Part 1. RAILROAD COMMISSION OF TEXAS

Chapter 9. LP-GAS SAFETY RULES

The Railroad Commission of Texas adopts amendments, repeals, and new sections in 16 TAC Chapter 9, relating to LP-Gas Safety Rules. Sections 9.3, 9.7, 9.10, 9.17, 9.102, 9.103, 9.107, 9.134, 9.140, 9.143, and 9.308, relating to LP-Gas Report Forms; Application for License and License Renewal Requirements; Rules Examination; Designation and Responsibilities of Company Representatives and Operations Supervisors; Notice of Stationary LP-Gas Installations; Objections to Proposed Stationary LP-Gas Installations; Hearings on Stationary LP-Gas Installations; Connecting Container to Piping; Uniform Protection Standards; Bulkhead, Internal Valve, and ESV Protection for Stationary LP-Gas Installations with Individuals or Aggregate Water Capacities of 4,001 Gallons or More; and Identification of Piping Installation, are adopted with changes from the proposed versions published in the March 25, 2005, issue of the Texas Register (30 TexReg 1730); the repeal of §9.114 is withdrawn; and the remaining sections are adopted without changes. Specifically, the Commission adopts in Subchapter A, relating to General Requirements, amendments to §§9.1, 9.2, 9.6, 9.8, 9.9, 9.11 - 9.13, 9.16, 9.18, 9.21, 9.22, and 9.26 - 9.28, relating to Application of Rules, Severability, and Retroactivity; Definitions; Licenses and Fees; Application for a New Certificate; Requirements for Certificate Renewal; Previously Certified Individuals; Trainees; General Installers and Repairman Exemption; Hearings for Denial, Suspension, or Revocation of Licenses or Certificates; Reciprocal Examination Agreements with Other States; Franchise Tax Certification and Assumed Name Certificates; Changes in Ownership, Form of Dealership, or Name of Dealership; Insurance and Self-Insurance Requirements; Application for an Exception to a Safety Rule; Reasonable Safety Provisions; the repeal of §9.33, relating to LP-Gas Welding Advisory Committee; new §9.35, relating to Written Procedure for LP-Gas Leaks; amendments to §§9.36 - 9.38, 9.41, 9.51, and 9.52, relating to Report of LP-Gas Incident/Accident; Termination of LP-Gas Service; Reporting Unsafe LP-Gas Activities; Testing of LP-Gas Systems in School Facilities; General Requirements for Training and Continuing Education; and Training and Continuing Education Courses; the repeal of §9.53, relating to Continuing Education Credit for Previous Courses; and amendments to §9.54, relating to Commission-Approved Outside Instructors.

In Subchapter B, relating to Stationary Installations and Container Requirements, the Commission adopts amendments to §§9.101, 9.109, 9.110, and 9.113, relating to Filings Required for Stationary LP-Gas Installations; Notice of Stationary LP-Gas Installations; Objections to Proposed Stationary LP-Gas Installations; Hearings on Stationary LP-Gas Installations; Physical Inspection of Stationary LP-Gas Installations; Emergency Use of Proposed Stationary LP-Gas Installations; Maintenance; amendments to §§9.115, 9.126, 9.129, 9.130, 9.132, 9.141, and 9.142, relating to Examination and Testing of Containers; Appurtenances and Equipment; Manufacturer's Nameplate and Markings on ASME Containers; Commission Identification Nameplates; Sales to Unlicensed Individuals; Uniform Safety Standards; and LP-Gas Container Storage and Installation Requirements.

In Subchapter C, relating to Vehicles and Vehicle Dispensers, the Commission adopts amendments to §§9.201 - 9.203, relating to Applicability; Registration and Transfer of LP-Gas Transports or Container Delivery Units; School Bus, Public Transportation, Mass Transit, and Special Transit Vehicle Installations and Inspections; new §9.204, relating to Maintenance of Vehicles; the repeal of §9.207, relating to Requirements for Movable Fuel Storage Tenders Such as Farm Carts; and amendments to §9.208, and §9.211, relating to Testing Requirements; and Markings.

In Subchapter D, relating to Adoption by Reference of NFPA 54 (National Fuel Gas Code), the Commission adopts amendments to §9.303 and §9.312, relating to Exclusion of NFPA 54, §6.31, and Certification Requirements for Joining Methods.

In Subchapter E, relating to Adoption by Reference of NFPA 58 (LP-Gas Code), the Commission adopts amendments to §9.403, relating to Sections in NFPA 58 Not Adopted by Reference, and Adopted with Changes, Additional Requirements, or Corrections.

The Commission also adopts the repeal of Subchapter F, relating to Adoption by Reference of NFPA 51 (Standard for the Design and Installation of Oxygen Fuel-Gas Systems for Welding, Cutting, and Allied Processes), including §§9.501 - 9.503, and 9.506 - 9.508, relating to Adoption by Reference of NFPA 51; Clarification and/or Exclusion of Definitions in NFPA 51; Exclusion of Certain Sections and Chapters 6, 7, and 8 in NFPA 51; Sections in NFPA 51 Adopted with Additional or Alternative Language; Container Installation Requirements; and LP-Gas Pressure Going into a Building.

The Commission adopts these amendments, repeals, and new rules to update some training and continuing education requirements, to clarify changes in Commission offices or procedures as a result of a reorganization of LP-gas activities among the AFRED, Gas Services, and Safety Division, to repeal some unnecessary rules, and to make other substantive and non-substantive amendments. The Commission adopts these amendments, new rules, and repeals with an effective date of September 1, 2005.

Non-substantive Amendments

Amendments to certain sections are non-substantive and are adopted for clarification. Section 9.1(a)(6) is deleted because it refers to Subchapter F regarding NFPA 51; the rules in Subchapter F are repealed (as discussed later in the preamble). Section 9.1(g) corrects references to NFPA 58.

The amendments in §9.3(13) proposed to delete a form that is no longer used by the Safety Division; however, the form is still used by the audit staff, and this proposal is not adopted, as discussed in subsequent paragraphs.

In §9.9, specific references to AFRED are added; fees are stated to be nonrefundable; and subsection (c)(1) includes new wording stating that if a person's certification expires, that person shall immediately cease performance of any LP-gas activities authorized by the certification. This wording is currently found in §9.7(f) regarding expiration of licenses, and is added in §9.9 to apply to certifications.

Amendments in §9.12(a)(2) add a reference to AFRED and delete the reference to the rules examination fee being on file; that wording is unnecessary because of the options available for exam locations and payments.

In §9.16, several references to the License and Permit Section of the Gas Services Division are added, and two internal procedures are clarified.

Amendments in §§9.18, 9.21, 9.22, 9.26, 9.27, 9.28, 9.37, 9.38, 9.102, and 9.107 add references to the Gas Services Division, the License and Permit Section of the Gas Services Division, or the Safety Division, as appropriate. The amendments to §9.103 add a reference to the License and Permit Section of the Gas Services Division and correct one internal citation to another rule. Amendments in §§9.109, 9.110, 9.115, 9.129, 9.141, 9.203, and 9.211, add references to the Safety Division. The amendment in §9.303 corrects the title in a reference to 16 TAC Chapter 13, and §9.312 adds a reference to the Safety Division.

Clarifying and Substantive Amendments

Some sections include more substantive proposed amendments, but the Commission does not consider them to be controversial.

The amendments in §9.6, in conjunction with amendments to §9.13, add references to the License and Permit Section, and in subsection (c)(4) add wording regarding a new registration program with the Texas State Board of Plumbing Examiners and the Texas Department of Licensing and Regulations. The new wording states that master or journeyman plumbers, or Class A or B Air Conditioning and Refrigeration Contractors, as licensed respectively by these two agencies, may register with the Section as stated more fully in §9.13. The registration fee is $50 and the renewal fee is $20.

Changes in §9.7 add references to the License and Permit Section, and new wording requiring a 24-hour emergency response telephone number to be included on LPG Form 1; other amendments clarify that certain fees are nonrefundable. The Commission adopts some clarifying wording in subsections (d)(1) and (f) to state that the 24-hour number is required only for licensees engaging in LP-gas product activities as defined in Texas Natural Resources Code, §113.081(a)(4).

Amendments in §9.8 specify AFRED as the Commission office to receive the LPG Form 16 and clarify that fees are nonrefundable.

In §9.11, references to AFRED are added, as is a 10-calendar day period for a licensee to notify AFRED when a previously certified individual is hired; the current rule states this notification shall take place "immediately," which is not defined.

Section 9.13 includes wording for the new registration program with the Texas State Board of Plumbing Examiners and the Texas Department of Licensing and Regulations. The new wording states that master or journeyman plumbers, or Class A or B Air Conditioning and Refrigeration Contractors, as licensed respectively by these two agencies, may register with the Commission. This program was jointly agreed upon by the Commission and these two agencies as a way to recognize the skills and training of the individuals who perform LP-gas activities, as authorized by the three agencies. Registration with the Commission is an easier and cheaper way for these skilled workers to be recognized by the Commission as performing authorized LP-gas activities without the expense and time required to obtain a Category D license or renewal.

Changes to §9.36 add references to the Safety Division, amend subsection (a)(4) to ensure that damage has not occurred in an incident or accident involving an LP-gas vehicle, and add new subsection (a)(7) requiring the reporting to the Safety Division of any event involving LP-gas which is required to be reported to any other state or federal agency.

In §9.101(a), changes include a new sentence stating that LP-gas systems under the jurisdiction of DOT safety regulations in 49 CFR Parts 192 and 199, and Part 40 shall comply with Chapter 8 of this title (relating to Pipeline Safety Regulations) prior to implementation of service. In changes to subsection (b)(1), the 10-day period is changed to 30 days for submission of LPG Form 501 and a reference is added to the Gas Services Division. In subsection (b)(2), the resubmission charge is changed from $20 to $35; because additional time is being given, a higher resubmission fee is warranted. Wording in subsection (g) is deleted and moved to new subsection (c)(6) to properly place this requirement under the installations with aggregate water capacities of 10,000 gallons or more.

Section 9.114 was proposed for repeal because the odorization reports described in this rule are no longer used by the Safety Division; however, the repeal is not adopted because the odorization reports are used by the audit staff.

Section 9.126(a)(3) is amended to require all appurtenances and equipment placed into LP-gas service to be used and in compliance with any NFPA standard adopted by the Commission. In subsection (c), references to the Safety Division are added. Subsection (d) is deleted as unnecessary.

In §9.130, the changes include references to the Safety Division added throughout. In subsection (a)(2)(B), the Commission specifies a $60 fee plus mileage and rate from Austin as set by the official state travel mileage chart for a replacement nameplate; and in subsection (a)(2)(C), deletes a reference to hourly research fees.

Amendments in §9.140 add references to the Safety Division, and in subsection (d)(4) change the word "required" to "permitted" to make this situation permissive. The changes in the table in subsection (g) include one change in row 7, where the words "or storage" are added to the situation where lettering is required for cylinder exchange or storage racks. New subsection (g)(5) addresses signs for underground containers. In subsection (h)(3)(C), the six--high cement parking wheelstop was proposed to be changed to a four- height requirement, and proposed new wording would have added that it must be at least 12 es from the curb; in subsection (h)(3)(E), the 48- requirement was proposed to be increased to 60 es. As explained in subsequent paragraphs, however, and based on comments, the original requirements were retained and the new requirements added as an alternative.

Amendments in §9.142 correct references to some sections in NFPA 58.

Section 9.207 is repealed because the situation is covered in NFPA 58.

Amendments in §9.208 add references to the License and Permit Section, clarify a specific references to 49 CFR 180.407, and add a reference to 49 CFR Parts 100 - 185.

Sections 9.501 - 9.503, and 9.506 - 9.508 (all of Subchapter F) are repealed; these rules concern the adoption by reference of NFPA 51 relating to welding applications. Since the adoption by reference of NFPA 51, the Commission has adopted NFPA 58, which encompasses NFPA 51; therefore, the rules in this subchapter are no longer necessary.

Substantive and Possibly Controversial Changes

Section 9.2 includes two new definitions in paragraphs (6) and (50) for "bobtail driver" and "transport driver." The definitions will help differentiate between these types of vehicles, and will assist applicants and certificate holders to know which type of training or continuing education courses they need to complete. The definition of "assistant director" in current paragraph (6) is deleted; following the Commission's recent reorganization, this definition is no longer needed. Paragraph (3) contains non-substantive corrections to the definition of "AFT materials"; amendments to paragraphs (9) and (21) are clarified; paragraph (27) provides a definition for "MPS gas"; the definition is substantively the same as the definition for "MPS gas" currently in §9.502, which is repealed.

The definition for "operations supervisor" (renumbered to be paragraph (30)) was proposed to add the wording "and is authorized by the licensee to implement operational changes." The Commission proposed to add this wording to make clear that an operations supervisor must have the authority over the day-to-day LP-gas activities being supervised without having to obtain the licensee's approval. In the definition of "outlet" (renumbered to be paragraph (31)) the proposed change attempted to address a situation which has caused confusion in the past over whether an outlet "materially duplicates" the originally-licensed location. The changes will result in more locations being considered outlets. The Commission also proposed amendments to §9.17(a)(3) to allow an operations supervisor to supervise multiple outlets in certain situations; the amendments to §9.17 will be discussed in more detail in subsequent paragraphs of the preamble. The definitions for "operations supervisor" and "outlet" are adopted without changes from the proposal, but are clarified by changes adopted in §9.17(a)(3).

Other proposed amendments in §9.2 correct references to Commission offices or renumber existing definitions.

Several amendments are adopted in §9.10, Rules Examination. In subsection (a), the Commission proposes that examinations will no longer be offered at the Commission's headquarters building, but rather at the AFRED Training Center, 6506 Bolm Road, Austin, Texas. This location has available free parking, which will assist applicants in arriving on time for exams. The hours that exams will be offered are changed slightly to end at 12:00 noon; a Commission employee must be present during examinations, so the noon deadline will allow sufficient time for exam takers to complete the exams and allow Commission staff to perform other required job duties. AFRED recommends that individuals take exams on Tuesdays and Thursdays, which are more efficient for Commission staff. New subsection (a)(1) clarifies when and where exams will be given. Current subsection (a)(1) is deleted because it refers to admittance letters, which will no longer be needed. Amendments in subsection (a)(2) add Categories F, G, and J to Categories E and I as those which are required to complete management-level examinations and management-level courses of instruction. Proposed new wording would have clarified that the E, F, G, I, and J exams are given only in conjunction with those courses, and other exams are given at the AFRED Training Center and other locations statewide. Based on comments, more fully discussed in subsequent paragraphs, the adopted wording in this subsection has been modified.

New subsection (a)(3) requires applicants in categories that require a course of instruction to complete both the course and the required exam before a certification card will be issued. New subsection (a)(4) allows applicants two years to complete a required course of instruction after passing the management-level rules exam; after two years, the applicant must reapply as a new applicant. In subsection (a)(5) (renumbered from (a)(3)), amendments clarify that the fees are nonrefundable, add Categories F, G, and J, and correct an internal rule reference.

The Commission adopts several changes in the table in subsection (b). In the first row, the "delivery truck exam" is changed to "bobtail" exam to correspond with the new definition in §9.2 for "bobtail driver." The wording also includes the specific activities covered by this course. Row 6, which referred to manufactured housing technician exam, is deleted because there is only one individual currently certified in this category, and other examinations are available to cover this little-used category. In the row for "service and installation exam," the Commission deletes the word "entire," which is misleading, and adds references to "plus containers and appliances," which is more accurate. In the row for "appliance service and installation exam," Category N is added to the list of categories for which this course applies.

