Resource Conservation Commission, and Texas Parks and Wildlife Department; these state agencies are represented on the Council. The amendments are adopted to notify affected agencies, entities and the public that these federal restoration plans are subject to the Coastal Management Program (CMP), and to establish a special process for review to ensure consistency with the CMP goals and policies. The amendments to sec.506.12(a)(1)(F) add federal restoration plans to the CMP list of federal activities that may adversely affect coastal natural resource areas (CNRAs). The amendments to sec.506.20 delegate the Council's consistency review authority to the state trustees. Once the federal agencies determine consistency and the state trustees conduct the consistency review, no further determination or review is required to implement the restoration project. Section 506.20 requires the Council to develop a list of potential restoration projects which are deemed consistent with the CMP and that the trustees may voluntarily use, as appropriate. Section 506.20 also requires the state trustees to give regular reports to the Council on consistency reviews of NRDA restoration plans. The Council has prepared a takings impact assessment for the adoption of these amendments and determined that adoption of the amendments will not result in a taking of private real property. To receive a copy of the takings impact assessment, please send a written request to Ms. Carol Milner, Texas General Land Office, Legal Services Division, 1700 N. Congress Avenue, Room 626, Austin, Texas 78701-1495, facsimile number (512) 463-6311. Three commenters commented on the proposed amendments. The comments are organized by section. Preamble: Two commenters objected to the characterization in the preamble that the proposed amendments are the product of "a broad consensus among workgroup members" and requested that the determination of "consensus" be reserved pending review of all formal comments. The "consensus" referred to in the preamble to the proposed amendments was the consensus of the workgroup. Based on the workgroup discussions and the formal comments received, entities, agencies and citizens in support of the proposal far outnumber those in opposition. The preamble to the proposed rule is not republished; therefore, no change was made based on this comment. Section 506.12(a): One commenter objected to listing NRDA restoration plans, stating that current federal and Texas NRDA regulations offer citizens and local governments the opportunity to become involved in NRDAs. The commenter expressed concern that another layer of state agency review would compound the "often cumbersome, time consuming and costly NRDA process" and that the amendments would create the possibility of inter-agency and state-federal conflicts when implementing NRDAs. The federal agencies are already required to ensure that federal restoration plans are consistent with the CMP; delegation of consistency review to the state trustees ensures that there will be no additional delay in the NRDA process. Further, the Texas NRDA process is specifically designed so that all potential conflicts are identifiable, usually identified at an early stage, and resolved in a timely manner. No change was made based on this comment. Section 506.20(c): Two commenters supported the delegation of the CMP consistency review of NRDA restoration plans to the state trustee agencies which are already represented on the Council, stating that the delegation should avoid duplication of effort and prevent adding time to the process. No change was requested by these commenters and no change was made. Section 506.20(c)(2): Two commenters opposed the development of a list of potential restoration projects for each major estuary system on the Texas coast, stating that the list could potentially be misused to encourage NRDA claims. The list of potential restoration plans does not change the NRDA process. In fact the National Oceanic and Atmospheric Administration's NRDA regulations allow trustees to use projects from such a list when the project is determined to be the trustees' preferred alternative among a range of feasible restoration alternatives for an incident. 15 CFR sec.990.56. Use of a project on the list is voluntary, and the list is available for use by all resource agencies, not just the NRDA trustees. In fact, use of the list can streamline the consistency review process because the projects on the list are deemed consistent with the CMP. No change was made based on these comments. Two commenters stated that NRDA restoration is site- and incident-specific, and that the restoration project list may not be flexible or segmented enough to address specific NRD sites, or would imply that NRDA could be used to engage in "enhancement" activities. The trustees may choose projects from the list when the projects meet the appropriate scientific and legal parameters. Creation of a list of potential projects does not change the legal requirements applicable to NRDA restoration planning. No change was made based on these comments. For: Amoco (in part), Texas Chemical Council (in part). Against: Amoco (in part), Texas Chemical Council (in part), Water Quality Insurance Syndicate. The amendments are adopted under the Texas Natural Resources Code, Chapter 33, Subchapter C, sec.33.053(a)(10), and the Texas Natural Resources Code, Chapter 33, Subchapter F, sec.33.206(d), which provide the Council with, respectively, the authority to list each federal activity that may have a direct and significant detrimental impact on CNRAs and to adopt procedural rules for review of federal activities. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on May 20, 1998. TRD-9808206 Garry Mauro Chairman Coastal Coordination Council Effective date: June 9, 1998 Proposal publication date: March 6, 1998 For further information, please call: (512) 305-9129 TITLE 34. PUBLIC FINANCE PART I. Comptroller of Public Accounts CHAPTER 9. Property Tax Administration SUBCHAPTER H. Tax Record Requirements 34 TAC sec.9.3041 The Comptroller of Public Accounts adopts the repeal of sec.9.3041, concerning tax deferral affidavit, without changes to the proposed text as published in the March 20, 1998, issue of the Texas Register (23 TexReg 2984). The rule is being repealed because the Tax Code, sec.5.07(a) does not require that the comptroller adopt this form by rule. No comments were received regarding adoption of the repeal. This repeal is adopted under the Tax Code, sec.111.002 and sec.111.0022, which provide the comptroller with the authority to adopt rules for the administration and enforcement of the Tax Code and programs or functions assigned to the comptroller by law. The repeal implements the Tax Code, sec.5.07(a) and sec.33.06. