Proposed Sections
Before an agency may permanently adopt a new or amended section, or repeal an 
existing section, a proposal detailing the action must be published in the Texas 
Register at least 30 days before any action may be taken. The 30-day time period 
gives interested persons an opportunity to review and make oral or written 
comments on the section. Also, in the case of substantive sections, a public 
hearing must be granted if requested by at least 25 persons, a governmental 
subdivision or agency, or an association having at least 25 members.
Symbology in proposed amendments. New language added to an existing section is 
indicated by the use of bold text. [Brackets] indicate deletion of existing 
material within a section.
TITLE 1. ADMINISTRATION
Part IV. Office of the Secretary of State
Chapter 71. Office of the Secretary of State
Practice and Procedure
1 TAC sec.sec.71.4, 71.6-71.10, 71.12
(Editor's Note: The Office of the Secretary of State proposes for permanent 
adoption the amended sections it adopts on an emergency basis in this issue. The 
text of the amended sections is in the Emergency Rules section of this issue.)
The Office of the Secretary of State proposes amendments to sec.sec.71.4, 71. 7-
71.10, and new sec.71.6 and sec.71.12, concerning faxed filings and the credit 
card payment option for documents filed with the secretary of state.
House Bill 278 added Texas Miscellaneous Corporation Laws Act Article 1302-7.07, 
sec.13. 04 and Texas Revised Limited Partnership Act, Article 6132a-1, effective 
August 26, 1991, eliminating the requirement for original signatures on 
corporate and limited partnership documents by authorizing the filing of 
documents with facsimile signatures. In addition, as authorized by House Bill 
278, document filings electronically submitted by transmission over a facsimile 
(FAX) machine to the Office of the Secretary of State will be accepted for 
filing in the same manner as other documents submitted in person or by common 
courier, which require the simultaneous submission of the document and receipt 
of the filing fee.
The acceptance of electronically transmitted documents directly to the Office of 
the Secretary of State also necessitates the implementation of alternate payment 
methods of filing fees, namely the acceptance of credit cards or a debit system 
account maintained with a financial institution on contract to the Office of the 
Secretary of State and the Texas State Treasury Department. House Bill 11 
amended the Government Code, sec.405.031(e) to authorize the secretary of state 
to assess a credit card transaction charge in an amount that is reasonable and 
necessary to reimburse the secretary of state for the costs involved in the use 
of a credit card payment option.
Electronic document submission also necessitates clarification of the rule 
concerning receipt of letters and papers. Although documents may be 
electronically transmitted to the Office of the Secretary of State on a 24-hour 
basis, an employee of the secretary of state may stamp a document "received" 
only during regular business hours. The relevant date of receipt of an 
electronically submitted document is the day that the document is stamped 
"received" by an employee of the secretary of state. Therefore, for purposes of 
submission, any document electronically transmitted on a Saturday, Sunday, state 
holiday, or after business hours of 8 a.m. to 5 p.m. will be deemed "received" 
on the next business day or when actually received by an employee of the 
secretary of state.
Finally, the expedited handling of document procedures are clarified to provide 
that notification of the completion of the expedited handling services will be 
given by the close of the next business day following the date of receipt of 
documents. This clarification is necessary because the entire expedited 
processing service, including the notification, cannot be completed on the same 
day of receipt for documents delivered at the end of the business day.
It is necessary to adopt these sections as an emergency to protect the welfare 
of those members of the public who may be filing documents pursuant to House 
Bill 278 immediately upon its effective date, but prior to the effective date of 
the proposed rules necessary to properly administer the new Act.
Lorna Wassdorf, special assistant, Statutory Filings Division, has determined 
that for the first five-year period the sections are in effect there will be 
minimal fiscal implications as a result of enforcement or administration of the 
rules.
Ms. Wassdorf also has determined that for each year of the first five years the 
public benefit anticipated as a result of enforcing the sections will be to 
provide flexibility in payment methods from the specific electronic transmission 
and alternate payment guidelines as a way to expedite filing time. No 
anticipated economic cost exists to persons required to comply with the sections 
as proposed.
Comments on the proposal may be submitted to Lorna S. Wassdorf, Special 
Assistant, Statutory Filings Division, P.O. Box 13697, Austin, Texas 78711-3697.
The amendments and new sections are proposed under the Texas Business 
Corporation Act, Article 9.03, the Texas Nonprofit Corporation Act, Article 
1396-9.04 and the Texas Limited Liability Company Act, Article 8.03 which give 
the secretary of state the power and authority reasonably necessary to enable 
the secretary of state to administer these acts efficiently and to perform its 
duties imposed by these Acts. The amendments and new sections are also proposed 
under Texas Civil Statutes, Article 6252-13a and the Government Code, 
sec.405.031 and sec.405.032, which give the secretary of state the authority to 
adopt rules of practice reasonably necessary to carry out its ministerial duties 
under the Act.
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt.
Issued in Austin, Texas, on October 25, 1991.
TRD-9113245
Lorna Wassdorf
Special Assistant
Office of the Secretary of State
Earliest possible date of adoption: December 2, 1991
For further information, please call: (512) 463-5701
       
Chapter 79. Corporations
The Office of the Secretary of State proposes amendments to sec.sec.79.1-79.3, 
79.8, 79.11, 79.30-79.34, 79.36-79.50, and 79.54, new sec.sec.79.13-79.15, and 
79.52, concerning the Corporations Section. The amendments to sec.79.1 and  
s79.2, concern changes in the name and address of the Corporations Section of 
the Office of the Secretary of State. Amendments to sec.sec.79.3, 79.8, and 
79.11, relate to electronically transmitted filings to the Office of the 
Secretary of State, and sec.79.17 provides that a limited liability company may 
change its address on its certificate of withdrawal. New sec.79.52 relates to 
name availability rules for limited liability companies. New sec.79.13 and 
sec.79.14 establish procedures for documents filed with delayed effective dates. 
New sec.79. 15 provides for identification of applicants for name reservations 
and name registrations. Amendments to the following sections concern entity name 
availability determinations: 79.30-79.34, 79.36-79.50, and 79.54.
The amendments to the rules reflect a change of address of the Office of the 
Secretary of State. In addition, the Corporations Division has been renamed the 
Corporations Section.
House Bill 278 added Texas Miscellaneous Corporation Laws Act, Article 1302-7. 
07 and the Texas Revised Limited Partnership Act, Article 6132a-1, sec.13.04, 
effective August 26, 1991, eliminating the requirement for original signatures 
on corporate and limited partnership filings. Document filings electronically 
submitted by transmission over a facsimile (FAX) machine to the Office of the 
Secretary of State will be accepted for filing in the same manner as other 
documents submitted in person or by common courier.
The acceptance of electronically transmitted documents directly to the Office of 
the Secretary of State necessitates amendment to existing rules concerning date 
of receipt, hour of filing, and receipt of letters, documents, and papers.
The Texas Limited Liability Company Act, effective August 26, 1991, provides 
that a foreign limited liability company authorized to transact business in this 
state may withdraw from this state upon the procuring from the Secretary of 
State a certificate of withdrawal. Amended sec.79.17 will also allow a limited 
liability company to change the address indicated on its certificate of 
withdrawal for purposes of mailing copies of process against the company served 
on the secretary of state.
The Texas Business Corporation Act, Article 10.03, as amended by House Bill 278 
permits a business to file certain documents with a delayed effective date. The 
filing must become effective no later than a date within 90 days of submission. 
The Texas Business Corporation Act, Article 10.03, provides that documents which 
will become effective upon the occurrence of events or facts that may occur in 
the future must contain the date of the 90th day after the date of the filing of 
such articles, statement, application or other filing. New sec.79.13 establishes 
how to calculate the precise date to include in the document submitted for 
filing as the date of the 90th day after the date of filing.
When a condition triggering the effectiveness of a document has been satisfied 
or waived, a statement regarding the delayed effective condition must be 
submitted to the secretary of state. New sec.79.14 sets forth certain 
information that must appear in the statement regarding the delayed effective 
condition. This information will allow the secretary of state to identify the 
original document to which the statement of delayed effective condition relates.
The Texas Limited Liability Company Act, effective August 26, 1991, also 
provides that the name of a limited liability company shall not be the same as 
or deceptively similar to, the name of any domestic limited liability company, 
corporation, or limited partnership existing under the laws of this state, or 
the name of any foreign limited liability company, corporation, or limited 
partnership authorized to transact business in this state, or a limited 
liability company, corporation, or limited partnership name that is reserved or 
registered in this state under an applicable statute. Therefore, the corporate 
name availability section will be renamed, "entity name availability" and the 
existing name availability sections will be expanded to make them applicable to 
corporations, limited partnerships, and limited liability companies.
It is necessary to adopt these sections as an emergency to protect the welfare 
of those members of the public who may be filing documents pursuant to House 
Bill 278 immediately upon its effective date, but prior to the effective date of 
the proposed rules necessary to properly administer the new Act.
Lorna Wassdorf, special assistant, Statutory Filings Division, has determined 
that for the first five-year period the sections are in effect there will be no 
fiscal implications for state or local government as a result of enforcing or 
administering the sections.
Ms. Wassdorf also has determined that for each year of the first five years the 
sections are in effect the public benefit anticipated as a result of enforcing 
the sections will be specific name availability guidelines for corporate, 
limited partnership, and limited liability company filings. The proposed 
modifications also promote uniformity in name availability determinations for 
all business entities. There will be no effect on small businesses. There is no 
anticipated economic cost to persons who are required to comply with the 
sections as proposed.
Comments on the proposal may be submitted to Lorna S. Wassdorf, Special 
Assistant, Statutory Filings Division, P.O. Box 13697, Austin, Texas 78711-3697.
General Information and Correspondence
1 TAC sec.sec.79.1-79.3, 79.8, 79.11, 79.13-79.15, 79.17
(Editor's Note: The Office of the Secretary of State proposes for permanent 
adoption the new and amended sections it adopts on an emergency basis in this 
issue. The text of the new and amended sections is in the Emergency Rules 
section of this issue.)
The amendments and new sections are proposed under the Texas Business 
Corporation Act, Article 9.03, the Texas Nonprofit Corporation Act, Article 
1396-9.04, and the Texas Limited Liability Company Act, Article 8.03, which give 
the secretary of state the power and authority reasonably necessary to enable 
the secretary of state to administer these Acts efficiently and to perform its 
duties imposed by these Acts. The amendments and new sections are also proposed 
under Texas Civil Statutes, Article 6252-13a, and the Government Code, sec.405. 
031 and sec.405.032 which give the Office of the Secretary of State the 
authority to adopt rules of practice reasonably necessary to carry out its 
ministerial duties under the Act.
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt.
Issued in Austin, Texas, on October 25, 1991.
TRD-9113247
Lorna Wassdorf
Special Assistant, Statutory Filings Division
Office of the Secretary of State
Earliest possible date of adoption: December 2, 1991
For further information, please call: (512) 463-5586
       
<nl>Entity<nl> <ol>[Corporate] Name Availability
1 TAC sec.sec.79.30-79.34, 79.36-79.50, 79.52, 79.54
(Editor's Note: The Office of the Secretary of State proposes for permanent 
adoption the amended sections it adopts on an emergency basis in this issue. The 
text of the amended sections is in the Emergency Rules section of this issue.)
The amendments and new section are proposed under the Texas Business Corporation 
Act, Article 9.03, the Texas Nonprofit Corporation Act, Article 1396-9.04, and 
the Texas Limited Liability Company Act, Article 8.03, which give the secretary 
of state the power and authority reasonably necessary to enable the secretary of 
state to administer these Acts efficiently and to perform its duties imposed by 
these Acts. These amendments and new section are also proposed under Texas Civil 
Statutes, Article 6252-13a, and the Government Code, sec.405. 031 and 
sec.405.032, which give the Office of the Secretary of State the authority to 
adopt rules of practice reasonably necessary to carry out its ministerial duties 
under the Act.
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt.
Issued in Austin, Texas, on October 25, 1991.
TRD-9113249
Lorna Wassdorf
Special Assistant, Statutory Filings Division
Office of the Secretary of State
Earliest possible date of adoption: December 2, 1991
For further information, please call: (512) 463-5586
       
Chapter 80. Unincorporated Business Entities
1 TAC sec.sec.80.1-80.4
(Editor's Note: The Office of the Secretary of State proposes for permanent 
adoption the new sections it adopts on an emergency basis in this issue. The 
text of the new sections is in the Emergency Rules section of this issue.
The Office of the Secretary of State proposes new sec. s80.1-80.4, concerning 
administrative rules to be entitled, "Unincorporated Business Entities." This 
chapter will address rules concerning unincorporated business entities such as 
limited liability companies and registered limited partnerships. Both the Texas 
Limited Liability Company Act (TLLCA) creating limited liability companies and 
the amendments to the Texas Uniform Partnership Act creating registered limited 
liability partnerships took effect on August 26, 1991.
House Bill 278 added Texas Uniform Partnership Act, Article 6132b, sec.45-A to 
sec.45-C, effective August 26, 1991, to create registered limited liability 
partnerships (LLPs). LLPs are not subject to the name availability rules set 
forth in Chapter 79 of the this title. Hence, it is possible that multiple LLPs 
could register with the Office of the Secretary of State under the same or 
deceptively similar partnership name. To enable the secretary of state to 
distinguish between similarly named LLPs, new sec.80.1 directs an LLP filing of 
its initial or renewal application or as soon as possible thereafter. Section 
80. 1 also sets forth additional requirements for initial LLP applications.
The Texas Uniform Partnership Act, sec.45-A also establishes that registration 
of an LLP expires one year after the date of filing of initial registration. 
Section 80.1 addresses the contents of a renewal application and the 
consequences of failing to renew. Section 80.2 addresses withdrawal of 
registration as a registered limited liability partnership and the consequences 
thereof. Section 80.3 establishes that the secretary of state will not 
determined whether or not an LLP is in substantial compliance with all of the 
requirements of the Texas Uniform Partnership Act. Finally, sec.80.4 authorizes 
corrections for LLP filings containing typographical errors.
It is necessary to adopt these sections as an emergency to protect the welfare 
of those members of the public who may be filing documents pursuant to House 
Bill 278 immediately upon its effective date, but prior to the effective date of 
the proposed rules necessary to properly administer the new Act.
Lorna Wassdorf, special assistant, Statutory Filings Division, has determined 
that for the first five-year period the sections are in effect there will be no 
fiscal implications for state or local government as a result of enforcing or 
administering the sections.
Ms. Wassdorf also has determined that for each year of the first five years the 
sections are in effect the public benefit anticipated as a result of enforcing 
the sections will be the promoting of accuracy in filings and the assessment of 
proper filing fees. There will be no effect on small businesses. No anticipated 
economic cost exists to persons required to comply with the proposed rules.
Comments on the proposal may be submitted to Lorna S. Wassdorf, Special 
Assistant, Statutory Filings Division, P.O. Box 13697, Austin, Texas 78711-3697.
The new sections are proposed under Texas Civil Statutes, Article 6252-13a, and 
the Government Code, sec.405.031 and sec.405.032 which give the Office of the 
Secretary of State the authority to adopt rules of practice reasonably necessary 
to carry out its ministerial duties under the Act.
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt.
Issued in Austin, Texas, on October 25, 1991.
TRD-9113251
Lorna Wassdorf
Special Assistant, Statutory Filings Division
Secretary of State
Earliest possible date of adoption: December 2, 1991
For further information, please call: (512) 463-5586
       
Chapter 81. Voter Registration
1 TAC sec.81.11
The Office of the Secretary of State proposes an amendment to sec.81.11, 
concerning disbursement of funds under the Texas Election Code, Chapter 19. 
House Bill 612, (Act of June 1, 1987, Chapter 472, sec.5, 1988 Texas General 
Laws 2061-2063) amended Chapter 19 of the Texas Election Code regarding 
disbursement of state funds to county voter registrars. As a result of a Chapter 
19 Committee meeting held on September 5, 1991, the requirement for a signature 
by the person responsible for purchases for sole source purchases was changed to 
require such signature only for purchases over $1,000 for reasons of efficiency. 
Language was also added that purchases of voter registration advertising space 
and mediums do not require competitive bids.
Mr. Harrison also has determined that for each year of the first five years the 
section as proposed is in effect, the public benefit will be to increase the 
efficiency of the administrative process while still assuring that funds 
dedicated to voter registrars and to enhancement of the county voter 
registration system will be spent for those purposes only. There will be no 
effect on small businesses. There is no anticipated economic cost to persons who 
are required to comply with the section as proposed.
Comments on the proposal may be submitted to Tom Harrison, Special Assistant, 
Elections Division, P.O. Box 12060, Austin, Texas 78711.
The amendment is proposed under the Texas Election Code,  s31.003 and sec.19. 
002(b), which provides the Office of the Secretary of State with the authority 
to obtain and maintain uniformity in the application, interpretation, and 
operation of provisions under the Texas Election Code and other election laws, 
and in performing such duties, to prepare detailed and comprehensive written 
directives and instructions based on such laws, and to adopt rules consistent 
with the Election Code.
sec.81.11. Disbursement of Funds under the Texas Election Code, Chapter 19.
(a)-(h) (No change.)
(i) No competitive bids for items of less than $250 will be required. However, 
the voter registrar will take the steps necessary to insure that all charges are 
reasonable and competitive with the local marker.
(1)-(4) (No change.)
(5) Sole source vendor purchases are discouraged. In rare instances when one is 
required, a statement must be submitted by the voter registrar [and signed by 
the person responsible for county purchases] stating the justification for this 
sole source purchases. <nl>If the item to be purchased is greater than $1,000, 
the letter must also be signed by the person responsible for county purchases. 
Purchases of voter registration advertising space and mediums do not require.
(6)-(7) (No change.)
(j)-(m) (No change.)
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt.
Issued in Austin, Texas, on October 24, 1991.
TRD-9113167
Tom Harrison
Special Assistant for Elections
Office of the Secretary of State
Earliest possible date of adoption: December 2, 1991
For further information, please call: (512) 463-5650
       
Part V. General Services Commission
Chapter 113. Central Purchasing Division
Purchasing
1 TAC sec.113.2, sec.113.10
The General Services Commission proposes amendments to  s113.2 and sec.113. 10, 
concerning definitions and delegated purchases. The sections increase the 
delegated purchase amount for state agencies from $1,500 to $5,000 increase the 
amount for which competitive bidding is required from $250 to $1,000, and 
prohibit the commission from requiring unrelated purchases to be combined in 
order to exceed the specified dollar limits. Agencies making purchases for which 
competitive bidding is required must maintain a bidders list and solicit bids 
from all eligible bidders for purchases which exceed $5,000.
Ron Arnett, director for purchasing, has determined that for the first five-year 
period the sections are in effect there will be fiscal implications as a result 
of enforcing or administering the sections. The effect on state government for 
the first five-year period the sections are in effect will be an estimated 
additional cost of $2.8 million for fiscal year (fy) 1992; $2.9 million for fy 
1993; $3.0 million for fy 1994; $3.1 million for fy 1995; and $3. 2 million for 
fy 1996. There will be no effect on local government.
Mr. Arnett also has determined that for each year of the first five years the 
sections are in effect the public benefit anticipated as a result of enforcing 
the sections will be a reduction in the amount of time required to make 
purchases with a dollar value of less than $5,000. There will be no effect on 
small businesses. There is no anticipated economic cost to persons who are 
required to comply with the sections as proposed.
Comments on the proposal may be submitted to Judith Porras, General Counsel, 
General Services Commission, P.O. Box 13047, Austin, Texas 78711-3047. Comments 
must be received no later than 30 days from the date of publication of the 
proposal in the Texas Register.
The amendments are proposed under Texas Civil Statutes, Article 601b, sec.3.01, 
which provide the General Services Commission with the authority to promulgate 
rules to accomplish the purpose of Article 3.
sec.113.2. Definitions.  The following words and terms, when used in this 
chapter, shall have the following meanings, unless the context clearly indicates 
otherwise.
 Spot purchase-A purchase of supplies, materials, or services which may be made 
by state agencies through local purchase procedures provided the purchase does 
not exceed a total of <nl>$5,000<ol> [$1,500] and is in compliance with the Act 
and with commission rules.
sec.113.10. Delegated Purchases.
(a) General delegation. Pursuant to the provisions of Texas Civil Statutes, 
Article 601b, sec.3.08, competitive bidding whether formal or informal is not 
required for purchases not in excess of <nl>$1,000<ol> [$250]. Purchases subject 
to Texas Civil Statutes, Article 6203c (required to be made from the Texas 
Department of Criminal Justice, see also sec.113.11 of this title (relating to 
Texas Department of Criminal Justice Purchases) and Texas Civil Statutes, 
Article 601b,  s3.23), as well as purchases of products and services of blind 
and severely disabled persons subject to the Human Resources Code, Texas Civil 
Statutes, Chapter 122 (see also sec.113.12 of this title (relating to Purchase 
of Blind-Made Goods and Services and Texas Civil Statutes, Article 601b, 
sec.3.22), shall be made in accord with those statutes and will not be affected 
by this delegation. By authority granted under Texas Civil Statutes, Article 
601b, sec.3. 06, the commission has delegated purchasing functions in the 
following cases to agencies of the state: (Spot and emergency purchase rules 
will apply to all types of delegated purchases.)
(1)-(7) (No change.)
(b) Spot purchases. As further required by Texas Civil Statutes, Article 601b, 
sec.3.08, using state agencies are delegated the authority to make purchases in 
amounts that do not exceed <nl>$5,000<ol> [$1,500] in accordance with the 
following conditions.
(1) Large purchases may not be broken down into small purchases in order to meet 
the specified dollar limit. <nl>The commission may not require that unrelated 
purchases be combined into one purchase order in order to exceed the specified 
dollar limits.
(2) (No change.)
(3) The agency must attempt to obtain at least three informal bids on all 
purchases in excess of <nl>$1,000 <ol> [$250] and not over <nl>$2,500<ol> [$1, 
000]. The agency must attempt to obtain at least three formal bids on all 
purchases in excess of <nl>$2,500 <ol> [$1,000]. All bids must be obtained from 
sources which normally offer for sale the merchandise being purchased.
<nl>(4) Agencies must maintain a bidders list and when making purchases in 
excess of $5,000 which require formal bids must solicit bids from all eligible 
vendors on the list.
<nl>(5)<ol>[(4)] All information required by the commission must be furnished on 
the approved spot purchase form.
(c) Emergency purchases. Payment for emergency purchases of needed supplies, 
equipment, or services will be approved by this commission, provided an 
emergency exists and the purchase is made in accordance with the following 
conditions.
(1) At least three informal bids must be obtained whenever possible on all 
purchases in excess of <nl>$2,500 <ol> [$250].
(2)-(5) (No change.)
(d)-(l) (No change.)
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt.
Issued in Austin, Texas, on October 23, 1991.
TRD-9113133
Judith Monaco Porras
General Counsel
General Services Commission
Earliest possible date of adoption: December 2, 1991
For further information, please call: (512) 463-3446
       