In subsection (c), AFRED will notify individuals of scores within 15 days, instead of 30 days. New subsection (c)(3) is added to require individuals to carry their certification cards with them as proof of certification if a Commission employee requests it. In subsection (d), individuals who fail an exam no longer have to request an analysis in writing. Subsection (d)(2) is deleted because it refers to admittance letters, which will no longer be used.

In §9.17(a)(1), the Commission adds a reference to the License and Permit Section. In subsection (a)(3), new wording is added in conjunction with the changes to the definition of "outlet" in §9.2 to allow an individual to be operations supervisor "at more than one outlet provided each outlet has a designated LP-gas certified employee who is responsible for the activities at that outlet." This change is made for safety reasons: if a Commission inspector finds a safety violation at an outlet, the inspector must be able to immediately locate that certified employee to take the outlet out of service, make repairs, or whatever other action may be necessary to address the safety situation. The Commission adopts additional wording that requires licensees to post the 24-hour emergency response telephone number at every outlet. These changes are discussed more fully in subsequent paragraphs.

In subsection (g), Categories F, G, and J are added to Categories E and I as those which may receive work experience substitution in certain instances. The Commission adopts additional wording in this subsection, for consistency, as discussed in subsequent paragraphs.

The Commission adopts the repeal of §9.33, concerning the welding advisory committee, which was formed before the Commission adopted NFPA 51 by reference, currently in Subchapter F. This committee has since disbanded, as its purpose was completed.

New §9.35 requires licensees to have written gas leak notification procedures in place and for their employees to know what these procedures are. The new rule requires that each licensee maintain a written procedure to be followed when any employee receives notification of a possible leak. The licensee must ensure that all employees are familiar with the procedure and must authorize employees to implement the procedure without management oversight. The written procedure must be available to emergency response agencies as specified in NFPA 58, 3.10.2.1, and as stated in Table 1 of §9.403 of this title.

Amendments in §9.41 clarify the use of pressure tests versus leakage tests or other inspections. The terms "pressure test" and "leakage test" are often used interchangeably; in fact, they are not the same. The Commission requires a pressure test for schools, so clarifying wording is adopted in subsection (b), in (b)(4), (e)(1), and (e)(2). References to the Safety Division are added in several places.

Amendments in §9.51 add references to fees being nonrefundable, add references to the License and Permit Section, add Category M to the list of categories requiring training for management-level and certain employee-level certificates, delete a reference to completing any AFT, add references to AFRED, and add Category J as requiring the 16-hour training course.

Amendments in §9.52 also add Category J and Category M as requiring certain training, change the name of "delivery truck employee-level" to "bobtail employee-level," and add recreational vehicle technician employee-level. In subsection (a), new wording addresses the only situation in which a training deadline is extended; an individual cannot retake and pass an examination in order to extend this deadline, but must complete the applicable training class. In subsection (b)(1)(B), new wording states that beginning September 1, 2005, Category M and recreational vehicle technician certificate holders have until May 31, 2006, to complete their initial continuing education requirements. The Commission adds Category M licensees and recreational vehicle technician certificate holders to that group of multiple certificate holders who, if they hold more than one certification as of February 1, 2001 (the original date of adoption of the continuing education requirements), must complete the continuing education requirement by the deadline assigned for the initial certificate.

The most extensive changes for the training and continuing education requirements are found in the four tables in subsection (g). The changes are addressed narratively as follows.

In Table 1, a date of September 2005 is added in the title to show when this table will become effective. Current course 2.2/2.4 is changed to 2.2, and the course title corrected; other course titles for 2.1, 2.3, 3.1, 3.2, 3.5, 3.11, 6.1, the 80-hour and 16-hour courses are also corrected. For courses 3.1, 3.2, 3.5, 3.7, 3.11, and the 16-hour Category F, G, I, and J management course, an "x" is added in the AFT column to indicate those courses will include AFT. New rows are added for new courses 3.3 and 3.8, with an "x" added in the appropriate columns for the categories to which these two new courses apply. A new column is added for Category M and an "x" added on the appropriate rows for the courses which apply to this new category. Finally, in the row for course 6.1, the current table shows an "x" only in the column for Category E; in the new table, this course may fulfill the requirements for all the categories.

In Table 2, the September 2005 date is added to the title of the table. The title of the "Delivery Truck/Service & Installation" category is changed to "Bobtail Service & Installation." Current course 2.2/2.4 is changed to 2.2, and the course title corrected; other course titles for 2.1, 2.3, 3.1, 3.2, 3.5, 3.11, and the 80-hour and 16-hour courses are also corrected. For courses 3.1, 3.2, 3.5, 3.7, 3.11, and the 16-hour course, an "x" is added in the AFT column to indicate these courses will include AFT. New rows are added for new courses 3.3 and 3.8, with an "x" added in the appropriate columns for the categories to which these two new courses apply. A new column is added for RV technician, and an "x" added on the appropriate rows for the courses which apply to this new category. With the addition of some new courses, the current courses have slight revisions as to who can take those courses to comply with the requirements for their category; in particular, the "x" in the current table is deleted for courses 2.1 and 2.2 for "Bobtail" and "Bobtail Service & Installation"; for course 2.3, for "Portable Cylinder Filling;" and for course 3.1, "Bobtail" and "Appliance Service & Installation." In the footnotes on Table 2, the references to "delivery truck" are changed to "bobtail," and the specific activities covered by the "Bobtail Driver" certification are added.

On Table 3, the September 2005 date is added to the title of the table. The Category M column is added. The AFT column is deleted because none of the CETP courses include AFT. Current CETP courses 2, 3, and 4 are split into several smaller courses, shown on the Table as CETP 2.1, 2.2, 2.3, 2.4, 2.5, 3.1, 3.2, 3.3, 3.4, 3.5, 3.6, 3.7, 4.1, and 4.2. The titles for courses 5 and 8 are corrected. Finally, on the row for CETP 8, the "x" in the column for Category K is deleted.

On Table 4, the September 2005 date is added to the title of the table. The RV Technician column is added. The AFT column is deleted because none of the CETP courses include AFT. Current CETP courses 2, 3, and 4 are proposed to be split into several smaller courses, shown on the Table as CETP 2.1, 2.2, 2.3, 2.4, 2.5, 3.1, 3.2, 3.3, 3.4, 3.5, 3.6, 3.7, 4.1, and 4.2. The titles for courses 5 and 8 are corrected. In the row for CETP 5, this course no longer applies to "Portable Cylinder Filling" or "Motor & Mobile Fuel," but now applies to "Bobtail," "Bobtail Service & Installation," and "Service & Installation." The PERC GAS Check course applies to "Bobtail." In the Note for this table, it is stated that CETP courses 2.4, 3, 3.6, and 3.7 are not accepted by the Commission for continuing education credit. Finally, in footnotes 2 and 3, the references to "delivery truck" are changed to "bobtail," and the specific activities covered by the "Bobtail" certification are added.

The Commission has been informed that CETP is in the process of also changing its courses 5, 6, 7, and 8, so other changes to this Table may be necessary in a future rulemaking.

Section 9.53 is repealed because it addresses situations where individuals could have received continuing education credit for attendance at previous courses that were held before the Commission's training and continuing education program was adopted. The rule included a four-year window, which has now passed; therefore, the rule is no longer necessary.

Section 9.54 includes mostly non-substantive proposed amendments including adding references to AFRED and adding new subsection (a)(1)(C) to address outside instructors for Category M courses.

Amendments in §9.113 add "gas utilization equipment, and appliances" to the list of other items that must be maintained in "safe" working order. If any of these items is not in safe wording order, the Safety Division may require that the installation be removed from service until repairs are made. This amendment addresses situations in which, for example, an appliance may be working, but it is not working safely.

Amendments in §9.132 prohibit a licensee from selling an LP-gas container to an unlicensed individual for resale or installation without determining that such container will be installed by a licensee authorized to perform such installation. The Commission adopts an amendment adding that LP-gas shall not be sold for resale to an unlicensed individual as well. The Commission views the sale of LP-gas to an unlicensed individual for resale as more of a safety risk than selling a perhaps-empty LP-gas container. If an individual is going to sell or resell LP-gas, that individual must be properly licensed by the Commission.

New wording in §9.134 states that a licensee may connect to piping installed by an unlicensed person provided the licensee has performed a pressure test, verified that the piping has been installed according to the LP-Gas Safety Rules, properly tagged the installation, and filed a properly-completed LPG Form 22 with the Safety Division. This is because the Commission must be informed of LP-gas installations that may have been incorrectly or unsafely installed, especially if the Commission would not otherwise be aware of such installations; for example, members of a church may add on to the church building and pipe it to use LP-gas. The Commission adopts one clarifying change to state that the properly-completed LPG Form 22 must identify the unlicensed person who installed the LP-gas piping.

In §9.143(a), some NFPA 58 references are corrected. An option to allow a back check valve where the flow is into the container only or a back check valve in lieu of the ESV is added. The last sentence in subsection (a) before the wording for new paragraph (1) begins is deleted, along with the same sentence at the end of subsection (b) before the deleted wording in subsection (b)(1) begins, and this wording is added with some clarifications as new subsection (i). In subsection (a), new paragraphs (1) through (5) are added; however, for the most part, this wording is not new. It is currently found in subsection (b), but the more logical placement is under subsection (a). The only changes from the current paragraphs (1) through (5) are in paragraph (2), where the wording "and will activate the ESV at the bulkhead and the primary discharge valves at the container or containers" is added for clarification, and in paragraph (5), where the phrase "interconnected and" is added referring to pneumatically-operated internal valves and ESVs being interconnected and incorporated into at least one remote operating system. Also in subsection (a)(1), the 24- requirement is changed to 36 es to comply with NFPA 58. In subsection (b), the existing paragraphs (1) through (5) are deleted. In subsection (d)(4), wording is added to address underground or mounded containers, which are beginning to be used in Texas. In (d)(7)(C), wording changes mean that the top cross member of a vertical bulkhead is not required to be 28 es or less above ground level, but rather the height of it shall not result in torsional stress on the vertical supports of the bulkhead in the event of a pull-away. In subsection (e), the distance for the remote emergency shutoff device that is currently between 20 and 100 feet from the ESV is changed, effective September 1, 2005, to a minimum of 25 feet to match the requirement in NFPA 58; existing installations may remain at 20 feet.

Some new wording in §9.201 addresses some potentially unsafe situations involving transports. New subsection (a)(1) states that the transfer of LP-gas from one transport to another shall be permitted only through a hose with a nominal inside diameter of 1 1/4 or less and protected by an off-truck remote control shutdown as required in 49 CFR. New subsection (a)(2) states that an LP-gas transport shall not be joined to manifold piping or to a stationary container for use as an auxiliary storage container at any stationary installation except with prior approval from the Safety Division. In subsection (c), an amendment corrects the wording of 49 CFR §177.834(j).

In §9.202, references to the License and Permit Section are added. In subsection (c)(5), new subparagraphs (B) and (C) are added to state that the Section shall not issue an LPG Form 4 if the Section does not have an inspection record of the transport or cylinder delivery unit by a Commission representative within four years of its initial registration on or after January 1, 2006, or the Section has not inspected the transport or cylinder delivery unit at least once within a four-year cycle thereafter. This new wording addresses a situation where the Commission may need to inspect the vehicles of a single company with a large number of vehicles; the wording will ensure that all of a company's vehicles are routinely inspected, without adding a harsher requirement that all vehicles must be present at a particular day and time.

New §9.204 mirrors proposed new §9.113, but is specific to maintenance of vehicles. The wording of the two rules is generally the same and requires that the LP-gas vehicles and vehicle containers, valves, dispensers, accessories, piping, transfer equipment, gas container, gas utilization equipment, and appliances be maintained in safe working order. If any of these items is not in safe working order, the Safety Division may require that the vehicle be immediately removed from LP-gas service until necessary repairs are made.

Amendments in §9.308(a), (b), and (b)(3) clarify that pressure testing and leakage testing must be performed only by persons properly licensed or certified by the Commission; the Commission modified the wording on adoption not to require tagging a system upon completion of leakage testing. Instead licensees are required to retain documentation of leakage testing, stated in a new subsection (d).

Most changes in §9.403 are in the Table, except for new subsection (c), which adds an explanation concerning the errata from NFPA. The changes in the Table are as follows: The current rows for 1.3 and 1.7.40 were proposed to be deleted. Because the Commission does not adopt the repeal of §9.114, the row for 1.3 is retained. The row for 1.7.40 is deleted as unnecessary because it refers to low emission transfer, which is covered in 3.11, which is not adopted. Several changes are proposed in the row for 2.3.3.2(b)(2). In the wording for "2a," the phrase "or a positive shutoff valve in combination with a back flow check valve" is added. Also, wording in "b" is added back to the Table; it was erroneously deleted during the last amendments to the Table. In the wording for "c," the word "Containers" is changed to "Each container" for clarification. Also in "c," the phrase "and retrofitted" is changed to "shall be retrofitted" to make the requirement clear. In "c1," the phrase "installed directly into the container" is added for clarity and to ensure that the valve is installed in the best place for optimum safety. In "c2," the phrase "as close as practical" is deleted and the specific distance of "within four feet" added for clarity; the distance of four feet is reasonable because an ESV for a bulkhead is already required to be installed within four feet of the bulkhead. A new row for 3.2.2.2 is added to state that "Exception No. 1 and Exception No. 3" are not adopted. In the row for 3.2.5, for the firm foundation of concrete, masonry, or metal, the word "and" is added so that it must also be otherwise firmly secured "against displacement." In the row for 3.2.12.1, the words "on or" are added before the February 1, 2001, date in order to encompass the actual date of February 1. In the rows for 3.2.18.1, 3.2.18.2, and 3.2.18.3, the phrase "liquid or vapor service" is changed to "liquid and/or vapor service". In the rows for 3.4.2.1, 3.4.2.7, 3.4.4.1(b), and 3.4.9.2, some references to water capacity are corrected to "LP-gas capacity." A new row is added for 3.10.2.1 which refers to proposed new §9.35, relating to Written Procedures for LP-Gas Leaks. A new row is added to not adopt 3.10.2.2, which refers to the fire safety analysis, which the Commission determines is not needed because Commission rules already require redundant safety features. A new row is added to indicate that 3.11 is not adopted, and current rows for 3.11.3, 3.11.3.1, 3.11.3.3, 3.11.4.3(c), and 3.11.5 are deleted. In the row for 8.2.3(l), the section number is corrected to 8.2.3.1(l).

Finally, the six rules in Subchapter F are repealed. This subchapter adopted by reference NFPA 51 concerning welding activities. Subsequently, the Commission adopted by reference NFPA 58, which encompasses NFPA 51. Therefore, the separate subchapter for NFPA 51 is no longer needed.

The Commission received 43 comments on the proposals. One was from the Texas Propane Gas Association (TPGA), one was from the chairman of the Commission's LP-Gas Advisory Committee on behalf of the committee, and the remainder were from individuals. The comments addressed 16 of the proposed rules, but most were directed to only about nine of the proposals. Many contained the same general comments. TPGA opposed specific proposed amendments; the comments offered suggested changes to the Commission's proposed language. The chairman of the Commission's LP-Gas Advisory Committee filed comments on behalf of the committee, stating that the committee agreed that most of the proposed rules are necessary and/or beneficial with no adverse effect on the LP-gas industry or public. The Committee commented on six particular proposals. In the following paragraphs, the Commission addresses all comments by rule number in numerical order.