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on May 21, 1998. TRD-9808340 Martin Cherry Chief, General Law Comptroller of Public Accounts Effective date: June 10, 1998 Proposal publication date: March 20, 1998 For further information, please call: (512) 463-3699 TITLE 37. PUBLIC SAFETY AND CORRECTIONS PART VI. Texas Department of Criminal Justice CHAPTER 151. General Provisions 37 TAC sec.151.51 The Texas Department of Criminal Justice (TDCJ) adopts an amendment to sec.151.51, concerning Custodial Officer Certification and Hazardous Duty Pay Eligibility Guidelines without changes to the proposed text as published in the March 27, 1998, issue of the Texas Register (23 TexReg 3232). The amendment updates guidelines and eligibility criteria for authorizing custodial officer certification and hazardous duty pay guidelines. The amendment will increase clarification of procedures of the Board. No comments were received regarding adoption of the amendment. The amendment is adopted under the Government Code, sec.492.013, which grants general rulemaking authority to the Board, and Texas Government Code, sec.sec.659.062, 813.506, and 815.505. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on May 20, 1998. TRD-9808244 Carl Reynolds General Counsel Texas Department of Criminal Justice Effective date: June 9, 1998 Proposal publication date: March 27, 1998 For further information, please call: (512) 463-9693 CHAPTER 157. State Jail Felony Facilities The Texas Department Criminal Justice adopts the repeal of sec.sec.157.5, 157.7, and 157.10 and amendments to sec.sec.157.1, 157.3, 157.23, 157.25, 157.29, 157.31, 157.33, 157.35, 157.41, 157.43, 157.45, 157.47, 157.49, 157.51, 157.53, 157.55, 157.57, 157.59, 157.63, 157.81, 157.83, 157.87, 157.89, 157.93, 157.95, and 157.97, concerning Standards for State Jail Felony Facilities. Section 157.45 and sec.157.97 are adopted with changes to the proposed text as published in the March 27, 1998, issue of the Texas Register (23 TexReg 3235). Sections 157.1, 157.3, 157.23, 157.25, 157.29, 157.31, 157.33, 157.35, 157.41, 157.43, 157.47, 157.49, 157.51, 157.53, 157.55, 157.57, 157.59, 157.63, 157.81, 157.83, 157.87, 157.89, 157.93, and 157.95 are adopted without changes and will not be republished. The revisions incorporate updated language, and deletion of references to "Mode I" and "Mode II" state jail facilities to be replaced with "state operated" and "privately operated" facilities. Some wording has been changed to reflect changes in law as authorized by the Legislature. Other changes remove Community Justice Assistance Division and replaces with State Jail Division as the authority. The repeal and amendments will enable a more efficient operation of State Jail facilities. No comments were received regarding adoption of the repeals and amendments. SUBCHAPTER A. Admissions and Allocations 37 TAC sec.157.1, sec.157.3 The amendments are adopted under V.T.C.A. Government Code, Chapter 507, which provides the Department of Criminal Justice, State Jail Division, with the authority to promulgate rules. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on May 20, 1998. TRD-9808246 Carl Reynolds General Counsel Texas Department of Criminal Justice Effective date: June 9, 1998 Proposal publication date: March 27, 1998 For further information, please call: (512) 463-9693 37 TAC sec.sec.157.5, 157.7, 157.10 The repeals are adopted under V.T.C.A. Government Code, Chapter 507, which provides the Department of Criminal Justice, State Jail Division, with the authority to promulgate rules. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on May 20, 1998. TRD-9808245 Carl Reynolds General Counsel Texas Department of Criminal Justice Effective date: June 9, 1998 Proposal publication date: March 27, 1998 For further information, please call: (512) 463-9693 SUBCHAPTER B. Operational Standards 37 TAC sec.sec.157.23, 157.25, 157.29, 157.31, 157.33, 157.35, 157.41, 157.43, 157.45, 157.47, 157.49, 157.51, 157.53, 157.55, 157.57, 157.59, 157.63 The amendments are adopted under V.T.C.A. Government Code, Chapter 507, which provides the Department of Criminal Justice, State Jail Division, with the authority to promulgate rules. sec.157.45. Food Service. Meals are nutritionally balanced, well-planned, and prepared and served in a manner that meets established governmental health and safety codes. (1) Food service management. Food service operations shall be supervised by a full-time staff member who is experienced in institutional food preparation or quantity food management. (2)-(3) (No change.) (4) Menu planning. Facility administrators shall ensure there is written policy, procedure, and practice to require that food service staff plan menus and follow the plan. The planning and preparation of all meals should take into consideration food flavor, texture, temperature, appearance, and palatability. (5) Medical diets. Each facility will, through written policy, procedure, and practice, provide for special diets as prescribed by appropriate medical or dental personnel. (6) Religious dietary policy. Each facility will, through written policy, procedure, and practice, provide for religious diets as prescribed by the chaplaincy department. (7) Exclusion as discipline. Facility administrators shall ensure that written policy precludes the use of food as a disciplinary measure, except as noted in the Administrative Segregation Plan. (8) (No change.) (9) Training requirement. Facility administrators shall provide that all staff and other persons are trained in the safe use of equipment. (10) Health protection. Facility administrators shall maintain written policy, procedure, and practice to provide for adequate health protection