1 TAC sec.113.4
The General Services Commission proposes an amendment to  s113.4, concerning bid 
lists to require the commission to develop a standard bid list application form 
which may be used by agencies to establish an agency bid list, require agencies 
to establish and maintain an agency bid lists and authorize charging a fee to 
recover costs. Agencies are also authorized to use the commission's bid list as 
their own.
Ron Arnett, director for purchasing, has determined that for the first five-year 
period the section is in effect there will be fiscal implications as a result of 
enforcing or administering the section. The effect on state government for the 
first five-year period the section is in effect will be an estimated increase in 
revenue of $1.5 million for fiscal years 1992-1996. There will be no effect on 
local government for the first five-year period the section is in effect.
Mr. Arnett also has determined that for each year of the first five years the 
section is in effect the public benefit anticipated as a result of enforcing the 
section will be increased effectiveness of the purchasing system through 
enhanced competition. The anticipated economic cost to persons and small 
businesses who are required to comply with the section as proposed will be a $75 
annual subscription fee to be placed on the central bid list.
Comments on the proposal may be submitted to Judith Porras, General Counsel, 
General Services Commission, P.O. Box 13047, Austin, Texas 78711-3047. Comments 
must be received no later than 30 days from the date of publication of the 
proposal in the Texas Register.
The amendment is proposed under Texas Civil Statutes, Article 601b, sec.3.01, 
which provide the General Services Commission with the authority to promulgate 
rules to accomplish the purpose of Article 3.
sec.113.4. Bid Lists, Conditions Applicable to Both Open Market and Contract.
(a) Requirements for bidders list. A vendor may be considered for the bidders 
mailing list by complying with and meeting the following procedures and 
requirements.
(1) (No change.)
(2) A vendor may be considered for the bidders mailing list by completing and 
returning to the commission, the bidder's application form which is furnished 
with the purchase of the commodity book and <nl>remitting a check, payable to 
the commission, in the amount of $75, in payment of the bid list annual 
subscription fee. This fee, less a $15 handling charge, is refundable only in 
event the applicant is not accepted for placement on the list of bidders. The 
subscription fee is due and payable annually upon notice from the commission. 
Annual notification will be made in the anniversary month of initial enrollment 
on the bid list.
(3) -(5) (No change.)
(b) Removal from bidders list.
(1) A bidder may be removed or temporarily suspended from the bid list for one 
or more of the following reasons:
(A)-(E) (No change.)
(F) failure to pay or unnecessary delay in paying  <nl>damages assessed by the 
commission<ol> [a penalty];
(G) (No change.)
(H) failure to submit bids to the commission's invitation to bid. Removal from 
the list of the affected class or item will automatically follow the expiration 
of 15 days after bidder's receipt of notice from the commission, unless the 
bidder notifies the commission in writing<nl>, with rationale acceptable to the 
commission, <ol> that it wishes to remain on the list when a failure to respond:
(i) occurs on each of <nl>eight<ol> [four] consecutive open market invitations 
concerning the affected class or item; or
(ii) (No change.)
<nl>(I)  failure to remit the annual bid list subscription fee;
<nl>(J)  receipt of documentation acceptable to the director for purchasing, of 
a bidder's inability to provide the commodity or service for which the bidder is 
enrolled on the bid list. In case of inappropriate enrollment, bid list removal 
will include only the commodities or services which the bidder is unable to 
provide:
<nl>(K)<ol>[(I)] other factors listed in Texas Civil Statutes, Article 601b,  
s3.11.
(2)-(3) (No change.)
(c) Notice of surplus property sales. Applicants to receive notice of surplus 
property sales by the commission under Texas Civil Statutes, Article 601b, 
Article 9, may apply through the bid list clerk, [State-Purchasing-and] General 
Services Commission. No additional requirements for this list are necessary.  
<nl>See sec.113.73 of this title (relating to Sale and Disposition of Surplus 
and Salvage Property) for provisions relating to removal from bid lists for 
surplus property.
(d) (No change.)
<nl>(e) Standard bid list application form. The commission shall develop a 
standard bid list application form and offer it to all state agencies, for use 
in accepting applications to an individual agency bid list. A state agency is 
not prohibited from developing its own application form but such forms shall not 
be required in addition to or in lieu of the standard registration form 
developed by the commission.
<nl>(f) Bidders list and annual register. Each state agency will maintain a 
bidders list and annually register on the list the name and address of each 
vendor that applies and is accepted for registration in accordance with rules 
adopted by the agency. Agency rules should also provide procedures for 
maintaining the bid list and for removing inactive bidders from the list. A 
state agency may charge bid list applicants a fee for registration on the bid 
list and may charge an annual renewal fee in an amount designed to recover the 
agency's costs in developing and maintaining its bidders list and in soliciting 
bids or proposals. An agency should set the amount of the fees by rule. An 
agency electing to use the bid list maintained by the central purchasing 
division of the commission, or a portion thereof, satisfies its statutory 
requirement to maintain an agency bid list if the portion selected reasonably 
covers the geographic area of the agency's business activity.
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt.
Issued in Austin, Texas, on October 23, 1991.
TRD-9113130
Judith Monaco Porras
General Counsel
General Services Commission
Earliest possible date of adoption: December 2, 1991
For further information, please call: (512) 463-3446
       
1 TAC sec.113.6
The General Services Commission proposes an amendment to  s113.6, concerning bid 
evaluation and award. The section lists factors that must be considered when 
evaluating competitive sealed proposals or purchasing electrical items, and 
implements preferences for energy efficient products and rubberized asphalt 
paving materials.
Ron Arnett, director for purchasing, has determined that for the first five-year 
period the section is in effect there will be no fiscal implications for state 
or local government as a result of enforcing or administering the section.
Mr. Arnett, also has determined that for each year of the first five years the 
section is in effect the public benefit anticipated as a result of enforcing the 
section will be effective and efficient administration of competitive sealed 
proposals, encouraging the use of energy efficient equipment and the 
minimization of waste associated with scrap tires. There will be no effect on 
small businesses. There is no anticipated economic cost to persons who are 
required to comply with the section as proposed.
Comments on the proposal may be submitted to Judith Monaco Porras, General 
Counsel, General Services Commission, P.O. Box 13047, Austin, Texas 78711-3047. 
Comments must be received no later than 30 days from the date of publication of 
the proposal in the Texas Register.
The amendment is proposed under Texas Civil Statutes, Article 601b, sec.3, which 
provide the General Services Commission with the authority to promulgate rules 
to accomplish the purpose of Article 3.
sec.113.6. Bid Evaluation and Award, Conditions Applicable to Both Open Market 
and Contract.
(a) (No change.)
(b) Award.
(1)-(8)  (No change.)
<nl>(9) The commission shall give a preference to energy efficient products if 
the products meet state requirements as to quantity and quantity as set forth in 
advertised specifications and are equal to or less than the cost of other 
products offered in the responses to invitation for bids or request for 
proposals. This preference shall be implemented by evaluating the energy usage 
of products offered and considering the costs of energy usage over the expected 
life of the equipment. The methodology for evaluation of the energy costs shall 
be included in the specifications for the invitation for bids or the request for 
proposals.
<nl>(10) The commission may give preference to rubberized asphalt paving made 
from scrap tires by a facility in this state in purchases of rubberized asphalt 
paving material, if the cost as determined by life-cycle cost benefit analysis 
does not exceed by more than 15% the bid cost of alternative paving materials.
(c) Negotiations of contracts.
(1)-(3) (No change.)
(4) Pursuant to the provisions of Chapter 390, 70th Legislature, 1987, amending 
Texas Civil Statutes, Article 601b, sec.3. 021, the commission may acquire 
telecommunications devices, systems, or services or any automated information 
systems, the computers on which they are automated, or a service related to the 
automation of information systems or the computers on which they are automated, 
including computer software by following a procedure using competitive sealed 
proposals subject to the following conditions and procedures.
(A)-(D) (No change.)
(E) At a minimum, the RFP shall include a statement of work describing the item 
or service desired; the criteria that will be used in evaluating proposals; and 
a statement as to when and in what form prices are to be submitted. The 
evaluation criteria shall be described in a plan of evaluation which identifies 
evaluation factors developed in relation to their importance to the proposed 
work or project. The criteria or standards shall measure how well a proposal 
meets desired performance requirements. Standards should seek to match the 
evaluation of proposals against objective norms rather than comparing one 
proposal against another. The evaluation process shall also include price and 
cost analysis. <nl>Factors such as installation costs, the overall life of the 
system or equipment, the cost of acquisition, operation, and maintenance of 
hardware included with, associated with, or required for the system or equipment 
during the state's ownership or lease, the cost of acquisition, operation, and 
maintenance of software included with, associated with, or required for the 
system or equipment during the state's ownership or lease, the estimated cost of 
supplies, the estimated costs of employee training, the estimated cost of 
additional long-term staff needed, and the estimated increase in employee 
productivity, shall be considered by the commission when determining which 
proposal is most advantageous to the state. <ol> Only criteria as designed in 
the solicitation <nl>may<ol> [can] be considered in evaluation of award. An 
evaluation team may be formed to evaluate and discuss proposals. The commission 
shall invite requisitioning agency participation on the evaluation team.
(F)-(J) (No change.)
<nl>(d) Safety standards for electrical items. The commission or another state 
agency may not purchase an electrical item unless the item meets applicable 
safety standards of the federal Occupational Safety and Health Administration 
(OSHA).
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt.
Issued in Austin, Texas, on October 23, 1991.
TRD-9113131
Judith Monaco Porras
General Counsel
General Services Commission
Earliest possible date of adoption: December 2, 1991
For further information, please call: (512) 463-3446
       
Purchasing
1 TAC sec.113.9
The General Services Commission proposes an amendment to  s113.9, which pertains 
to term contracts. The section requires the commission to study at least one 
service annually to determine the benefits of a state-wide or regional contract. 
State-wide or regional contracts are not required for services that more than 
five bidders are willing to provide.
Ron Arnett, director for purchasing, has determined that for the first five-year 
period the section is in effect there will be no fiscal implications for state 
or local government as a result of enforcing or administering the section.
Mr. Arnett also has determined that for each year of the first five years the 
section is in effect the public benefit anticipated as a result of enforcing the 
section will be an efficient and effective purchasing system with increased 
state-wide purchasing of services. There will be no effect on small businesses. 
There is no anticipated economic cost to persons who are required to comply with 
the section as proposed.
Comments on the proposal may be submitted to Judith Monaco Porras, General 
Counsel, General Services Commission, P.O. Box 13047, Austin, Texas 78711-3047. 
Comments must be received no later than 30 days from the date of publication of 
the proposal in the Texas Register.
The amendment is proposed under Texas Civil Statutes, Article 601b, sec.3.01, 
which provide the General Services Commission with the authority to promulgate 
rules to accomplish the purpose of Article 3.
sec.113.9. Term Contracts.
<nl>(a) Purchase and rental of items. Texas Civil Statutes, Article 601b, 
sec.3.10 and sec.3.11 authorize the commission to establish term contracts for 
the purchase and rental of items used in large quantities by several state 
agencies for delivery during a specified period of time and for estimated 
quantities only.
(1)-(4) (No change.)
<nl>(b) Statewide or regional services contracts, commission studies.
<nl>(1) The commission annually shall select at least one service for study to 
determine the benefit to the state of providing the service through state-wide 
or regional contracts. The study will focus on the possible benefits from 
contracting on either a state-wide or regional basis. If benefits from economy 
of scale may be realized from state-wide or regional contracts the commission 
shall implement such contracts.
<nl>(2) If the commission determines that more than five bidders are willing to 
provide a specific service, a state-wide or regional term contract is not 
mandatory. However, if the commission determines it is in the state's best 
interest, contracts may be established with one or more vendors to provide the 
service.
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt.
Issued in Austin, Texas, on October 23, 1991.
TRD-9113132
Judith Monaco Porras
General Counsel
General Services Commission
Earliest possible date of adoption: December 2, 1991
For further information, please call: (512) 463-3446
       
1 TAC sec.113.11
The General Services Commission proposes an amendment to  s113.11, concerning 
purchasing. The amendment will allow state agencies to obtain an informal or 
formal quotation and issue a purchase order to the Texas Department of Criminal 
Justice for goods that are not included in an established contract, the cost of 
which does not exceed $5,000. If the institutional division of the Texas 
Department of Criminal Justice determined that the division is unable to fill a 
requisition for an article or product, the agency may purchase from another 
source. A state agency purchasing from the Texas Department of Criminal Justice 
may do so without complying with any other state laws requiring competitive 
bids. A state agency is not required to purchase from the Texas Department of 
Criminal Justice if the agency determines and the General Services Commission 
certifies, that the goods or articles can be purchased elsewhere at a lower 
price.
Ron Arnett, director for purchasing has determined that for the first five-year 
period the section is in effect there will be no fiscal implications for state 
or local government as a result of enforcing or administering the section.
Mr. Arnett also has determined that for each year of the first five years the 
section is in effect the public benefit anticipated as a result of enforcing the 
section will be an efficient method of issuing small purchase orders to the 
Texas Department of Criminal Justice and provide for effective, efficient use of 
the department's industries program for the benefit of state agencies. There 
will be no effect on small businesses. There is no anticipated economic cost to 
persons who are required to comply with the section as proposed.
Comments on the proposal may be submitted to Judith Monaco Porras, General 
Counsel, General Services Commission, P.O. Box 13047, Austin, Texas 78711-3047. 
Comments must be received no later than 30 days from the date of publication of 
the proposal in the Texas Register.
The amendment is proposed under Texas Civil Statutes, Article 601b, sec.3.01, 
which provide the General Services Commission with the authority to promulgate 
rules to accomplish the purpose of Article 3.
sec.113.11. Texas Department of Criminal Justice Purchases. <ol> The commission 
is authorized by Texas Civil Statutes, Article 601b, sec.3.23, and Texas Civil 
Statutes, Article 6203c, to enter into contracts with the Texas Department of 
Criminal Justice for the purchase of supplies, materials, and/or equipment 
produced by the <nl>Texas<ol> Department of Criminal Justice for use by other 
state agencies. When such contracts have been negotiated, the state agencies 
will be so notified by the issuance of catalog pages listing the items approved 
for purchase. Orders for these supplies will be placed with the <nl>Texas<ol> 
Department of Criminal Justice in the same manner as other contract orders are 
handled. It is mandatory that all such items be purchased from the Texas 
Department of Criminal Justice unless an agency submits written evidence, 
acceptable to the commission that an item available from the <nl>Texas<ol> 
Department of Criminal Justice will not adequately service its needs <nl>or the 
institutional division of the Texas Department of Criminal Justice determines 
that the division is unable to fill a requisition for an article or product. A 
state agency is not required to purchase from the Texas Department of Criminal 
Justice if they determine the goods or articles can be purchased elsewhere at a 
lower price, and the commission so certifies. Certification will be accomplished 
by the commission accepting and processing an agency requisition, or approval of 
payment on a purchase accomplished under delegated authority. Items which are 
not included in an established contract may be purchased directly from the Texas 
Department of Criminal Justice using an informal or formal quotation and issuing 
a proper purchase order for amounts not to exceed $5,000.<ol> [Items not listed 
in the Department of Criminal Justice catalog but available from the Department 
of Criminal Justice will be handled on an open market requisition basis.]
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt.
Issued in Austin, Texas, on October 23, 1991.
TRD-9113134
Judith Monaco Porras
General Counsel
General Services Commission
Earliest possible date of adoption: December 2, 1991
For further information, please call: (512) 463-3446
       
Purchase of Alternative Fuel Vehicles
1 TAC sec.113.25
The General Services Commission proposes an amendment to  s113.25, concerning 
purchase of alternative fuel vehicles. The amendment will increase the 
horsepower of vehicles a state agency may purchase or lease from 145 SAE 
horsepower to 160 SAE net horsepower.
Ron Arnett, director for purchasing has determined that for the first five-year 
period the section is in effect there will be no fiscal implications for state 
or local government as a result of enforcing or administering the section.
Mr. Arnett also has determined that for each year of the first five years the 
section is in effect the public benefit anticipated as a result of enforcing the 
section will be an effective and economical purchasing system with enhanced 
competition in vehicle purchases. There will be no effect on small businesses. 
There is no anticipated economic cost to persons who are required to comply with 
the section as proposed.
Comments on the proposal may be submitted to Judith Monaco Porras, General 
Counsel, General Services Commission, P.O. Box 13047, Austin, Texas 78711-3047. 
Comments must be received no later than 30 days from the date of publication of 
the proposal in the Texas Register.
The amendment is proposed under Texas Civil Statutes, Article 601b, sec.3.01, 
which provide the General Services Commission with the authority to promulgate 
rules to accomplish the purpose of Article 3.
sec.113.25. Purchase of Motor Vehicles.
(a) A state agency may not purchase or lease a vehicle designed or used 
primarily for the transportation of persons, including a station wagon, that has 
a wheel base longer than 113 inches or that has more than <nl>160<ol> [145] SAE 
net horsepower. This provision does not apply to the purchase or lease of a 
vehicle to be used primarily for criminal law enforcement or a bus, motorcycle, 
pickup, van, truck, three-wheel vehicle, tractor, or ambulance.
(b)-(d) (No change.)
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt.
Issued in Austin, Texas, on October 23, 1991.
TRD-9113135
Judith Monaco Porras
General Counsel
General Services Commission
Earliest possible date of adoption: December 2, 1991
For further information, please call: (512) 463-3446
       
Inspection
1 TAC sec.sec.113.51, 113.52, 113.56
The General Services Commission proposes amendments to  ssec.113.51, 113.52, and 
113.56, regarding inspections and testing to require inspection and testing of 
all costly purchases, permit removal of vendors from the bid list for 
complaints, and to make technical corrections.
Ron Arnett, director for purchasing, has determined that for the first five-year 
period the sections are in effect there will be no fiscal implications for state 
or local government as a result of enforcing or administering the sections.
Mr. Arnett also has determined that for each year of the first five years the 
sections are in effect the public benefit anticipated as a result of enforcing 
the sections will be an improvement in procurement procedures by state agencies. 
There will be no effect on small businesses. There is no anticipated economic 
cost to persons who are required to comply with the sections as proposed.
Comments on the proposal may be submitted to Judith Monaco Porras, General 
Counsel, General Services Commission, P.O. Box 13047, Austin, Texas 78711-3047. 
Comments must be received no later than 30 days from the date of publication of 
the proposal in the Texas Register.
The amendments are proposed under Texas Civil Statutes, Article 601b, sec.3.01, 
which provide the General Services Commission with the authority to promulgate 
rules to accomplish the purpose of Article 3.
sec.113.51. General. Pursuant to Texas Civil Statutes, Article 601b, sec.3.17, 
the [State Purchasing and] General Services Commission has established and 
maintains a program of testing and inspecting purchases made by the commission 
at the request of state agencies to insure that the materials, supplies, 
services, and equipment meet specifications. The responsibility for the 
inspection and testing program has been delegated to the Inspection Section of 
the Central Purchasing Division. <nl>The commission shall provide for the 
inspecting and testing of all costly purchases.
sec.113.52. Selection of Items for Inspection and/or Testing.
<nl>(a) Items are selected for inspection and/or testing under the following 
conditions.
<nl>(b) State agencies shall be responsible for the initial inspection and 
testing of all costly purchases. Inspection and testing will be done in 
accordance with instructions issued by the Specifications and Inspection Section 
of the General Services Commission. The Specifications and Inspection Section 
may devise appropriate form(s) as necessary to assist the agencies in carrying 
out this duty. In addition to random inspections, the Specifications and 
Inspection Section shall conduct follow-up inspections of purchases which fail 
initial agency inspections to verify if specifications are met. The 
Specifications and Inspection Section will coordinate with the assigned 
purchaser as required to carry out these duties.
(c) <nl>As a part of the standards and specifications program, the commission 
staff shall review existing contracts in effect on and after September 1, 1991, 
for recycling waste produced at state buildings under the control of the 
commission. Such review shall be made to ensure that all contracted recycling 
services meet contract specifications.
sec.113.56. Assessing and Collecting <nl>Damages<ol> [Penalties] and Testing 
Costs.
(a) The Central Purchasing Division of the commission shall assess all 
<nl>damages<ol> [penalties] and shall collect <nl>damages <ol> [penalties] and 
recover testing costs on behalf of the using agency.
(b) <nl>Damages<ol> [Penalties] and/or testing costs may be deducted from any 
payments owed the supplier by the state.
(c) Failure on the part of the supplier to pay an assessed <nl>damage<ol> 
[penalty] or testing cost may be cause for removal from the state bid list.
<nl>(d) If the chief of specifications and inspections identifies repeated 
complaints on any vendor, that vendor may be removed by the director for 
Purchasing from the commission's bid lists for a period not to exceed one year.
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt.
Issued in Austin, Texas, on October 23, 1991.
TRD-9113136
Judith Monaco Porras
General Counsel
General Services Commission
Earliest possible date of adoption: December 2, 1991
For further information, please call: (512) 463-3446
       
Surplus Property Sales
1 TAC sec.113.76
The General Services Commission proposes new sec.113.76, concerning the purchase 
of chairs to provide a method to be used in determining the fair market value of 
chairs which were used and may be purchased, by an elected or appointed officer 
and executive heads of agencies.
Ron Arnett, director for purchasing, has determined that for the first five-year 
period the section is in effect there will be no fiscal implications for state 
or local government as a result of enforcing or administering the section.
Mr. Arnett, also has determined that for each year of the first five years the 
section is in effect the public benefit anticipated as a result of enforcing the 
section will be an effective method for appointed or elected officers or 
executive directors of state agencies to purchase the chair used during his or 
her tenure of service. There is no anticipated economic cost to persons who are 
required to comply with the section as proposed.
Comments on the proposal may be submitted to Judith Monaco Porras, General 
Counsel, General Services Commission, P.O. Box 13047, Austin, Texas 78711-3047. 
Comments received no later than 30 days from the date of publication of the 
proposal in the  Texas Register.
The amendment is proposed under Texas Civil Statutes, Article 601b, sec.9.04, 
which provide the General Services Commission with the authority to promulgate 
rules to accomplish the purpose of Article 9.
sec.113.76. Purchase of Chairs.
(a) The commission shall determine the fair market value of the chair which an 
appointed or elected official or executive head of an executive or legislative 
agency other than the legislature used during his or her tenure of service and 
which the official desires to purchase upon vacation of office or termination of 
service.
(b) The property manager of the state agency shall submit the following 
information about the chair to the commission:
(1) acquisition date;
(2) original cost;
(3) inventory number;
(4) description of chair including brand and model number;
(5) current condition;
(6) current estimated value; and
(7) name of the appointed or elected official or executive head of the state 
agency and the date of vacation of office or termination of service.
(c) The commission will determine the fair market value of the chair and notify 
in writing the property manager of the state agency requesting the 
determination. Upon payment of the determined fair market value of the chair, 
the property manager may transfer the chair to the state official and remove the 
chair from any inventory of personal property.
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt.
Issued in Austin, Texas, on October 23, 1991.
TRD-9113137
Judith Monaco Porras
General Counsel
General Services Commission
Earliest possible date of adoption: December 2, 1991
For further information, please call: (512) 463-3446
       