One comment from an individual asserted that the amended definition of "licensee" in §9.2(21) that adds master or journeyman plumbers and Class A and B heating/air conditioning licensees will create problems because, in the past, these types of licensees occasionally used unapproved piping materials; the commenter questioned if the Commission could enforce compliance with these additional activities. The Commission disagrees with this comment. Non-compliance with LP-gas safety rules is not limited to master and journeyman plumbers and Class A and B heating/air conditioning licensees. The Commission is confident that compliance can be adequately enforced at existing staffing levels.

The same commenter also stated that the definition of "MPS gas" is not needed because it is included in Texas Natural Resources Code, §113.002(4). The Commission disagrees with this comment. The cited statutory definition is for "liquefied petroleum gas," "LPG," or "LP-gas," which is defined to mean any material that is composed predominantly of any of the following hydrocarbons or mixtures of hydrocarbons: propane, propylene, normal butane, isobutane, and butylene. "MPS gas (methylacetylene-propadiene, stabilized)" is defined as "a mixture of gases in the liquid phase and as defined in Texas Natural Resources Code, Chapter 113, §113.002(4)," and is essentially moved from §9.502(c)(2), which is being repealed.

Most comments about §9.2 concerned the proposed definitions of "operations supervisor" and "outlet" in paragraphs (30) and (31), respectively. One commenter asserted that the amendments would increase the number of outlets for his company from 28 to 50, and that most of these are unmanned storage tanks. The comment stated that requiring an individual to be assigned to each location will increase paperwork and costs to the customers. This commenter also disagreed with the definition of "operations supervisor," stating that the Commission should accept that a trained and qualified individual can supervise more than one location. Twenty-eight other individuals made similar comments. Another commenter stated that the definition of "operations supervisor" may be suitable for a small dealer with two or three employees and only one location, but not for a large company. Another commenter stated that this definition "would require remote and presently manned or unmanned storage sites to be attended by a Category E licensee," and would require "a supervisor to ride in the delivery or service truck." Another commenter, who operates 13 storage tank sites, stated that the definition of "outlet" would require employees at every location and would affect the company's centralized distribution system by causing higher costs to customers. Two comments, one from an individual and one from TPGA, stated that the proposal would add hundreds of installations, including unmanned storage sites, and suggested that the inspection procedure be changed so that an inspector would call a licensee about a week prior to an inspection. The LP-Gas Advisory Committee made similar comments regarding the number of outlets and costs to consumers being increased, and stated that a licensee would have to have a different Category E employee for each site, and in some cases, may have more locations than employees; the comment stated that the amendments to §9.17(a)(3) must be adopted with §9.2, with some clarifications (discussed in a later paragraph in this preamble). One individual stated that the rule language should remain as is and a Category E should be able to cover a certain mile radius. Another individual stated that changing the definition of "outlet" to include any place where regulated LP-gas activities are performed would place large responsibilities on licensees operating an outlet, and suggested that the specific LP-gas activities should also be defined.

The Commission agrees with the comments from TPGA and the LP-Gas Advisory Committee that the amendments in §9.2 and §9.17(a)(3) must be adopted together in order for the two rules to be complied with. The Commission disagrees with those comments opposing the proposed definitions for "outlet" and "operations supervisor" on the basis that an employee would have to be stationed at each outlet at all times or that the definitions would be suitable for a dealer with only one outlet. The amendments to the definitions do not require that a person physically be present at every LP-gas outlet, nor do they require a supervisor to ride in every delivery or service truck. The Commission agrees that the amendment to the definition of "outlet" expands its scope, so that more LP-gas locations would fall within it; however, the amended definition does not require that a licensee have either a supervisor or even an employee physically present at the site at all times. The Commission disagrees that the amended definition for "operations supervisor" changes any existing requirement with respect to whether that individual is present at the locations he or she supervises, or that an "operations supervisor" could not supervise more than one location. The Commission disagrees that there is anything in the proposed definition of either term that changes the requirements with respect to supervision of day-to-day LP-gas activities. The amendment to the definition of "operations supervisor" simply adds as a condition the requirement that the individual be authorized to implement operational changes; the amended definition does not require the physical presence of the individual at any outlet or location. The Commission disagrees with comments suggesting that the Commission inspection procedures be changed to require an inspector to call a licensee about a week prior to inspection because it would unduly limit the ability of the inspectors to structure their work for maximum efficiency or to respond to the occasional emergency event. The Commission also disagrees that the definition of "outlet" should include a list of regulated LP-gas activities. Texas Natural Resources Code, §113.081, lists those LP-gas activities for which a license is required, as does 16 Texas Administrative Code §9.6; there is no reason to include yet another list of LP-gas activities in the rules.

The Commission adopts the definitions of "licensee," "MPS gas," "operations supervisor," and "outlet" in §9.2 as proposed.

Regarding the proposed amendments to §9.3, one commenter stated that LPG Form 17 should not be deleted because it was established to enforce Vernon's Civil Statutes, Article 6053.

The Commission responds to these comments by pointing out that in 1997, the 75th Legislature repealed Vernon's Civil Statutes, Article 6053-6066g, and enacted codified versions of these provisions in the Texas Utilities Code (Acts 1997, 75th Leg., ch. 166, §1, eff. Sept. 1, 1997). The portions of Article 6053 that applied to LP-gas are now found in Texas Utilities Code, §§121.251-121.253. Those statutory provisions are the legal basis for the Commission's rule §9.114, which was proposed to be repealed because the Safety Division no longer needs the odorization reports. The Commission did not propose the repeal of the requirement that LP-gas be odorized, which is still applicable pursuant to the Commission's adoption of the National Fire Protection Association's 2001 edition of the Liquefied Petroleum Gas Code , formerly titled Standard for the Storage and Handling of Liquefied Petroleum Gases , and commonly referred to as "NFPA 58" or "Pamphlet 58." In 16 Texas Administrative Code §9.403(a), the table shows that §9.114 imposes an additional requirement on Texas LP-gas licensees, i.e. , filing quarterly odorization reports with the Railroad Commission. Adoption of the amendment to §9.3 that would have deleted LPG Form 17 would not have changed the requirement for odorizing LP-gas. However, because the Commission audit staff does use the LPG Form 17 in its auditing work, the Commission is withdrawing the proposal to remove this form from the list of LP-gas forms in §9.3, and is not adopting the repeal of §9.114, as explained in subsequent paragraphs in this preamble.

Regarding the proposed amendments to §9.10, two commenters suggested that the Commission offer the management-level exam independently as well as in conjunction with classes, which would give people more options to take the exam. Eleven commenters made similar comments and added that the current process under §9.17(g) to allow a work experience substitution for Category E and I licenses should continue, with one of these commenters suggesting a minimum of five to 10 years of experience. Another commenter stated that if an individual holds a certification card, the individual should be able to upgrade to management level by taking the exam only; this commenter also suggested that the exams be given independently as well as with the classes. An individual stated that for "mom and pop" operators, requiring the 80-hour course prior to taking the exam would be a hardship, and another individual questioned why the Commission would want to make the certification process more difficult. One individual commented that it is almost impossible to obtain a Category E or I certification because it takes almost four months to complete and requires attending a class and taking the exam in Austin; the commenter stated that "it seems in the name of safety, the Railroad Commission (through over-regulating) is trying to strangle the propane industry." Another individual stated that a marketer could ask the Commission for permission to assign somebody temporary, such as a Category E from another outlet or a certified employee, to oversee the outlet until a replacement can attend the management-level course and take the test; this commenter agreed with the Commission's longstanding recommendation that a Category E licensee should have more than one Category E employee within the company. One individual questioned whether §9.10 and §9.17 conflict with regard to the conditional qualification in §9.17(g).

The Commission disagrees with the comment that there should be a prescribed minimum number of years of work experience to be able to substitute work experience under §9.17(g) because it would severely constrain the ability of the Commission to be flexible in certain circumstances. The Commission disagrees also with the comment that an individual should be able to upgrade to management level by taking the exam only; the course is an important opportunity to review or possibly to learn new information that is helpful in conducting LP-gas activities safely. The Commission further disagrees with the comment that requiring the 80-hour course prior to taking the exam would be a hardship for "mom and pop" operators, and the implied suggestion that "mom and pop" operators should be exempt from the course requirement. The safety with which LP-gas activities are conducted does not depend on whether the person conducting them is a "mom and pop" operator or any other type of operator. The training courses are an important component in ensuring that the health, safety, and welfare of the general public are not harmed because of LP-gas activities.

To ensure continuous safe operation, the Commission has consistently recommended that every licensed company employ more than one qualified manager; however, the rules do not require this. The Commission also recognizes that flexibility in administering certain management-level examinations may be achieved without compromising safety. Accordingly, the Commission adopts the amendments to §9.10(a)(2) with clarified wording. The change means that Category E, F, G, I, and J management-level rules examinations may be administered otherwise than in conjunction with the corresponding required management course, but only to a person who has submitted a written request and received approval for a conditional qualification in compliance with §9.17(g). As adopted, §9.10(a)(2) includes the phrase "Except in a case where a conditional qualification has been requested in writing and approved under §9.17(g)" to the beginning of the paragraph. This change will allow the Commission to make exceptions in certain circumstances without compromising LP-gas safety.

Regarding the proposed amendments to §9.13, one commenter questioned how the Commission could perform inspections for general installers and repairmen when it does not have enough inspectors to cover yearly inspections for Category E licensees. The Commission disagrees with this comment. The Safety Division has adopted a risk-based inspection schedule; installations are periodically inspected according to their risk category. Further, the change to §9.13 does not require additional inspections by the Safety Division Staff because the amendment would accept these exempt entities within license Category D. The Commission adopts the amendment to §9.13 without change to the proposal.

Regarding the proposed amendments to §9.17(a)(3), two individuals made comments similar to those for §9.2 and asserted that a change in the definition of "operations supervisor" would require an employee to be stationed at every storage facility, increasing costs to consumers. Two commenters stated that §9.17(a)(3) would be advantageous for a small business with only two outlets, and asked that the definition of "outlet" be clarified to exclude bulk storage sites. Four comments expressed support for this amendment, stating that the proposal would allow the propane industry to operate more efficiently without compromising the health, safety, and welfare of the public. Two other commenters, one individual and TPGA, suggested the rule be changed to clarify that the intent of the Commission is only to designate a certified individual for each outlet, not to require that a certified individual be present at each outlet. Two commenters suggested that Commission inspectors call the licensee to have a representative meet at the storage site. Another individual stated that an outlet, under the current definition, should still be required to have a Category E licensee, but this should not include remote storage sites; the commenter also suggested that the Commission call ahead to schedule inspections. The LP-Gas Advisory Committee commented that the §9.17(a)(3) amendments must be required with the §9.2 amendments, with some clarifications to state that "a designated LP-gas certified employee may be responsible for more than one outlet." Four individuals stated that it is a good idea to allow the appointment of an LP-gas certified employee as the responsible contact person, but disagreed that a remote bulk plant should require this, and added that the Commission inspectors should call a company to set up an inspection time. Another individual stated that a Category E licensee should be able to cover various locations within a certain mile radius and a certified employee could be the responsible person, while another individual made almost the opposite comment, stating that the number of outlets a Category E can oversee would be different for different areas of the state. One commenter stated that the rule should not be adopted because of liability reasons and urged that the current rule be left in place as it requires one person identified by the licensee as the person in charge of LP-gas activities at an outlet, and that person would have taken the most extensive management exam administered by the Commission for that category of license. The commenter stated that the proposal would allow someone who has taken only an employee-level exam to supervise the outlet's activities. The commenter also stated that the proposed rule would allow one person to be in charge of 40 to 50 outlets and there is no way one person can be directly responsible for actively supervising that many outlets.

The Commission agrees that the amendments in §9.2 and §9.17(a)(3) must be adopted together in order for the two rules to be complied with. The Commission agrees that the amendment in §9.17(a)(3) would allow the propane industry to operate more efficiently without compromising the health, safety, and welfare of the public. The Commission also agrees that it would be helpful to clarify that the intent of the Commission is only to designate a certified individual for each outlet, not to require that a certified individual be present at each outlet. The Commission agrees that a Category E licensee should be able to cover various locations within a certain mile radius and a certified employee could be the responsible person; the Commission also agrees that the number of outlets a Category E can oversee could be different based on the type of LP-gas activities performed, the geographic scope of a licensee's operations, and other factors. The Commission agrees that the amendment would allow an individual to be the operations supervisor at more than one outlet, provided each outlet has a designated LP-gas certified employee who is responsible for the LP-gas activities conducted at or from that outlet. This still does not require that an LP-gas licensee have an employee on site at every outlet; that decision is up to the licensee. The rule does require that for every location at or from which LP-gas activities are conducted, there be a named, LP-gas certified individual who is responsible for those LP-gas activities.

The Commission disagrees with comments that an employee would have to be stationed at each outlet at all times or that these requirements would not be suitable for a remote storage site. The amendment requires that at every location at or from which a licensee performs regulated LP-gas activities, whether that location is staffed or not staffed, there be an LP-gas certified individual identified as the person in charge of the LP-gas activities at that location. The Commission disagrees with comments suggesting that the Commission inspection procedures be changed to require an inspector to call a licensee to schedule an inspection because that would unduly limit the ability of the inspectors to structure their work for maximum efficiency or to respond to the occasional emergency event. The Commission disagrees that the rule should not be adopted because of liability reasons; the Commission does not determine liability, and is charged only, but significantly, with adopting and enforcing rules that protect or tend to protect the health, safety, and welfare of the general public, with respect to LP-gas activities. The Commission neither agrees nor disagrees with the comment that there is "no way the rule would allow one person to be in charge of 40 to 50 outlets and there is no way one person can be directly responsible for actively supervising that many outlets." The rule would permit an operations supervisor to be responsible for more than one location, but there is no limit on how many locations that might be and, as previously noted, the number of locations that one operations supervisor can effectively supervise will vary depending on a number of factors.

The Commission adopts the amendments to §9.17(a)(3), with clarifying changes to the proposed wording. Because the intent of the rule is to enhance safety, the Commission adopts §9.17(a)(3) with an additional change. The additional wording requires that, at each outlet, licensees post a sign displaying the 24-hour emergency response telephone number. This will ensure that, with respect to every location at or from which an LP-gas licensee conducts LP-gas activities, there will be an emergency response telephone number that Commission inspectors, emergency responders, and customers may call when necessary.

To clarify §9.17(g) in conjunction with changes adopted in §9.10(a)(2) discussed previously, the Commission adopts two changes in §9.17(g), indicated by the italics in the following text. The subsection now begins: "Work experience substitution for Category E, F, G, I, and J. The assistant director for the Section may, upon written request, allow a conditional qualification for a Category E, F, G, I, or J company representative or operations supervisor who passes the applicable management-level rules examination provided that the individual attends and successfully completes the next available Category E, F, G, I, or J management-level training course, or a subsequent Category E, F, G, I, or J management-level training course agreed on by the assistant director and the applicant." The Commission adopts the remainder of subsection (g) as proposed.

Regarding the proposed repeal of §9.33, one commenter stated that if the LP-gas welding advisory committee is going to be repealed, the LP-gas advisory committee (established by §9.32, which was not included in the proposal) should be repealed as well because its membership does not represent the LP-gas industry or comply with §9.32.

As noted in the proposal preamble, the Commission proposed the repeal of §9.33, relating to the welding advisory committee, because the limited purpose for that committee had already been fulfilled and the committee disbanded; therefore, the rule is no longer necessary. Even were the Commission inclined to do so (and it is not), the Commission could not adopt the repeal of a rule that was not proposed to be repealed. The Commission adopts the repeal of §9.33 as proposed.