for all offenders and staff in the facility and offenders and other persons working in food service, to include the following: (A) Where required by the laws and/or regulations applicable to food service employees in the community where the facility is located, all persons involved in the preparation of food receive a preassignment medical examination and periodic reexaminations to ensure freedom from diarrhea, skin infections, and other illnesses transmissible by food or utensils; all examinations are conducted in accordance with local requirements. (B) When the facility's food services are provided by an outside agency or individual, the facility has written verification that the outside provider complies with the state and local regulations regarding food service. (C) All food handlers are instructed and signs are posted to remind food handlers to wash their hands on reporting to duty, after using toilet facilities, or when needed to keep them clean. (D) Offenders and other persons working in food service are inspected each day for health and cleanliness by the director of food services (or designee), and inspection is documented. (11) Facilities and equipment. Each facility shall maintain written policy, procedure, and practice to require weekly inspections of all food service areas, including dining and food preparation areas and equipment, by administrative, medical, safety, or dietary personnel; these may include the person supervising food service operations or his/her designee. Refrigerator and water temperatures are checked daily by administrative, medical, safety or dietary personnel. (12) (No change.) This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on May 20, 1998. TRD-9808252 Carl Reynolds General Counsel Texas Department of Criminal Justice Effective date: June 9, 1998 Proposal publication date: March 27, 1998 For further information, please call: (512) 463-9693 SUBCHAPTER C. Physical Plant Standards 37 TAC sec.sec.157.81, 157.83, 157.87, 157.89, 157.93, 157.95, 157.97 The amendments are adopted under V.T.C.A. Government Code, Chapter 507, which provides the Department of Criminal Justice, State Jail Division, with the authority to promulgate rules. sec.157.97. Construction Approval Rules. (a) State operated facilities. The state jail division shall consult with the engineering division of the TDCJ for the design and construction of all state operated facilities. (b) Privately operated facilities. The division, with board approval, may contract with private vendors or counties for the design, construction, and operation of privately operated facilities. (c)-(d) (No change.) (e) Information submissions. The applicant or applicant's representative shall furnish TDCJ information during the planning and construction stages of any facility. Complete submittal of all information presented to the applicants, including an analysis of projected construction cost prepared by the architect or engineer and projected costs of operation prepared by the architect or engineer shall be made to TDCJ in no less than five days after said submissions are made to the applicant. For projects performed under Design/Build, Fast Track, Project Definition Services, and other alternative delivery methods, the architect/engineer shall provide to TDCJ for approval a schedule of submittals that approximate the stages of planning as follows: (1) Schematic design. On completion of the schematic design phase at the time schematic design studies illustrating the scale and relationship of project components and cost estimates are submitted to the applicant for approval. (2) Design development. On completion of the design development stage when drawings and other documents to fix and describe the size and character of the entire project as to structural, mechanical, and electrical systems, life safety and detention locking systems, materials, cost estimates, and such other essentials as may be appropriate are submitted to the applicant. An outline of staffing requirements shall be submitted at this phase for privately operated facility projects. (3) Construction documents. On completion of all construction documents including drawings and specifications setting forth in detail requirements for the construction of the entire project including necessary bidding information and bidding forms and final cost estimates of construction cost and operation cost. These documents shall include the conditions of the construction contract or contracts and the form of agreement to be entered into between the applicant and the contractor or contractors. Detailed staffing plans shall be submitted at this stage for privately operated facility projects. (f)-(k) (No change.) This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on May 20, 1998. TRD-9808350 Carl Reynolds General Counsel Texas Department of Criminal Justice Effective date: June 9, 1998 Proposal publication date: March 27, 1998 For further information, please call: (512) 463-9693 CHAPTER 160. Receipt and Disbursement of Work Program Residents' Earned Funds 37 TAC sec.sec.160.1-160.8 The Texas Department of Criminal Justice adopts amendments to sec.sec.160.1- 160.8, concerning Receipt and Disbursement of Work Program Residents' Earned Funds, without changes to proposed text as published in the March 27, 1998, issue of the Texas Register (23 TexReg 3244). The amendments primarily delete an unnecessary and inaccurate statutory reference. The amendments will enable a cleaner version of already existing rules. No comments were received regarding adoption of the amendments. The amendments are adopted under the Government Code, sec.492.013, which grants general rulemaking authority. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on May 20, 1998. TRD-9808247 Carl Reynolds General Counsel Texas Department of Criminal Justice Effective date: June 9, 1998 Proposal publication date: March 27, 1998 For further information, please call: (512) 463-9693 CHAPTER 192. Parole Board and Parole Division Administrative Matters 37 TAC sec.192.1 The Texas Department of Criminal Justice adopts the repeal of sec.192.1, concerning Administrative Review of Parole Panel Actions without changes to the proposed text as published in the March 27, 1998, issue of the Texas Register (23 TexReg 3244). The repeal deletes language that describes a practice that is obsolete and no longer within the agency's authority. The repeal will enable a cleaner version of agency rules and regulations. No comments were received regarding adoption of the repeal. The repeal is adopted under the Government Code, sec.492.013, which grants general rulemaking authority. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on May 20, 1998. TRD-9808248 Carl Reynolds General Counsel Texas Department of Criminal Justice Effective date: June 9, 1998 Proposal publication date: March 27, 1998 For further information, please call: (512) 463-9693 CHAPTER 195. Parole The Texas Department of Criminal Justice adopts the repeal of sec.195.61 and amendments to sec.195.71, and sec.sec.195.76-195.78, concerning Parole, without changes to the proposed text as published in the March 27, 1998, issue of the Texas Register (23 TexReg 3245). The repeal removes obsolete rule language from the agency's standards, but does not affect the ability of the Board of Pardons and Paroles and the Parole Division of TDCJ to impose and enforce conditions of release. The amendments change references from the "Pardons and Paroles Division" to the "Parole Division". The repeal and amendments will provide a cleaner version of already existing rules as well as the removal of obsolete language. No comments were received regarding adoption of the repeal and amendments. 37 TAC sec.195.61 The repeal is adopted under the Government Code, sec.492.013, which grants general rulemaking authority. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on May 20, 1998. TRD-9808249 Carl Reynolds General Counsel Texas Department of Criminal Justice Effective date: June 9, 1998 Proposal publication date: March 27, 1998 For further information, please call: (512) 463-9693 37 TAC sec.sec.195.71, 195.76-195.78 The amendments are adopted under the Government Code, sec.492.013, which grants general rulemaking authority. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on May 20, 1998. TRD-9808250 Carl Reynolds General Counsel Texas Department of Criminal Justice Effective date: June 9, 1998 Proposal publication date: March 27, 1998 For further information, please call: (512) 463-9693 CHAPTER 197. Mandatory Supervision 37 TAC sec.197.21 The Texas Department of Criminal Justice adopts the repeal of sec.197.21, concerning Rules and Conditions of Mandatory Supervision, without changes to the proposed text as published in the March 27, 1998, issue of the Texas Register (23 TexReg 3246). The repeal deletes language which is no longer current, but does not affect the ability of the Board of Pardons and Paroles and the Parole Division of TDCJ to impose and enforce conditions of release. The repeal will enable a cleaner version of the agency's standards. No comments were received regarding adoption of the repeal. The repeal is adopted under the Government Code, sec.492.013, which grants general rulemaking authority. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on May 20, 1998. TRD-9808251 Carl Reynolds General Counsel Texas Department of Criminal Justice Effective date: June 9, 1998 Proposal publication date: March 27, 1998 For further information, please call: (512) 463-9693 PART VIII. Private Sector Prison Industries Oversight Authority CHAPTER 245. General Provisions 37 TAC sec.sec.245.10-245.13, 245.20-245.23, 245.30, 245.40, 245.41 The Private Sector Prison Industries Oversight Authority (the Authority) adopts sec.sec.245.10-245.13,245.20-245.24, 245.30, 245.40, and 245.41 concerning General Provisions. Sections 245.11-245.13, and 245.20-245.22 are adopted with changes to the proposed text as published in the April 10, 1998, issue of the Texas Register (23 TexReg 3654). Sections 245.10, 245.23, 245.30, 245.40, and 245.41 are adopted without changes and will not be republished. Section 245.24 is being withdrawn. Comments were received regarding Section 245.11, 245.12, 245.13, 245.21, 245.22 and 245.24. Section 245.20 was revised in response to comments on other Rules. These sections are adopted with revisions as published. Rule 245.24 has been deleted. These sections set forth the foundation for the newly created Authority appointed by the Governor under House Bill 1301. This initial set of rules sets the standards for operation and the policies and procedures that are implemented to properly approve, certify, and oversee the operation of the private sector prison industries program in: the Texas Department of Criminal Justice, the Texas Youth Commission, and county jail correctional facilities in compliance with the federal Private Sector Prison Industry Enhancement Certification Program. Comments. Section 245.11. If actual cost of unemployment insurance for the participants were to be computed it would always be zero as the participants are exempt from coverage and ineligible to receive unemployment benefits. Therefore, the equivalent of unemployment tax costs is the factor that should be used. This would put the participating firms in parity with free-world firms. Section 245.12. There is no guidance in the Rules as to the standards and procedures for certification. The Oversight Authority Rules are referenced, but there is no delineation as to what those Rules actually are. It would be appropriate here to include standards for companies that seek to participate in P.I.E. A provision should be included for inmate participants to address grievances as to the treatment they receive. A notice should be posted that complaints as to unauthorized deductions, unsafe conditions or illegal treatment may be addressed to the Oversight Authority. Section 245.13. The Rule imposes an unnecessary restriction on the flow of information. The purpose of restricting information about the Authority to the Chair is not in accord with the public and open nature of the project. It is recommended that this section be deleted and perhaps replaced with a section that indicates the purpose of the Rule along with a much more narrowly tailored approach to achieving that purpose. Section 245.21. While there is support in the statute for the training wage, there is no place in the statute that would authorize the Authority to permit a