Competitive Cost Review
1 TAC sec.sec.113.93, 113.95, 113.99
The General Services Commission proposes amendments to  ssec.113.93, 113.95, and 
113.99, concerning the competitive cost review program to expand the reporting 
requirements of agencies, identify the agencies' internal auditors as program 
coordinators, and state the duties of the commission with regard to assisting 
agencies and conducting its own comparative cost study.
Ron Arnett, director for purchasing, has determined that for the first five-year 
period the sections are in effect there will be no fiscal implications for state 
or local government as a result of enforcing or administering the sections.
Mr. Arnett, also has determined that for each year of the first five years the 
sections are in effect the public benefit anticipated as a result of enforcing 
the sections will be an increased efficiency of state agency operations. There 
will be no effect on small businesses. There is no anticipated economic cost to 
persons who are required to comply with the sections as proposed.
Comments on the proposal may be submitted to Judith Monaco Porras, General 
Counsel, General Services Commission, P.O. Box 13047, Austin, Texas 78711-3047. 
Comments must be received no later than 30 days from the date of publication of 
the proposal in the Texas Register.
The amendments are proposed under Texas Civil Statutes, Article 601b, sec.3.01, 
which provide the General Services Commission with the authority to promulgate 
rules to accomplish the purpose of Article 3.
sec.113.93. Definitions.  The following words and terms, when used in this 
undesignated head, shall have the following meanings, unless the context clearly 
indicates otherwise.
 Commission-The [State Purchasing and] General Services Commission.
sec.113.95. State Agency Responsibilities.
(a) <nl>Each biennium, state agencies subject to the competitive cost review 
program shall conduct cost review studies of their commercial activities. If the 
agency has an internal auditor, the internal auditor shall coordinate the 
activities of the agency as required by the statute. The agency shall adopt 
rules necessary to implement the statute including conducting management studies 
and developing in-house cost estimates.<ol> [Each biennium, participating state 
agencies shall conduct competitive cost reviews of their identified commercial 
activities. The commission will assist agencies in determining the 
reasonableness of assumptions used in defining the activities. By November 1 of 
each year, each state agency will identify all commercial activities performed 
by the agency and develop a schedule for analysis of the commercial activities 
identified. The schedule of analyses will be provided by December 1 of each year 
to the governing body of the state agency for approval. When the schedule is 
approved by the governing body, the state agency will conduct a management study 
of the agency functions specified in the schedule. The management study must be 
sufficiently comprehensive to enable development of cost estimates by a private 
sector provider and must contain, at a minimum, the following:
[(1) a description of the state agency function;
[(2) an analysis of the quality, quantity, and technical requirements 
descriptive of the work of the agency in relation to that function; and
[(3) a description of the efficiency initiatives that the agency could implement 
to perform the function more efficiently.]
(b) <nl>By November 1 of each year the subject agencies shall identify their 
commercial activities and develop a schedule to study the commercial activities 
identified. For each commercial activity identified, the agency shall quantify 
in measurable units the amount of the activity performed and indicate the amount 
of funds budgeted for the activity by the agency.<ol> [The state agency shall 
estimate the total cost to perform each of the functions. The cost estimate 
shall be prepared in accordance with procedures and instructions contained in 
the current edition of the "Competitive Cost Review Cost Analysis Guide" 
published by the office of the state auditor. The agency in-house cost estimates 
shall be submitted to the state auditor for approval. The commission will not 
begin preparation of a cost comparison review prior to receipt of the state 
auditor's certification of the agency in-house cost estimate.]
<nl>(c) The agency head shall notify the state auditor, the Legislative Budget 
Board, Governor's Office of Budget and Planning, Senate Finance Committee, House 
Appropriations Committee, and the commission of the commercial activities, 
workload indicators, budget information, and study schedule for review and 
comment.
<nl>(d) The agency shall then submit its schedule and activity inventory to its 
governing body for approval by December 1 of each year. The agency shall conduct 
the management study of the functions identified after approval of the governing 
body.
<nl>(e)  The management study shall be conducted in accordance with instructions 
issued by the commission. As a minimum, a management study must contain:
<nl>(1) a description of the agency function;
<nl>(2) an analysis of the quality and quantity of the work of the agency in 
relation to that function; and
<nl>(3) a description of any efficiency initiatives that the agency could 
implement to perform the function more efficiently.
<nl>(f) After commission approval of the completed management study, the agency 
shall estimate the total cost to perform the function. The cost estimate shall 
be prepared in accordance with procedures and instructions contained in the 
current edition of the "Competitive Cost Review Cost Analysis Guide" published 
by the office of the State Auditor. The agency in-house cost estimates shall be 
submitted to its internal auditor for review before forwarding the cost estimate 
to the state auditor for approval.
sec.113.99. [State Purchasing and] General Services Commission Responsibilities.
(a) <nl>Upon receipt of proposed inventory of commercial activities from the 
subject agencies, the commission shall review and comment on the inventory and 
make suggestions relative to study priorities and implementation scheduling <ol> 
[In coordination with the state auditor's office, the commission will assist 
state agencies in defining their commercial activities, and provide input during 
the development of the management study].
<nl>(b) When the study implementation schedule is approved by the agency 
governing board, the commission shall be notified by the agency and shall then 
establish a projected time line for completion of the study in cooperation with 
the agency. The agency coordinator and the commission shall work to insure a 
timely study and cost analysis for a competitive cost review.
<nl>(c) <ol>[(b)] The commission shall prepare a cost comparison review which 
will compare a commission-developed estimated cost to purchase the commercial 
activity from the private sector with the agency in-house cost estimate.
<nl>(d)<ol>[(c)] In developing its cost estimate to purchase the commercial 
activity, the commission may use market surveys, current bid data, state average 
costs, and comparable bid and contract data from federal, city, county, 
independent school district, or other public jurisdiction. The cost estimate 
shall include all costs associated with the purchase, including the commission 
cost to conduct and administer the purchasing action.
<nl>(e) <ol>[(d)] The commission will determine, in its cost comparison review, 
whether the quality and quantity of the commercial activity that could be 
provided through purchase is at least equal to the quality and quantity of the 
commercial activity proposed in the state agency management study and in-house 
cost estimate. The commission shall use the agency management study as the basis 
for evaluating the quality and quantity of the commercial activity required. 
Measures not contained in the management study will not be used in making this 
determination.
<nl>(f)<ol>[(e)] Following consultation with the state agency and the state 
auditor, the commission shall determine whether the total state cost of 
providing the commercial activity exceeds the cost of purchasing the activity. 
This determination shall be set forth in the commission's cost comparison 
review. The cost comparison review shall be provided to the chairman of the 
governing body and chief executive officer of the state agency, the governor, 
the state auditor, and the comptroller of public accounts.
<nl>(g) The commission shall establish internal controls, when the commission 
conducts competitive cost reviews of its own commercial activity functions, to 
separate internally the duties performed by the commission as a state agency 
subject to this article and the duties performed by the commission for all state 
agencies subject to this article.
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt.
Issued in Austin, Texas, on October 23, 1991.
TRD-9113138
Judith Monaco Porras
General Counsel
General Services Commission
Earliest possible date of adoption: December 2, 1991
For further information, please call: (512) 463-3446
       
Chapter 123. Facilities, Planning, and Construction
Building Construction Administration
1 TAC sec.sec.123.13, 123.15, 123.18
The General Services Commission proposes amendments to  ssec.123.13, 123.15, and 
123.18, concerning the exclusion of certain using agency construction projects 
from the provisions of Texas Civil Statutes, Article 601b, Section 5; the 
selection of architects/engineer for capital construction project; and bidding 
procedure. The proposed amendments define procedures used in granting project 
exclusions to certain using agencies; establish architect/engineer selection 
procedures; and establish bidding procedures allowing a 30-day response time for 
prospective bidders.
John E. Hodges, director for the facilities construction and space management, 
has determined that for the first five-year period the sections are in effect 
there will be no fiscal implications for state or local government as a result 
of enforcing or administering the sections.
Mr. Hodges also has determined that for each year of the first five years the 
sections are in effect the public benefit anticipated as a result of enforcing 
the sections will be uniformity in procedures which govern project exclusions 
for certain using agencies for construction projects located in privately-owned 
office and warehouse facilities; a fair and reasonable opportunity for 
architects/engineers to provide information for consideration in selection of 
architects/ engineers for capital construction projects; and a fair and 
reasonable opportunity for construction bidders to properly prepare and respond 
to bid requests for capital construction projects. There will be no effect on 
small businesses. There is no anticipated economic cost to persons who are 
required to comply with the sections as proposed.
Comments on the proposal may be submitted to Judith Monaco Porras, General 
Counsel, General Services Commission, P.O. Box 13047, Austin, Texas 78711-3047. 
Comments must be received no later than 30 days from the date of publication of 
the proposal in the Texas Register.
The amendments are proposed under Texas Civil Statutes, Article 601b, sec.5.15, 
which provide the General Services Commission with the authority to promulgate 
rules necessary to accomplish the purpose of Article 5.
sec.123.13. Construction Project.
(a)-(p) (No change.)
(q)  Pursuant to Texas Civil Statutes, Article 601b, sec.5.13(c), the commission 
may exclude certain using agency construction projects involving contract labor 
from the provisions of the Article, provided:
(1) <nl>the<ol> project is for repair and rehabilitation only<nl>, located on 
state-owned and inventoried buildings or certain leased office and warehouse 
facilities;
(2) (No change.)
(3) <nl>the<ol> agency requests the exclusion in writing giving a brief 
description of the work and advising that it complies with paragraphs (1) and 
(2) of this subsection <nl>and certifies that the work if located on a 
privately-owned leased office or warehouse facility is not otherwise required by 
the lease contract specification to be provided by the lessor;
(5)-(7) (No change.)
sec.123.15. Selection of Architect/Engineer for Professional Services.
(a) Selection of an <nl>architect/engineer <ol> [A/E] for professional services 
shall be in accordance with Texas Civil Statutes, Article 601b,  s5.22.
(b) <nl>A<ol> [Using] using agency recommendation on <nl>an 
architect/engineer<ol> [A/E] for a project should accompany <nl>the project 
request<ol> [its request for project initiation].
(c) When funds are appropriated for a construction project directly to the 
[State Purchasing and] General Services Commission or when the using agency for 
which project funds are appropriated declines to make recommendations <nl>on an 
architect/engineer for a project <ol> [for the A/E selection], the following 
procedures shall be <nl>used for the architect/engineer selection:<ol> 
[followed.]
(1) (No change.)
(2) <nl>The commission recognizes that professional services required for each 
project will differ. Criteria developed from the project description will be 
used by the committee to formulate the list of architect/engineers for the 
comparative selection based ranking of the architect/engineers. Such criteria 
includes, but is not necessarily limited to, considerations such as project 
type, size, complexity the ability and capacity of the architect/engineer for 
timeliness, skill, creative ability, and technical and professional knowledge. 
The project description will provide a basis for the <ol>[The selection 
committee will determine from the project description a] list of [the] minimum 
qualifications that a prospective <nl>architect/engineer <ol> [A/E] should 
possess in order to provide professional services on the project.
(3) The selection committee, where possible, will compile a list of at least 10 
firm. that meet or exceed the minimum qualifications for further consideration. 
<nl>It is recognized by the commission <ol> [(The commission feels] that 10 
firms is an optimum number of firms that could effectively be considered without 
causing undue administrative delay in the project. More than 10 firms may 
actually meet the minimum requirements  <nl>established for the project but no 
additional firms will be considered<ol> [set out, but those not selected for the 
list will not be considered further] unless the selection committee decides it 
can do so without undue administrative delay in the project. [)]
<nl>(A) Upon determination by the commission that a project for repair, 
rehabilitation, or renovation is of limited scope for professional services, the 
commission may consider a lesser number of architect/engineer firms for 
selection consideration.
<nl>(B) Selection of an architect/engineer firm for providing emergency services 
will be made following a determination by the commission that an emergency 
project warrants professional services, and that professional services are 
required in an urgent time frame which does not permit normal selection 
committee procedures to occur.
(4) (No change.)
(5) Firms selected for consideration will be notified and given a brief 
description of the project and those interested in further consideration will be 
scheduled for an interview with the selection committee. <nl>Individuals or 
firms shall be allowed a 30-day response time period for preparation and 
submission of information which presents specific project experiences and 
qualifications to the commission.
(6)-(7) (No change.)
(8) The firm rated highest by the committee will then be offered the project and 
an agreement negotiated for the work included. Should this firm and the 
commission fail to arrive at a mutually acceptable agreement, the project will 
then be offered to the firm rated second highest. In the unlikely event that an 
agreement cannot be reached with the second choice, a similar procedure will be 
followed with the third highest rated firm. <nl>In no event will an agreement be 
offered to a firm which the committee determines fails to satisfy the minimum 
determinates for selection considerations.
(9)  After <nl>an architect/engineer <ol> selection is completed, <nl>the firms 
interviewed but not selected<ol> [unsuccessful firms] will be advised of the 
<nl>selection committee <ol> determination.
(10) Items of consideration in making the initial selection will 
include<nl>,<ol> but not necessarily be limited to, the following:
(A) <nl>architect/engineer's<ol> [A/E's] experience with projects similar in 
<nl>character and or scope<ol> [nature to that] for which the 
<nl>architect/engineer<ol> [firm] is being considered;
(B) location of <nl>architect/engineer's <ol> [A/E's] <nl>principal business 
office<ol> [home office] relative to the project site;
(C)  compatibility between <nl>the number of employees of the architect/engineer 
<ol> [size of] firm and size <nl>and complexity <ol> of <nl>the<ol> project;
(D) (No change.)
(E) current <nl>professional service <ol> work load and capability of <nl>the 
architect/engineer to commence<ol> proceeding with <nl>the<ol> project at 
reasonable speed;
(F) (No change.)
<nl>(G) registration status of persons engaged in the practice of professional 
architectural or engineering services.
sec.123.18. Bidding Procedures.
(a) (No change.)
(b) Advertisement for bids is placed by the commission in not less than two 
newspapers of general circulation <nl>30 days<ol> [far enough] in advance of bid 
opening date to allow bidders time to secure and examine bid documents and to 
prepare a bid therefrom.
<nl>(1) Upon determination by the commission that a project for repair, 
rehabilitation, or renovation is of an emergency nature necessary to prevent or 
remove a hazard to life or property, the commission may issue a bid 
advertisement for such emergency project less than 30 days in advance of bid 
opening date.
<nl>(2) Upon determination by the commission that in order to prevent undue 
additional costs to a state agency, it is necessary that a project for repair, 
rehabilitation, or renovation commence within a time frame which does not permit 
normal bidding procedures to be utilized, the commission may issue a bid 
advertisement for such project less than 30 days in advance of bid opening date.
(c)  Advertisement for bids shall contain pertinent information on the project 
including name and location of project; date, time, and place of bid opening; 
where and how bid documents may be obtained; and a listing of requirements of 
contractor for <nl>receiving a contract award <ol> [submitting bid].
(d) -(f) (No change.)
(g) [Bids should be submitted in a sealed envelope externally identified as to 
content including project name and number, bid opening date, and name and 
address of bidder. Special bid envelopes are provided by the commission for this 
purpose.] Failure to <nl>identify sealed envelopes containing bid 
proposal(s)<ol> [use these] will not disqualify a bid but may increase the 
possibility of bids being inadvertently misdirected and not officially received 
in proper time. It is the sole responsibility of bidders to deliver <nl>the bid 
proposal(s) <ol> [proposals] to the <nl>commission at the <ol>designated bid 
<nl>receipt location<ol> [opening site] prior to the time they are scheduled to 
be  <nl>open and<ol> read. Any bid <nl>not<ol> received <nl>at the designated 
location or received<ol> after <nl>the designated <ol> [this] time will be 
returned unopened to the bidder.
(h) (No change.)
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt.
Issued in Austin, Texas, on October 23, 1991.
TRD-9113139
Judith Monaco Porras
General Counsel
General Services Commission
Earliest possible date of adoption: December 2, 1991
For further information, please call: (512) 463-3446
       
Part XVI. Texas National Research and Laboratory Commission
Chapter 302. Relocation Assistance
1 TAC sec.sec.302.1-302.6
The Texas National Research Laboratory Commission proposes new sec.sec.302. 1-
302.6 concerning the relocation assistance policies and procedures of the 
commission. The Texas National Research Laboratory Commission proposes the rules 
to provide the public with a formalized statement of commission policies and 
procedures in response to adoption of Senate Bill 543 by the 72nd Texas 
Legislature, Regular Session.
Robert P. Carpenter, director of fiscal affairs for the Texas National Research 
Laboratory Commission, has determined that for the first five-year period these 
sections are in effect, there will be no fiscal implications for state or local 
government as a result of enforcing or administering these sections.
Mr. Carpenter also has determined that for each of the first five years these 
sections are in effect, the public benefit anticipated as a result of enforcing 
the sections will be from providing effected parties with a greater 
understanding of the Texas National Research Laboratory Commission relocation 
assistance program and their entitlements under that program. There will be no 
effect on small businesses. There are no anticipated economic costs to persons 
who are required to comply with the sections as proposed.
Comments on the proposal may be submitted to Kenneth S. Welch, Associate 
Director of Administration, Texas National Research Laboratory Commission, 1801 
North Hampton, Suite 400, DeSoto, Texas 75115.
The new sections are proposed under the Texas Government Code, sec.465.012(a), 
as added by Chapter 582, Senate Bill 543, 72nd Legislature Regular Session, and 
Texas Property Code, sec.21.046(c), which require the commission to adopt rules 
necessary to carry out powers and duties under applicable law and to adopt rules 
relating to the administration of a relocation assistance program in connection 
with the acquisition of real property by the commission.
sec.302.1. Introduction.
(a) In 1987, the United States Department of Energy (DOE) issued an invitation 
for siting proposals (ISP) for a superconducting super collider research 
laboratory (SSC) to be sponsored by the federal government. The ISP specified 
that the successful proposer furnish the real estate necessary for the SSC, and 
land acquisition would be conducted in accordance with the Uniform Relocation 
Assistance and Real Property Acquisition Policies Act of 1970, as amended 
(Uniform Act) and as implemented in 49 Code of Federal Regulations (CFR) Part 
24.
(b) In September 1987, the commission, on behalf of the State of Texas, 
submitted two siting proposals for DOE consideration. These proposals contained 
assurances that all real property acquired by the commission for the SSC project 
would comply with 49 CFR Part 24. In January 1989, DOE named Ellis County, as 
the site of the SSC project.
(c) Terms not otherwise defined in these rules will be defined by reference to 
49 CFR Part 24.
sec.302.2. Uniform Relocation Assistance and Real Property Acquisition Act: 
Adoption by Reference.
(a) In compliance with the ISP and the commission's siting proposal dated 
September 2, 1987, the commission confirms the adoption of the Uniform Act and 
49 Code of Federal Regulations (CFR) Part 24 relating to real property 
acquisition required by DOE for the SSC site.
(b)  The commission shall maintain copies of the Uniform Act and 49 CFR Part 24 
for inspection at the commission's office.
(c) The TNRLC will, upon request, provide each displaced person with a copy of 
49 CFR Part 24. Each displaced person will be provided with a copy of a brochure 
which explains the relocation process.
(d) Other persons may receive a copy of the relocation rules or the brochure by 
making a written request to the commission in accordance with the Open Records 
Act.
sec.302.3. Relocation Appeal Process.
(a) All issues appealed through the relocation appeal procedures shall be in 
accordance with the Uniform Act, 49 Code of Federal Regulations (CFR) Part 24, 
the policies and procedures of the commission and the Texas Property Code, 
sec.21.046.
(b) The relocation appeal process is limited to issues in connection with an 
aggrieved person's application for benefits under the Uniform Act. The issues 
relate to a displaced person's eligibility for and/or the amount of benefits 
resulting from such person's displacement due to the acquisition of real 
property for the SSC project.
(c) The relocation appeal process does not apply to questions concerning the 
appraisal process, eminent domain, or the amount offered as the fair market 
value for the property to be acquired for the SSC project.
(d)  To initiate the appeal process, a written request must be submitted to the 
commission within 60 days after the date the displaced person receives written 
notification from a commission representative or contractor of the decision on 
the application for benefits or claim.
(e) Submittal of a written appeal may be on a form provided by the commission or 
by letter signed by the aggrieved person and delivered or mailed to the: 
Relocation Appeals Committee, Texas National Research Laboratory Commission, 
1801 North Hampton Road, Suite 400, DeSoto, Texas 75115.
The written appeal should clearly state the decision being appealed and specify 
with particularity how, in the aggrieved person's view, the commission failed to 
consider properly the person's application for assistance. The appeal will be 
considered regardless of form.
(f) The commission will permit the aggrieved person to inspect and copy all 
materials pertinent to the appeal, subject to, and in accordance with, the Open 
Records Act and any other applicable law affecting confidentiality, including 
the Uniform Act and 49 CFR Part 24.
sec.302.4. Land Acquisition Administrator Review. Upon receipt of the written 
appeal, the commission's land acquisition administrator or other designee of the 
commission's executive director shall promptly initiate an analysis of the 
appeal and a review to verify that all applicable regulations have been 
followed. Such review shall be completed within seven days of receipt of the 
written appeal, and the aggrieved person notified of what adjustment in the 
amount of relocation assistance, if any, will be made. The aggrieved person may 
appeal the decision of the land acquisition administrator in writing within 10 
days of such person's receipt of notice. If the action appealed directly 
involved the land acquisition administration, the appeal shall be heard directly 
by the relocation appeals committee.
sec.302.5. Relocation Appeals Committee Review.
(a) The relocation appeals committee is composed of the commission's director of 
site development and one or more other person(s), if any, designated by the 
commission's executive director.
(b) The relocation appeals committee will review the appeal within thirty days 
of receipt of the written appeal. The committee will review the information 
presented by the aggrieved person and all other available information that is 
needed to ensure a fair and full review of an appeal. The aggrieved person may 
be represented at such person's sole expense throughout the appeals process by 
legal counsel or other representative, but no expenses associated with legal 
representation shall be an expense payable by the commission.
(c) The relocation appeals committee will prepare a written decision following 
the review and any hearing, a copy of which will be provided to the aggrieved 
person. The written decision will include an explanation of the basis on which 
the decision was made. If the issue being appealed is granted, the commission 
representative will determine the aggrieved person's eligibility or set the 
revised amount of the relocation assistance payment. If the appeal is not 
granted, in whole or in part, the aggrieved person shall be informed of the 
right to request a final review by the commission's executive director.
sec.302.6. Executive Director Review.
(a) All requests for review of the decision of the relocation appeals committee 
by the executive director must be submitted in writing to the commission's 
office within thirty days of the date the aggrieved person receives notification 
of the action taken on the appeal by the relocation appeals committee. The 
executive director's review shall complete the administrative appeal procedure 
and the executive director's decision will be based solely on the information 
provided by the aggrieved person and other available information, that is needed 
to ensure a full and fair review of the aggrieved person's application and 
appeal.
(b)  The executive director shall notify the aggrieved person in writing of his 
decision on the appeal within 30 days of receipt of the aggrieved person's 
written request for review. The executive director's written decision will also 
notify the aggrieved person of the right to seek judicial review of the 
decision.
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt.
Issued in DeSoto, Texas, on October 21, 1991.
TRD-9113208
Edward C. Bingler
Executive Director
Texas National Research Laboratory Commission
Earliest possible date of adoption: December 2, 1991
For further information, please call: (214) 709-3800
       
1 TAC sec.303.1
The Texas National Research Laboratory Commission proposes new sec.303.1, 
concerning the commission's definition of "mission related" procurement with 
regard to purchases of supplies, materials, services, and equipment for 
commission use. The Texas National Research Laboratory Commission proposes this 
definitional rule to be used in conjunction with procurement rules anticipated 
to be published in the next 90 days to provide vendors and the public with a 
formalized statement of Commission policies and procedures in the area of 
procurement in order to facilitate interaction between the commission and 
interested parties.
Robert P. Carpenter, director of fiscal affairs for the Texas National Research 
Laboratory Commission, has determined that for the first five-year period the 
section is in effect there will be no fiscal implications for state or local 
government as a result of enforcing or administering the section.
Mr. Carpenter also has determined that for each year of the first five years the 
section is in effect the public benefit anticipated as a result of enforcing the 
section will be from providing the public with a greater understanding of how 
the Texas National Research Laboratory Commission procures goods and services 
and from providing formal guidelines for public participation in the procurement 
process. There will be no effect on small businesses. There is no anticipated 
economic cost to persons who are required to comply with the section as 
proposed.
Comments on the proposal may be submitted to Kenneth S. Welch, Associate 
Director for Administration, Texas National Research Laboratory Commission, 1701 
North Hampton, Suite 400, DeSoto, Texas 75115.
The new section is proposed under the Texas Government Code, sec.465.082, which 
requires the commission to adopt rules to guide its purchases of supplies, 
materials, services, and equipment to carry out eligible undertakings.
sec.303.1. Definitions.
(a) The term "mission-related supplies, materials, services, and equipment" is 
defined to include supplies, materials, services and equipment which:
(1) are offered or made necessary by the commission's Site Proposal, dates 
September 2, 1987, and as supplemented thereafter, including by the Memorandum 
of Understanding of 1990 between the commission and the United States Department 
of Energy (DOE) or any other agreement between the commission and DOE; or
(2) are necessary or desirable as part of an eligible undertaking as determined 
by resolution or rule of the commission; and
(A) are specifically requested in writing from the commission by the DOE or the 
SSC Laboratory through DOE for the SSC substantially set by DOE or the SSC 
Laboratory with DOE concurrence; or
(B) are determined by the commission or the commission's executive director to 
affect, in whole or in part, the SSC project's schedule or budget; or
(C) are determined by the commission or the commission's executive director to 
be necessary to facilitate continued funding or support for the SSC project.
(b) As authorized by the Texas Constitution, Article 3, 49-g and the Texas 
Government Code, sec.465.021, the term "eligible undertaking" shall include any 
expenditure that is described in or is necessary to the fulfillment of offers 
made in the siting proposal described by the Texas Government Code, 
sec.465.008(a) or is otherwise determined by the commission to have been made 
necessary or desirable to effect the siting, development, or operation of the 
SSC project.
(c) The term "SSC project" mean the superconducting super collider research 
laboratory project of DOE under DOE Record of Decision: Superconducting Super 
Collider (6450-01), dated January 18, 1989 (54 Fed. Reg 3651), as may be amended 
or supplemented from time to time.
(d) The term "SSC Laboratory" means the prime contractor of DOE responsible for 
the construction and operation of the SSC project. As of the date of adoption of 
these rules, the prime contractor is Universities Research Association, Inc., a 
nonprofit corporation.
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt.
Issued in Dallas, Texas, on October 21, 1991.
TRD-9113121
Edward C. Bingler
Executive Director
Texas National Research Laboratory Commission
Earliest possible date of adoption: December 2, 1991
For further information, please call: (214) 709-3800
       