Regarding the proposed amendments to §9.35, three commenters commented that each company in the LP-gas business should have a written policy for handling leaks on customers' premises, as well as a procedure for handling leaks at their own storage facilities, and every employee of the company should know the procedure. The commenter asked for more detail on what would be required for such a procedure. Twenty other individuals and TPGA stated that if each company writes its own procedures, there would be many different versions; these commenters requested that the Commission give specific wording for the procedures to provide consistency statewide. Another commenter stated that a written procedure is a good idea, but not necessary; the proposal would make each company legally responsible to do something about a reported gas leak, but if the propane company has never sold gas to that customer before, the company would have no background information on that customer's system and the best response would be to tell the customer to call the fire department. The LP-Gas Advisory Committee also requested that the rule include a minimum standard for the written procedures; otherwise, it could be possible that a licensee might give instructions that could make a reported LP-gas leak less safe, such as telling a customer smelling gas not to worry because the tank is probably "just getting low." The Committee also noted that licensees are required by federal law to have emergency response plans for their locations. One individual asked whether the written procedures would apply both to leaks at storage facilities and leaks at customers' locations, and stated that the reference to NFPA 58, 3.10.2.1, refers to major storage installations of over 4,000 gallons, which would seem not to include residential installations.

The Commission adopts this new rule to address documented situations, such as the one in which a safety problem (a leak at a licensee's storage location) was occurring, and when the licensee was notified by the local fire department requesting assistance, the licensee said no employees would be available until after the weekend. By adopting this rule, the Commission is making all licensees aware of and responsible for developing and maintaining their own written safety procedures so that a licensee's employees will be informed of what to do in an emergency. The Commission intentionally declines to list or describe the minimum requirements of such a plan; the Commission intentionally leaves the specific elements of the written plan to the individual licensees, who best know their own customers and geographic areas. Licensees may consult with industry associations, local emergency responders, liability underwriters, or may refer to technical publications. The point of this rule is precisely not to have a "one size fits all" mandate for emergency response, but rather to ensure that every licensee has a written plan that its employees understand and can implement immediately if necessary. The Commission adopts §9.35 as proposed.

Regarding the proposed amendments to §9.101, one commenter suggested that the word "incomplete" be added to describe a Form 501 that has to be resubmitted, so that the rule would read, "A nonrefundable $20 fee shall be required for an incomplete Form 501." The Commission disagrees with this comment and does not adopt the suggested change. The Commission finds that there could be several reasons for a Form 501 to be resubmitted, not just the fact that it might be incomplete. The Commission adopts §9.101 as proposed.

With respect to the proposed repeal of §9.114, one commenter stated that this rule should be retained because of Vernon's Civil Statutes, Article 6053. For the same reasons set forth previously with respect to the comments offered regarding the proposed amendments to §9.3, the Commission disagrees with this comment. However, the Commission withdraws its proposal to repeal §9.114 because the Commission's audit staff uses LPG Form 17 in its audit work.

Regarding the proposed amendments to §9.132, four individuals objected to the proposal because deliveries are frequently made to licensees at times when they are closed, making it difficult to verify that they have a valid license, and suggested that the Commission would have to have someone available at all times to answer phone calls from the LP-gas industry to check on valid licenses. Another commenter stated that her company should not have to "baby-sit" another company, while eight other commenters said it is the responsibility of the individual licensee to ensure that the license is current and it should not be one company's duty to make other companies follow the rules. One commenter asked if the amendment would require each licensee to have a person available to produce the current license when the transport company makes a delivery, while others said licensees would be limited as to the hours they could deliver to resellers. Three commenters stated that the rule would make LP-gas marketers responsible for enforcement of Commission rules on other marketers, that the Commission should enforce its current rules regarding unlicensed companies, and that marketers have no way to know if a license is in good standing. Another commenter said his company checks yearly to make sure its dealers are current, but suggested the Commission should alert the marketers in a general area when a dealer has lost his license, while another similar comment stated that the Commission should require each reseller licensee to list the gas suppliers used and then the Commission could notify the suppliers when there is a lapse in the license. One commenter said his company sells only to one licensed individual known to and trusted by the commenter, but that checking to see if a license is in compliance would be onerous. Five commenters said the marketer cannot be sure if a license is valid at the moment of delivery, the drivers would have to contact the Commission at every stop, the marketer has no power over an unlicensed individual other than not delivering the gas, the Commission should ensure that licenses are current, and the proposed amendment is not backed by statute. Two commenters, an individual and TPGA, asserted that the sale of LP-gas to an individual for resale does not pose a safety problem, but does when the unlicensed entity sells the product to others; the commenters cited ultimate consumers as an example of this situation, and also made comments similar to those summarized previously regarding the necessity for a Commission 24-hour phone number for licenses to be checked. The commenters also alleged that the proposal was made because the Commission is having problems stopping the sale of LP-gas by unlicensed entities and suggested that if the Commission stiffened penalties for these violations, they would stop. Finally, the commenters cited a situation such as when church members install an LP-gas container for a church; because they are not engaged in the business of installing containers, a license is not required. The commenters stated this rule conflicts with the Natural Resources Code. An individual commented that it is impossible for a delivery driver to check a current license because the driver's contact is usually with a desk clerk who knows nothing about the license; the commenter also stated that when he has called the Commission's Licensing Section in the past, he has been required to leave voice mail and did not receive a response for several days. Another individual also cited instances of having to leave voice mail when calling the Licensing Section and said that a driver having to wait for a return call would reduce the number of deliveries he can make, and suggested if the rule is adopted, the Commission should have a 24-hour number available. The LP-Gas Advisory Committee commented that at the time of an initial sale to an individual for resale, a requirement to confirm that the individual does have a current license would be reasonable; however, a license can be revoked for a variety of reasons and displaying a license would not necessarily be satisfactory proof. The Committee also stated that having to verify the license status for future deliveries would be difficult because deliveries are made at times when the Commission is closed. If the rule required the Commission to notify licensees when a license is revoked, then the burden of enforcement would remain with the Commission, not the licensee. An individual stated that the Commission should issue a "delivery certificate" per site to all licensed dealers and the driver should check the certificate before he makes a delivery. Another individual agreed with the proposal, but said the Commission would need to publish a list of licensed individuals for dealers to check, while another individual stated that a 24-hour phone number would not be cost feasible for the Commission.

The Commission agrees with comments that there are times when the Licensing Section is not open and it is not possible to immediately obtain the current status of an LP-gas license; however, the Commission has remedied some of the delay in responding to messages that are left. The Commission also agrees that LP-gas deliveries are made at times when the customer is closed, making it impossible for a delivery person to ask the customer for its license; and that merely displaying an LP-gas license does not ensure that it is currently in good standing. The Commission disagrees that it should have someone available at all times to check license validity, and agrees that having a 24-hour phone number answered by a Commission employee would not be cost-effective for the agency. The Commission disagrees with the suggestions that the Commission should notify suppliers in a general area that an LP-gas license has been revoked or is no longer in good standing or that the Commission should issue a "delivery certificate" per site to all licensed dealers so that delivery drivers can check the certificate before making a delivery; again, such a procedure would not be cost-effective for the Commission. Even if the Commission were to publish a list of licensed individuals for dealers to check, there would always be some gap between the time a license event occurs ( e.g. , revocation) and the time the list is updated.

The Commission agrees that there is no procedure for checking the standing of a customer's license to engage in the sale of LP-gas that will be one hundred percent foolproof in determining the validity of that license. The Commission agrees that some methods for checking license status might be onerous, but the rule does not require that licensees use a particular method for determining whether a purchaser for resale is licensed. However, that does not mean that a licensee cannot make good-faith efforts and take reasonable, common-sense steps to ensure that a person who buys LP-gas for resale is licensed to do so. For example, at the time such an account is established, the licensee can ask to see a current license and can confirm with the Commission the standing of that license.

The Commission disagrees with comments that the Commission is requiring LP-gas licensees to enforce the Commission rules with respect to other entities. The Commission agrees that a marketer has no power over an unlicensed individual other than not delivering the gas; that is the exact reason the Commission adopts the amendments to §9.132. The Commission disagrees with the comment that the sale of LP-gas to an individual for resale does not pose a safety problem. If a seller knows that a buyer intends to resell the LP-gas and also knows or has a good reason to suspect that the buyer is not licensed to resell the LP-gas, then the seller has not acted in good faith to protect the health, safety, and welfare of the general public because the seller has put LP-gas in the hands of an unlicensed person. The quantity of LP-gas sold for resale could pose a safety problem in the hands of an unlicensed person even if it is never resold.

The Commission agrees that one reason for the proposed amendment is the difficulty of stopping the sale of LP-gas by unlicensed entities. The Commission also agrees that imposing stiffer penalties for such violations may indeed reduce the activity; in addition, the Commission expects that imposing on licensees a reasonable requirement not to sell LP-gas for resale to unlicensed individuals may be successful in reducing the supply of LP-gas for unlicensed individuals to resell.

The Commission disagrees that the amendment is not backed by statute: Texas Natural Resources Code, §113.051, requires the Commission to promulgate and adopt rules or standards or both relating to any and all aspects or phases of the LPG industry that will protect or tend to protect the health, welfare, and safety of the general public. Texas Natural Resources Code, §113.081(a)(4), provides that unless a person has obtained a license from the Commission authorizing the activity, no person may engage in the sale, transportation, dispensation, or storage of liquefied petroleum gas in this state, except that no license is required to sell LPG where the vendor never obtains possessory rights to the product sold or where the product is transported or stored by the ultimate consumer for personal consumption only.

Finally, the Commission notes that the wording in §9.132 prohibiting sale of LP-gas containers to unlicensed individuals for resale has been in place for many years. The amendment to this rule merely adds to this existing prohibition the sale for resale of LP-gas. The Commission finds this additional prohibition to be reasonable and fully supported by statutory authority, as cited previously. The Commission adopts §9.132 as proposed.

Regarding the proposed amendments to §9.134, one commenter stated that if piping is in violation, he would not connect a tank to it, even though the rule appears to state that this is allowed as long as a Form 22 is sent to the Commission. Another commenter said the rule contradicts the Form 22, which is to report a violation; the commenter asked why would he connect to an installation in violation of the rule and then report himself.

The Commission disagrees that the amendments to §9.134 permit connection to piping that is in violation of the rule; the wording of the rule specifically states that a licensee may connect to piping installed by an unlicensed person provided the licensee has performed a pressure test, verified that the piping has been installed according to the LP-Gas Safety Rules, properly tagged the installation, and filed a properly-completed LPG Form 22. The Commission disagrees that the violation being reported on LPG Form 22 is that of the connecting licensee. The LPG Form 22 reports the initial violation, which is the installation of piping by an unlicensed person, an act that is already prohibited by the current wording of the rule. The amendment is intended to prevent collusion between a licensee and a person along the lines of "you (unlicensed individual) do the work and I (LP-gas licensee) will tag it," and to prevent LP-gas activities by persons who should be licensed but are not. The Commission assumes that no LP-gas licensee would knowingly connect a tank to any system that the licensee has not tested to ensure that it is safe. The Commission adopts §9.134 as proposed.

Concerning §9.140, four commenters stated that the proposed amendment to subsection (h)(3)(E) to increase the distance between a portable cylinder exchange rack and a wheelstop from 48 es to 60 es is not justified; 48 es is ample to protect these racks from parked vehicles; and the new distance would require retail outlets to give up additional parking area. Another commenter stated that the reference to NFPA 58, 5.4.2.2, found in §9.140(h) should be deleted because the Commission has not adopted 5.4.2.2; in addition, this commenter stated that the rule should be reworded so that there is an option to comply with subsection (h)(3)(C) or (E) because the commenter does not know of any six- concrete wheelstops available on the market.

The Commission agrees with these comments and adopts §9.140 with several clarifying changes. In subsection (h)(3)(C) and (E), the Commission both keeps the existing wording and adopts the new wording, thus enabling licensees to have the option of using a four- wheelstop with a 60- distance or a six- wheelstop with the 48- distance. This change will ensure safety while accommodating locations that may have limited parking space. With regard to the comment concerning the reference to NFPA 58, 5.4.2.2, the Commission agrees that this section was not adopted, so the wording at the beginning of subsection (h) has been modified slightly for clarification.

Regarding the proposed amendments to §9.143(e), one commenter stated that the rule should be clarified that all installations built before September 1, 2005, can retain the 20 to 100 feet distance, and all installations after September 1, 2005, must have the 25 to 100 foot distance.

The Commission agrees with this comment; this was the Commission's intention with the proposed wording. The Commission adopts the rule with one clarifying change> i.e. , those installed on or after September 1, 2005, must comply with the 25 to 100 foot distance.

With respect to the proposed amendments to §9.202, one commenter stated that Commission inspectors frequently show up unannounced and demand to inspect all vehicles. Many times the vehicles have to be called in from deliveries to be inspected. The commenter requested a one-day advance notice of an inspection so that all trucks could be available, and pointed out that the United States Department of Transportation already requires annual inspections on delivery vehicles, and there is no exception for situations in which a truck is available but the inspector is not. In that case, according to the commenter, he would not be able to use the truck because the Commission could not meet its own self-imposed deadline. The comment concluded that the rule may require the Commission to hire more employees to complete the inspections. Ten individuals and TPGA also requested advance notice of a Commission inspection and questioned whether the Commission could meet its deadline of inspecting all trucks every four years. Another commenter cited DOT, hydro, and other inspections and tests done on bobtails, and suggested that these could substitute for Commission inspections. Four comments also cited inspections performed by DOT; stated that licensees pay a fee to the Commission for each propane delivery vehicle so no additional income would be generated for the Commission from the duplicate inspections; and more Commission inspectors would have to be hired. Two individuals did not object to the Commission inspections, but questioned if the current inspection staff could meet the rule requirements. Four individuals stated that if a licensee made a truck available for inspection, the Commission must either inspect it or register it, and one of these commenters added that the Commission may need more inspectors. Another commenter also cited the multiple other inspections and also suggested that the Commission call ahead to schedule inspections and verify which trucks need to be inspected within a four-year time frame. The LP-Gas Advisory Committee commented that the inspection of each registered transport or cylinder delivery unit by the Commission periodically is an important requirement to ensure compliance with the safety rules; however, the Committee suggested that the rule also include language that if the Commission cannot inspect a vehicle within the four-year period, the vehicle may continue to be registered and operated until the Commission inspects it. An individual stated that his company's trucks are inspected by the Commission about once a year, but noted this may not occur in other parts of the state; the commenter said the Commission should notify licensees ahead of time and suggested that inspections be performed during the off-season (May through August). Another individual understood that it was the Commission's responsibility to inspect trucks whenever necessary, so the inspector should decide when to inspect and notify the licensee in advance to have the trucks available. Two individuals stated that the Commission should inspect every truck once every year. Another individual stated the proposal does not indicate how the inspections will be scheduled or conducted. Another individual asked if the DOT inspections already required once a year would make the Commission inspection redundant, and asserted that the Commission inspectors have many stationary installations to inspect that would take time away from truck inspections.

The Commission agrees that the inspection of each registered transport or cylinder delivery unit by the Commission periodically is an important requirement to ensure compliance with the safety rules. The Commission disagrees with all comments suggesting that this rule include a requirement of advance notice or scheduling of vehicle inspections. The Commission is not opposed to giving advance notice or scheduling vehicle inspections, but the Safety Division already has a schedule for its staff work. This allows an individual inspector to give advance notice of or to schedule vehicle inspections if that inspector wishes to do so. The Commission disagrees that if a licensee makes a vehicle available for inspection, the Commission must either inspect it or register it; this would unduly hamper the inspectors' ability to prioritize their work. The Commission also disagrees that every vehicle should be inspected every year.