sub-minimum wage beyond that two month period. Under subsection (a) the required information should be submitted at least on an annual basis, and that the Authority be given the option of requiring it more often. The phrase "work of a similar nature" should be more narrowly defined. "Locality" should be more specifically defined in the Rules as the council of governments region in which the work is performed. "Work of a similar nature" should be more explicitly defined, in that it is open to interpretation. "Work of a similar nature" could be narrowly interpreted as manufacturing of an exact product, where a broader interpretation might lead to a larger comparative sample and prevailing wage that is more related to the skill and training involved in the work. Subsection (b)(3) should be moved to sec.245.22 in that this language would place the responsibility on the Texas Workforce Commission for verification that the project would not have an adverse economic impact on any other entity, facility or private industry. This is beyond the scope of Texas Workforce Commission operations and authority. Subsection(c)(1)(G) and (2) refers to a specific publication. Also, the section referencing the DOT, OES, and SIC is improperly ordered and overly prescriptive and should be reduced to practical, generic language. Section 245.22. Labor and business organizations do not exist in every part of the state. The consultation should include a provision requiring consultation with state labor federations and business organizations, such as the Texas AFL-CIO and the Texas Association of Business and Chambers of Commerce. Section 245.24. The Rule requiring environmental assessments is premature, in that they are not required in the existing Federal Guidelines. Language has been added to sec.245.20 requiring documentation of compliance with the National Environmental Policy Act if required by federal regulation. Responses to Comments. Section 245.11. The intent of the Rule was to require a payment that was the equivalent of unemployment insurance tax. The Rule has been changed to clarify this intent and incorporate the recommended changes. Language has also been added to clarify that the payment is made to the Authority and forwarded to the State Comptrollers Office. Section 245.12. The designation process is outlined in sec.245.20. Language has been added to indicate that copies of Authority Rules and Federal Guidelines and technical assistance shall be provided to applicants upon request in sec.245.12 and sec.245.20. Language has been added to sec.245.20 regarding standards for industries desiring P.I.E. participation. Correctional facilities utilize a well tested and responsive grievance procedure. Language requiring worker grievances and responses regarding the P.I.E Program shall be forwarded to the Oversight Authority through the P.I.E. Program Specialist has been added under sec.245.13. Language has been added to sec.245.12 (b) requiring the facility grievance procedure be submitted for verification purposes. Section 245.13. This Rule has been revised to indicate the purpose and clarify the issues that would be of particular interest to the Oversight Authority. Section 245.21. This Rule nowhere authorizes a sub-minimum wage. The Rule has been revised deleting the language regarding a "graduated wage earning base leading to the prevailing wage." The recommended language, "at least", has been added to the Rule. The statement, "or as otherwise determined by the Authority", give the Authority the option of requiring the information more often. The "locality" has been defined as the council on government region in which the work is performed. Prevailing wage determinations are based on the position or trade, not on the type of industry. Subsection (b)(3) has been moved to sec.245.22 (a)(7). References to the DOT, OES, and SIC codes have been deleted. This section has been reworded to reflect practical, generic language. Section 245.22. The Rule has been revised to require consultation with the Texas AFL-CIO and the Texas Association of Business and Chambers of Commerce. Section 245.24. This Rule is being withdrawn. The new sections are adopted under Texas Government Code, sec.sec.497.051- 497.062, which provides the Authority with the authority to promulgate rules; 18 United States Code 1761; 42 United States Code, sec.sec.4321-4347; and 40 Code of Federal Regulations Part 1500. sec.245.11. Payments by Industries to the Private Sector Prison Industries Oversight Account. (a) The participating agency/entity, facility or private industry partner(s) shall calculate the equivalent amount of unemployment insurance taxes owed for each inmate participating in the Prison Industries Program utilizing the formula established annually by the Texas Workforce Commission for calculating the payment of unemployment insurance taxes. (b) The participating agency/entity, facility or private industry partner(s) shall forward the amount of moneys calculated under subsection (a) of this section to the Oversight Authority. The Oversight Authority shall forward the moneys to the State Comptrollers office for deposit in the General Revenue Fund in the Private Sector Prison Industries Oversight Account. (1) Moneys shall be forwarded on a quarterly basis. A copy of the deposit shall be forwarded to the Oversight Authority or Designee. (2) The payment shall be reflected in the PIE Quarterly Statistical Report. sec.245.12. Policy and Procedural Requirement for Participating Agencies/Entities. (a) Participating agencies/entities shall develop policies and procedures, pertinent to their individual program and in keeping with State and Federal guidelines and law. Copies of Authority Rules and Federal Guidelines as well as technical assistance shall be provided by the PIE Program Specialist upon request. (b) Participating agencies/entities shall submit their policies and procedures to the Private Sector Prison Industries Oversight Authority (the Authority) for review and approval through the PIE Program Specialist. Additionally, participating agencies/entities shall include a copy of the grievance procedure in place at the location where PIE designated cost accounting centers operate. (c) The PIE Program Specialist