TITLE 4. AGRICULTURE
Part VII. Texas Agriculture Resources Protection Authority
Chapter 101. General Rules
Subchapter A. Routine Procedures
4 TAC sec.sec.101.1-101.3
The Texas Agriculture Resources Protection Authority (the authority) proposes 
new sec.sec.101.1-101.3, concerning routine procedures to be followed in the 
exercise of the general powers and duties conferred upon the authority.
The authority is the coordinating body for the policies and programs of 
management, regulation, and control of pesticides conducted by the Texas 
Department of Agriculture (the department), the State Soil and Water 
Conservation Board, the Texas Agricultural Extension Service, the Texas 
Department of Health, the Texas Water Commission, and the Texas Structural Pest 
Control Board under the provisions of the Texas Agriculture Code, Chapter 76, as 
amended by the Texas Legislature effective September 1, 1989 (the Code).
Under the new sec.76.009(g)(1) of the Code, the authority, with specific 
exceptions (none of which are applicable here), is authorized to promulgate 
rules and regulations not inconsistent with the Code as may be necessary to 
carry out the activities set out within the Code in respect to pesticides.
These proposed regulations are intended to clarify the procedures to be followed 
in conducting the general routine operations of the authority under various 
particular provisions included in the Code. The proposed regulations further 
define key terms found both in the law and in the proposed regulations.
Alvin Ashorn, assistant commissioner for regulatory programs at the department, 
has determined that for the first five-year period the proposed sections are in 
effect there will be no fiscal implications for state or local government as a 
result of enforcing or administering the sections. There will be no fiscal 
implications for local employment as a result of enforcing or administering the 
sections.
Mr. Ashorn also has determined that for each year of the first five years the 
sections are in effect the public benefit anticipated as a result of enforcing 
the sections will be to provide for a more coordinated regulation of pesticide 
use in Texas. There will be no effect on small businesses as a result of 
enforcing the sections. There is no anticipated economic cost to persons who are 
required to comply with the sections as proposed.
Comments on the proposal may be submitted to Alvin Ashorn, Assistant 
Commissioner for Regulatory Programs, Texas Department of Agriculture, P.O. Box 
12847, Austin, Texas 78711.
The new sections are proposed under the Code, sec.76.009, which authorizes the 
authority to promulgate rules and regulations, not inconsistent with the Code, 
as may be necessary to carry out the activities set out within the code in 
respect to pesticides.
sec.101.1. Definitions.  The following words and terms, when used in this 
chapter, shall have the following meanings, unless the context clearly indicates 
otherwise.
 Act-Administrative Procedure and Texas Register Act, Texas Civil Statutes, 
Article 6252-13a.
 Authority-Agriculture Resources Protection Authority.
 Code-Texas Agriculture Code.
 Commissioner-The commissioner of the Texas Department of Agriculture.
 Department-The Texas Department of Agriculture.
 Gift-Money or any other thing of value, real, personal or mixed, tangible or 
intangible. The terms includes any devise or bequest.
 Governor-The Governor of the State of Texas.
 Member-
(A) the director of the Texas Agricultural Experiment Station;
(B) the dean of the College of Agricultural Sciences of Texas Tech University;
(C) the dean of the University of Texas School of Public Health at Houston;
(D) the director of the environmental epidemiology program of the Texas 
Department of Health;
(E)  the chief of the groundwater conservation section of the Texas Water 
Commission;
(F) the director of the Institute for International Agribusiness Studies of 
Prairie View A&M University;
(G) a person appointed by the governor to represent the interests of consumers;
(H) a producer of agricultural products appointed by the governor; and
(I) the commissioner of agriculture.
 Person-Any individual, partnership, corporation, association, governmental 
subdivision, or public or private organization of any character.
 Pesticide agency -The Texas Department of Agriculture, the State Soil and Water 
Conservation Board, the Texas Agricultural Extension Service, the Texas 
Department of Health, the Texas Water Commissioner, or the Texas Structural Pest 
Control Board.
 Petition-A petition for adoption of a proposed rule or for repeal or amendment 
of an existing rule.
 Petitioner-Any person who has by written petition applied for or sought the 
adoption of a proposed rule or the repeal or amendment of an existing rule.
 Pleading-Any written petition, answer, motion, or other written instrument 
filed with the authority with respect to any authorized proceeding.
 Rule-Any statement of general applicability of a pesticide agency that 
implements, interprets, or prescribes law or policy, or describes the procedure 
or practice requirements relating to the management, regulation, and control of 
pesticides. The term includes the amendment or repeal of a prior rule which 
relates to the management, regulation, and control of pesticides but does not 
include statements concerning only the internal management or organization of 
any pesticide agency and not affecting private rights or procedures.
 Texas Register -Official publication of the Secretary of State's Office created 
by the Act,  s6.
sec.101.02. Meetings.
(a) The required quarterly meetings of the Texas Agriculture Resources 
Protection Authority (the authority) shall be held on the first Monday of the 
third month of the calendar quarter at 10 a.m. at a location designated by the 
commissioner for use of the authority unless a different date, hour, or place is 
specified by call for the regular quarterly meeting to be held alternatively at 
another place, date, or hour.
(b)  Alternative quarterly meetings or special meetings may be called by the 
commissioner or by a majority of the members of the authority. A call by a 
majority of the members must be in writing and delivered to the commissioner at 
least 10 days in advance. The call shall state the time, place, and purpose of 
the meeting, including a proposed agenda.
(c) The commissioner, if present, shall be the presiding officer, but if he is 
absent or excluded by statute from participating in the discussion of the matter 
to be considered the other members of the authority by a majority of those 
present, shall designate one of themselves to be the presiding officer.
(d) Any member may cause an item to be placed on the agenda of any meeting of 
the authority at a sufficient time prior to the meeting to meet the notice 
requirements of Texas Civil Statutes, Article 6252-17.
(e) On the concurring vote of at least five members, testimony may or may not be 
taken on any issue before a meeting of the authority, provided, any member may 
authorize testimony of a resource witness to assist the authority on any issue 
being considered by it.
(f)  The concurring vote of at least five members is required for action.
sec.101.3. Gifts.
(a) The Texas Agriculture Resource Protection Authority (the authority) may 
accept any unconditional gift, devise, or bequest.
(b) Upon being offered a gift requiring compliance with specified terms or 
conditions, the authority shall submit the matter, with its recommendations, to 
the governor for action.
(c) The Governor's approval shall be automatically presumed unless the governor, 
within 60 days after the matter was submitted to him, has, in writing addressed 
to the authority, expressly rejected the terms or conditions of the contemplated 
gift.
(d) It shall be the responsibility of the authority to see to it that compliance 
is made with the terms or conditions applicable to any accepted gift, devise, or 
bequest. The responsibility may be delegated to the member representing the 
agency most likely to benefit from the gift.
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt.
Issued in Austin, Texas, on October 25, 1991.
TRD-9113224
Dolores Alvarado Hibbs
Chief Administrative Law Judge
Texas Department of Agriculture
Earliest possible date of adoption: December 2, 1991
For further information, please call: (512) 463-7583
       
Subchapter B. Special Proceedings
4 TAC sec.sec.101.10-101.13
The Texas Agriculture Resources Protection Authority (the authority) proposes 
new sec.sec.101.10-101.13 concerning special proceedings and procedures to be 
followed in the exercise of the general powers and duties conferred upon the 
authority.
The authority is the coordinating body for the policies and programs of 
management, regulation and control of pesticides conducted by the Texas 
Department of Agriculture (the department), the State Soil and Water 
Conservation Board, the Texas Agricultural Extension Service, the Texas 
Department of Health, the Texas Water Commission, and the Texas Structural Pest 
Control Board under the provisions of the Texas Agriculture Code, Chapter 76, as 
amended by the Texas Legislature effective September 1, 1989 (the Code).
Under the new sec.76.009(g)(1) of the Code, the authority, with specific 
exceptions (none of which are applicable here), is authorized to promulgate 
rules and regulations not inconsistent with the code as may be necessary to 
carry out the activities set out within the code in respect to pesticides.
These proposed regulations are intended to clarify the procedures to be followed 
in conducting the general operations of the authority under various particular 
provisions included in the code. The proposed regulations further define key 
terms found both in the law and in the proposed regulations.
Alvin Ashorn, assistant commissioner for Regulatory Programs at the department, 
has determined that for the first five-year period the proposed sections are in 
effect there will be no fiscal implications for state government as a result of 
enforcing or administering the sections. There will be no fiscal implications 
for local government or local employment as a result of enforcing or 
administering the sections.
Mr. Ashorn also has determined that for each year of the first five years the 
sections are in effect the public benefit anticipated as a result of enforcing 
the sections will be to provide for a more coordinated regulation of pesticide 
use in Texas. There will be no effect on small businesses as a result of 
enforcing the sections. There is no anticipated economic cost to persons who are 
required to comply with the sections as proposed.
Comments on the proposal may be submitted to Alvin Ashorn, Assistant 
Commissioner for Regulatory Programs, Texas Department of Agriculture, P.O. Box 
12847, Austin, Texas 78711.
The new sections are proposed under the Code, sec.76.009, which authorizes the 
authority to promulgate rules and regulations, not inconsistent with the code, 
as may be necessary to carry out the activities set out within the code in 
respect to pesticides.
sec.101.10. Purpose.  The purpose of this subchapter is to provide for a simple 
and efficient system of procedure by establishing uniform standards of practice 
and procedure for proceedings before the Texas Agriculture Resources Protection 
Authority (the authority), thereby encouraging public participation and notice 
of agency actions. The authority's rules are designed to supplement procedures 
established by the Administrative Procedure and Texas Register Act, Article 
6252-13a or other applicable statute and therefore any statutory procedure not 
specifically included in this chapter shall be liberally construed, with a view 
towards the purpose for which they were adopted.
sec.101.11. Scope of Rules. The provisions of this chapter shall govern the 
procedure for the institution, conduct, and determination of all activities 
delegated by statute to the Texas Agriculture Resources Protection Authority 
(the authority), as well as the procedure for the adoption by a pesticide agency 
for which the authority is the coordinating body. The rules shall not be 
construed as to enlarge, diminish, modify, or alter the jurisdiction, powers, 
authority, or the substantive rights of any person.
sec.101.12. Procedure for Adoption of Rules.
(a) All rules of the Texas Agriculture Resources Protection Authority (the 
authority) itself, as well as of the pesticide agencies for which the authority 
is the coordinating body, shall be promulgated in accordance with the provisions 
of the Administrative Procedure and Texas Register Act, Article 6252-13a.
(b)  The authority itself may adopt any rule relating to pesticides, including a 
rule that amends or repeals an existing rule of a pesticide agency, under the 
following terms and conditions.
(1) The authority may not:
(A)  adopt, amend, or repeal a rule under the Code, Chapter 125;
(B)  repeal a rule that was adopted by a pesticide agency and that was in effect 
on May 1, 1989; or
(C) amend a pesticide agency rule that was in effect on May 1, 1989, in such a 
manner as to make the rule less protective of public health, safety, or welfare.
(2) Any person may petition the authority for the adoption of a proposed rule of 
the authority or a pesticide agency, including a rule that amends or repeals an 
existing rule of a pesticide agency. Such petition shall:
(A) be in writing;
(B) be addressed to the authority and dated;
(C) give a brief explanation of the proposed rule;
(D) set out the precise text of the proposed rule;
(E)  contain a request that rule be adopted;
(F) be signed by the petitioner with the petitioner's mailing address set out 
thereunder; and
(G) set out the benefits to be derived by the public from the proposed rule.
(3) Unless it is determined that the petition should be denied in conformity 
with the requirements of the Act,  s11, the authority shall cause the text of 
the proposed rule or rules, with required explanation and additional 
information, to be published in the Texas Register <ol> and provide each 
affected pesticide agency with a separate written notice containing the same 
information.
(4) All comments concerning a proposed rule submitted to the authority pursuant 
to the provisions of the Act, sec.5 shall:
(A)  clearly identify the party or parties wishing the comment to be registered 
with the authority;
(B) concisely address the proposed rule(s) upon which comment is made; and
(C) be filed with the authority no later than 30 days from the date the proposed 
rule is published in the Texas Register.
(5) Whenever hearing on a proposed rule or rules is required by statute or 
deemed appropriate by the authority, at least a majority of the members of the 
authority shall conduct the proceeding.
(6) The authority order finally adopting a rule must meet the requirements set 
forth in the Act, sec.5(c)(1).
(7) Copies of comments and petitions for rule making will be timely mailed by 
the authority to its members.
sec.101.13. Procedure for Review of Pesticide Agency Rules.
(a)  When a pesticide agency proposes to adopt a rule relating to a pesticide 
regulation, a copy of the proposed rule must be sent to each member of the Texas 
Agriculture Resources Protection Authority (the authority) at the time the rule 
is submitted for publication in the Texas Register.
(b) As comments are received in regard to the proposed rule by the pesticide 
agency, copies thereof shall be provided to the members of the authority.
(c)  When the pesticide agency has completed its comment period and hearings on 
the proposed rule and has developed its finalized version, the finalized version 
of the proposed rule shall be submitted to each member of the authority along 
with the pesticide agency's response to the comments received by it.
(d)  Within 20 days after receipt of the finalized version of the pesticide 
agency's proposed rule, each member of the authority shall in writing to the 
commissioner either:
(1) state approval of the proposed rule; or
(2) state a desire to review the proposed rule.
(e) If three or more members of the authority state their desire to review the 
proposed rule, the proposed rule may not be adopted by the pesticide agency 
until the authority has reviewed the proposed rule under the procedure 
hereinafter stated.
(f)  The pesticide agency proposing the rule shall:
(1) notify each person who commented on the proposed rule that the authority 
will review the proposed rule; and
(2) prepare and submit to each member of the authority a written justification 
for the proposed rule including the pesticide agency's reasons for not following 
any suggestions for changes in the proposed rule made in comments received by 
it.
(g) Any person who commented on the proposed rule before the pesticide agency 
may comment in writing to the authority on the proposed rule at any time prior 
to the final action by the authority.
(h) A meeting of the authority shall be held to consider the proposed rule 
within 30 days of the date the members receive the pesticide agency's written 
justification for the rule.
(i) The authority shall consider the proposed rule at its next quarterly meeting 
if a quarterly meeting is scheduled within 30 days of the receipt by the members 
of the pesticide agency's written justification for the rule. If a quarterly 
meeting is not scheduled during such period of time, the commissioner shall 
timely call a special meeting to consider the proposed rule within the 30 day 
period. The authority may take testimony on the proposed rule at its meeting if 
the authority so desires.
(j) At its meeting to consider the proposed rule the authority may:
(1) approve the proposed rule;
(2)  disapprove the proposed rule; or
(3) postpone action on the proposed rule.
(k) No pesticide agency may adopt a proposed rule until approved by the 
authority under this section. No pesticide agency may change a proposed rule 
after the submission of the finalized version of the proposed rule to the 
members under subsection (c) of this section without the approval of the 
authority.
(l) If the proposed rule has not been finally acted upon by the authority within 
90 days of the receipt of the pesticide agency's written justification, the 
proposed rule shall be deemed approved by the authority.
(m) If the proposed rule is approved by the authority, the pesticide agency may 
finally adopt the rule in conformity with the requirements of the Administrative 
Procedure and Texas Register Act, sec.5(c)(1).
(n) For the purpose of this section a rule may be any independent part of a set 
of rules proposed by a pesticide agency.
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt.
Issued in Austin, Texas, on October 25, 1991.
TRD-9113223
Dolores Alvarado Hibbs
Chief Administrative Law Judge
Texas Department of Agriculture
Earliest possible date of adoption: December 2, 1991
For further information, please call: (512) 463-7583
       
Chapter 105. Procedures for Appeal
4 TAC sec.sec.105.1-105.10
The Texas Agriculture Resources Protection Authority (the authority) proposes 
new sec.sec.105.1-105.10, concerning the appeal procedures to be followed by 
aggrieved parties appealing agency decisions to the authority.
The authority is authorized to regulate appellate procedures and to accept such 
appeals under the provisions of the Texas Agriculture Code, Chapter 76 (the 
Code), as amended by the Texas Legislature effective September 1, 1989. 
Amendments by the Legislature added to the Texas Agriculture Code, sec.76.009, 
creating the Agriculture Resources Protection Authority.
Under the new sec.76.009(g) of the Code, one of the authority's primary roles is 
to serve as the coordinating body for the policies and programs of management, 
regulation, and control of pesticides conducted Texas Department of Agriculture 
(the department), the State Soil and Water Conservation Board, the Texas 
Agricultural Extension Service, the Texas Department of Health, the Texas Water 
Commission, and the Texas Structural Pest Control Board.
Under the Code, sec.76.009(g)(10), the authority was given further authority to 
hear and determine all appeals from orders entered, by an agency for which the 
authority is the coordinating body, under Chapters 75, 76, or 125 of the code.
The proposed regulations are intended to clarify the procedure to be followed by 
all of the parties who will be involved in an appeal from a final determination 
by an agency on subject matter overseen by the authority. The proposed 
regulations further define key terms found both in the law and in the proposed 
regulations.
The proposed sections set out specific procedures to be followed by the 
appellants, appellees, and the authority itself when appeals are made from 
orders of the agencies listed.
Alvin Ashorn, Assistant Commissioner for Regulatory Programs at the department, 
has determined that there will be fiscal implications as a result of enforcing 
or administering this section. The effect on state government for the first 
five-year period the sections are in effect will be an estimated additional cost 
of $25,000 in the first full year and $25,000 per year for the succeeding four 
years. For the first five-year period the proposed sections are in effect, there 
will be no fiscal implication for local government and no fiscal implication for 
local employment.
Mr. Ashorn also has determined that for each year of the first five years the 
proposed rules are in effect, the public benefit anticipated as a result of the 
proposed rules is an opportunity for parties to appeal agency decisions to the 
authority. There will be no effect on small businesses.
The anticipated economic cost to persons who are required to comply with the 
sections as proposed will generally be legal costs associated with 
representation before the authority. Those costs cannot be determined at this 
time.
Comments on the proposal may be submitted to Alvin Ashorn, Assistant 
Commissioner for Regulatory Programs, Texas Department of Agriculture, P.O. Box 
12847, Austin, Texas 78711.
The new sections are proposed under the Code, sec.76.009, which authorizes the 
authority to promulgate rules and regulations not inconsistent with the code as 
may be necessary to carry out the activities set out within the code in respect 
to pesticides.
sec.105.1. Purpose.
(a) The Agriculture Resources Protection Authority shall hear and determine all 
appeals from final orders concerning the policies and programs of management, 
regulation and control of pesticides entered by the Texas Department of 
Agriculture, the State Soil and Water Conservation Board, the Texas Agriculture 
Extension Service, the Texas Department of Health, the Texas Water Commission, 
and the Texas Structural Pest Control Board. The Agriculture Resources 
Protection Authority shall not stay final orders of affected agencies during the 
pendency of Agriculture Resources Protection Authority appeals of those orders.
(b) The appellate process is commenced upon the filing of Appellant's Notice of 
Appeal and Statement of Position by an adversely affected party to an action in 
which a final order has been entered by the agency for which the Agriculture 
Resources Protection Authority is the appellant forum.
sec.105.2. Appellant's Notice of Appeal and Statement of Position.
(a) Notice of intention to appeal a final order entered by an agency for which 
the Agriculture Resources Protection Authority is the appellant forum shall be 
filed with the Agriculture Resources Protection Authority at its offices in 
Austin, not later than 30 days from the date of the entry of the final order 
from which the appeal is taken. Appellant's Notice of appeal and statement of 
position must:
(1) be in writing;
(2) clearly and accurately identify:
(A) the agency from which the order is being appealed;
(B) the cause or file number assigned to the order by the agency from which the 
appeal is being taken; and
(C)  the statute(s) or regulation(s) involved.
(b) Appellant's notice of appeal and statement of position shall include a 
statement of position setting forth in detail appellant's points of appeal and 
the law and facts supporting appellant's position.
(c) Upon receipt of notice of appeal, the affected agency shall prepare and 
transmit a certified copy of the official record of the case. The record shall 
include:
(1) all pleadings, motions, and intermediate rulings on file with the agency 
from which the appeal is being taken;
(2) all evidence received or considered by the agency from which the appeal is 
being taken;
(3) a statement of matters officially noticed by the agency from which the 
appeal is being taken;
(4)  questions and offers of proof, objections, and rulings made on them by the 
agency from which the appeal is being taken;
(5) proposed findings and exceptions made by the agency from which the appeal is 
being taken;
(6)  any decision, opinion, or report regarding the case made by the officer 
presiding at the hearing held by the agency from which the appeal is being 
taken; and
(7) all staff memoranda and data submitted to or considered by the hearing 
officer and members of the agency from which the appeal is being taken and who 
are involved in making the decision being appealed.
(d) The affected agency shall transmit a certified copy of the official case 
record to the Texas Agriculture Resources Protection Authority no later than 30 
days from the agency's receipt of a Notice of Appeal.
sec.105.3. Notice of All Interested Parties.  At the time appellant's notice of 
appeal and statement of position is filed with the Agriculture Resources 
Protection Authority, appellant shall deliver by United States Certified Mail a 
copy of appellant's notice of appeal and statement of position to all interested 
parties named in the action made the basis of the appeal.
sec.105.4. Appellant's Statement of Position. Not later than 45 days from the 
date of entry of the final order being appealed, and after notice of appeal has 
been received, appellees shall file a statement of position with the Agriculture 
Resources Protection Authority. Appellee's statement of position shall address 
appellant's points of appeal and shall set forth in detail the facts and law 
supporting appellee's position.
sec.105.5. Timely Filing. <ol> Appellant's notice of appeal and statement of 
position and appellee's statement of position will be considered timely only if 
received by the Agriculture Resources Protection Authority at its Austin office 
during business hours on the last permissible day of filing. When the last day 
for filing is a legal holiday, or is Sunday, the time is extended so as to 
include the next succeeding business day.
sec.105.6. Docketing.  Upon timely receipt of appellant's notice of appeal and 
statement of position, the Agriculture Resources Protection Authority shall 
assign a docket number to each appeal and each appeal shall then be assigned to 
a hearing panel. Each hearing panel shall consist of three members of the 
Agriculture Resources Protection Authority. Hearing panels shall be assigned by 
the presiding officer of the Agriculture Resources Protection Authority pursuant 
to a random number generator selection process.
sec.105.7. Panel Hearing.
(a) On its own motion or on the motion of an interested party, the hearing panel 
shall convene a hearing on each appeal with not less than 10 days notice to all 
interested parties.
(b)  The review of the hearing panel shall be limited to a review of the record 
presented to the panel by the affected agency. No new evidence shall be taken at 
the panel hearing.
(c) All parties may respond and present arguments on all issues involved at this 
hearing. The hearing panel may continue a hearing from time to time and from 
place to place. The notice of hearing must indicate the times and places at 
which the hearing may be continued. If a hearing is not concluded on the day it 
commences, the hearing panel shall, to the extent possible, proceed with the 
conduct of the hearing on each subsequent working day until the hearing is 
concluded.
sec.105.8. Proposal for Decision.
(a) After hearing argument of the parties, reviewing appellant's notice of 
appeal and statement of position and appellee's statement of position, each 
hearing panel shall prepare a written proposal for decision recommending to the 
Agriculture Resources Protection Authority the final decision to be rendered in 
each appeal.
(b) The proposal for decision shall contain a statement of the reasons for the 
proposed decision and each finding of fact and conclusion of law necessary to 
the proposed decision.
(c) The proposal for decision and notice of final hearing shall be mailed to all 
parties by the Agriculture Resources Protection Authority by First Class United 
States Mail. All parties shall be notified of the final hearing and afforded the 
opportunity to file exceptions and present briefs regarding the proposal for 
decision, not later than 10 days prior to final hearing by the Agriculture 
Resources Protection Authority.
sec.105.9. Notice of Final Hearing. All parties to an appeal shall receive not 
less than 30 days written notice of final hearing before the Agriculture 
Resources Protection Authority.
sec.105.10. Final Decisions. <ol> All final decisions shall be in writing and 
shall include findings of fact and conclusions of law. All final decisions shall 
be rendered within 60 days after the final hearing is closed. All parties shall 
be notified by mail individually or through their attorney of record of all 
final decisions.
sec.105.11. Motions for Rehearing.
(a) After the issuance of a final order by the Agriculture Resources Protection 
Authority, a party may file a Motion for Rehearing, directed to the authority 
requesting a rehearing before the Texas Agriculture Resources Protection 
Authority.
(b) Requirements and time limitations for the filing and responding to a motion 
for rehearing shall be governed by the provisions of Texas Civil Statutes, 
Article 6252-13a,  s16.
sec.105.12. Appeal of a Final Order of the Texas Agriculture Resources 
Protection Authority. Any appeal of a final order of the Texas Agriculture 
Resources Protection Authority shall be governed by the provisions of Texas 
Civil Statutes, Article 6252-13a, sec.19.
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt.
Issued in Austin, Texas, on October 25, 1991.
TRD-9113222
Dolores Alvarado Hibbs
Chief Administrative Law Judge
Texas Department of Agriculture
Earliest possible date of adoption: December 2, 1991
For further information, please call: (512) 463-7583
       