The Commission also disagrees with comments that the Commission should hire more employees to meet its deadline of inspecting all vehicles every four years; the Commission is confident that it can meet these goals with current staffing. The Commission disagrees that inspections and tests done by or for other agencies can substitute for the Commission inspection; other entities are not inspecting for compliance with Railroad Commission requirements.

Finally, the Commission disagrees that if it fails to inspect every vehicle by the fourth year, the licensee should be allowed to continue to operate the vehicle. It is the obligation of licensees to ensure their own compliance with Commission rules; if a vehicle has not been inspected as the fourth anniversary of the initial registration nears, the licensee could contact the Commission to ensure that the licensee's vehicles are on the master list for inspection, or could offer to make its vehicles available on a date certain; the inspector would have the discretion to accept such an offer. The Commission adopts the amendments to §9.202 without changes to the proposal.

Regarding the proposed amendments to §9.211, one commenter stated that requiring the name of the licensee on the rear side of the truck should be deleted because it serves no purpose and confuses fire personnel and first responders. The commenter stated the name of the licensee is already on both sides of the vessel. The Commission disagrees with this comment and declines to adopt the suggestion made by the commenter. This requirement has been in place for many years, and the Commission is not aware of widespread confusion. Further, the only proposed change in §9.211 was to change the reference to "the Commission" to the "Safety Division." The Commission adopts this rule without change from the proposal.

Regarding the proposed amendments to §9.308, one commenter did not see the safety or economic reason for the rule because many customers own their own tanks and try to save money by doing their own piping and repairs on their propane systems. The rule does not require them to place a tag with their name on it after they have gone into their home and added or replaced piping. The commenter stated that the last time he serviced the system and placed his tag on it, everything could have been in order, but he would be blamed for changes made by someone else. The commenter also stated that many customers run out of gas on a repeated basis and asked if he would be required to tag all these systems. He also requested that the Commission spell out exactly what piping and leakage tests should be done, at what pressure, and how long that pressure should be held. Six commenters stated that there are hundreds of customer-owned tanks, and those customers can buy gas from anyone; some customers may call a dealer who would fill a tank without doing the proper testing even though there is another dealer's tag on the tank. Six commenters made the same statements and added that their company keeps records of all testing performed, which the Commission could request in the event of an incident. Another commenter stated that the Commission's rule should be eliminated and NFPA 54, Part 3, used without change. Yet another commenter stated that his company exceeds the Commission's rules and if other companies did the same, the rule would not be necessary. Another individual stated that NFPA 54 requires a leak test upon an interruption of service and the Commission should require written records of leak tests because the tagging of a system after a leak test does not enhance safety. Thirteen individuals and TPGA stated that the amendment would expose a licensee to litigation in an accident investigation where the licensee may not have been the last company to fill or service the container, and that it is the testing, not the tag itself, that makes the container safe. Another individual stated that the rule does not address the real concern of performing a leak or pressure test, which would be difficult for the Commission to enforce because it does not require written proof of such a test; this commenter also said that most insurance companies require marketers to keep system test records, which the Commission could inspect. The LP-Gas Advisory Committee commented that the rule has included pressure testing, but never leakage testing, as required for an out-of-gas or GAS check situation. Requiring a tag after a leak check could be disastrous for a licensee because the tags do not enhance safety; the tags may remain in place after other licensees have serviced the installation. The comment stated that the Commission should not include leak testing and should continue its current interpretation of the rule. An individual stated that the rule should remain as is and that the Commission should enforce the requirement to perform a leak check if service has been interrupted. Another individual viewed the amendments as clarification of previously implied rules regarding "testing," but asked what wording the tag itself should include to indicate the type of activities performed. Another individual stated that some dealers do not tag an installation as is currently required and suggested that the Commission adopt the State of Oklahoma's leak test form.

The Commission agrees that many LP-gas customers own their own tanks and try to save money by doing their own piping and repairs on their propane systems, and that the rule does not require them to place a tag with their name on it after they have gone into their home and added or replaced piping. The Commission points out, however, that the statute does not give the Commission authority over customers. The Commission agrees that, as the rule was originally proposed, for every customer that runs out of gas on a repeated basis, the licensee would be required to tag all these systems, if the licensee performed a leakage test on the customer's system every time the customer was out of gas. The Commission agrees that there are hundreds of customer-owned tanks; that those customers can buy gas from anyone; and that some customers may call a dealer who would fill a tank without doing the proper testing even though there is another dealer's tag on the tank. The Commission agrees that keeping records of all testing performed, which the Commission could request in the event of an incident, is a good idea. The Commission agrees that if all companies exceeded the Commission's rule, the rule would not be necessary; the Commission's rules are the minimum safety standards. The Commission agrees that tagging of a system after performing a leak test does not enhance safety; the Commission also agrees that keeping written records of leak tests is a better practice. The Commission agrees that this rule does not address the real concern of performing a leak or pressure test, because this rule pertains to tagging, not testing. The Commission agrees that this rule should not include tagging after performing a leakage test provided written documentation is retained and has amended the rule language to include a requirement for retaining documentation of leakage tests rather than tagging of the system. The Commission agrees that a tag should include the type of activities performed on a system; those requirements are already included in the rule in subsection (b). The Commission agrees that there are likely some dealers who do not tag an installation as is currently required.

The Commission neither agrees nor disagrees that a licensee would be blamed for changes made by someone else after he place his tag on a system; "blame" is a liability issue that is not within the scope of the Commission's authority. The Commission neither agrees nor disagrees that the amendment would expose a licensee to litigation in an accident investigation where the licensee may not have been the last company to fill or service the container, but agrees that it is the testing, not the tag itself, that makes the container safe.

The Commission disagrees that this rule should spell out exactly what piping and leakage tests should be done, at what pressure, and how long that pressure should be held, because this rule concerns the placement of a tag, not testing requirements that are already specified in NFPA 54. The Commission disagrees that the rule should be eliminated and NFPA 54, Part 3, used without change. The Commission disagrees with the suggestion to adopt the State of Oklahoma's leak test form, because this rule pertains to tagging, not testing.

The Commission points out that subsection (a) of this rule currently requires that certain LP-gas activities must be handled by licensed or certified persons; among these activities is testing. The proposed amendment would have specified that "testing" includes both pressure testing and leakage testing. This subsection is adopted as proposed.

Subsection (b) of this rule lists the activities that require the placement of a tag, but does not prescribe the kind of test that should be performed on a system. The rule currently requires that a tag should be placed on a system after completion of "testing." As proposed, the amendments would have clarified that both pressure tests and leakage tests should be followed by the placement of a tag. The Commission agrees that tagging in and of itself does not enhance or ensure safety, and that it is preferable for licensees to retain a record of pressure testing and leakage testing on LP-gas systems because the Commission could review those records if necessary. Pressure testing of a newly installed system or a modified system should be followed by placement of a tag; however, because the Commission agrees that performing a leakage test should not require the placement of a tag on a system, the wording has been clarified. In addition, the Commission agrees that licensees should retain documentation of all leakage and pressure testing, and subsection (b) has been modified to include this requirement in a new subsection (d).

One commenter also made some general comments that did not concern any particular rules. This comment stated that most of the rule changes place more responsibility on the licensees and less on the Commission; that the Texas Natural Resources Code, Chapter 113, requires the Commission to have sufficient employees to enforce that chapter; that the LP-gas industry fees exceed the LP-gas activity expenditures; and that all LP-gas funds collected need to be spent on the enforcement of LP-gas activities for safety reasons.

The Commission agrees that the rule changes place more responsibility on licensees than on the Railroad Commission; this is intentional. Every regulatory scheme that succeeds does so because most of the persons performing the regulated activity voluntarily comply with the regulations. The State of Texas is fortunate to have so many LP-gas licensees who take their safety responsibilities seriously and who are careful stewards of the trust placed in them by their customers.

The Commission also agrees that Texas Natural Resources Code, §113.014, directs that "sufficient employees shall be provided for the enforcement of this chapter." The Commission also agrees that it is likely that the LP-gas industry fees exceed the LP-gas activity expenditures, but points out that the Commission has no authority to expend more for LP-gas regulatory enforcement than the Legislature appropriates for each biennium. The Commission neither agrees nor disagrees with the comment that all LP-gas funds collected need to be spent on the enforcement of LP-gas activities for safety reasons, because it is the Legislature, through its appropriations process, that decides how much money the Commission may expend on LP-gas safety regulation.

The Commission received no comments regarding any of the other proposed amendments, new rules, or repeals.

Subchapter A. GENERAL REQUIREMENTS

16 TAC §§9.1 - 9.3, 9.6 - 9.13, 9.16 - 9.18, 9.21, 9.22, 9.26 - 9.28, 9.35 - 9.38, 9.41, 9.51, 9.52 9.54

The Commission adopts the amendments and new rule pursuant to Texas Natural Resources Code, §113.051, which authorizes the Commission to adopt rules relating to any and all aspects or phases of the LP-gas industry that will protect or tend to protect the health, welfare, and safety of the general public, and §113.052, which authorizes the Commission to adopt by reference, in whole or in part the published codes of the National Fire Protection Association as standards to be met in the design, construction, fabrication, assembly, installation, use, and maintenance of containers, tanks, appliances, systems, and equipment for the transportation, storage, delivery, use, and consumption of LP-gas or any one or more of these purposes.

Statutory authority: Texas Natural Resources Code, §113.051 and §113.052.

Cross-reference to statute: Texas Natural Resources Code, Chapter 113.

Issued in Austin, Texas, on August 2, 2005.

§9.3.LP-Gas Report Forms.

Under the provision of the Texas Natural Resources Code, Chapter 113, the Railroad Commission of Texas has adopted the following forms.

(1) LPG Form 1. Application for License.

(2) LPG Form lA. Branch Outlet List.

(3) LPG Form 3. Liquefied Petroleum Gas License.

(4) LPG Form 4. Liquefied Petroleum Gas Vehicle Identification.

(5) LPG Form 5. Manufacturer's Data Report.

(6) LPG Form 7. Liquefied Petroleum Gas Truck Registration.

(7) LPG Form 8. Manufacturer's Report of Pressure Vessel Repair, Modification, or Testing.

(8) LPG Form 8A. Report of DOT Cylinder Repair.

(9) LPG Form 16. Application for Examination.

(10) LPG Form 16A. Certified Employee Transfer Certification.

(11) LPG Form 16B. Application for Examination Exemption by a Master Journeyman Plumber or a Class A or B Air Conditioning and Refrigeration Contractor.

(12) LPG Form 16R. Reciprocity Examination Exemption.

(13) LPG Form 17. Report of Odorization of Liquefied Petroleum Gases.

(14) LPG Form 18. Statement of Lost or Destroyed License.

(15) LPG Form 18B. Statement of Lost or Destroyed LPG Form 4.

(16) LPG Form 19. Inventory of LP-Gas Storage Facility.

(17) LPG Form 20. Report of LP-Gas Incident/Accident.

(18) LPG Form 21. Notice of Intent to Appear.

(19) LPG Form 22. Report of LP-Gas Safety Rule Violations.

(20) LPG Form 23. Statement in Lieu of Container Testing.

(21) LPG Form 25. Application and Notice of Exception to the LP-Gas Safety Rules.

(22) LPG Form 26. Franchise Tax Certification.

(23) LPG Form 28. Notice of Election to Self-Insure Per Rule 9.26.

(24) LPG Form 28A. Bank Declarations Regarding Irrevocable Letter of Credit.

(25) LPG Form 500. Application for Installation.

(26) LPG Form 500A. Notice of Proposed LP-Gas Installation.

(27) LPG Form 501. Completion Report for Commercial Installations of Less than 10,000 Gallons Aggregate Water Capacity.

(28) LPG Form 502. Request for Commission Identification Nameplate.

(29) LPG Form 503. Request for Inspection of an LP-Gas System on School Bus, Public Transportation, Mass Transit, or Special Transit Vehicles.

(30) LPG Form 505. Testing Procedures Certification for Category B and O Licenses.

(31) LPG Form 506. Polyethylene Pipe/Tubing Heat-Fusion Certification.

(32) LPG Form 995. Certification of Political Subdivision of Self-Insurance for General Liability, Workers' Compensation, and/or Motor Vehicle Liability Insurance.

(33) LPG Form 996A. Certificate of Insurance, Workers' Compensation and Employer's Liability or Alternative Accident/Health Insurance.

(34) LPG Form 996B. Statement in Lieu of Insurance Filing Certifying Workers' Compensation Coverage, including Employer's Liability Insurance or Alternative Accident/Health Insurance.

(35) LPG Form 997A. Certificate of Insurance, Motor Vehicle Bodily Injury, and Property Damage Liability.

(36) LPG Form 997B. Statement in Lieu of Motor Vehicle Bodily Injury, and Property Damage Liability Insurance.

(37) LPG 998A. Certificate of Insurance, General Liability.

(38) LPG 998B. Statement in Lieu of General Liability Insurance and/or Completed Operations or Products Liability Insurance.

(39) LPG Form 999. Notice of Insurance Cancellation.

§9.7.Application for License and License Renewal Requirements.

(a) No person shall perform work or be employed in any capacity requiring contact with LP-gas until that individual has taken and passed any applicable rules examination specified in §9.10 of this title (relating to Rules Examination) and in §9.17 of this title (relating to Designation and Responsibilities of Company Representatives and Operations Supervisors, and, except for a trainee described in §9.12 of this title (relating to Trainees), has successfully completed the training requirements beginning in §9.51 of this title (relating to General Requirements for Training and Continuing Education). Licensees, company representatives, and operations supervisors at each outlet shall have copies of all current licenses and examination identification cards for employees at that location available for inspection during regular business hours.

(b) Licensees shall maintain a current version of the LP-Gas Safety Rules and shall provide at least one copy to each company representative and operations supervisor. The copies shall be available to employees during business hours.

(c) Licenses issued under this chapter expire one year after issuance at midnight on the last day of the month prior to the month in which they are issued.

(d) An applicant for a new license shall file with the License and Permit Section of the Gas Services Division (the Section):

(1) a properly completed LPG Form 1 listing all names under which LP-gas related activities requiring licensing are to be conducted and, for licensees engaging in LP-gas product activities as defined in Texas Natural Resources Code, §113.081(a)(4), including a 24-hour emergency response telephone number. Any company performing LP-gas activities under an assumed name ("DBA" or "doing business as" name) shall file copies of the assumed name certificates which are required to be filed with the respective county clerk's office and/or the Secretary of State's office with the Section; and

(2) LPG Form 16 or 16B and any of the following applicable forms:

(A) LPG Form 1A if the applicant will establish any outlets;

(B) LPG Form 7 and any information requested in §9.202 of this title (relating to Registration and Transfer of LP-Gas Transports or Container Delivery Units) if the applicant intends to register any LP-gas transports or container delivery units;

(C) LPG Form 19 if the applicant will be transferring the operation of an existing bulk plant, service station, cylinder filling, or portable cylinder exchange rack installation from another owner or name;

(D) LPG Form 26 if the applicant for license is a corporation or limited liability company; and the applicant shall also comply with §9.21 of this title (relating to Franchise Tax Certification and Assumed Name Certificates);

(E) LPG Form 996A or 996B if the applicant is required to carry workers' compensation; and the applicant shall also comply with §9.26 of this title (relating to Insurance Requirements);

(F) LPG Form 997A or 997B if the applicant will operate a transport or container delivery unit; and the applicant shall also comply with §9.26; and/or

(G) LPG Form 998A or 998B if the applicant is required to carry general liability; and the applicant shall also comply with §9.26;

(3) pay the following fees:

(A) the applicable license fee specified in §9.6 of this title (relating to Licenses and Fees);

(B) transport registration fees specified in §9.202 of this title (relating to Registration and Transfer of LP-Gas Transports or Container Delivery Units), if the applicant for license intends to operate a transport or container delivery unit; and

(C) the nonrefundable management-level rules examination fee specified in §9.10 of this title (relating to Rules Examination); and

(D) the nonrefundable fee for any required training course as specified in §9.51 of this title (relating to General Requirements for Training and Continuing Education).