shall review the submitted policies and procedures for compliance with State and Federal guidelines, law and Oversight Authority Rules. (1) After reviewing the submitted policies and procedures, the PIE Program Specialist shall forward the same to the Authority with a cover memo indicating any areas of perceived non-compliance. (2) The Authority shall review the submitted policies and procedures and the PIE Program Specialist's comments. The Authority shall then make a determination regarding approval of the submitted policies or the nature of any needed corrective action. (d) The Decision of the Authority shall be communicated to the participating agency/entity through the PIE Program Specialist. sec.245.13. Program Inquiries. In order to keep the Private Sector Prison Industries Oversight Authority informed regarding the PIE Program, all written inquiries, requests for information and concerns, related to the Private Sector Prison Industries Program shall be directed to the Program Specialist or Authority Members, and all responses shall be copied to the Chairman of the Private Sector Prison Industries Oversight Authority, with the exception of: (1) information normally provided by the PIE Program Specialist as a routine job function or as technical assistance to the Authority, Bureau of Justice Assistance, state agencies, facilities or industry; or, (2) information that may be provided by participating agencies/entities, facilities or private industry partners regarding their specific program. (3) Additionally, worker grievances and responses regarding the P.I.E Program shall be forwarded to the Oversight Authority through the P.I.E. Program Specialist. sec.245.20. Designation of Cost Accounting Centers. (a) In order to obtain designation of a new cost accounting center (CAC), participating agencies/entities, facilities or industry partners shall gather and submit to the Authority for review through the PIE Program Specialist: (1) the documentation required under sec.245.21 of this title (relating to Prevailing Wages and Non-displacement of Workers); (2) the documentation required under sec.245.22 of this title (relating to Consultation with Labor and Business Organizations); (3) a certification that the applicable private sector individual or business entity would be eligible under the Family Code, sec.231.006, to receive state funds, a grant, or loan; (4) if required by federal regulation, documentation of compliance with the National Environmental Policy Act in the form required by those regulations; and (5) further information as requested by the Program Specialist in order to verify that the proposed project is viable, and that the proposed industry partner is financially sound and does not pose an appreciable risk of violating state or federal law related to illegal business practices. (b) Upon receipt of designation by the Authority, the Program Specialist shall notify the participating agency/entity, facility or industry partner and complete the appropriate Bureau of Justice Assistance forms for designation of a new CAC. (c) The PIE Program Specialist shall submit the designation forms and all supporting documentation to the Bureau of Justice Assistance. This documentation shall include: (1) copies of consultation provided business and labor organizations; (2) prevailing wage and non-displacement of workers verifications; (3) proof of workers compensation coverage or equivalent private insurance; and, (4) a copy of the voluntary agreement to be signed by offender participants. (d) Copies of Authority Rules and Federal Guidelines as well as technical assistance shall be provided by the PIE Program Specialist upon request by a prospective or actual applicant for designation as a CAC. sec.245.21. Prevailing Wages and Non-displacement of Workers. (a) As a part of the cost accounting center (CAC) designation process, participating agencies/entities, facilities or industry partners shall submit verification of payment of the prevailing wage for each job classification, to the Private Sector Prison Industries Oversight Authority (the Authority) through the Private Industry Enhancement (PIE) Program Specialist. Wage plans may reflect the minimum wage for a two-month training period beginning the date employment begins. Subsequent to this two-month period, the wage plan must reflect the prevailing wage. If it is determined that there is no work of a similar nature in the locality, workers shall be paid no less than the minimum wage. The same information shall be submitted at least on an annual basis from the date of designation or as otherwise determined by the Authority. The "locality", for the purpose of this Rule, is the council of government region in which the work is performed. (b) Participating agencies/entities, facilities or private industry partners shall obtain written verification from the Texas Workforce Commission (TWC) that the wage plan reflects the prevailing wage for each job classification and: (1) that the industry project shall not result in displacement of free world workers; (2) that the industry project will not be applied in skills, crafts or trades in which there is a surplus of available gainful labor in the community. (c) If participating agencies/entities, facilities or private industry partners are unable to obtain the verifications required under subsection (b) of this section, they may request technical assistance from the PIE Program Specialist. (1) In order to obtain technical assistance, the agency/entity, facility or private industry partner must provide the PIE Program Specialist the following information for each job classification: (A) educational requirements; (B) job experience (if necessary); (C) an outline of activities to be performed; (D) specific responsibilities; (E) wage rate/progression for the position; (F) a description of each job; and, (G) the occupational and industrial numerical code and title as utilized by the openings and wages by occupation data collected by the economic and research and analysis department of the Texas Workforce Commission (TWC). (2) The PIE Program Specialist shall attempt to obtain the required verifications from the TWC. If the TWC is unable to make the required verifications, the PIE Program