TITLE 10. COMMUNITY DEVELOPMENT
Part V. Texas Department of Commerce
Chapter 178. Texas Community Development Program
Subchapter A. Allocation of Program Funds
10 TAC sec.sec.178.10-178.16
(Editor's note: The text of the following sections proposed for repeal will not 
be published. The sections may be examined in the offices of the Texas 
Department of Commerce or in the Texas Register office, Room 245, James Earl 
Rudder Building, 1019 Brazos Street, Austin.)
The Texas Department of Commerce (Commerce) proposes the repeal of sec.sec.178. 
10-178.16 concerning the allocation of program funds. The administration of the 
Texas Community Development Program was transferred to the Texas Department of 
Housing and Community Affairs from Commerce on September 1, 1991, pursuant to 
Senate Bill 41, 72nd Legislature, Second Called Session.
Sedora Jefferson, general counsel, has determined that for the first five-year 
period the repeals are in effect there will be no fiscal implications for state 
or local government as a result of enforcing or administering the repeals.
Ms. Jefferson also has determined that for each year of the first five years the 
repeals are in effect the public benefit anticipated as a result of enforcing 
the repeals will be compliance with Senate Bill 41, 72nd Legislature, Second 
Called Session. There will be no effect on small businesses. There is no 
anticipated economic cost to persons who are required to comply with the repeals 
as proposed.
Comments on the proposal may be submitted to Sedora Jefferson, General Counsel, 
P.O. Box 12728, Austin, Texas 78711, within 30 days after the date of this 
publication.
The repeals are proposed under the Texas Government Code, Chapter 481, sec.481-
021, which provides Commerce with the authority to adopt and enforce necessary 
rules.
sec.178.11. Regional Review Committees.
sec.178.12. Community Development Fund.
sec.178.13. Texas Capital Fund.
sec.178.14. Planning/Capacity Building Fund.
sec.178.15. Emergency Fund.
sec.178.16. Urgent Need Fund.
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt.
Issued in Austin, Texas, on October 25, 1991.
TRD-9113256
Cathy Bonner
Executive Director
Texas Department of Commerce
Earliest possible date of adoption: December 2, 1991
For further information, please call: (512) 320-9666
       
TITLE 13. CULTURAL RESOURCES
Part 1. Texas State Library and Archives Commission
Chapter 7. Local Records
Microfilming Standards for Local Governments
13 TAC sec.sec.7.21-7.28, 7.30-7.32
The Texas State Library and Archives Commission proposes amendments to 
sec.sec.7.21-7.28, 7.30-7.32, concerning rules for the production, processing, 
testing, certification, and storage of microfilmed local government records. The 
sections establish standards and procedures for local government offices and 
local government records custodians to follow if they utilize microfilming.
Marilyn von Kohl, division director, Local Records Division, has determined that 
there will be fiscal implications as a result of enforcing or administering the 
sections. There will be no effect on state government for the first five-year 
period the sections are in effect. The effect on local government for the first 
five-year period the sections are in effect will be an estimated additional cost 
of $2,104 for 1992; $2,008 for 1993; $1,913 for 1994; $1,817 for 1995; and 
$1,722 for 1996. There will be an estimated reduction in cost of $37. 813 for 
1992; $36,100 for 1993; $34,387 for 1994; $32,764 for 1995; and $30,961 for 
1996.
Ms. von Kohl, also has determined that for each year of the first five years the 
sections are in effect the public anticipated as a result of enforcing the 
section will be providing local governments with a consistent foundation upon 
which to base microfilming programs that ensure the physical protection and 
informational integrity of public records. The cost of compliance with the 
sections for small businesses will be none, because the rules do not establish 
standards for business practice. The cost of compliance for small businesses and 
the cost of compliance for the largest businesses affected by the sections will 
be the same (i.e., non) based on the cost per employee, cost of labor per hour, 
or cost per $100 of sales. There is no anticipated economic cost to persons who 
are required to comply with the sections as proposed.
Comments on the proposal may be submitted to Marilyn von Kohl, Local Records 
Division, Texas State Library, Box 12927, Austin, Texas 78711.
The amendments are proposed under the Local Government Code, Title 4, Chapter 
204, which requires the Texas State Library and Archives Commission to adopt 
rules establishing standards and procedures for the microfilming of local 
government records.
sec.7.21. Definitions.  The following words and terms, when used in this 
chapter, shall have the following meanings, unless the context clearly indicates 
otherwise. Terms not defined in these rules shall have the meanings defined in 
Local Government Code, Title 6, [Subtitle C,] Chapter 201, or the standards of 
the Association for <nl>Information<ol> [Image] and <nl>Image<ol> [Information] 
Management according to "Technical Report for Glossary of Micrographics" (TR2-
<nl>1990<ol> [1980] or latest revision).
<nl>   Aperture card-A card with a rectangular opening(s) into which 16mm/35mm 
microfilm frames can be inserted, mounted, or pre-mounted.
<nl>   [Archival film -Photographic film that is suitable for preservation of 
records having a permanent retention period when stored under archival 
conditions.]
<nl>   CAD (computer assisted design)-A method of creating microimages by 
computer-driven laser.
 First-generation film -Film produced directly from a subject.
<nl>   Records management officer-The person identified under the Local 
Government Code, sec.203.001 or designated under Local Government Code, 
sec.203.025 as the records management officer.
 Records retention schedule-A document issued by the Texas State Library and 
Archives Commission under authority of <nl>the Government Code, sec.441.158<ol> 
[Subchapter J, Chapter 441, Government Code], establishing mandatory retention 
periods for local government records.
 [Records management officer-The person designated to act as a records 
management officer pursuant to Local Government Code, Title 6, Chapter 201.]
<nl>   Step-and-repeat system -A method of microfilming by which images are 
directly placed on an area of film according to a redetermined format, usually 
in orderly rows and columns.
sec.7.22. General.
(a)-(c) (No change.)
(d) Custodians must maintain, or require to be maintained, documentation 
identifying titles of records filmed<nl>, <ol> [;] quality control tests 
conducted<nl>,<ol> [;] the results of quality control tests<nl>,<ol> [;] dates 
records filmed <nl>,<ol> [;] disposition of records after filming <nl>,<ol> [;] 
dates filmed processed<nl>,<ol> [;] disposition of film<nl>, <ol> [;] reduction 
ratio used<nl>,<ol> [;] records series contained on each microfilm<nl>,<ol> [;] 
and equipment on which each microfilm was filmed and processed. The 
documentation must be retained until final disposition of all microfilm 
documented in the log or equivalent.
(e)-(h) (No change.)
sec.7.23. Standards for Film Quality, Resolution, Density, Definition, and 
Chemical Stability.
(a) Master microfilm must meet [the specifications in] "American National 
Standard for <nl>Imaging<ol> [Image] Media (Film)<nl>- <ol>[- Silver<nl>-
<ol>Gelatin Type-Specifications for Stability" (ANSI IT9.1-1989 or latest 
revision), except where these standards specifically state otherwise. 
<nl>Polyester film must be used for permanent and long-term film.
(b) Duplicate film must be diazo film conforming to [specifications in] 
"American National Standard for <nl>Imaging <ol> [Image] Media (Film)-Ammonia 
<nl>-<ol>Processed Diazo Films-Specifications for Stability<nl>"<ol> (ANSI 
IT9.5-1988 or latest revision), vesicular film conforming to "American National 
Standards for Photography (film)-Processed Vesicular Film-Specifications for 
Stability" (ANSI PH1.67-1985 or latest revision), or silver film conforming to 
"American National Standard for  <nl>Imaging<ol> [Image] Media (Film)<nl>-<ol>[-
] Silver <nl>-<ol>Gelatin Type<nl>- <ol>[-]Specifications for Stability" (ANSI 
IT9.1-1989 or latest revision). Duplicate film must meet [the specifications in] 
"Standards for Information and Image Management-Recommended Practice for 
Operational Procedures/Inspection and Quality Control of Duplicate Microforms of 
Documents and From COM" (ANSI/AIIM MS43-1988 or latest revision).
(c) (No change.)
(d) All microfilm must comply with [the standard] "American National Standard 
for Photography (Film)-Micrographic Sheet and Roll Films-Dimensions" (ANSI 
PH1.51-1983 or latest revision).
(e) The following ANSI standards must be complied with in the processing and 
filming of records: "Standard for Information and Image Management-
Specifications for 16 mm and 35 mm Roll Microfilm" (ANSI/AIIM MS14-1988 or 
latest revision), "American National Standard for Information and Image 
Management-Microfiche" (ANSI/AIIM MS5-<nl>1991<ol> [1985] or latest revision), " 
<nl>American National Standard for <ol> Information on Microfiche Headings" 
(ANSI Z39.32-1981 or latest revision), "<nl>Standard for Information and Image 
Management-<ol>Method for Measuring Thickness of Buildup Area on Unitized 
Microfilm Carriers (Aperture, Camera, Copy, and Image Cards)" (ANSI/AIIM MS9-
1987 or latest revision), and "Standard for Information and Image 
Management<nl>-<ol>[for] Method for Determining Adhesion of Protection Sheet to 
Aperture Adhesive of Unitized Microfilm Carrier (Aperture Card)" (ANSI/AIIM 
MS10-1987 or latest revision) .
(f)-(g) (No change.)
(h) The quality-index graph in "<nl>American National Standards Institute<ol> 
Practice for Operational Procedures/Inspection and Quality Control of First 
Generation, Silver-Gelatin Microfilm of Documents" (ANSI/AIIM MS23-<nl>1991<ol> 
[1983] or latest revision) must be followed as the minimum acceptable range of 
performance readings for all <nl>essential and permanent<ol> film <nl>and 10% of 
the total volume of short-term, medium-term, and long-term film <ol>. All 
microfilm of essential and permanent records must meet a minimum quality index 
level of 5.0. Microfilm of short-term, medium-term, and long-term records must 
meet a minimum quality index level of 3.6.
(i)  (No change.)
sec.7.24. Tests and Other Methods of Inspection and Verification [of Accuracy].
(a) General.
(1) With the exception of retakes, if a defect is found on any microfilm, the 
microfilm immediately preceding and following the sample of microfilm on which 
the defect was found must be inspected. If a defect is found on those 
microfilms, the  <nl>uninspected<ol> microfilm preceding and<nl>/or<ol> 
following those microfilms must be inspected image by image until all defective 
film has been identified.
(2)  Water used in microfilm processing must meet the requirements in 
"<nl>American National Standards Institute<ol> [National Micrographics 
Association's] Practice for Operational Procedures/Inspection and Quality 
Control of First Generation. Silver-Gelatin Microfilm of Documents" (ANSI/AIIM 
MS23-<nl>1991<ol> [1983] or latest version).
(b) The following tests must be utilized in the production of all film:
(1) (No change.)
(2) Density test.
(A) (No change.)
(B) Testing procedures as specified in "<nl>American National Standards 
Institute<ol> [National Micrographics Association] Practice for Operational 
Procedures/Inspection and Quality Control of First Generation, Silver-Gelatin 
Microfilm of Documents" (ANSI/AIIM MS23-<nl>1991<ol> [1983] or latest revision) 
must be performed [by the film processor].
(C) Background density must be in accordance with " <nl>American National 
Standards Institute<ol> [National Micrographics Association's] Practice for 
Operational Procedures/Inspection and Quality Control of First Generation, 
Silver-Gelatin Microfilm of Documents" (ANSI/AIIM MS23-<nl>1991<ol> [1983] or 
latest revision).
(3) Resolution test.
(A) (No change.)
(B) The resolution test must be conducted in accordance with "<nl>American 
National Standards Institute<ol> [National Micrographics Association's] Practice 
for Operational Procedures/Inspection and Quality Control of First Generation, 
Silver-Gelatin Microfilm of Documents" (ANSI/AIIM MS23-<nl>1991<ol> [1983] or 
latest revision).
(C) The resolution must meet the "American National Standards Microcopying-ISO 
Test Chart Number 2-Description and Use in Photographic Documentary 
Reproduction" (ANSI/IAO 3334-1979 or latest revision) and/or American National 
Standard Test Chart for Rotary Microfilm Cameras" (ANSI/AIIM MS17-1983 or latest 
revision) and/or "Standard for Information and Image Management-Recommended 
Practice for Identification of Microforms" (ANSI/AIIM MS19-1987 or latest 
revision). Photocopies <nl>may<ol> [must] not be used.
(4) (No change.)
(c)  If film processing is done by a service bureau, the local government must 
obtain a certified statement of the results of density, <nl>resolution,<ol> 
methylene blue, and visual inspection tests from the service bureau.
(d)  If microfilm is not to be stored by the service bureau which processed the 
film, the local government must obtain test results at the same time it obtains 
the microfilm. If the microfilm is stored by the service bureau which processed 
the film, the local government must receive the test results within 10 days of 
completion of the test(s). The custodian<nl>, <ol> [or] records management 
officer<nl>,<ol> [or] local government office, or independent testing facility 
under contract with the local government or custodian, must inspect the 
microfilm to verify the results reported by the processor.
(e) An inspection of stored master microfilm must be conducted in accordance 
with "American National Standard for Photography <nl>(Film)<ol> [(film) ] <nl>-
<ol>[--]Processed Safety Film<nl>-<ol>[--] Storage" (ANSI <nl>IT9. 11-1991<ol> 
[PH1.43-1985] or latest revision).
(1)-(9) (No change.)
sec.7.25. Certification and Declaration of Intent.
(a) The records custodian may maintain a certificate of legality and 
authenticity of film<nl>; if used the certificate must state<ol> [stating]: 
"This is to certify that the official records appearing on (identifier) 
microfilm are accurate and complete reproductions in strict accordance with the 
Local Government Code, Chapter 204[;] of the record series entitled (records 
series title), for the (name of department). These records were created in the 
normal course of business and microfilmed as part of a planned records 
management program; no addition, deletion, or alteration has been made."
(b)  The records custodian may maintain a certificate of legality and 
authenticity on film<nl>; if used the certificate must state<ol> [stating]:
(1) "I (name of records custodian) state that the microfilming of the images 
between the title page and this certificate of legality and authenticity has 
been in strict accordance with the Local Government Code, Chapter 204 and rules 
adopted under that chapter; that the page or pages of the identified instruments 
of writing, legal documents, papers, or records <nl>were <ol> created by or 
received in the identified office in the normal course of that office's official 
business; and are the complete files identified on the title page, except where 
an omission is specifically identified; and that no alteration has been made to 
any page nor has any splice been made in the original between the title page and 
this certificate;" or
(2) "The microfilming of the images between the title page and <nl>this<ol> 
[the] certificate of legality and authenticity has been in strict accordance 
with the Local Government Code, Chapter 204; each image is a true, correct, and 
exact copy of the page or pages of the identified instrument of writing, legal 
document, paper, or record which had been filed for record on the date and at 
the time stamped on each; and no splice was made in the original microfilm 
between the title page and this certificate."
(c)<nl> A declaration<ol> [Declaration] of intent must be on all microfilm that 
does not have the certificate of legality and authenticity of the microfilm and 
must state: "I (name of records custodian) acting for the (name of agency), a 
local government in the <nl>state<ol> of Texas, do hereby declare that I am a 
custodian of the (name of department) department records, and that the records 
microfilmed between the title page and  <nl>this<ol> [the] declaration of intent 
are the official records of the department created in the normal course of 
business, and that the records series is entitled[,] (records series title). The 
microfilming of these records is part of a planned records management program 
determined by the policy established by the records custodian, according to the 
Local Government Code, Chapter 204."
(d) (No change.)
sec.7.26. Use of Editorial and Technical Targets.
(a) A title page target must be included on each roll of microfilm and must 
identify the local government and subordinate organization unit(s), the records 
which are included on the microfilm <nl>,<ol> [;] title of the records (with 
identification of contents if not obvious from series titles)<nl>, <ol> [;] 
restriction or classification (if necessary)<nl>, <ol> [;] bibliographic 
information (if any)<nl>,<ol> [;] roll number<nl>,<ol> [;] and date(s) of 
records being filmed.
(b) Restriction or classification targets, if used, must identify the office or 
agency authorizing the classification or restriction<nl>,<ol> [;] the statutory 
or administrative authorization for the restriction or classification<nl>,<ol> 
[;] the beginning records and ending record of the records series of which the 
classification or restricted items are a part<nl>,<ol> [;] the date of filming. 
[;] and the nature of the restriction or classification.
(c)-(e) (No change.)
sec.7.27. Image Sequence.
(a) The image sequence on roll microfilm must be:
(1) (No change.)
(2) retakes according to required sequence of subsection
<nl>(d)<ol>[(c)] of this section (if any);
(3)-(8) (No change.)
(9) retakes according to required sequence of subsection <nl>(d)<ol>[(c)] of 
this section (if any);
(10)  (No change.)
(b)-(d) (No change.)
sec.7.28. Master Microfilms.
(a) (No change.)
(b) For master microfilm[,] containing short-term records[,] <nl>and <ol>not 
meeting the specifications in "American National Standard for  <nl>Imaging<ol> 
[Image] Media (Film)<nl>-<ol>[-]Silver-Gelatin Type<nl>-<ol>[-] Specifications 
for Stability" (ANSI IT9.1-1989 or latest version) and silver film that is not 
included in the testing program required by sec.7.24(b) (1) of this title 
(relating to Tests and Other Methods of Inspection and Verification [of 
Accuracy] ) a duplicate security copy must be made in accordance with "Standard 
for Information and Image Management-Recommended Practice for Operational 
Procedures/Inspection and Quality Control of Duplicate Microforms of Documents 
and From COM" (ANSI/AIIM MS43-1988 or latest revision).
(1)-(4) (No change.)
(c) (No change.)
(d) Storage requirements.
(1)  (No change.)
(2) Containers must be labelled to indicate that they contain master 
<nl>negatives<ol> [microfilm] <nl>(specifying whether first-generation, second-
generation, etc.)<ol> and the identifying information or number, records series, 
and office of origin.
(3)-(9) (No change.)
(10) Paper may be used to secure rolls, if it conforms to the specifications 
contained in "American National Standard for <nl>Imaging<ol> [Image] Media<nl>-
<ol>[-]Photographic Processed Films, Plates, and Papers <nl>-<ol>[-]Filing 
Enclosures and Storage Containers" (ANSI IT9.2-1988 or latest revision).
(A)-(B) (No change.)
(11) (No change.)
(12) Short-term microfilm not meeting the specifications in "American National 
Standard for Image Media (Film)<nl>- <ol>[-]Silver-Gelatin Type<nl>-<ol>[-
]Specifications for Stability" (ANSI IT9.1-1989 or latest revision) must not be 
stored in the same room or a room sharing common ventilation with that in which 
essential, long-term, and permanent microfilm is stored.
(13)-(21) (No change.)
(22)<nl> Microfilm must be stored in storage rooms and vaults meeting the 
following<ol> [Storage rooms and vaults must meet the following standards]:
(A) (No change.)
(B) be equipped with a fire alarm system and be capable of <nl>preventing 
temperatures inside the vault from exceeding 150 degrees Fahrenheit (66 degrees 
Celsius), and a relative humidity not exceeding 85% for up to two hours<ol> 
[withstanding temperatures to 150 degrees Celsius (302 degree Fahrenheit) for 
four hours], and if constructed or readapted after 1991 to serve as a microfilm 
storage facility, be equipped with a fire suppression system and with automatic 
fire control dampers in ducts carrying air to or from the vault or storage room;
(C) be equipped with a system capable of removing those gaseous impurities in 
the surrounding environment such as sulfur dioxide, nitrous oxide, ammonia, 
peroxide, and hydrogen sulfide as specified in "American National Standard for 
Photography (Film) <nl>-<ol>Processed Safety Film <nl>-<ol>Storage" (ANSI  
<nl>IT9.11-1991<ol> [PH1.43-1985] or latest revision);
(D) if subject to invasion of solid particles that can abrade film or react on 
the images, have mechanical filters or electrostatic precipitators installed 
having a cleaning efficiency of at least 80% when tested with atmospheric air in 
accordance with American National Standard for Photography (Film)<nl>- 
<ol>Processed Safety Film-Storage (ANSI <nl>IT9.11-1991<ol> [PH1.43-1985] or 
latest revision);
(E) (No change.)
(F) for the microfilm of essential, medium-term, long-term, and permanent 
records, maintain a <nl>temperature of 65 to 70 degrees Fahrenheit (18 to 21 
degrees Celsius), and a relative humidity of 20% to 30% with a maximum variance 
of<ol> [constant relative humidity range between 30% and 40% and a temperature 
not exceeding 21 degrees Celsius (70 degrees Fahrenheit), with fluctuations 
limited to -15 degrees Celsius (5 degrees Fahrenheit) and] plus/minus 5.0% 
relative humidity in a 24-hour period.
(G) for storage of the microfilm of short-term records maintain a 
<nl>temperature of 68 to 77 degrees Fahrenheit (20 to 25 degrees Celsius), 
and<ol> constant relative humidity range between 30% and 60% [and a temperature 
between 20 degrees Celsius (68 degrees Fahrenheit) and 25 degrees Celsius (77 
degrees Fahrenheit)] and maximum variation of plus/minus 5.0% relative humidity 
in a 24-hour period<nl>.
[(H) these requirements do not apply to the storage of convenience film.]
(e)<nl> All cuts must be made on clear portions of film and splicing must not 
distort the image. All images must remain legible and readable <ol> [All splices 
must be made on clear portions of film and must not cover any image].
(f) (No change.)
sec.7.30. Computer Output Microfilm (COM).
(a)-(c) (No change.)
(d) The following standards must be met:
(1) [specifications in] "Standard for Information and Image Management-
Recommended Practice for Alphanumeric Computer-Output Microforms<nl>-<ol>[-
]Operational Practices for Inspection and Quality Control" (ANSI/AIIM MS1-1988 
or latest revision);
(2)-(3) (No change.)
(e) The following <nl>eye-legible<ol> [eye-readable] titling information must 
appear:
(1)-(4) (No change.)
(f) (No change.)
(g) Required testing and methods of inspection are as follows:
(1) (No change.)
(2) Methylene blue test must be performed according to sec.7.24 of this title 
(relating to Tests and Other Methods of Inspection and Verification [of 
Accuracy]).
(3) Density must be in accordance with "Standard for Information and Image 
Management-Recommended Practice for Alphanumeric Computer-Output Microforms<nl>-
<ol>[-]Operational Practices for Inspection and Quality Control" (ANSI/AIIM MS1-
1988 or latest revision).
(4) Resolution must be in accordance with "Standard for Information and Image 
Management<nl>-<ol>Alphanumeric COM Quality Test Slide" (ANSI/AIIM MS28-1987 or 
latest revision).
(5)-(6) (No change.)
(7)  Offline processors must be monitored on a scheduled basis with process 
control strips (sensitometric strips) at a minimum at the start of processing 
each day and whenever a batch of <nl>film,<ol> fixer, or developer is changed, 
or when changes in processing such as replacement or addition of filter, water 
softener, or replenishing system are made, or when water is changed.
(h)  (No change.)
sec.7.31. Jacketing.
(a) (No change.)
(b) For [short-term,] medium-term, long-term, and permanent records [the] first-
generation silver-gelatin microfilm in roll form must be used for storage.
(c) A duplicate of a first<nl>-<ol>generation film must have a resolution loss 
of no more than one test pattern of the test objects as described in "American 
National Standard Microcopying-ISO Test Chart Number 2-Description and Use in 
Photographic Documentary Reproduction" (ANSI/ISO 3334-1979 or latest revision).
(d)-(f) (No change.)
sec.7.32. Expungement of Records.
(a)-(d) (No change.)
<nl>(e) Expungement certificates may not be used when an amended certificate of 
birth is prepared and filed based on adoption, legitimation, or paternity 
determination. No evidence may be retained in the microfilm, index, or cross-
reference through which the confidentiality of adoption legitimation, or 
paternity actions may be directly or indirectly violated.
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt.
Issued in Austin, Texas, on October 21, 1991.
TRD-9113154
Raymond Hitt
Assistant State Librarian
Texas State Library and Archives Commission
Earliest possible date of adoption: December 2, 1991
For further information, please call: (512) 463-5440
       