(e) An applicant for license shall not engage in LP-gas activities governed by the Texas Natural Resources Code, Chapter 113, and the LP-Gas Safety Rules, until it has employed a company representative and/or operations supervisor who has passed the management-level rules examination specified in §9.10 of this title (relating to Rules Examination) with a score of at least 75% and who has completed any required training in §9.51 and §9.52 of this title (relating to General Requirements for Training and Continuing Education; and Training and Continuing Education Courses), or who has obtained a General Installers and Repairman Exemption as specified in §9.13 of this title (relating to General Installers and Repairman Exemption). Company representatives and operations supervisors shall also comply with §9.17 of this title (relating to Designation and Responsibilities of Company Representatives and Operations Supervisors).

(f) For license renewals, the Section shall notify the licensee in writing at the address on file with the Section of the impending license expiration at least 30 calendar days before the date a person's license is scheduled to expire. The renewal notice shall include copies of LPG Forms 1, 1A, 7, and 26, whichever are applicable, showing the information currently on file. Renewals shall be submitted to the Section with any necessary changes clearly marked on the forms. Licensees engaging in LP-gas product activities as defined in Texas Natural Resources Code, §113.081(a)(4), shall include on LPG Form 1 a 24-hour emergency response telephone number, if not previously submitted, along with the license renewal fee specified in §9.6 of this title (relating to Licenses and Fees) and any applicable transport registration fee specified in §9.202 of this title (relating to Registration and Transfer of LP-Gas Transports or Container Delivery Units) on or before the last day of the month in which the license expires in order for the licensee to continue LP-gas activities. Failure to meet the renewal deadline set forth in this section shall result in expiration of the license. If a person's license expires, that person shall immediately cease performance of any LP-gas activities authorized by the license. After verification, if the licensee has met all other requirements for licensing, the Section shall renew the license, and the person may resume LP-gas activities.

(1) If a person's license has been expired for 90 calendar days or fewer, the person shall submit a renewal fee that is equal to 1 1/2 times the renewal fee required by §9.6 of this title (relating to Licenses and Fees). Upon receipt of the renewal fee, the Section shall verify that the person's license has not been suspended, revoked, or expired for more than one year. After verification, if the licensee has met all other requirements for licensing, the Section shall renew the license, and the person may resume LP-gas activities.

(2) If a person's license has been expired for more than 90 calendar days but less than one year, the person shall submit a renewal fee that is equal to two times the renewal fee required by §9.6 of this title. Upon receipt of the renewal fee, the Section shall verify that the person's license has not been suspended, revoked, or expired for more than one year. After verification, if the licensee has met all other requirements for licensing, the Section shall renew the license, and the person may resume LP-gas related activities.

(3) If a person's license has been expired for one year or more, that person shall not renew, but shall comply with the requirements for issuance of an original license.

(4) A person who was licensed in this state, moved to another state, and is currently licensed and has been in practice in the other state for the two years preceding the date of application may obtain a new license without reexamination. The person shall pay to the Section a fee that is equal to two times the renewal fee required by §9.6 of this title.

(A) As a prerequisite to licensing pursuant to this provision, the person shall submit, in addition to an application for licensing, proof of having been in practice and licensed in good standing in another state continuously for the two years immediately preceding the filing of the application;

(B) A person licensed under this provision shall be required to comply with all requirements of licensing other than the examination requirement, including but not limited to the insurance requirements as specified in §9.26 of this title (relating to Insurance Requirements) and the continuing education and training requirements as specified in §9.51 of this title (relating to General Requirements for Training and Continuing Education).

(g) Applicants for license or license renewal in the following categories shall comply with these additional requirements:

(1) An applicant for a Category A license or renewal shall file with the Section for each of its outlets legible copies of:

(A) its current Department of Transportation (DOT) authorization. A licensee shall not continue to operate after the expiration date of the DOT authorization; and/or

(B) its current American Society of Mechanical Engineers (ASME) Code, Section VIII certificate of authorization.

(2) An applicant for a Category B or O license or renewal shall file with the Section a properly completed LPG Form 505 certifying that the applicant will follow the testing procedures indicated. The company representative designated on the licensee's LPG Form 1 shall sign the LPG Form 505.

(3) An applicant for Category A, B, or O license or renewal who tests tanks, subframes LP-gas cargo tanks, or performs other activities requiring DOT registration shall file with the Section a copy of any applicable current DOT registrations. Such registration shall comply with Title 49, Code of Federal Regulations, Part 107 (Hazardous Materials Program Procedures), Subpart F (Registration of Cargo Tank and Cargo Tank Motor Vehicle Manufacturers and Repairers and Cargo Tank Motor Vehicle Assemblers).

§9.10.Rules Examination.

(a) An individual who files LPG Form 16 and pays the applicable nonrefundable examination fee may take the rules examination at the Commission's AFRED Training Center, 6506 Bolm Road, Austin, Texas, between the hours of 8:00 a.m. and 12:00 noon, Monday through Friday, except for state holidays, and at other designated times and locations around the state. Tuesdays and Thursdays are the preferred days for examinations at the AFRED Training Center.

(1) Dates and locations of available Commission LP-gas examinations may be obtained in the Austin offices of AFRED and on the Commission's web site at www.rrc.state.tx.us, and shall be updated at least monthly. Examinations shall be conducted in Austin and in other locations around the state. Individuals or companies may request in writing that examinations be given in their area. AFRED shall schedule its examinations and locations at its discretion.

(2) Except in a case where a conditional qualification has been requested in writing and approved under §9.17(g) of this title (relating to Designation and Responsibilities of Company Representatives and Operations Supervisors), the Category E, F, G, I, and J management-level rules examination shall be administered only in conjunction with the Category E, F, G, I, and J management-level courses of instruction. Management-level rules examinations other than Category E, F, G, I, and J may be administered on any scheduled examination day.

(3) The Commission may not issue a certification card to an applicant for a management-level certificate that requires completion of a course of instruction until the applicant completes both the required course of instruction and passes the required management-level rules examination.

(4) An applicant for a management-level certificate shall pass the management-level rules examination within two years after completing a required course of instruction. An applicant who fails to pass such an examination within two years of completing such a course shall reapply as a new applicant.

(5) Exam fees.

(A) The nonrefundable management-level rules examination fee (for company representatives and operations supervisors) is $50.

(B) The nonrefundable employee-level rules examination fee (for employees other than company representatives or operations supervisors) is $20.

(C) The nonrefundable examination fee shall be paid each time an individual wishes to take the examination.

(D) Individuals who register and pay for a Category E, F, G, I, or J training course as specified in §9.51(f)(2)(A) of this title (relating to General Requirements for Training and Continuing Education) shall pay the charge specified for the applicable examination.

(b) Table 1 of this subsection specifies the examinations offered by the Commission.

Figure: 16 TAC §9.10(b)

(c) Within 15 calendar days of the date an individual takes an examination, AFRED shall notify the individual of the results of the examination.

(1) If the examination is graded or reviewed by a testing service, AFRED shall notify the individual of the examination results within 14 days of the date AFRED receives the results from the testing service. If the notice of the examination results will be delayed for longer than 90 days after the examination date, AFRED shall notify the individual of the reason for the delay before the 90th day. AFRED may require a testing service to notify an individual of the individual's examination results.

(2) Successful completion of any required examination shall be credited to and accrue to the individual.

(3) An individual who has been issued a certification card shall make the card readily available and shall present the card to any Commission employee or agent who requests proof of certification.

(d) Failure of any examination shall immediately disqualify the individual from performing any LP-gas related activities covered by the examination which is failed, except for activities covered by a separate examination which the individual has passed. If requested by an individual who failed the examination, AFRED shall furnish the individual with an analysis of the individual's performance on the examination.

(1) Any individual who fails an examination administered by the Commission only at the Austin location may retake the same examination only one additional time during a business day.

(2) Any subsequent examination shall be taken on another business day, unless approved by the assistant director for the AFRED Research and Technical Services Section or the assistant director's designee.

§9.17.Designation and Responsibilities of Company Representatives and Operations Supervisors.

(a) Each licensee shall have at least one company representative for the license and, in the case of a licensee other than a Category P licensee, at least one operations supervisor for each outlet.

(1) A licensee maintaining one or more outlets shall file LPG Form 1 with the License and Permit Section of the Gas Services Division (the Section) designating the company representative for the license and/or LPG Form 1A designating the operations supervisor for each outlet.

(2) A licensee may have more than one company representative.

(3) An individual may be operations supervisor at more than one outlet provided that each outlet has a designated LP-gas certified employee who is responsible for the LP-gas activities at that outlet and that a sign, visible and legible at all times, with 24-hour emergency response telephone number be posted at that outlet.

(4) The company representative may also serve as operations supervisor for one of the licensee's outlets provided that the individual meets both the company representative and the operations supervisor requirements in this section.

(5) A licensee shall immediately notify the Section in writing upon termination, for whatever reason, of its company representative or any operations supervisor and shall at the same time designate a replacement by submitting a new LPG Form 1 for a new company representative or a new LPG Form 1A for a new operations supervisor.

(A) A licensee shall cease all LP-gas activities if, at the termination of its company representative, there is no other qualified company representative of the licensee who has complied with the Commission's requirements. A licensee shall not resume LP-gas activities until such time as it has a properly qualified company representative or it has been granted an extension of time in which to comply as specified in subsection (g) of this section.

(B) A licensee shall cease LP-gas activities at an outlet if, at the termination of its operations supervisor for that outlet, there is no other qualified operations supervisor at that outlet who has complied with the Commission's requirements. A licensee shall not resume LP-gas activities at that outlet until such time as it has a properly qualified operations supervisor or it has been granted an extension of time in which to comply as specified in subsection (g) of this section.

(b) Company representative. A company representative shall comply with the following requirements:

(1) be an owner or employee of the licensed entity, in the case of a licensee other than a Category P licensee;

(2) be the licensee's principal individual in authority and, in the case of a licensee other than a Category P licensee, responsible for actively supervising all LP-gas activities conducted by the licensee, including all appliance, container, portable cylinder, product, and system activities;

(3) have a working knowledge of the licensee's LP-gas activities to insure compliance with the LP-Gas Safety Rules;

(4) pass the appropriate management-level rules examination and complete any required training specified in §9.52 of this title (relating to Training and Continuing Education Courses), or in the case of an applicant for a Category D license, obtain a General Installers and Repairman Exemption as specified in §9.13 of this title (relating to General Installers and Repairman Exemption);

(5) comply with the work experience or training requirements in subsection (g) of this section, if applicable;

(6) be directly responsible for all employees performing their assigned LP-gas activities, unless an operations supervisor is fulfilling this requirement; and

(7) submit any additional information as deemed necessary by the Section.

(c) Operations supervisors. An operations supervisor, in the case of a licensee other than a Category P licensee, shall comply with the following requirements:

(1) be an owner or employee of the licensee;

(2) pass the applicable management-level rules examination and complete any required training specified in §9.52 of this title (relating to Training and Continuing Education Courses) or, in the case of a Category D license only, obtain a General Installers and Repairman Exemption as specified in §9.13 of this title (relating to General Installers and Repairman Exemption), before commencing or continuing the licensee's LP-gas activities at the outlet; and

(3) be directly responsible for actively supervising the LP-gas activities of the licensee at the designated outlet.

(d) In lieu of an operations supervisor requirement for a Category P license, the Category E, J, or other licensee providing the Category P licensee with portable cylinders for exchange shall be required to:

(1) prepare a manual containing, at a minimum, the following:

(A) a description of the basic characteristics and properties of LP-gas;

(B) an explanation of the various parts of an LP-gas cylinder, including what the purpose of each part is and how to operate the cylinder valve;

(C) complete instructions on how to properly transport cylinders in vehicles;

(D) a prohibition against moving or installing cylinder cages at any store location;

(E) a prohibition against taking or storing inside a building any cylinders that have or have had LP-gas in them;

(F) a requirement that all cylinders containing LP-gas be stored in a manner so that the relief valve is in the vapor space of the cylinder;

(G) a requirement that the employees who handle the cylinders know the location within the store of the manual and know the contents of the manual;

(H) instructions related to any potential hazards that may be specific to a location, including but not limited to the proper distancing of cylinders from combustible materials and sources of ignition;

(I) detailed emergency procedures regarding a leaking cylinder, including all applicable emergency contact numbers;

(J) a requirement that any accidents be reported to the Category E, J, or other licensee who prepares the manual, and detailed procedures for reporting any accidents;

(K) all Railroad Commission rules applicable to the Category P license, including the requirement that the Category P licensee is responsible for complying with all such rules;

(L) all provisions of Subchapter H ("Enforcement") of Chapter 113 of the Texas Natural Resources Code;

(M) a detailed description of the training provided to each employee of the Category P licensee who may be engaged in any activities covered by the Category P license; and

(N) a page for the signatures, printed names and dates of training for each individual trained at each outlet on this manual.

(2) provide a copy of the manual for display at each outlet or location of the Category P licensee;

(3) provide training as to the contents of the manual to each employee who may be engaged in any activities covered by the Category P license at all outlets or locations of the Category P licensee and maintain records regarding the employees of the Category P licensee who have been trained; and

(4) complete all three requirements of this subsection, for existing Category P licensees, prior to October 25, 2001, and within 45 days of any Category P license obtained on or after September 1, 2001.

(e) The Category P licensee is responsible for the following:

(1) insuring that each employee who is involved with the activities covered by the Category P license is knowledgeable about the contents of the manual and has signed and dated the signature page of the manual; and

(2) insuring that each such employee is aware of the location of the manual and can show the manual to employees of the Commission upon their request.

(f) Category P licensees. The company representative requirement for a Category P licensee may be satisfied by employing a Category E, J, or other licensee company representative if the Category E, J, or other company representative is authorized by the Category P licensee to assign and remove any employee who does not comply with the LP-Gas Safety Rules or who performs any unsafe LP-gas activities.

(g) Work experience substitution for Category E, F, G, I, and J. The assistant director for the Section may, upon written request, allow a conditional qualification for a Category E, F, G, I, or J company representative or operations supervisor who passes the applicable management-level rules examination provided that the individual attends and successfully completes the next available Category E, F, G, I, or J management-level training course, or a subsequent Category E, F, G, I, or J management-level training course agreed on by the assistant director and the applicant. The written request shall include a description of the individual's LP-gas experience and other related information in order that the assistant director may properly evaluate the request. If the individual fails to complete the training requirements within the time granted by the assistant director, the conditional qualification shall immediately be voided and the conditionally qualified company representative or operations supervisor shall immediately cease all LP-gas activities. Applicants for company representative or operations supervisor who have less than three years' experience or experience which is not applicable to the category for which the individual is applying shall not be granted a conditional qualification and shall comply with the training requirements in §9.52 of this title (relating to Training and Continuing Education Courses) prior to the Section issuing a certificate.

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 August 2, 2005.