Specialist shall calculate a prevailing wage and, if necessary as a part of the designation process for a new Cost Accounting Center, the verifications required under subsection (b) of this section, utilizing the most recent openings and wages by occupation data collected by the economic research and analysis department of the TWC. This information shall be forwarded to the Authority for review. sec.245.22. Consultation with Labor and Business Organizations. (a) Participating agencies/entities shall, as a part of the designation process for a cost accounting center (CAC), provide consultation with representatives of local businesses and labor central bodies, if any exist, and the Texas AFL-CIO and the Texas Association of Business and Chambers of Commerce. Information shall be provided in writing and, at a minimum, shall include the following: (1) identification of the scope of the intended project, including projected number of jobs for offenders and free world workers; (2) projected initiation date; (3) information regarding PIE participation; (4) prevailing wage information; (5) worker displacement information; (6) an explanation that statutory consultation is required; and, (7) a statement by the industry applicant that the industry project will not impair existing contracts for services. (b) Participating agencies/entities shall provide the required consultations (by outgoing mail or fax) with business and labor organizations within three working days from the date of receipt of complete and accurate prevailing wage and non- displacement of workers information. Failure to provide timely consultation with business and labor organizations in a timely manner may result in a delay in industry project designation by the Private Sector Prison Industries Oversight Authority (the Authority). (c) The information in subsection (b) of this section and any comments by business and labor shall be forwarded to the Authority, through the PIE Program Specialist, for designation review. (d) The PIE Program Specialist shall review the information for completeness prior to submission to the Authority. Incomplete information shall be returned with an explanation of the deficiency. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on May 20, 1998. TRD-9808243 Carl Reynolds General Counsel Private Sector Prison Industries Oversight Authority Effective date: June 9, 1998 Proposal publication date: April 10, 1998 For further information, please call: (512) 463-9693 TITLE 40. SOCIAL SERVICES AND ASSISTANCE PART IV. Texas Commission for the Blind CHAPTER 159.Administrative Rules and Procedures SUBCHAPTER B.Fair Hearing Procedures for Resolution of Client Dissatisfaction 40 TAC sec.159.21 The Texas Commission for the Blind adopts the amendment to sec.159.21 of Chapter 159 pertaining to fair hearing procedures for resolution of client dissatisfaction without changes to the proposed text as published in the March 6, 1998, issue of the Texas Register (23 TexReg 2263). The adopted text will not be republished. The amendment is adopted to delete references to vocational rehabilitation program hearing procedures. The Commission is simultaneously adopting new vocational rehabilitation hearing rules in another chapter to improve the agency's rule base and to comply with changes to federal regulations governing the State Vocational Rehabilitation Services Program. The Commission received no comments regarding the proposed amendment. The amendment is adopted under the Human Resources Code, Title 5, Chapter 91, which authorizes the commission to adopt rules prescribing the policies and procedures followed by the commission in the administration of its programs. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on May 21, 1998. TRD-9808377 Terrell I. Murphy Executive Director Texas Commission for the Blind Effective date: June 10, 1998 Proposal publication date: March 6, 1998 For further information, please call: (512) 459-2611 CHAPTER 161.Scope of Services and General Clientele 40 TAC sec.sec.161.1-161.4 The Texas Commission for the Blind adopts the repeal of sec.sec.161.1-161.4 of Chapter 161 pertaining to the scope of services and general clientele of the agency without changes to the proposed text as published in the March 6, 1998, issue of the Texas Register (23 TexReg 2266). The repeal is adopted to remove sections no longer needed and in order to use the chapter for new hearing rules, which are proposed simultaneously with this proposed repeal. No comments were received on the proposal. The repeal is adopted under the authority of Human Resources Code, Title 5, Chapter 91, sec.91.011(g), which authorizes the commission to adopt rules prescribing the policies and procedures followed by the commission in the administration of its programs. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on May 21, 1998. TRD-9808321 Terrell I. Murphy Executive Director Texas Commission for the Blind Effective date: June 10, 1998 Proposal publication date: March 6, 1998 For further information, please call: (512) 459-2611 CHAPTER 161.Appeals and Hearing Procedures SUBCHAPTER A.Vocational Rehabilitation Program 40 TAC sec.sec.161.10-161.44 The Texas Commission for the Blind adopts new sec.sec.161.10-161.44, pertaining to the agency's vocational rehabilitation program appeals and hearing procedures without changes to the proposed text as published in the March 6, 1998, issue of the Texas Register (23 TexReg 2266). The adopted text will not be republished. The rules will serve as the procedures available to any applicant or eligible individual who is dissatisfied with a determination made by a rehabilitation counselor concerning the furnishing or denial of services. The rules define terms used in the review process and include the federal deadline in which hearings must be held and how time is computed. The rules also contain the federal requirements for the appointment of an impartial hearing officer and the hearing procedures that will be followed. So that persons requesting reviews can fully participate in the proceedings, the Commission has included rules pertaining to reasonable accommodations. Procedures for appealing an impartial hearing officer's decision are also covered. The Commission received no comments regarding the proposal. The rules are adopted under the authority of Human Resources Code, Title 5, Chapter 91, which authorizes the commission to adopt rules prescribing the policies and procedures followed by the commission in the administration of its programs. Subchapter A. Vocational Rehabilitation Program. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on May 21, 1998. TRD-9808322 Terrell I. Murphy Executive Director Texas Commission for the Blind Effective date: June 10, 1998 Proposal publication date: March 6, 1998 For further information, please call: (512) 459-2611 CHAPTER 163.Vocational Rehabilitation Program SUBCHAPTER C.Vocational Rehabilitation Services 40 TAC sec.163.36 The Texas Commission for the Blind adopts the repeal of sec.163.36 concerning personal assistance services without changes to the proposed text in the March 6, 1998, issue of the Texas Register (23 TexReg 2273). The repeal is adopted in order to adopt a renamed section with revised rules that are being adopted simultaneously with this repeal. The Commission received no comments regarding the proposed repeal. The repeal is adopted under the authority of Human Resources Code, Title 5, Chapter 91, sec.91.011(g), which authorizes the commission to adopt rules prescribing the policies and procedures followed by the commission in the administration of its programs. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on May 21, 1998. TRD-9808319 Terrell I. Murphy Executive Director Texas Commission for the Blind Effective date: June 10, 1998 Proposal publication date: March 6, 1998 For further information, please call: (512) 459-2611 The Texas Commission for the Blind adopts new sec.163.36, concerning personal assistant services with one change to the proposed text in the March 6, 1998, issue of the Texas Register (23 TexReg 2274). The Commission has replaced the word "title" in subsection (h) with the word "chapter," the accurate term within the context of the rule. The rules are adopted as the conditions under which a person may receive personal attendant services while receiving another vocational rehabilitation service. The rules also contain the person's responsibilities in seeking reimbursement for the cost of personal attendant services. The Commission received no comments regarding the proposal. The rules are adopted under the authority of Human Resources Code, Title 5, Chapter 91, sec.91.011(g), which authorizes the commission to adopt rules prescribing the policies and procedures followed by the commission in the administration of its programs. sec.163.36.Personal Assistance Services. (a) Personal attendant services are a part of personal assistance services, as that term is defined in sec.163.4 of this title, which assist an individual with a severe disability or most severe disability with activities such as transferring, dressing and undressing, eating, toileting, weight shifting, mobility, writing, and reading, while the individual is receiving vocational rehabilitation services. (b) A consumer who is an individual with a severe disability or a most severe disability may receive personal attendant services if: (1) the consumer is actively receiving another vocational rehabilitation service covered in sec.163.25 of this title (pertaining to Goods and Services), and (2) personal attendant services are necessary for the consumer to achieve an employment outcome. (c) Consumers may either hire their own personal attendants or allow the Commission to provide personal attendants through a source licensed in the State of Texas to provide personal attendant services. (d) Consumers who hire their own personal attendant shall be considered the employer under applicable employer tax laws, and shall be responsible for: (1) hiring and firing the attendant; (2) training the attendant in the delivery of services; (3) supervising the attendant in the delivery of services or arranging for a friend or relative to provide direct supervision of the attendant; and (4) terminating the services of the attendant. (e) Consumers shall be responsible for informing their counselors of any dissatisfaction with services rendered by personal attendants. (f) To receive reimbursement for personal attendant services, the consumer or service provider must submit a monthly written statement to the Commission that contains the services rendered by the attendant during the consumer's vocational rehabilitation activity, the number hours worked by the attendant, and any additional information specified by the consumer's counselor that is needed to process reimbursement payments in a timely manner. (g) Personal attendant services may be continued for three months after the consumer enters employment. This time period may be extended for one additional month upon determination of need. (h) Personal attendant services are subject to Subchapter E of this chapter (relating to Consumer Participation in the Cost of Services). This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on May 21, 1998. TRD-9808320 Terrell I. Murphy Executive Director Texas Commission for the Blind Effective date: June 10, 1998 Proposal publication date: March 6, 1998 For further information, please call: (512) 459-2611 CHAPTER 172.Advisory Committees and Councils 40 TAC sec.172.3 The Texas Commission for the Blind adopts amendments to sec.172.3, concerning committees and councils established by the agency's board without changes to the proposed text as published in the March 6, 1998, issue of the Texas Register (23 TexReg 2274). The amendment is adopted to remove two advisory bodies that were not renewed by the Commission's board on their abolishment date. No comments were received concerning the proposal. The amendment is adopted under the authority of the Human Resources Code, Title 5, Chapter 91, Section 91.011(g), which authorizes the commission to adopt rules prescribing the policies and procedures followed by the commission in the administration of its programs. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on May 21, 1998. TRD-9808375 Terrell I. Murphy Executive Director Texas Commission for the Blind Effective date: June 10, 1998 Proposal publication date: March 6, 1998 For further information, please call: (512) 459-2611