TITLE 22. EXAMINING BOARDS
Part XXV. Structural Pest Control Board
Chapter 593. Licenses
22 TAC sec.sec.593.5, 593.11, 593.12
The Structural Pest Control Board proposes an amendment to sec.593.5 concerning 
examinations, new sec.593.11 concerning certified noncommercial applicator 
restrictions, and new sec.593.12 concerning right-of-way certification. The 
amendment creates a new licensure category in commodity fumigation and creates 
qualifications for taking the test to become a certified noncommercial 
applicator. The proposed amendment gives the agency the authority to approve 
certified noncommercial applicator training courses.
New sec.593.11 establishes restrictions on certified noncommercial applicators.
New sec.593.12 concerning right-of-way certification establishes the licensure 
requirements for right-of-way pest control work. It includes a definition of 
right-of-way and an explanation of when licensure by the Texas Department of 
Agriculture or the Structural Pest Control Board is required.
Benny M. Mathis, Jr., executive director, has determined that for the first 
five-year period the sections are in effect there will be no fiscal implications 
for state or local government as a result of enforcing or administering the 
sections.
Mr. Mathis also has determined that for each year of the first five years the 
sections are in effect the public benefit anticipated as a result of enforcing 
the sections will be increased licensure of herbicide applicators in urban areas 
and a more comprehensive licensure policy for right-of-way applications, and the 
certified noncommercial applicator license will ensure that all pest control 
services in sensitive institutions are performed by someone with adequate 
training and testing. There will be no effect on small businesses. There is no 
anticipated economic cost to persons who are required to comply with the 
sections as proposed.
Comments on the proposal may be submitted to Roger Borgelt, 9101 Burnet Road, 
Suite 201, Austin, Texas 78758.
The amendment and new sections are proposed under Article 135b-6 which provides 
the Structural Pest Control Board with the authority to establish standards for 
testing, licensing, and regulating persons engaged in the structural pest 
control business.
sec.593.5. Examinations.
(a) (No change.)
(b) In order to qualify to take the Structural Pest Control Board test for 
obtaining a certified <nl>commercial <ol> applicators license, the applicant 
must have verifiable employment in the pest control industry under the 
supervision of a pest control industry under the supervision of a licensed 
certified <nl>commercial<ol> applicator for at least 12 months out of the past 
24 months and must have possessed a technician license for at least six months.
(1)  The proof of previous employment or experience in the industry <nl>or 
technical field experience from a previous occupation<ol> shall be furnished by 
the applicant in the form of a notarized statement.
(2) (No change.)
(A)-(C) (No change.)
(c) The testing procedure will be as follows.
(1)-(12) (No change.)
(13) Categories in which examinations are to be given for which licenses will be 
issued are as follows.
(A)-(C) (No change.)
(D) <nl>Structural<ol> fumigation -This category includes persons engaged in 
<nl>wood destroying <ol> pest inspection and/or control through fumigation of 
structures.[, food stuffs, warehouses, ships, railroad cars, etc.]
<nl>(E) Commodity fumigation-This category includes persons engaged in pest 
inspection and/or control through fumigation of commodities.
<nl>(F)<ol>[(E)] Weed control -This category includes persons engaged in the 
inspection and/or control of weeds around homes and industrial environs.
<nl>(G)<ol>[(F)] Wood preservation -That phase of pest control that involves the 
addition of preservatives to wood to extend the life of wood products by 
protecting them from damage caused by insects, fungi, and marine borers. Such 
wood products will include, but not be limited to, crossties, poles, and posts. 
This category is intended only for use by those persons using wood preservatives 
that may be classified as restricted use.
(14) (No change.)
<nl>(d) In order to qualify to take the Structural Pest Control Board test for 
obtaining a certified noncommercial applicators license as provided by 
subsection (c) of this section the applicant must:
<nl>(A) be an applicant with a degree in the biological sciences from an 
accredited college or university:
<nl>(B) be an applicant with a notarized statement showing technical field 
experience from a previous occupation; or
<nl>(C) after January 1, 1993, complete a board-approved certified noncommercial 
applicator training course.
sec.593.11. Certified Noncommercial Applicator Restrictions. A certified 
noncommercial applicator may not perform commercial pest control services or 
perform any structural pest control services for a person other than the 
employer for whom he/she is certified as a certified noncommercial applicator. A 
certified noncommercial applicator shall not be associated with a licensed 
structural pest control business.
sec.593.12. Right-of-Way Certification.
(a) The Texas Department of Agriculture will license right-of-way applicators in 
the right-of-way category who make applications in rural or urban areas to 
utility lines, pipelines, railroads, highways, farm to market roads, county 
roads, and drainage districts. If a right-of-way applicator is not using a 
restricted or state limited use pesticide and is not required to have a Texas 
Department of Agriculture license, but is applying pesticides in an urban area, 
the applicator is required to license with either the Texas Department of 
Agriculture or the Structural Pest Control Board. Employees of cities who make 
right-of-way applications in urban areas are required to be licensed with the 
Structural Pest Control Board.
(b) For purposes of this section the term right-of-way includes, but is not 
limited to electric utility substations, power generating plants, switchyards, 
compression stations, pumping units or stations, road crossings, pipeline 
gathering sites, pipeline meter runs, and storage facilities for the right-of-
way.
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt.
Issued in Austin, Texas, on October 25, 1991.
TRD-9113236
Benny M. Mathis, Jr.
Executive Director
Structural Pest Control Board
Earliest possible date of adoption: December 2, 1991
For further information, please call: (512) 835-4066
       
TITLE 31. NATURAL RESOURCES AND CONSERVATION
Part IX. Texas Water Commission
Chapter 320. Regional Assessments of Water Quality
Program for Assessment of Water Quality by Watershed and River Basin
31 TAC sec.sec.320.1-320.9
The Texas Water Commission proposes new sec.sec.320.1-320.9, concerning a 
program for assessment of water quality by watershed and river basin. The 
sections are proposed to implement a regional water quality assessment program 
required by Senate Bill 818, 72nd Legislature, 1991. The sections establish a 
program for the assessment of historical, existing, and projected water quality 
conditions in order to meet the goals of maintaining and improving the state's 
water resources. The sections will require that water quality assessments be 
performed and biennial assessment reports be prepared for each watershed and 
river basin in the state by river authorities, the commission, and governmental 
entities which have been designated by the commission to perform the 
assessments. The sections are proposed with the intent of developing water 
quality assessments in each watershed and to encourage a cooperative partnership 
and avoid duplication of efforts among the river authorities, local governments, 
and the commission. It is anticipated that the program established by these 
sections will be implemented in two phases, with the first phase focusing on 
information gathering, and the second phase requiring an evaluation and analysis 
of the information collected.
New sec.320.1 states the purposes of sec.sec.320.1-320.9. The primary purpose of 
new sec.sec.320.1-320.9 is to set up a program to assess historical, existing 
and projected water quality conditions in order to meet the goals of maintaining 
and improving the quality of the state's water resources. Additionally, new 
sec.320.1 provides that the regional assessment program is designed to allow 
citizens and private organizations an opportunity for involvement in protecting 
the state's water resources. New sec.320.1 also provides that it is not the 
intent of the new sections to require river authorities and designated local 
governments to reproduce information already contained in the files of the 
commission but that the performance of a meaningful water quality assessment may 
require existing information to be compiled in a format that will allow for a 
comprehensive evaluation of the information. The purpose statement in new 
sec.320.1 also provides that it is the intent of these sections that the fees 
collected under Chapter 320 recover no more than the actual costs incurred by 
river authorities and designated local governments in administering the new 
water quality management programs. In addition, new  s320.1 states that revenue 
generated by the program described in new sec.sec.320.1-320.9 shall not be used 
by river authorities and designated local governments to fund their existing 
programs. Finally, new sec.320.1 provides that the commission shall ensure that 
water users and wastewater dischargers do not pay excessive amounts; and that no 
municipality shall be assessed costs for any efforts that duplicate water 
quality management activities carried out pursuant to the Texas Water Code, 
sec.26.177, or rules implementing that section.
New sec.320.2 provides that the proposed sections apply to water in the state 
and that the assessments shall be conducted by river authorities, local 
governments designated by the commission, and the commission.
New sec.320.3 is a list of definitions and abbreviations of terms to be used in 
the new sections.
New sec.320.4 provides an overview of the proposed sections and states that 
biennial assessment reports shall be prepared and provided to the governor, 
commission, and the Texas Parks and Wildlife. New sec.320.4 also provides for 
the creation of steering committees to assist in the development of the 
assessment reports. This section also provides that a meaningful public input 
process must be established.
New sec.320.5 describes the procedure to be followed in conducting the regional 
assessments. This section provides that a work plan shall be prepared setting 
forth in detail how the river authority or designated local government proposes 
to develop the assessment as required by this chapter. This section also 
provides that biennial assessment reports shall be prepared which shall present 
in a comprehensive format the results of the biennial regional assessments of 
water quality. The reports shall address significant water quality problems 
facing the watershed. Additionally, the reports shall focus on projected water 
quality conditions. The assessment reports shall be prepared in accordance with 
these rules. It is contemplated by these rules that the amount of detail in each 
biennial report will vary according to the time allowed for preparation, the 
resources available, the complexity of the issues facing the watershed, and the 
amount of input received by the river authority or designated local government 
from other local governments and individuals.
New sec.320.6 sets out the specific elements to be addressed in the assessment 
reports and provides that the elements shall be evaluated and the reports 
organized by segments. This new section provides that the following elements 
shall be discussed or provided in the reports: historic and current water 
quality monitoring data, measures taken by river authorities, cities, and others 
to promote public awareness of water quality issues and the opportunity for 
public involvement in water quality issues, existing population figures for 
political subdivisions, basin-wide surface water baseline map, basin-wide 
groundwater baseline map, identification and evaluation of wells which could 
lead to pollution of water in the state, an inventory of permitted municipal and 
industrial wastewater disposal activities, an inventory of stormwater permits, 
an inventory of solid waste management facilities and superfund sites, an 
inventory by segment of aboveground storage tanks and petroleum underground 
storage tanks, identification and evaluation of on-site disposal facilities 
which could lead to pollution of water in the state, identification of existing 
or potential water quality problems caused by toxic materials that could 
adversely impact human health, aquatic life, wildlife, or livestock, an 
evaluation of the sources of toxic substances which contribute to each water 
quality problem identified, depiction on a county baseline map the waters 
impacted by toxic materials and identification of the possible sources of 
pollution and source if known, an evaluation of the health and integrity of 
aquatic life, sources of significant nonpoint source pollution, identification 
and documentation of existing or potential water quality problems or impediments 
to uses caused by excessive growth of aquatic vegetation, identification and 
documentation of existing or potential water quality problems, existing and 
proposed methods for collection and disposal of household waste, pesticides and 
toxic agricultural products, issues or instances where enforcement of water 
quality regulations by federal, state or local governments is inadequate or has 
failed to correct water quality problems, identification of water quality issues 
not adequately addressed as a result of the lack of authority on the part of 
state or local governments, or which may be adequately addressed if the Texas 
Water Commission authority could be delegated, federal, state and local programs 
and/or actions that are attempting to respond to identified water quality 
problems, any other water quality problems not previously identified, a brief 
narrative discussing those waterbodies that are of water quality concern, a 
description of possible solutions and estimated costs to implement such 
solutions, a prioritization of waters with existing or potential water quality 
problems, a bibliography of previous water quality studies performed in the 
watershed, a description of goals and objectives that encourage, assist and 
promote water conservation measures and water conservation management plans, and 
a discussion of existing water conservation programs and any measures taken by 
river authorities and local governments to implement water conservation 
programs.
New sec.320.7 provides that river authorities and designated local governments 
shall create steering committees to assist in the development of the assessment 
reports and that the committees shall reflect a diversity of interests including 
representatives from appropriate state agencies, political subdivisions, other 
governmental bodies or individuals with an expressed interest in water quality 
matters within each watershed.
New sec.320.8 provides that local governments shall assist the river authority 
or designated local government within the watershed in conducting the regional 
assessment by providing data and other relevant water quality information that 
pertains to the watershed.
New sec.320.9 provides that the role of the steering committee role is advisory 
in nature and that all agencies and organizations required to participate in the 
regional assessment shall provide available relevant water quality data to the 
river authorities, designated local governments, local governments, or Texas 
Water Commission, as appropriate.
Ms. Karen P. Phillips, director of budget and planning, has determined that for 
the first five-year period the sections will be in effect, there will be fiscal 
implications as a result of enforcing or administering the sections. The effect 
on state government will be an increase in costs of $287,316 for fiscal year 
1992 and $254,241 in each of the fiscal years 1993-1996. Cost to local 
government will increase by approximately $5 million in each of the fiscal years 
1992-1996. There are no direct impacts on small businesses or industries for the 
first five year period the sections will be in effect. Future rulemaking will 
address funding for the regional water quality assessments authorized under 
these sections. Senate Bill 818 authorizes the assessment of fees on water users 
and wastewater dischargers in the river basins of the state to pay the costs of 
this program. These rules to be developed will have fiscal implications for the 
various businesses, industries and local governments which have permits for 
surface water use or for the treatment for discharge of wastewater. The revenue 
collected will be used by the commission to reimburse local governments involved 
in the development of water quality assessments, effectively mitigating many of 
the costs represented by the estimate of $5 million.
Ms. Phillips has also determined that for each year of the first five years the 
sections as proposed are in effect, the public benefits anticipated as a result 
of enforcing the sections as proposed will be improvements in state and regional 
government's ability to assess water quality conditions in the different 
watersheds of the state and develop more effective proposals for maintaining and 
improving the quality of public water resources. There are no known costs to 
persons required to comply with the provisions of these sections as proposed.
Comments on the proposal may be submitted to Margaret Ligarde, Staff Attorney, 
Legal Division, P.O. Box 13087, Austin, Texas 78711. The deadline for submission 
of written comments will be 30 days after the date of publication of this 
proposal in the Texas Register.
The new sections are proposed under the Texas Water Code, sec.sec.5.103, 5.105, 
and 26.011, which provide the Texas Water Commission with the authority to adopt 
rules necessary to carry out its powers and duties under the code and all other 
laws of the State of Texas and to establish and approve all general policies of 
the commission.
sec.320.1. Purpose.
(a) The purpose of this chapter is to assess historical, existing and projected 
water quality conditions in order to meet the goals of maintaining and improving 
the quality of the state's water resources. Regional assessments of water 
quality shall be conducted pursuant to this chapter to provide the commission, 
river authorities and local governments with sufficient information to take 
appropriate corrective action necessary to meet these goals. The intent of 
developing water quality assessments in each watershed is to identify water 
quality problem areas and to focus resources and future studies on these areas. 
The commission has the responsibility of ensuring that a comprehensive 
assessment of water quality is conducted for each watershed in the state. 
Whenever feasible, the assessments will be the result of a cooperative 
partnership between river authorities, designated local governments, other 
political subdivisions, other state agencies and the Texas Water Commission. The 
assessments will be conducted in a manner which avoids duplication of efforts by 
river authorities, local governments, other political subdivisions, other state 
agencies and the Texas Water Commission. This program will be implemented in two 
phases, with the first phase focusing on information gathering, and the second 
phase requiring an evaluation and analysis of the information collected. 
Additionally, the regional assessment program is designed to allow citizens and 
private organizations an opportunity for involvement in protecting the state's 
water resources. It is not the intent of these rules to require river 
authorities and designated local governments to reproduce information already 
contained in the files of the commission, however, that the performance of a 
meaningful water quality assessment may require existing information to be 
compiled in a format which will allow for a comprehensive evaluation of the 
information.
(b) It is the intent of these rules that the fees collected under this chapter 
recover no more than the actual costs of administering the new water quality 
management programs incurred by river authorities, designated local governments 
or the Texas Water Commission. Revenue generated by this chapter shall not be 
used by river authorities and designated local governments to fund their 
existing programs. The commission shall ensure that water users and wastewater 
dischargers do not pay excessive amounts; and that no municipality shall be 
assessed cost for any efforts that duplicate water quality management activities 
carried out pursuant to the Texas Water Code, sec.26.177 or rules implementing 
that section.
sec.320.2. Applicability.
(a) The regional assessments of water quality apply to water in the state as 
defined in the Texas Water Code, sec.26. 001(5).
(b) Regional assessments shall be conducted by river authorities, designated 
local governments, or by the Texas Water Commission. The commission, either 
directly or through cooperative agreements and contracts with local governments, 
shall conduct regional assessments of watersheds where there is no river 
authority or where a river authority is unable to perform an adequate assessment 
of its own watershed.
(c) This chapter may be periodically revised following the evaluation of 
submitted regional assessments.
sec.320.3. Definitions and Abbreviations.
(a) Definitions. The following words and terms, when used in these sections, 
shall have the following meanings, unless the context clearly indicates 
otherwise.
(1)  Aboveground storage tank-As defined in 31 Texas Administrative Code (TAC), 
sec.334.122(b)(1) of this title (relating to Definitions).
(2) Aquatic life-An indigenous species of aquatic or semi-aquatic life or 
wildlife.
(3) Assessment report-A comprehensive record of historical, existing and 
projected water quality conditions of a watershed.
(4) Citizen monitoring-A program conducted by students or other volunteers 
involving the collection, management and dissemination of environmental 
information.
(5)  County baseline map-State Department of Highways and Public Transportation 
County Map in a digital format depicting site-specific locations in latitude and 
longitude coordinates.
(6) Designated local government-A local government that has been designated 
through cooperative agreement or contract with the commission to perform a 
regional assessment pursuant to this chapter.
(7) Element-A component and constituent of the regional assessment report.
(8) Leaking petroleum storage tank-Those storage tanks which have been assigned 
a leaking petroleum storage tank (LPST) number by the Texas Water Commission.
(9) Nonpoint source pollution-Human-made or human-induced pollution caused by 
diffuse sources that are not regulated as point sources, resulting in the 
alteration of the chemical, physical, biological and/or radiological integrity 
of the water.
(10) Outfall-A designated outfall pursuant to a commission issued discharge 
permit or NPDES permit.
(11) Permit-any right or authorization granted by the Texas Water Commission or 
its predecessor agencies, including wastewater disposal permits, water rights 
permits, certificates of adjudication and certified filings.
(12) Petroleum product-As defined in 31 TAC sec.334.122(b)(12) of this title 
(relating to Definitions).
(13) Pollution-The alteration of the physical, thermal, chemical, or biological 
quality of, or the contamination of, any water in the state that renders the 
water harmful, detrimental, or injurious to humans, animal life, vegetation, or 
property or to public health, safety, or welfare, or impairs the usefulness or 
the public enjoyment of the water for any lawful or reasonable purpose.
(14) River authority (for purposes of this chapter only) -Any district or 
authority created by the legislature which contains an area within its 
boundaries of ten or more counties and which is governed by a board of directors 
appointed or designated in whole or in part by the governor, or by the Texas 
Water Development Board, including without limitation the San Antonio River 
Authority, and other river authority or special district created under Article 
III, sec.52, subsection (b)(1) or (2), or Article XVI, sec.59, of the Texas 
Constitution that is designated by rule of the commission to comply with this 
chapter.
(15) River basins and coastal basins-The river basins and coastal basins now 
defined and designated by the Texas Water Development Board as separate units 
for the purposes of water development and inter-watershed transfers, and as they 
are made certain by contour maps on file in the offices of the Texas Water 
Development Board, including but not limited to the rivers and their 
tributaries, streams, water, coastal water, sounds, estuaries, bays, lakes and 
portions of them, as well as the lands drained by them.
(16) Solid waste-As defined in the Texas Solid Waste Disposal Act, sec.361.003, 
as amended, including both municipal solid waste and industrial solid waste as 
those terms are defined in sec.361.003 of the Texas Solid Waste Disposal Act, as 
amended.
(17) Stream segment-The term "segment" refers to the surface waters of an 
approved planning area exhibiting common biological, chemical, hydrological, 
natural, and physical characteristics and processes. Segments will normally 
exhibit common reactions to external stresses (e.g. discharge or pollutants). 
Segments are enumerated using a four digit number. The first two digits identify 
the basin in which the segment is located. The last two digits distinguish the 
segments within a particular river, coastal, or estuarine basin. Boundaries of 
bay and estuarine segments (identified with the number 24 as the first two 
digits) have not been precisely defined and are illustrated as approximations at 
this time. All designated segments are listed in Appendix A of 31 Texas 
Administrative Code, sec.307.10 of this title (relating to Appendices A-D).
(18) Stormwater drainage system-Man-made and natural features which function as 
a system to collect, convey, channel, hold, inhibit, retain, detain, infiltrate, 
or divert stormwater runoff.
(19) Surface water-As defined in sec.307.3(a)(38) of this title (relating to 
Definitions and Abbreviations).
(20) Superfund site-Any facilities identified in the State Registry pursuant to 
the Texas Health and Safety Code, sec.361.181, or on the National Priorities 
List pursuant to the Comprehensive Environmental Response Compensation and 
Liability Act, 42 United States Code, sec.9601 et seq., as amended.
(21) Toxic materials-Any liquid, gaseous, or solid substance or substances in a 
concentration which, when applied to, discharged to, or deposited in the waters 
in the state, may exert a poisonous effect detrimental to man or to the 
propagation, cultivation or conservation of animals, fish, or other aquatic 
life.
(22) Unclassified waters-Those waters for which no classification has been 
assigned and which have not been identified in Appendix A of 31 Texas 
Administrative Code, sec.307.10 of this title (relating to Appendices A-D).
(23) Underground storage tank-As defined in 31 TAC sec.334.2 of this title 
(relating to Definitions).
(24) Wetlands-As defined in 31 TAC sec.307.3(a)(45).
(25) Work plan-A document outlining the proposed scope of work, including a time 
schedule and cost expenditures, from the river authority or designated local 
government to perform a service and/or provide a comprehensive regional 
assessment of the watershed.
(b) Abbreviations. The following abbreviations apply to this chapter.
(1) Assessment-Regional Assessment Of Water Quality to be performed biennially.
(2) AST-Aboveground Storage Tank.
(3) Code-Texas Water Code.
(4) Commission-Texas Water Commission.
(5) CWA-Clean Water Act.
(6) EPA-Environmental Protection Agency.
(7)  LPST-Leaking Petroleum Storage Tank.
(8) NPDES-National Pollutant Discharge Elimination System.
(9) TAC-Texas Administrative Code.
(10) UST-Underground Storage Tank.
sec.320.4. Overview.  The purposes stated in sec.320.1 of this title (relating 
to Purpose) shall be carried out by the performance of regional assessments of 
water quality within each watershed. The results of the assessments shall be 
provided to the governor, commission and Texas Parks and Wildlife Department in 
biennial regional assessment reports. Each assessment shall include a work plan, 
draft assessment report and final assessment report. In conducting the 
assessments, river authorities, designated local governments and the commission 
shall create steering committees to assist in the coordination and development 
of the assessment reports. Additionally, these entities shall develop a public 
input process that provides for meaningful comments and review by private 
citizens and organizations on the regional assessments and reports.
sec.320.5. Assessment Reports and Work Plans.
(a) Work plans. The work plan shall set forth in detail how the river authority 
or designated local government proposes to develop the assessment as required by 
this chapter. The work plan shall contain, at a minimum, the following:
(1) an introduction or summary of the work plan;
(2) a water quality needs assessment, a problem statement and any proposed 
solutions to address the problems;
(3) main water quality objectives of the assessment;
(4)  the proposed methods or activities to be utilized in preparing the 
assessment. This shall include, but shall not be limited to, a list of existing 
information and sources to be used and any proposed new data or analyses to be 
produced;
(5) a proposed budget, including an estimate of the costs which will be incurred 
in preparing the assessments for each year from 1992-1995. The budget should 
indicate whether any match of in-kind services will be provided by the river 
authority or designated local government and whether the river authority or 
designated local government proposes to use existing staff, hire new staff, or 
contract out to perform the assessment;
(6) a schedule outlining the major completion dates of the activities and 
methods to be utilized in conducting the assessment. These dates shall be 
depicted on a time-line chart; and
(7) a prioritization of the assessment elements, as identified in sec.320.6(b) 
of this title (relating to Elements of Assessment Reports).
(b) Assessment reports. The purpose of the assessment reports is to present in a 
comprehensive format the results of the biennial regional assessments of water 
quality. The reports shall address significant water quality problems facing the 
watershed. Additionally, the reports shall focus on projected water quality 
conditions. The assessment reports shall be prepared in accordance with these 
rules. It is contemplated by these rules that the amount of detail in each 
biennial report will vary according to the time allowed for preparation, the 
resources available, the complexity of the issues facing the watershed, and the 
amount of input received by the river authority or designated local government 
from other local governments and individuals.
(1) Each river authority or designated local government has the discretion to 
determine the extent to which a particular element needs to be discussed in the 
assessment report. Where the items required to be addressed in a particular 
element relate to things which do not present a threat of contamination to water 
quality in a watershed, the river authority or designated entity may so state, 
provide the reasons for that determination, and a brief description of the 
evaluation, data, analyses or other pertinent methods or information used to 
reach the decision.
(2) Any conclusions in the assessment reports that have been drawn by river 
authorities and designated local governments shall be supported by data, 
evaluations and other factual information. When necessary, the commission may 
require additional data collection as part of the overall assessment process.
(c) Time of performance. The work plans and assessment reports shall be prepared 
in accordance with the following time schedule:
(1) January 31 of 1992: submittal of first year work plans to commission;
(2) January 31 of odd-numbered years: submittal of work plans to commission;
(3)  July 1 of even-numbered years: submittal of draft regional assessment 
reports to commission;
(4) October 1 of even-numbered years: submittal of final version of regional 
assessment reports to governor, Texas Parks and Wildlife Department, and 
commission.
sec.320.6. Elements of Assessment Reports.
(a) General requirements. The assessment reports shall be evaluated and 
organized by stream segment. Unclassified surface waters shall be grouped with 
the first downstream segment in the same watershed. All data and information 
maintained by the commission and pertinent to the completion of this sec.320.6 
of this title (relating to Elements of Assessment Reports) will be assembled by 
the commission and disseminated to those entities conducting regional 
assessments of water quality as required by this chapter.
(1) Baseline maps shall be either a basin-wide surface water map, a basin-wide 
groundwater map or county map. If necessary, a larger-scaled map than the county 
baseline map may be used, such as the 7.5 minute (1:24,000 scale) United States 
Geological Survey (U.S.G.S.) quadrangle series maps.
(2) All assessment report elements, as identified under subsection (b) of this 
section, requiring a site-specific location (e.g. locations of municipal and 
industrial wastewater discharges, superfund sites, etc.) shall be depicted on 
maps with symbols indicating type of assessment element along with a unique 
identification number for the element. The sites' longitudinal and latitudinal 
coordinates with attributes (e.g. latitude, longitude, source map name, source 
scale and positional reliability estimate-code) sufficient to identify 
individual assessment elements shall be provided in an ASCII flat file format 
and placed on micro computer disks to be submitted to the commission. These 
files shall be consistent with the commission's computer database software, 
database format and geographical information system for a suitable importation 
of data.
(b) Specific elements to be addressed:
(1) a review of historic and current water quality monitoring data, to include 
the following:
(A) brief description and status of water quality monitoring programs currently 
being conducted by the authority, other political subdivisions and other 
agencies;
(B) evaluation of the capability of existing monitoring programs to adequately 
assess and analyze existing and potential water quality problems in the 
watershed;
(C) specific recommendations for additional monitoring and data management 
needed to conduct future regional assessments;
(D)  monitoring plan which describes how the river authority will implement 
recommendations for additional monitoring in coordination with the commission;
(E) brief description of any monitoring to analyze nonpoint source loadings; and
(F) depiction of all existing and proposed monitoring sites on a county baseline 
map or other appropriate map;
(2) the river authority or designated local government shall formulate goals and 
objectives that encourage and promote citizen monitoring activities. 
Additionally, the river authority or designated local government shall discuss 
existing citizen monitoring programs and any measures taken by the river 
authority and local government to implement citizen monitoring programs.
(3) any measures taken by river authorities, cities, and others to promote 
public awareness of water quality issues and the opportunity for public 
involvement in water quality issues;
(4) existing population figures for political subdivisions. Sources for 
population may be obtained through the Texas Water Development Board, Texas 
Population Totals/Bureau of the Census, Department of Commerce, Texas Natural 
Resources Information System and records of political subdivisions within the 
watershed;
(5) a basin-wide surface water baseline map of Texas depicting all segments, 
significant waterways, lakes, reservoirs, wetlands, and significant geographical 
features such as: city and county boundaries, and major roadways in a digital 
format in latitude and longitude coordinates;
(6) a basin-wide groundwater baseline map depicting all minor and major 
aquifers, and significant geographical features such as: city and county 
boundaries, and major roadways in a digital format in latitude and longitude 
coordinates;
(7) an identification and evaluation of wells (e.g. abandoned and/or improperly 
plugged domestic drinking water wells, oil and gas wells) which could lead to 
pollution of water in the state. Depiction of the identified well or field 
location on a county baseline map;
(8) an inventory of permitted municipal wastewater disposal activities by:
(A)  name of permittee and permit number;
(B) date of permit expiration and status of operations, (e.g. active, inactive, 
facility not constructed);
(C) brief description of facility operations (e.g. domestic wastewater treatment 
plant, dairy) and treatment processes;
(D) effluent limits (BOD5/TSS/NH3-N/DO) and any other parameters listed in the 
permit;
(E)  effluent set in lbs/day;
(F) for agricultural facilities, estimated amount of waste produced (solids in 
lbs/day and liquid in gallons/day); maximum number of animals allowed under 
permit;
(G) permitted daily average flow;
(H) number/year of permit violations based on self-reporting data; and
(I) depiction of all permitted municipal facilities' discharge points on a 
county baseline map or other appropriate map;
(9) an inventory of permitted industrial wastewater disposal activities by:
(A)  name of permittee and permit number;
(B) date of permit expiration and status of operations (e.g. active, inactive, 
facility not constructed);
(C) brief description of facility operations (e.g. steam electric station, 
organic chemical manufacturing plant) and treatment processes (e.g. disposal 
method such as surface water discharge, subsurface disposal or, if land 
disposal, include specific method such as irrigation, evaporation);
(D)  effluent limits listed in the permit either in lbs/day or concentration 
based;
(E) permitted daily average flow;
(F) number/year of permit violations based on self-reporting data; and
(G) depiction of all permitted discharge points on a county baseline map or 
other appropriate map;
(10) an inventory of stormwater permits, as defined in sec.402(p) Clean Water 
Act of 1987 (added by sec.405 of the Water Quality Act of 1987) 40 CFR Parts 
122, 123, and 124, by:
(A) name of permittee and permit number;
(B) date of permit expiration and status of operations, (e.g. active, inactive, 
not constructed);
(C) publicly owned conveyances;
(D)  privately owned conveyances;
(E) parameters listed in the permit;
(F) proposed stormwater pollution control;
(G) number/year of permit violations based on self-reported data; and
(H) depiction of all permitted stormwater monitoring outfall sites on a county 
baseline map or other appropriate map;
(11) an inventory of solid waste management facilities and superfund sites to 
include the following, as applicable:
(A) name of permittee;
(B) hazardous waste permit number;
(C) solid waste registration number;
(D) solid waste management activities conducted at the site; and
(E) depiction of all solid waste management facilities or superfund sites on a 
county baseline map or other appropriate map. Distinguish federal and state 
superfund sites on the county baseline map or other appropriate map;
(12) an inventory by segment of those ASTs and USTs regulated by the Commission 
pursuant to Chapter 26 of the Texas Water Code and the Commission rules in 31 
TAC Chapter 334, including:
(A) total number of ASTs and USTs in each segment;
(B) total number of LPSTs in each segment;
(C) storage tank registration numbers and location by street or other 
identifying address;
(D) LPST registration numbers and location by street or other identifying 
address; and
(E) location by street or identifying address of any known ASTs or USTs not 
registered with the commission;
(13) identification and evaluation of on-site disposal facilities which could 
lead to pollution of water in the state (e.g. surface failure, reported 
complaint regarding on-site disposal facility). Depiction of the identified 
facilities or location of subdivision served by on-site disposal facilities on a 
county baseline map;
(14) identification and documentation of existing or potential water quality 
problems caused by toxic materials that could adversely impact human health, 
aquatic life, wildlife, or livestock; and an evaluation and analysis of the 
sources of toxic substances which contribute to each water quality problem 
identified. Depiction on a county baseline map the waters impacted by toxic 
materials and identification of the contaminant and possible sources of 
pollution if known;
(15) an evaluation and analysis of the health and integrity of aquatic life 
based on sampling data for fish, benthic invertebrates, and any other forms of 
aquatic life which may be of concern; identification of existing or potential 
conditions and sources of pollution which adversely impact aquatic life, and 
identification of threatened or endangered species which could be affected by 
diminished water quality;
(16) sources of significant nonpoint source pollution shall be discussed in the 
assessment report and depicted on a county baseline map or other appropriate 
map. Land use maps shall be developed for areas where nonpoint source pollution 
has been identified as a threat to water quality. Best professional judgment 
shall be utilized in determining an appropriate scale for the land use maps;
(17) identification and documentation of existing or potential water quality 
problems or impediments to uses caused by excessive growth of aquatic 
vegetation, and an evaluation of the factors contributing to the water quality 
problem identified;
(18) identification and documentation of existing or potential water quality 
problems caused by other forms of pollution -such as oxygen- demanding organic 
materials, excessive particulate materials (suspended solids), elevated levels 
of dissolved salts, or elevated levels of bacterial indicators of fecal 
contamination; and an evaluation and analysis of the sources which contribute to 
each water quality problem identified;
(19) an evaluation of existing and proposed methods for collection and disposal 
of household waste, pesticides, and toxic agricultural products in the 
watershed. The river authority or designated local government shall formulate 
basin-wide goals and objectives for use in the watershed to promote and 
encourage the development of such programs. The river authority or designated 
local government shall identify their perceived role in promoting these 
programs;
(20) identification of issues or instances where enforcement of water quality 
regulations by federal, state, or local governments is inadequate or has failed 
to correct water quality problems. The river authority or designated local 
government shall also identify water quality issues which are not adequately 
addressed as a result of the lack of authority on the part of state or local 
governments or which may be adequately addressed if the Commission's authority 
could be delegated. The river authority or designated local government is 
encouraged to suggest possible solutions to any problems identified under this 
subsection, including the need for legislative action;
(21) a description of federal, state, and local programs and/or actions that are 
attempting to respond to identified water quality problems;
(22) any other water quality problems not previously identified pursuant to this 
section of the rule;
(23) the regional assessment report shall contain a brief narrative discussing 
those waterbodies that are of water quality concern. This should include, but 
not be limited to, the identification of high quality waters as well as 
waterbodies not meeting water quality standards. The regional assessment report 
shall also describe possible solutions to any identified water quality concerns 
and estimated costs to implement such solutions. A prioritization of waters with 
existing or potential water quality problems;
(24) a bibliography of previous water quality studies performed in the 
watershed;
(25) a description of goals and objectives that encourage, assist and promote 
water conservation measures and water conservation management plans. A 
discussion of existing water conservation programs and any measures taken by 
river authorities and local governments to implement water conservation 
programs.
sec.320.7. Responsibilities of River Authorities and Designated Local 
Governments.
(a) Steering committees. River authorities, designated local governments and the 
commission shall organize and lead basin-wide steering committees. The 
membership of the steering committees shall reflect a diversity of interests. 
The committees shall be comprised of appropriate state agencies (for example, 
Texas Parks and Wildlife Department, General Land Office, Texas Department of 
Health, Texas Department of Agriculture, State Department of Highways and Public 
Transportation, Texas Water Commission, Texas Water Development Board, Texas 
State Soil and Water Conservation Board, and Texas Railroad Commission), 
political subdivisions, other governmental bodies or individuals with an 
expressed interest in water quality matters within each watershed.
(1) Size of committees. The steering committee should not be so small as to be 
unrepresentative, or so large as to become unmanageable. The size of the 
committee should be determined on a case-by-case basis by the complexity of the 
job to be done and the number of interested individuals.
(2) Meetings. A regular schedule of committee meetings should be established as 
soon as possible. Meetings should be held as needed, and should have an agenda. 
River authorities are encouraged to involve the committee in the work plan 
process, as described in sec.320.5 of this title (relating to Assessment Report 
and Work Plans).
(b) Public participation. River authorities, designated local governments and 
the commission shall develop a public input process that provides for meaningful 
comments and review by private citizens and organizations.
(c) Designated local governments. Where appropriate, the commission shall 
designate a local government to perform a regional assessment pursuant to this 
chapter. When this designation occurs, the designated local governments shall 
comply with the requirements of this chapter.
(d) General responsibilities. The river authority or designated local government 
shall be responsible for the professional quality, timely completion, and 
coordination of all drawings, maps, assessment reports, and other services 
required to be furnished by the river authority or designated local government 
under this chapter. The commission may require the river authority or designated 
local government to correct or revise any errors, omissions or other 
deficiencies in any assessment report or services provided by the river 
authority or designated local government to ensure that such assessment reports 
and services fulfill the purposes of this chapter.
(e) Distribution of report. The river authority or designated local government 
shall be responsible for the printing of all assessment reports and maps 
required by this chapter. The river authority or designated local government 
shall provide, at a minimum, 25 copies of each to the commission and shall 
provide sufficient copies for distribution and review under the river 
authority's or designated local government's public participation program and 
steering committee to fulfill the purposes of this chapter.
sec.320.8. Local Government Responsibilities.
(a) Local government responsibilities. It shall be the responsibility of local 
governments to assist the river authority or designated local government within 
the watershed in conducting the regional assessment by providing data and other 
relevant water quality information that pertains to the watershed.
(b)  Coordination. All local governments within the same watershed should 
cooperate with river authorities, designated local governments and the 
commission in preparing the assessment reports.
sec.320.9. Basin-wide Steering Committee Members' Responsibilities.
(a) The committee's role is advisory in nature. Each committee member shall 
assist in identifying significant water quality issues within the watershed.
(b) All agencies and organizations participating in the steering committees 
shall provide, as available, relevant water quality data to the river 
authorities, designated local governments, or Texas Water Commission, as 
appropriate.
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt.
Issued in Austin, Texas, on October 28, 1991.
TRD-9113277
Jim Haley
Director, Legal Division
Texas Water Commission
Earliest possible date of adoption: December 2, 1991
For further information, please call: (512) 463-8069
       