TRD-200503198

Mary Ross McDonald

Managing Director

Railroad Commission of Texas

Effective date: September 1, 2005

Proposal publication date: March 25, 2005

For further information, please call: (512) 475-1295

16 TAC §9.33, §9.53

The Commission adopts the repeals pursuant to Texas Natural Resources Code, §113.051, which authorizes the Commission to adopt rules relating to any and all aspects or phases of the LP-gas industry that will protect or tend to protect the health, welfare, and safety of the general public, and §113.052, which authorizes the Commission to adopt by reference, in whole or in part the published codes of the National Fire Protection Association as standards to be met in the design, construction, fabrication, assembly, installation, use, and maintenance of containers, tanks, appliances, systems, and equipment for the transportation, storage, delivery, use, and consumption of LP-gas or any one or more of these purposes.

Statutory authority: Texas Natural Resources Code, §113.051 and §113.052.

Cross-reference to statute: Texas Natural Resources Code, Chapter 113.

Issued in Austin, Texas, on August 2, 2005.

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 August 2, 2005.

TRD-200503199

Mary Ross McDonald

Managing Director

Railroad Commission of Texas

Effective date: September 1, 2005

Proposal publication date: March 25, 2005

For further information, please call: (512) 475-1295

16 TAC §§9.101 - 9.103, 9.107, 9.109, 9.110, 9.113, 9.115, 9.126, 9.129, 9.130, 9.132, 9.134, 9.140 - 9.143

The Commission adopts the amendments pursuant to Texas Natural Resources Code, §113.051, which authorizes the Commission to adopt rules relating to any and all aspects or phases of the LP-gas industry that will protect or tend to protect the health, welfare, and safety of the general public, and §113.052, which authorizes the Commission to adopt by reference, in whole or in part the published codes of the National Fire Protection Association as standards to be met in the design, construction, fabrication, assembly, installation, use, and maintenance of containers, tanks, appliances, systems, and equipment for the transportation, storage, delivery, use, and consumption of LP-gas or any one or more of these purposes.

Statutory authority: Texas Natural Resources Code, §113.051 and §113.052.

Cross-reference to statute: Texas Natural Resources Code, Chapter 113.

Issued in Austin, Texas, on August 2, 2005.

§9.102.Notice of Stationary LP-Gas Installations.

(a) For a proposed installation with an aggregate water capacity of 10,000 gallons or more, an applicant shall send a copy of the filings required under §9.101(c) of this title (relating to Filings Required for Stationary LP-Gas Installations) by certified mail, return receipt requested or otherwise delivered, to all owners of real property situated within 500 feet of any proposed container location at the same time the originals are filed with the License and Permit Section of the Gas Services Division (the Section). The Section shall consider the notice to be sufficient when the applicant has provided evidence that copies of a complete application have been mailed or otherwise delivered to all real property owners. The applicant may obtain names and addresses of owners from current county tax rolls.

(b) An applicant shall notify owners of real property situated within 500 feet of any proposed container location if:

(1) the current aggregate water capacity of the installation is more than doubled in a 12-month period;

(2) the resulting aggregate water capacity of the installation will be more than 120,000 gallons; or

(3) the Section considers notice to be in the public interest.

(c) An applicant shall not be required to give notice for installations at "hot-mix" plants where LP-gas containers of 10,000 gallons aggregate water capacity or more are used as fuel storage supply for asphalt heating provided that:

(1) the applicant submits proof that such "hot-mix" operations will not exceed two years at the specified location; and

(2) the applicant has obtained approval from the fire marshal if the operations are within a city's limits or extraterritorial jurisdiction.

§9.103.Objections to Proposed Stationary LP-Gas Installations.

(a) Each owner of real property situated within 500 feet of the proposed location of any LP-gas containers of 10,000 gallon aggregate water capacity or more receiving notice of a proposed installation shall have 18 calendar days from the date the notice is postmarked to file a written objection using the LPG Form 500A sent to them by the applicant as described in §9.107(a)(1) of this title (relating to Hearings on Stationary LP-Gas Installations) with the License and Permit Section of the Gas Services Division (the Section). An objection is considered timely filed when it is actually received by the Commission.

(b) The Section shall review all objections within 10 business days of receipt. An objection shall be in writing and shall include a statement of facts showing that the proposed installation:

(1) does not comply with the LP-Gas Safety Rules , specifying which rules are violated;

(2) does not comply with the statutes of the State of Texas, specifying which statutes are violated; or

(3) constitutes a danger to the public health, safety, and welfare, specifying the exact nature of the danger. For purposes of this section, "danger" means an imminent threat or an unreasonable risk of bodily harm, but does not mean diminished property or esthetic values in the area.

(c) Upon review of the objection, the Section shall either:

(1) schedule a public hearing as specified in §9.107 of this title (relating to Hearings on Stationary LP-Gas Installations); or

(2) notify the objecting party in writing within 10 business days of receipt requesting further information for clarification and stating why the objection is being returned. The objecting entity shall have 10 calendar days from the postmark of the Section's letter to file its corrected objection. Clarification of incomplete or nonsubstantive objections shall be limited to two opportunities. If new objections are raised in the objecting party's clarification, the new objections shall be limited to one notice of correction.

§9.107.Hearings on Stationary LP-Gas Installations.

(a) Reason for hearing. The License and Permit Section of the Gas Services Division (the Section) shall call a public hearing if:

(1) the notice given to each real property owner situated within 500 feet of the proposed installation does not meet the requirements set forth in §9.102(a) of this title (relating to Notice of Stationary LP-Gas Installations);

(2) the Section receives an objection that complies with §9.103 of this title (relating to Objections to Proposed Stationary LP-Gas Installations); or

(3) the Section determines that a hearing is necessary to investigate the impact of the installation.

(b) Notice of public hearing. The Section shall give notice of the public hearing at least 21 calendar days prior to the date of the hearing to the applicant and to all real property owners who were required to receive notice of the proposed installation under §9.102 of this title (relating to Notice of Stationary LP-Gas Installations).

(c) Procedure at hearing. The public hearing shall be conducted in accordance with the Texas Government Code, Chapter 2001 et seq., the general rules of practice and procedure of the Railroad Commission of Texas, and the LP-Gas Safety Rules .

§9.134.Connecting Container to Piping.

LP-gas piping shall be installed only by a licensee authorized to perform such installation. A licensee shall not connect an LP-gas container or cylinder to a piping installation made by a person who is not licensed to make such installation, except that connection may be made to piping installed by an individual on that individual's single family residential home. A licensee may connect to piping installed by an unlicensed person provided the licensee has performed a pressure test, verified that the piping has been installed according to the LP-Gas Safety Rules, properly tagged the installation, and filed a properly-completed LPG Form 22 with the Safety Division, identifying the unlicensed person who installed the LP-gas piping.

§9.140.Uniform Protection Standards.

(a) LP-gas transfer systems and storage containers shall be protected from tampering and/or vehicular traffic as specified in this section. New LP-gas containers which have never been installed or had LP-gas introduced into them, or other installations listed in paragraphs (1) - (4) of this subsection, are not required to comply with the fencing and guardrailing requirements in subsections (b) and (d) of this section. The fencing and guardrailing requirements also do not apply to the following:

(1) LP-gas systems and containers located at private residences;

(2) LP-gas systems and containers which service vapor systems where the aggregate storage capacity of the installation is less than 4,001 gallons, unless the LP-gas system, transfer system, or container is subject to tampering or vehicular traffic;

(3) LP-gas piping which contains no valves and which complies with all other applicable LP-Gas Safety Rules ; and

(4) LP-gas storage containers located on a rural consumer's property from which motor or mobile fuel containers are filled.

(b) In addition to NFPA 58, §§3.3.6.1, 3.4.2.4, 3.9.3.6, 4.2.3.8, 5.2.1.1, and 5.4.2.1, fencing at LP-gas installations shall comply with the following:

(1) Fencing material shall be chain link with wire at least 12 1/2 American wire gauge in size.

(2) Fencing shall be at least six feet in height at all points.

(3) Uprights, braces, and cornerposts of the fence shall be composed of noncombustible material.

(4) Gates in fences where bulkheads are installed shall be located directly in front of the bulkhead. Gates shall be locked whenever the area enclosed is unattended. The width of the gate shall be sufficient to prevent binding of the transfer hoses on the gate posts and to ensure breaking of the bulkhead pipe risers or nipples in the event of a pullaway. There shall be at least two means of emergency access from the fenced enclosure. If guard service is provided, it shall be extended to the LP-gas installation. Guard service shall be properly trained as set forth in §9.51(b)(4) of this title (relating to General Requirements for Training and Continuing Education). However, if a fenced area is not larger than 100 square feet in area, the point of transfer is within three feet of a gate, and any containers being filled are not located within the enclosure, a second gate shall not be required.

(5) Clearance of at least three feet shall be maintained between the fencing and the container, material handling equipment, and the entire dispensing system.

(6) Fencing which is located more than 25 feet from any point of an LP-gas transfer system or container shall be designated as perimeter fencing. If an LP-gas transfer system or container is located inside perimeter fencing and is subject to vehicular traffic, it shall be protected against damage according to the specifications set forth in subsection (d) of this section.

(7) The operating end of a container, including all material handling equipment and the entire dispensing system, shall be completely enclosed by fencing.

(c) Containers which are exempt from the fencing requirements include:

(1) ASME containers or manual dispensers originally manufactured to or modified to be considered by the Safety Division (the Division) as self-contained units. Self-contained units shall be protected as specified in subsection (d) of this section;

(2) DOT portable or forklift containers in storage racks or at single family dwellings used as private residences; and

(3) DOT portable or forklift containers that have been used in LP-gas service but are not awaiting use or resale.

(d) In addition to NFPA 58, §§3.2.4.2, 3.2.9.1(a)-(d), 3.2.9.2(d), 3.3.6.1, 3.9.3.8, 5.4.2.1, guardrails at LP-gas installations, except as noted in subsection (a) of this section, shall comply with the following:

(1) Where fencing is not used to protect the installation as specified in subsection (b) of this section, locks for the valves or other suitable means shall be provided to prevent unauthorized withdrawal of LP-gas.

(2) Vertical supports for guardrails shall be at least three- schedule 40 steel pipe or other material with equal or greater strength. The vertical supports shall be capped on the top or otherwise protected to prevent the entrance of water or debris into the guardpost; anchored in concrete at least 18 es below the ground; and rise at least 30 es above the ground. Supports shall be spaced four feet apart or less.

(3) The top of the horizontal guardrailing shall be secured to the vertical supports at least 30 es above the ground. The horizontal guardrailing shall be at least three- schedule 40 steel pipe or other material with equal or greater strength. The horizontal guardrailing shall be capped on the ends or otherwise protected to prevent the entrance of water or debris into the guardpost; and welded or bolted to the vertical supports with bolts of sufficient size and strength to prevent damage to the protected equipment under normal conditions, including the nature of the traffic to which the protected equipment is subjected.

(4) Openings in horizontal guardrailing, except the opening that is permitted directly in front of a bulkhead, shall not exceed three feet. Only one opening is allowed on each side of the guardrailing. A means of temporarily removing the horizontal guardrailing and vertical supports to facilitate the handling of heavy equipment may be incorporated into the horizontal guardrailing and vertical supports. In no case shall the protection provided by the horizontal guardrailing and vertical supports be decreased. Transfer hoses from the bulkhead shall be routed only through the 45-degree opening in front of the bulkhead or over the horizontal guardrailing.

(5) Clearance of at least three feet shall be maintained between the railing and any part of an LP-gas transfer system or container or clearance of two feet for retail cylinder filling or service station installations. The two posts at the ends of any railing which protects a bulkhead shall be located at 45-degree angles to the nearest corner of the bulkhead.

(6) The operating end of the container, including all material handling equipment and the entire dispensing system, and any part of the LP-gas transfer system or container which is exposed to collision damage or vehicular traffic shall be protected from this type of damage. The protection shall extend at least three feet beyond any part of the LP-gas transfer system or container which is exposed to collision damage or vehicular traffic.

(e) A combination of fencing and guardrails specified in subsections (b) and (d) of this section shall not result in less protection than using either fencing or guardrails alone.

(f) If exceptional circumstances exist or will exist at an installation which would require additional protection such as larger-diameter guardrailing, then the licensee or operator shall install such additional protection. In addition, the Division at its own discretion may require an installation to be protected with added safeguards to adequately protect the health, safety, and welfare of the general public. The Division shall notify the person in writing of the additional protection needed and shall establish a reasonable time period during which the additional protection shall be installed. The licensee shall ensure that any necessary extra protection is installed. If a person owning or operating such an installation disagrees with the Division's determination made under this subsection, that person may request a public hearing on the matter. The installation shall either be protected in the manner prescribed by the Division or removed from service with all product withdrawn from it until the Division's final decision.

(g) LP-gas installations shall comply with the sign and lettering requirements specified in Table 1 of this section. An asterisk indicates that the requirement applies to the equipment or location listed in that column.

Figure: 16 TAC §9.140(g)

(1) Unless colors are specified, lettering shall be in a color that sharply contrasts to the background color of the sign, and shall be readily visible to the public.

(2) Items 1, 2, and 3 in Table 1 may be combined on one sign.

(3) Items 1, 2, and 3 in the column entitled "Licensee or Non-Licensee ASME 4001+ Gal. A.W.C." in Table 1 apply to installations with 4,001 gallons or more aggregate water capacity protected only by guardrailing as required in subsection (d) of this section, and bulkheads as required by §9.143 of this title (relating to Bulkhead, Internal Valve, and ESV Protection for Stationary LP-Gas Installations with Individual or Aggregate Water Capacities of 4,001 Gallons or More) for commercial, bulk storage, cylinder filling, or forklift installations.

(4) Item 11 in the column entitled "Requirements" in Table 1 applies to facilities which have two or more containers.

(5) Any information in Table 1 of this subsection required for an underground container shall be mounted on a sign posted within 15 feet horizontally of the manway or the container shroud.

(h) Storage racks used to store nominal 20-pound DOT portable or any size forklift containers shall be protected against vehicular damage by:

(1) meeting the guardrail requirements of subsection (d) of this section; or

(2) installing guardposts, provided that:

(A) the guardposts are at least three- schedule 40 steel pipe, capped on top or otherwise protected to prevent the entrance of water or debris into the guardpost, no more than four feet apart, and anchored in concrete at least 30 es below ground and rising at least 30 es above the ground; or

(B) if the guardposts cannot be anchored in concrete at least 30 es below ground, they are constructed of at least four- schedule 40 steel pipe capped on top or otherwise protected to prevent the entrance of water or debris into the guardpost, and attached by welding to a minimum 8- by 8- steel plate at least 1/2 thick. The guardposts and steel plate shall be permanently installed.

(3) Guardrail or guardposts are not required to be installed if:

(A) any portable cylinder exchange rack is located against a building or attached structure;

(B) the rack is located on a walkway which is a minimum of four es in height above the grade of the driveway or parking space;

(C) a minimum six--high cement parking wheelstop is installed on the driveway or parking space, or a four--high cement parking wheelstop is installed on the driveway or parking space at least 12 es from the curb;

(D) the cement parking wheelstop is secured against displacement; and

(E) the distance from the cement parking wheelstop to any portable cylinder exchange rack is 48 es or more for a six-inch-high wheelstop, or 60 es or more for a four--high wheelstop.

(4) A wheelstop is not required to be installed if a curb is at least six es tall and the cylinder exchange rack is at least 48 es away from the curb.