TITLE 37. PUBLIC SAFETY AND CORRECTIONS
Part I. Texas Department of Public Safety
Chapter 21. Equipment and Vehicle Standards
37 TAC sec.21.1
The Texas Department of Public Safety proposes an amendment to sec.21.1, 
concerning standards for vehicle equipment. The amendment add and delete 
language in subsection (b) regarding one-way glass and sun screening devices. 
These amendment is necessary to comply with Texas Civil Statutes, Article 6701d, 
sec.134C, regarding unobstructed windshields and windows. The amendment will 
provide uniformity in vehicle equipment standards and enforcement actions. 
Subsection (b) will only apply to 1987 and older model vehicles. Texas Civil 
Statutes, Article 6701d, sec.134C applies to vehicles manufactured in 1986 or 
later.
Melvin C. Peeples, assistant chief or fiscal affairs, has determined that for 
the first five-year period the section is in effect there will be no fiscal 
implications for state or local government as a result of enforcing or 
administering the section.
George King, chief of traffic law enforcement, has determined that for each year 
of the first five years the section is in effect the public benefit anticipated 
as a result of enforcing the section will be a clarification and convenience to 
the public by providing uniform regulations regarding sun screening devices. 
There will be no effect on small businesses. There is no anticipated economic 
cost to persons who are required to comply with the section as proposed.
Comments on the proposal may be submitted to John C. West, Jr., Texas Department 
of Public Safety, Box 4087, Austin, Texas 78773-0001, (512) 465-2000.
The amendment is proposed under Texas Civil Statutes, Article 6701d, sec.108(d) 
, which provides the Texas Department of Public Safety with authority to adopt 
rules necessary for the administration and enforcement of this Act.
sec.21.1. Standards for Vehicle Equipment.
(a) (No change.)
(b) One-way glass and sun screening devices.
(1) (No change.)
(2) Sun screening <nl>device<ol> [devices] definitions. The following words and 
terms, when used in this section, shall have the following meanings, unless the 
context clearly indicates otherwise.
(A) Sun screening <nl>device<ol> [devices]-<nl>A film material or device<ol> 
[Materials or devices which are designed to be used in conjunction with vehicle 
safety glazing materials] meeting standards adopted by the department for [the 
purpose of] reducing the effects of the sun.
(B) Light transmission-The ratio of the amount of total light[, expressed in 
percentages,] to pass through a product or material [including any glazing] to 
the amount of total light falling on the product or material and the glazing.
(C) Luminous reflectance-The ratio of the amount of total light[, expressed in 
percentages,] that is reflected outward by <nl>a<ol> [the] product or material 
to the amount of total light falling on the product or material.
(D) Manufacturer means either-
(i) A person who engages in the manufacturing or assembling of [glass coating 
material,] <nl>a <ol> sun screening <nl>device; <ol> [products, or materials 
designed to be used in conjunction with vehicle glazing materials. (Person means 
every natural person, firm, co-partnership, association, or corporation.)] 
<nl>or
(ii) A person who fabricates, laminates, or tempers <nl>a safety glazing 
material, incorporating, during the manufacturing process, the capacity to 
reflect or reduce the transmission of light<ol> [the sun screening devices 
incorporating the capacity to reflect or to reduce the transmittance of light 
during the manufacturing process].
<nl>(E)  Multipurpose Vehicle-A motor vehicle designed to carry 10 or fewer 
persons that is constructed either on a truck chassis or with special features 
for occasional off-road use.
(3) Sun screening devices on motor vehicles.
(A) The following regulations establish standards and specifications for the use 
of sun screening devices.
(i) The front side wing vents and <nl>or <ol> windows to the immediate right and 
left of the driver may be applied with a sun screening <nl>device<ol> [devices 
(film materials), that have been certified by the Texas Department of Public 
Safety, when in conjunction with glazing (vehicle glass) material] that has a 
light transmission of  <nl>not less than 35% and a luminous reflectance of not 
more than 35% <ol> [33% or more plus or minus 3.0% and a luminous reflectance of 
35% or less or plus or minus 3.0%]. Labeling on these windows must be provided 
as referred to in paragraph (4)[(A)] of this subsection. Labels on wing vents 
are not required.
(ii) Side windows which are to the rear of the driver may be applied with 
<nl>a<ol> sun screening <nl>device<ol> [devices] in conjunction with glazing 
(vehicle glass).
(iii)<nl> Rear window or windows may be applied with a sun screening device that 
has a light transmission of not less than 35% and a luminous reflectance of not 
more than 35% if labeling requirements are met in paragraph (4) of this 
subsection. Rear windows failing to meet labeling requirement of paragraph (4) 
of this subsection, may be applied with sun screening devices if the motor 
vehicle is equipped with outside mirrors on both the left and right sides of the 
vehicle that are located, so as to reflect to the driver a view of the highway 
through each mirror a distance of at least 200 feet to the rear of the vehicle. 
<ol> [Rear window or windows may be applied with sun screening devices in 
conjunction with glazing (vehicle glass) if the motor vehicle is equipped with 
outside mirrors on both left- and right-hand sides of the vehicle that are so 
located as to reflect to the driver a view of the highway through each mirror 
for a distance of at least 200 feet to the rear of the motor vehicle.]
(B) This paragraph does not apply to a windshield that has a sun screening 
device that:
(i) has a light transmission of not less than 33%;
(ii) has a luminous reflectance of not more than 35%;
(iii) is not red or amber in color; and
(iv) does not extend downward beyond the AS-1 line or more than five inches from 
the top of the windshield, whichever is closer to the top of the windshield.
(4)  Manufacturer requirements.
(A) Each manufacturer shall provide a label with a means for permanent and 
legible installation between the material and each glazing surface to which it 
is applied that contains the following information: manufacturer (name or 
registration number) and statement-complies with VESC-20<nl>,<ol> [or] DPS<nl>, 
or 37 Texas Administrative Code (TAC).
(B) Each manufacturer shall include instructions with the product or material 
for proper installation, including the affixing of the label. At a minimum, one 
window shall have placed in the left lower corner between the sun screening 
<nl>device <ol> [devices] and the glass a label legible from the outside of the 
vehicle.
(C) Each manufacturer shall obtain certification of sun screening devices used 
on the front side wing vents and windows that certifies to the Texas Department 
of Public Safety that the product or material he or she manufactures or 
assembles is in compliance with the reflectivity and transmittance requirements 
of this section.
(5) -(7) (No change.)
<nl>(8) This section does not apply to:
<nl>(A) an adjustable nontransparent sun visor mounted forward of the side 
windows and not attached to the glass;
<nl>(B) a side window that is to the rear of this driver on a multipurpose 
vehicle; or
<nl>(C) a motor vehicle that is not registered in this state.
<nl>(9)<ol>[(8)] Manufacturer's model year of a motor vehicle 1988 and later 
shall comply with the provisions of Texas Civil Statutes, Article 6701d, Article 
14, sec.134B and sec.134C, and labeling requirements promulgated in paragraph 
(4)(B) of this subsection.
(c) (No change.)
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt.
Issued in Austin, Texas, on October 22, 1991.
TRD-9113209
James R. Wilson
Director
Texas Department of Public Safety
Earliest possible date of adoption: December 2, 1991
For further information, please call: (512) 465-2000
       
TITLE 40. SOCIAL SERVICES AND ASSISTANCE
Part I. Texas Department of Human Services
Chapter 2. Medically Needy Program
Program Requirements
40 sec.2.1006
The Texas Department of Human Services (DHS) proposes an amendment to sec.2. 
1006 concerning requirements for application. As a result of a federal policy 
clarification, DHS is amending  s2.1006 to exempt certain persons from the Aid 
to Families with Dependent Children (AFDC) program requirements concerning 
strikers. AFDC striker policy disallows benefits for families when the caretaker 
relative of deprived children is on strike the last day of the month. The new 
policy requires DHS to exempt from this policy pregnant women, children whose 
eligibility is not based on deprivation, and caretakers and second parents of 
deprived children when the second parent is on strike and the children continue 
to be deprived.
Burton F. Raiford, interim commissioner, has determined that for the first five-
year period the proposed amendment will be in effect there will be no fiscal 
implications for state or local governments as a result of enforcing or 
administering the amendment.
Mr. Raiford also has determined that for each year of the first five years the 
amendment is in effect the public benefit anticipated as a result of enforcing 
the amendment will be that DHS policy concerning strikers is consistent with 
federal requirements. There will be no effect on small businesses. There is no 
anticipated economic cost to persons who are required to comply with the 
proposed amendment.
Questions about the content of this proposal may be directed to Rita King at 
(512) 450-4148 in DHS's Client Self-support Services. Comments on the proposal 
may be submitted to Nancy Murphy, Agency Liaison, Policy and Document Support-
293, Texas Department of Human Services E-503, P.O. Box 149030, Austin, Texas 
78714-9030, within 30 days of publication in the Texas Register.
The amendment is proposed under the Human Resources Code, Title 2, Chapters 22 
and 32, which provides the department with the authority to administer public 
and medical assistance programs.
sec.2.1006. Requirements for Application.
(a)-(f) (No change.)
<nl>(g) Strikers.
<nl>(1) The AFDC striker policy applies to:
<nl>(A) children whose eligibility is based on parental deprivation; and
<nl>(B) caretakers of deprived children.
<nl>(2) The AFDC striker policy does not apply to:
<nl>(A) pregnant women;
<nl>(B) children whose eligibility is not based on deprivation; or
<nl>(C) caretakers and second parents of deprived children when the second 
parent is on strike and the children continue to be deprived.
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt.
Issued in Austin, Texas, on October 25, 1991.
TRD-9113195
Nancy Murphy
Agency liaison, Policy and Document Support
Texas Department of Human Services
Proposed date of adoption: January 1, 1992
For further information, please call: (512) 450-3765
       
Chapter 3. Income Assistance Services
Subchapter Y. Issuing Benefits
40 TAC sec.3.2504
The Texas Department of Human Services (DHS) proposes new sec.3.2504 concerning 
combined food stamp allotments. Combined allotments are two months' benefits 
issued together to persons who apply after the 15th of the month and represent 
benefits for the month of application and following month. As a result of a 
federal policy clarification, combined food stamp allotments may be issued only 
when the initial month's benefits are prorated. Food stamp benefits to migrant 
and seasonal farmworker households are prorated only if they have not received 
benefits a full month.
Burton F. Raiford, interim commissioner, has determined that for the first five-
year period the proposed section will be in effect there will be no fiscal 
implications for state or local governments as a result of enforcing or 
administering the section.
Mr. Raiford also has determined that for each year of the first five years the 
section is in effect the public benefit anticipated as a result of enforcing the 
section will be that DHS is in compliance with federal requirements. There will 
be no effect on small businesses. There is no anticipated economic cost to 
persons who are required to comply with the proposed section.
Questions about the content of the proposal may be directed to Rita King at 
(512) 450-4148 in DHS's Client Self-support Services. Comments on the proposal 
may be submitted to Nancy Murphy, Agency Liaison, Policy and Document Support-
291, Texas Department of Human Services E-503, P.O. Box 149030, Austin, Texas 
78714-9030, within 30 days of publication in the Texas Register.
The new section is proposed under the Human Resources Code, Title 2, Chapters 22 
and 33, which provides the department with the authority to administer public 
and nutritional assistance programs.
sec.3.2504. Combined Allotments. <ol> DHS combines and issues food stamp 
allotments for the month of application and following month as stipulated in 7 
Code of Federal Regulations  s274.2(b) and (3).
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt.
Issued in Austin, Texas, on October 25, 1991.
TRD-9113194
Nancy Murphy
Agency liaison, Policy and Document Support
Texas Department of Human Services
Proposed date of adoption: January 1, 1992
For further information, please call: (512) 450-3765
      
Subchapter AA. Special Households
40 TAC sec.3.2701
The Texas Department of Human Services (DHS) proposes an amendment to sec.3. 
2701 concerning determining food stamp eligibility for residents of 
alcoholic/narcotic treatment centers. DHS is proposing the amendment as a result 
of a state licensing requirement. The new policy requires DHS to add a 
requirement that drug and alcoholic residential treatment centers that apply for 
food stamp benefits on behalf of recipients be licensed by the Texas Commission 
on Alcohol and Drug Abuse (TCADA).
Burton F. Raiford, interim commissioner, has determined that for the first five-
year period the proposed amendment will be in effect there will be no fiscal 
implications for state or local governments as a result of enforcing or 
administering the amendment.
Mr. Raiford also has determined that for each year of the first five years the 
amendment is in effect the public benefit anticipated as a result of enforcing 
the section will be that the rule will be in compliance with state law and 
federal requirements. There will be no effect on small businesses. The 
anticipated economic cost to persons who are required to comply with the 
proposed amendment will be $466,000 each year for fiscal years 1992 through 
1996. Costs to individuals consist of initial application and annual license 
fees for a license from TCADA. Also, included in the projected costs to 
individuals is the loss of food stamp benefits to persons who are disqualified 
from participation because their center does not receive TCADA licensure.
Questions about the content of the proposal may be directed to Rita King at 
(512) 450-4148 in DHS's Client Self-support Services. Comments on the proposal 
may be submitted to Nancy Murphy, Agency Liaison, Policy and Document Support-
285, Texas Department of Human Services E-503, P.O. Box 149030, Austin, Texas 
78714-9030, within 30 days of publication in the Texas Register.
The amendment is proposed under the Human Resources Code, Title 2, Chapters 22 
and 33, which provides the department with the authority to administer public 
and nutritional assistance programs.
sec.3.2701. Alcoholic/Narcotic Treatment Centers.<nl> The Texas Department of 
Human Services <ol>[DHS] determines food stamp eligibility and benefits for 
residents of alcoholic/narcotic treatment centers according to requirements 
stipulated in 7 Code of Federal Regulations sec.273.11(e). <nl>As a result, 
treatment centers must meet licensing requirements as stipulated by the Texas 
Commission on Alcohol and Drug Abuse (TCADA).
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt.
Issued in Austin, Texas, on October 25, 1991.
TRD-9113199
Nancy Murphy
Agency liaison, Policy and Document Support
Texas Department of Human Services
Proposed date of adoption: January 1, 1991
For further information, please call: (512) 450-3765
       
Chapter 4. Medicaid Programs-Children and Pregnant Women
Eligibility Requirements
40 TAC sec.4.1006
The Texas Department of Human Services (DHS) proposes an amendment to sec.4. 
1006 concerning requirements for application. As a result of a federal policy 
clarification, DHS is amending  s4.1006 to exempt certain persons from the Aid 
to Families with Dependent Children (AFDC) program requirements concerning 
strikers. AFDC striker policy disallows benefits for families when the caretaker 
relative of deprived children is on strike the last day of the month. The new 
policy requires DHS to exempt from this policy pregnant women, children whose 
eligibility is not based on deprivation, and caretakers and second parents of 
deprived children when the second parent is on strike and the children continue 
to be deprived.
Burton F. Raiford, interim commissioner, has determined that for the first five-
year period the proposed amendment will be in effect there will be no fiscal 
implications for state or local governments as a result of enforcing or 
administering the amendment.
Mr. Raiford also has determined that for each year of the first five years the 
amendment is in effect the public benefit anticipated as a result of enforcing 
the amendment will be that DHS policy concerning strikers is consistent with 
federal requirements. There will be no effect on small businesses. There is no 
anticipated economic cost to persons who are required to comply with the 
proposed amendment.
Questions about the content of this proposal may be directed to Rita King at 
(512) 450-4148 in DHS's Client Self-support Services. Comments on the proposal 
may be submitted to Nancy Murphy, Agency Liaison, Policy and Document Support-
293, Texas Department of Human Services E-503, P.O. Box 149030, Austin, Texas 
78714-9030, within 30 days of publication in the Texas Register.
The amendment is proposed under the Human Resources Code, Title 2, Chapters 22 
and 32, which provides the department with the authority to administer public 
and medical assistance programs.
sec.4.1006. Requirements for Application. To be eligible [to apply] for the  
<nl>Medicaid Programs for Children and Pregnant Women (CPW) <ol>[CPW] Program, 
clients must meet the following requirements.
(1)-(7)  (No change.)
<nl>(8) Strikers. The AFDC striker policy applies to children described in 
sec.4.1004(5) of this title (relating to Eligible Groups). The policy does not 
apply to persons described in sec.sec.4.1004(1)-(4).
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt.
Issued in Austin, Texas, on October 25, 1991.
TRD-9113198
Nancy Murphy
Agency liaison, Policy and Document Support
Texas Department of Human Services
Proposed date of adoption: January 1, 1992
For further information, please call: (512) 450-3765
       
Chapter 48. Community Care for Aged and Disabled
Waiver Program for Medically Dependent Children
40 TAC sec.48.2501
The Texas Department of Human Services (DHS) proposes an amendment to sec.48. 
2501, concerning client eligibility criteria, in its Community Care for Aged and 
Disabled chapter. The purpose of the amendment is to allow clients with limited 
in-home nursing care insurance to participate in the program if the insurance 
company is billed first, and the Waiver Program for Medically Dependent 
Children, as a Medicaid waiver program, is billed for the balance of the nursing 
hours needed according to the physician plan of care.
Burton F. Raiford, interim commissioner, has determined that for the first five-
year period the section is in effect there will be no fiscal implications for 
state or local government as a result of enforcing or administering the section.
Mr. Raiford also has determined that for each year of the first five years the 
section is in effect the public benefit anticipated as a result of enforcing the 
section will be to allow clients' families and DHS to maximize the insurance 
benefits. There will be no effect on small businesses. There is no anticipated 
economic cost to persons who are required to comply with the proposed section.
Questions about the content of this proposal may be directed to Cheryl Edelbrock 
(512) 450-3768 in DHS's Community Care Section. Comments on the proposal may be 
submitted to Nancy Murphy, Policy and Document Support-295, Texas Department of 
Human Services E-503, P.O. Box 149030, Austin, Texas 78714-9030, within 30 days 
of publication in the Texas Register .
The amendment is proposed under the Human Resources Code, Title 2, Chapters 22 
and 32, which authorizes the department to administer public and medical 
assistance programs.
sec.48.2501. Client Eligibility Criteria.
(a)-(f) (No change.)
(g) <nl>Waiver services will be terminated when service delivery is delayed or 
interrupted for 45 calendar days except when:
<nl>(1) the client is hospitalized; or
<nl>(2) the client has limited in-home nursing care insurance, and the insurance 
company is billed first. <ol>[If a client's receipt of waiver services is 
delayed or interrupted for 45 consecutive calendar days, except for 
hospitalization, his eligibility under the waiver is denied.]
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt.
Issued in Austin, Texas, on October 25, 1991.
TRD-9113197
Nancy Murphy
Agency liaison, Policy and Document Support
Texas Department of Human Services
Proposed date of adoption: January 8, 1992
For further information, please call: (512) 450-3765
       
Chapter 79. Legal Services
Subchapter U. Fraud Involving Recipients
40 TAC sec.79.2009, sec.79.2011
The Texas Department of Human Services (DHS) proposes amendments to sec.79. 2009 
and sec.79.2011 concerning recipient fraud in the Food Stamp Program. The 
amendment to sec.79.2009 gives individuals an opportunity to waive their right 
to an administrative disqualification hearing. The amendment to sec.79.2011 
changes the procedure DHS initiates to recover overissuances when persons waive 
their right to an administrative disqualification hearing.
Burton F. Raiford, interim commissioner, has determined that for the first five-
year period the proposed amendments will be in effect there will be fiscal 
implications as a result of enforcing or administering the amendments. The 
effect on state government for the first five-year period the amendments will be 
in effect is an estimated reduction in cost of $16,831 for fiscal year 1992; 
$22, 442 for fiscal year 1993; and $28,053 each year for fiscal years 1994, 
1995, and 1996. There will be no fiscal implications for local government as a 
result of enforcing or administering the amendments.
Mr. Raiford also has determined that for each year of the first five years the 
amendments are in effect the public benefit anticipated as a result of enforcing 
the amendments will be a more efficient manner of disposing of food stamp cases 
involving intentional program violation and of recovering benefits received as a 
result of program violation. There will be no effect on small businesses. There 
is no anticipated economic cost to persons who are required to comply with the 
proposed amendments.
Questions about the content of the proposal may be directed to Bill Dobbs at 
(512) 450-4209 in DHS's Office of the Inspector General. Comments on the 
proposal may be submitted to Nancy Murphy, Agency Liaison, Policy and Document 
Support-229, Texas Department of Human Services E-503, P.O. Box 149030, Austin, 
Texas 78714-9030, within 30 days of publication in the Texas Register.
The amendment is proposed under the Human Resources Code, Title 2, Chapter 22, 
which provides the department with the authority to administer public assistance 
programs.
sec.79.2009. Referral of Food Stamp Intentional Program Violation Claims to 
Administrative Disqualification Hearing Officer.
(a)-(c) (No change.)
(d) DHS gives individuals an opportunity to waive their right to an 
administrative disqualification hearing. By waiving this right, individuals 
acknowledge that they understand their rights and responsibilities, and the 
disqualification period that applies to their case; and they agree to repay the 
overissuance without having a hearing.
sec.79.2011. Collection Action on Food Stamp Intentional Program Violation 
Claims.
(a)-(h) (No change.)
<nl>(i) If the investigator interviews the person suspected of committing an 
intentional program violation and the person expresses that he does not want to 
have an administrative disqualification hearing and is willing to repay the 
overissuance, the following policies and procedures apply.
<nl>(1) The investigator obtains the individual's signature on a repayment 
agreement form and on an administrative disqualification hearing waiver form.
<nl>(2) By signing the waiver of hearing and repayment agreement forms, the 
recipient agrees that he does not want a hearing, that he will repay the 
overissuance, and that he understands that he will be disqualified from 
receiving food stamps for a period of time determined by whether it is the 
first, second, or third offense. If there is no contact between the investigator 
and the client, the client may be given an opportunity to waive his right to a 
hearing through direct mail contact.
<nl>(3) The investigator will not send the case to the hearing officer, but will 
initiate repayment and disqualification actions.
<nl>(4) During the interview with the client, the investigator gives the client 
an opportunity to retract the waiver within seven workdays of signing the waiver 
form. If DHS receives a written retraction of waiver by the seventh day from the 
date the recipient signed the waiver, an administrative hearing will be 
scheduled and conducted. If DHS does not receive a written retraction of the 
waiver by the end of the seventh day, the waiver and repayment agreement remain 
valid, and no further appeals will be authorized.
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt.
Issued in Austin, Texas, on October 25, 1991.
TRD-9113196
Nancy Murphy
Agency liaison, Policy and Document Support
Texas Department of Human Services
Proposed date of adoption: January 1, 1992
For further information, please call: (512) 450-3765
       
 State Board of Insurance Exempt Filing 
Notification Pursuant to the Insurance Code, Chapter 5, Subchapter L
(Editor's Note: As required by the Insurance Code, Article 5.96 and 5. 97, the 
Texas Register publishes notice of proposed actions by the Texas Board of 
Insurance. Notice of action proposed under Article 5.96 must be published in the 
Texas Register not later than the 30th day before the board adopts the proposal. 
Notice of action proposed under Article 5.97 must be published in the Texas 
Register not later than the 10th day before the Board of Insurance adopts the 
proposal. The Administrative Procedure and Texas Register Act, Article 6252-13a, 
Texas Civil Statutes, does not apply to board action under Articles 5. 96 and 
5.97.
The complete text of the proposal summarized here may be examined in the offices 
of the Texas Department of Insurance, 333 Guadalupe Street, Austin, Texas 78714-
9104.)
Notice is hereby given that the State Board of Insurance will conduct a public 
hearing under Docket Number 1845 beginning at 10 a.m. on Monday, December 16, 
1991, continuing thereafter each day at times and places designated by the board 
until conclusion. The purpose of the hearing is to establish benchmark rates and 
flexibility bands for private passenger and commercial automobile insurance and 
to consider such other matters as may properly be brought before the board, 
including the spreading of the benchmark rates among relevant classifications 
and territories. The hearing will commence in Room 100 on the first floor of the 
Texas Department of Insurance Building at 333 Guadalupe Street, Austin. Notice 
is hereby given that a pre-hearing conference will be held before the General 
Counsel or other designated representative of the State Board of Insurance at 
1:30 p.m. on Wednesday, November 6, 1991, in Room 100 of the Texas Department of 
Insurance Building at 333 Guadalupe in Austin. The prehearing conference will be 
held for the following purposes: considering the formulation and simplification 
of issues; considering the procedure at the hearing; considering admissions of 
certain averments of fact or stipulations concerning the use by parties of 
matters of public record; considering agreements to limit, where possible, the 
number of witnesses; and ruling on such other matters as may aid in the 
simplification of the proceedings. Among other matters that will be subject to 
final determination by the general counsel at this prehearing conference will be 
all decisions on the admission of parties.
Subsequent prehearing conferences will be scheduled weekly and may be held as 
required to rule on late-filed motions for intervention for good cause, to group 
parties with similar interests who may be required or allowed to make a common 
presentation at the hearing, to resolve prehearing disputes, or to rule on other 
matters as may aid in the simplification of the proceedings.
The State Board of Insurance has jurisdiction over the subject matter of these 
hearings pursuant to the Texas Insurance Code, Articles 1.04, 5.101, 5.06, 5.10, 
5.96, the Rules of Practice and Procedure before the State Board of Insurance 
(28 Texas Administrative Code, Chapter 1, Subchapter A).
The order and procedures of presentation at the hearing on the determination of 
a benchmark rate and flexibility band under Docket Number 1845 will be governed 
by the Rules of Practice and Procedure before the State Board of Insurance 
(Texas Administrative Code, Title 28, Chapter 1, Subchapter A) and by the 
Administrative Procedure and Texas Register Act (Texas Civil Statutes, Article 
6252-13a). Adoption and revision of statistical plans and manual rules, and 
related matters including spreading of the benchmark rates among classifications 
and territories, will be governed by the Rules of Practice and Procedure before 
the State Board of Insurance and the procedures outlined in Texas Insurance 
Code, Article 5.96. Reference is hereby made to the above cited statutes, and to 
the Texas Insurance Code, Subchapters A-L and Subchapter M, and the manual 
entitled <nl>Rules and Rates Governing the Insuring of Automobiles and Standard 
Endorsements,<ol> commonly called the <nl>Texas Automobile Manual<ol> and the 
manual entitled <nl>Automobile Liability Experience Rating Plan<ol> as statutes 
or rules applicable to automobile insurance which may be involved.
Under Docket Number 1845, the State Board of Insurance will consider testimony 
presented and information filed for the consideration of the Board by insurers, 
the Office of Public Insurance Counsel and other interested parties relating to 
the determination of benchmark rates and flexibility bands for private passenger 
and commercial automobile insurance, including the spreading of the benchmark 
rate among relevant classifications and territories. The State Board of 
Insurance has the statutory authority and duty pursuant to the Texas Insurance 
Code, Article 5.101 to promulgate a benchmark rate and a flexibility band for 
each line of insurance subject to Articled 5.101, including private passenger 
and commercial automobile insurance, after notice and hearing pursuant to the 
Administrative Procedure and Texas Register Act (Texas Civil Statutes, Article 
6252-13a).
The State Board of Insurance must set the benchmark rate and the flexibility 
band for each subject line of insurance in a range that will produce rates that 
are just, reasonable, adequate and not excessive for the risks to which they 
apply and not confiscatory. In determining the benchmark rate and the 
flexibility band, the State Board of Insurance may give due consideration to the 
factors listed in Article 5.101, sec.3.
Please direct inquiries regarding this hearing to Gloria Leal, General Counsel, 
Mail Code 113-2A, Texas Department of Insurance, 333 Guadalupe Street, P.O. Box 
149104, Austin, Texas 78714-9104, (512) 463-6331).
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt.
Issued in Austin, Texas, on October 28, 1991.
TRD-9113273
Angelia Johnson
Assistant Chief Clerk
Texas Department of Insurance
For further information, please call: (512) 463-6331
       
Notice is hereby given that the State Board of Insurance will conduct a public 
hearing under Docket Number 1846 beginning at 10 a.m. on Monday, December 2, 
1991, continuing thereafter each day at times and places designated by the board 
until conclusion. The purpose of the hearing is to establish a benchmark rate 
and a flexibility band for residential property insurance and to consider such 
other matters as may properly be brought before the board, including the 
spreading of the benchmark rate among relevant classifications and territories. 
Under Docket Number 1846, the hearing will commence in Room 100 of the Texas 
Department of Insurance Building at 333 Guadalupe in Austin. The prehearing 
conference will be held for the following purposes: considering the formulation 
and simplification of issues; considering the procedure at the hearing; 
considering admissions of certain averments of fact or stipulations concerning 
the use by parties of matters of public record; considering agreements to limit, 
where possible, the number of witnesses; and ruling on such other matters as may 
aid in the simplification of the proceedings. Among other matters that will be 
subject to final determination by the general counsel at this prehearing 
conference will be all decisions on the admission of parties.
Subsequent prehearing conferences will be scheduled weekly and may be held as 
required to rule on late-filed motions for intervention for good cause, to group 
parties with similar interests who may be required or allowed to make a common 
presentation at the hearing, to resolve prehearing disputes, or to rule on other 
matters as may aid in the simplification of the proceedings.
The State Board of Insurance has jurisdiction over the subject matter of this 
hearing pursuant to the Texas Insurance Code, Articles 1.04, 5.101, 5.35, 5.96, 
the Rules of Practice and Procedure before the State Board of Insurance (28 
Texas Administrative Code, Chapter 1, Subchapter A).
The order and procedures of presentation at the hearing on the determination of 
a benchmark rate and flexibility band under Docket Number 1846 will be governed 
by the Rules of Practice and Procedure before the State Board of Insurance 
(Texas Administrative Code, Title 28, Chapter 1, Subchapter A) and by the 
Administrative Procedure and Texas Register Act (Texas Civil Statutes, Article 
6252-13a). Adoption and revision of statistical plans and manual rules, and 
related matters including spreading of the benchmark rates among classifications 
and territories, will be governed by the Rules of Practice and Procedure before 
the State Board of Insurance and the procedures outlined in the Texas Insurance 
Code, Article 5.96. Referenced is hereby made to the above cited statutes, and 
to the Texas Insurance Code, Subchapters A-L and Subchapter M, and the manuals 
and General Basic Schedules for all residential property lines.
Under Docket Number 1846, the State Board of Insurance will consider testimony 
presented and information filed for the consideration of the Board by insurers, 
the Office of Public Insurance Counsel and other interested parties relating to 
the determination of a benchmark rate and a flexibility band for residential 
property insurance, including the spreading of the benchmark rate among relevant 
classifications and territories. The State Board of Insurance has the statutory 
authority and duty pursuant to the Texas Insurance Code, Article 5. 101 to 
promulgate a benchmark rate and a flexibility band for each line of insurance 
subject to Article 5.101, including residential property insurance, after notice 
and hearing pursuant to the Administrative Procedure and Texas Register Act 
(Texas Civil Statutes, Article 6252-13a).
The State Board of Insurance must set the benchmark rate and the flexibility 
band for each subject line of insurance in a range that will produce rates that 
are just, reasonable, adequate and not excessive for the risks to which they 
apply, and not confiscatory. In determining the benchmark rate and the 
flexibility band, the State Board of Insurance may give due consideration to the 
factors listed in Article 5.101, sec.3.
Please direct inquiries regarding this hearing to Gloria Leal, General Counsel, 
Mail Code 113-2A, Texas Department of Insurance, 333 Guadalupe Street, P.O. Box 
149104, Austin, Texas 78714-9104, (512) 463-6331.
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt.
Issued in Austin, Texas, on October 28, 1991.
TRD-9113274
Angelia Johnson
Assistant Chief Clerk
Texas Department of Insurance
For further information, please call: (512) 463-6331