(5) If exceptional circumstances exist or will exist at the location of a storage rack which would require additional protection such as larger-diameter guardrailing or guardposts, then the licensee or operator of the installation shall install such additional protection. In addition, the Division at its own discretion may require an installation to be protected with added safeguards to adequately protect the health, safety, and welfare of the general public. The Division shall notify the person in writing of the specific additional protection needed and shall establish a reasonable time period during which the additional protection shall be installed. The licensee shall ensure that any necessary extra protection is installed. If a person owning or operating such an installation disagrees with the Division's determination made under this subsection, that person may request a public hearing on the matter. The installation shall either be protected in the manner prescribed by the Division or removed from service with all product withdrawn from it until the Division's final decision.

§9.143.Bulkhead, Internal Valve, and ESV Protection for Stationary LP-Gas Installations with Individual or Aggregate Water Capacities of 4,001 Gallons or More.

(a) Instead of NFPA 58, §§3.2.19.1, 3.2.19.2, 3.2.19.3, and 3.2.19.6, effective February 1, 2001, new stationary LP-gas installations with individual or aggregate water capacities of 4,001 gallons or more, including licensee and nonlicensee locations, shall install a vertical bulkhead and pneumatically-operated internal valves and pneumatically-operated emergency shutoff valves (ESVs), as required in this section and in the table in §9.403 of this title (relating to Sections in NFPA 58 Not Adopted by Reference, and Adopted With Changes, Additional Requirements, or Corrections) for NFPA 58, §§3.2.18.1 and 3.3.3.6. In lieu of a pneumatically-operated internal valve or a pneumatically-operated ESV, a back check valve where the flow is into the container only may be installed.

(1) The pneumatic ESVs shall be installed in the fixed piping of the transfer system upstream of the bulkhead and within four feet of the bulkhead with a stainless steel flexible wire-braided hose not more than 36 es long installed between the ESV and the bulkhead.

(2) The ESVs shall be installed in the piping so that any break resulting from a pullaway will occur on the hose or swivel-type piping side of the connection while retaining intact the valves and piping on the storage side of the connection and will activate the ESV at the bulkhead and the primary discharge valves at the container or containers. Provisions for anchorage and breakaway shall be provided on the cargo tank side for transfer from a railroad tank car directly into a cargo tank. Such anchorage shall not be required from the tank car side.

(3) Temperature sensitive elements of ESVs shall not be painted nor shall they have any ornamental finishes applied after manufacture.

(4) Internal valves, ESVs, and backflow check valves shall be tested annually for working order. The results of the tests shall be documented in writing and kept in a readily accessible location for one year following the performed tests.

(5) Pneumatically-operated internal valves and ESVs shall be interconnected and incorporated into at least one remote operating system.

(b) Within two years of February 1, 2001, or by February 1, 2003, at the latest, stationary LP-gas installations in existence as of February 1, 2001, with individual or aggregate water capacities of 4,001 gallons or more, including licensee and nonlicensee locations, or railroad tank car transfer systems to fill trucks with no stationary storage involved, which do not have a bulkhead and/or backflow check valves where the flow is in one direction into the container and ESVs installed shall install vertical bulkheads and pneumatic ESVs.

(c) Existing installations which have horizontal bulkheads and/or backflow check valves where the flow is in one direction into the container or cable-actuated ESVs are not required to replace that equipment except as follows:

(1) If the horizontal bulkhead requires replacement, it shall be replaced with a vertical bulkhead;

(2) If a backflow check valve or a cable-actuated ESV requires replacement, it shall be replaced with a pneumatic actuated ESV; or

(3) If the horizontal bulkhead or a backflow check valve or a cable-actuated ESV are moved from their original location to another location, no matter what the distance from the original location, then the installation shall comply with the requirements for a vertical bulkhead and pneumatic actuated ESVs.

(d) Bulkheads, whether horizontal or vertical, shall comply with the following requirements:

(1) Bulkheads shall be installed for both liquid and vapor return piping;

(2) Only one or two transfer hoses shall be attached to a pipe riser. If two hoses are simultaneously connected to one or two transports, the use of the two hoses shall not prevent the activation of the ESV in the event of a pullaway;

(3) Both liquid and vapor transfer hoses shall be plugged or capped;

(4) Bulkheads shall be located at least 10 feet from any aboveground container or containers and a minimum of 10 feet horizontally from any portion of a container or valve exposed aboveground on any underground or mounded container. If the 10-foot distance cannot be obtained, the licensee or nonlicensee shall inform the Safety Division (the Division) in writing and include all necessary information. The Division may grant administrative distance variances to a minimum distance of five feet. If the licensee or nonlicensee requests that the bulkhead be closer than five feet to the container or containers, the licensee or nonlicensee shall apply for an exception to a safety rule as specified in §9.27 of this title (relating to Application for an Exception to a Safety Rule);

(5) Horizontal bulkheads shall not be converted to vertical bulkheads;

(6) Bulkheads shall be anchored in reinforced concrete to prevent displacement of the bulkhead, piping, and fittings in the event of a pullaway;

(7) Bulkheads shall be constructed by welding using the following materials or materials with equal or greater strength, as shown in the diagram.

Figure: 16 TAC §9.143(d)(7) (No change.)

(A) Six- steel channel iron shall be used;

(B) Legs shall be four- schedule 80 piping;

(C) The top crossmember of a vertical bulkhead shall be six- standard weight steel channel iron. The channel iron shall be installed so the channel portion is pointing downward to prevent accumulation of water or other debris. The height of the top crossmember above ground shall not result in torsional stress on the vertical supports of the bulkhead in the event of a pullaway;

(D) The kick plate shall be at least 1/4 steel plate installed at least 10 es from the top of the bulkhead crossmember. A kick plate is not required if the crossmember is constructed to prevent torsional stress from being placed on the piping to the pipe risers;

(E) Either a schedule 40 pipe sleeve or a 3,000-pound coupling shall be welded between the top crossmember and the kick plate;

(i) Pipe sleeves shall have a clearance of 1/4 or less for the piping to the pipe riser, and the piping shall terminate through the bulkhead with a schedule 80 pipe collar, a minimum 12- schedule 80 threaded (not welded) pipe riser (nipple), and an elbow or other fitting between the bulkhead and hose coupling;

(ii) If a 3,000-pound coupling is used, no collar is required; however, the minimum 12- length of schedule 80 threaded pipe riser and an elbow or other fitting between the bulkhead and hose coupling are required;

(iii) Elbows or other fittings shall comply with NFPA 58, §2.4.4 and shall direct the transfer hose from vertical to prevent binding or kinking of the hose.

(8) In lieu of a minimum 12- nipple or a vertical bulkhead, swivel-type piping (breakaway loading arm) may be installed. The swivel-type piping shall meet all applicable provisions of the LP-Gas Safety Rules. The swivel-type piping may also be used for unloading, but shall not be used in lieu of ESVs. The swivel-type piping shall be installed and maintained according to the manufacturer's instructions.

(9) The Division may require additional bulkhead protection if the installation is subject to exceptional circumstances or located in an unusual area where additional protection is necessary to protect the health, safety, and welfare of the general public.

(e) In addition to NFPA 58, §2.3.3.2 as amended in the table in §9.403 of this title (relating to Sections in NFPA 58 Not Adopted by Reference, and Adopted with Changes, Additional Requirements, or Corrections), ESVs and internal valves shall have emergency remote controls conspicuously marked according to the requirements of Table 1 of §9.140 of this title (relating to Uniform Protection Standards). Effective February 1, 2001, for all new facilities, where a bulkhead, internal valves, and ESVs are installed, at least one clearly identified and easily accessible manually operated remote emergency shutoff device shall be located between 20 and 100 feet from the ESV in the path of egress from the ESV; beginning September 1, 2005, for new installations, this distance shall be a minimum of 25 feet. Existing installations shall comply by August 1, 2001. The use of swivel-type piping as specified in subsection (d)(8) of this section shall not eliminate the requirement for an ESV. Swivel-type piping may be installed between the bulkhead and the minimum 12- nipple, but shall not eliminate the requirement for an ESV. The swivel-type piping shall be installed and maintained according to the manufacturer's instructions.

(f) The bulkheads, internal valves, backflow check valves, and ESVs shall be kept in working order at all times in accordance with the manufacturer's instructions and the LP-Gas Safety Rules . If the bulkheads, internal valves, backflow check valves and ESVs are not in working order in accordance with the manufacturer's instructions and the LP-Gas Safety Rules , the licensee or operator of the installation shall immediately remove them from LP-gas service and shall not operate the installation until all necessary repairs have been made.

(g) By February 1, 2003, rubber flexible connectors which are 3/4- or larger in size installed in liquid or vapor piping at an existing liquid transfer operation shall be replaced with a stainless steel flexible connector. Stainless steel flexible connectors shall be 36 es in length or less, and shall comply with all applicable LP-Gas Safety Rules . Flexible connectors installed at a new installation after February 1, 2001, shall be stainless steel.

(h) If necessary to increase LP-gas safety, the Division may require a pneumatically-operated internal valve equipped for remote closure and automatic shutoff through thermal (fire) actuation to be installed for certain liquid and/or vapor connections with an opening of 3/4 or one in size.

(i) Stationary LP-gas installations with individual or aggregate water capacities of 4,001 gallons or more are exempt from subsections (a) and (b) of this section provided:

(1) each container is filled solely through a 1 3/4 double back check filler valve installed directly into the container; and

(2) the LP-gas installation is not used to fill an LP-gas transport.

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 August 2, 2005.

TRD-200503200

Mary Ross McDonald

Managing Director

Railroad Commission of Texas

Effective date: September 1, 2005

Proposal publication date: March 25, 2005

For further information, please call: (512) 475-1295

16 TAC §§9.201 - 9.204, 9.208, 9.211

The Commission adopts the amendments and new rule pursuant to Texas Natural Resources Code, §113.051, which authorizes the Commission to adopt rules relating to any and all aspects or phases of the LP-gas industry that will protect or tend to protect the health, welfare, and safety of the general public, and §113.052, which authorizes the Commission to adopt by reference, in whole or in part the published codes of the National Fire Protection Association as standards to be met in the design, construction, fabrication, assembly, installation, use, and maintenance of containers, tanks, appliances, systems, and equipment for the transportation, storage, delivery, use, and consumption of LP-gas or any one or more of these purposes.

Statutory authority: Texas Natural Resources Code, §113.051 and §113.052.

Cross-reference to statute: Texas Natural Resources Code, Chapter 113.

Issued in Austin, Texas, on August 2, 2005.

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 August 2, 2005.

TRD-200503202

Mary Ross McDonald

Managing Director

Railroad Commission of Texas

Effective date: September 1, 2005

Proposal publication date: March 25, 2005

For further information, please call: (512) 475-1295

16 TAC §9.207

The Commission adopts the repeal pursuant to Texas Natural Resources Code, §113.051, which authorizes the Commission to adopt rules relating to any and all aspects or phases of the LP-gas industry that will protect or tend to protect the health, welfare, and safety of the general public, and §113.052, which authorizes the Commission to adopt by reference, in whole or in part the published codes of the National Fire Protection Association as standards to be met in the design, construction, fabrication, assembly, installation, use, and maintenance of containers, tanks, appliances, systems, and equipment for the transportation, storage, delivery, use, and consumption of LP-gas or any one or more of these purposes.

Statutory authority: Texas Natural Resources Code, §113.051 and §113.052.

Cross-reference to statute: Texas Natural Resources Code, Chapter 113.

Issued in Austin, Texas, on August 2, 2005.

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 August 2, 2005.

TRD-200503201

Mary Ross McDonald

Managing Director

Railroad Commission of Texas

Effective date: September 1, 2005

Proposal publication date: March 25, 2005

For further information, please call: (512) 475-1295

16 TAC §§9.303, 9.308, 9.312

The Commission adopts the amendments pursuant to Texas Natural Resources Code, §113.051, which authorizes the Commission to adopt rules relating to any and all aspects or phases of the LP-gas industry that will protect or tend to protect the health, welfare, and safety of the general public, and §113.052, which authorizes the Commission to adopt by reference, in whole or in part the published codes of the National Fire Protection Association as standards to be met in the design, construction, fabrication, assembly, installation, use, and maintenance of containers, tanks, appliances, systems, and equipment for the transportation, storage, delivery, use, and consumption of LP-gas or any one or more of these purposes.

Statutory authority: Texas Natural Resources Code, §113.051 and §113.052.

Cross-reference to statute: Texas Natural Resources Code, Chapter 113.

Issued in Austin, Texas, on August 2, 2005.

§9.308.Identification of Piping Installation.

(a) In addition to the requirements of NFPA 54, Part 3, Gas Piping Installation, LP-gas piping shall be installed, altered, repaired, pressure tested, and leakage tested only by persons properly licensed or certified by the Commission.

(b) Upon completion of the installation, alteration, repair, or pressure testing of an LP-gas piping system, the licensee shall attach to the end of the piping nearest the container a decal or tag of metal or other permanent material indicating the following information:

(1) the licensee's name;

(2) the LP-gas license number; and

(3) the year the piping was installed, altered, repaired, or pressure tested.

(c) A single identification decal or tag may be used to satisfy the requirements in §§9.141, 9.206, and 9.307 of this title (relating to Uniform Safety Requirements, Vehicle Identification Labels, and Identification of Converted Appliances, respectively) provided the decal or tag meets all the requirements of those sections.

(d) Licensees are not required to place a decal or tag following the performance of a leakage test on an LP-gas piping system. Licensees shall retain documentation of all leakage tests and shall make that documentation available for Commission inspection upon request.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on August 2, 2005.

TRD-200503203

Mary Ross McDonald

Managing Director

Railroad Commission of Texas

Effective date: September 1, 2005

Proposal publication date: March 25, 2005

For further information, please call: (512) 475-1295

16 TAC §9.403

The Commission adopts the amendments pursuant to Texas Natural Resources Code, §113.051, which authorizes the Commission to adopt rules relating to any and all aspects or phases of the LP-gas industry that will protect or tend to protect the health, welfare, and safety of the general public, and §113.052, which authorizes the Commission to adopt by reference, in whole or in part the published codes of the National Fire Protection Association as standards to be met in the design, construction, fabrication, assembly, installation, use, and maintenance of containers, tanks, appliances, systems, and equipment for the transportation, storage, delivery, use, and consumption of LP-gas or any one or more of these purposes.

Statutory authority: Texas Natural Resources Code, §113.051 and §113.052.

Cross-reference to statute: Texas Natural Resources Code, Chapter 113.

Issued in Austin, Texas, on August 2, 2005.

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 August 2, 2005.

TRD-200503204

Mary Ross McDonald

Managing Director

Railroad Commission of Texas

Effective date: September 1, 2005

Proposal publication date: March 25, 2005

For further information, please call: (512) 475-1295

16 TAC §§9.501 - 9.503, 9.506 - 9.508

The Commission adopts the repeals pursuant to Texas Natural Resources Code, §113.051, which authorizes the Commission to adopt rules relating to any and all aspects or phases of the LP-gas industry that will protect or tend to protect the health, welfare, and safety of the general public, and §113.052, which authorizes the Commission to adopt by reference, in whole or in part the published codes of the National Fire Protection Association as standards to be met in the design, construction, fabrication, assembly, installation, use, and maintenance of containers, tanks, appliances, systems, and equipment for the transportation, storage, delivery, use, and consumption of LP-gas or any one or more of these purposes.

Statutory authority: Texas Natural Resources Code, §113.051 and §113.052.

Cross-reference to statute: Texas Natural Resources Code, Chapter 113.

Issued in Austin, Texas, on August 2, 2005.

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 August 2, 2005.

TRD-200503205

Mary Ross McDonald

Managing Director

Railroad Commission of Texas

Effective date: September 1, 2005

Proposal publication date: March 25, 2005

For further information, please call: (512) 475-1295