Adopted Sections An agency may take final action on a section 30 days after a proposal has been published in the Texas Register. The section becomes effective 20 days after the agency files the correct document with the Texas Register, unless a later date is specified or unless a federal statute or regulation requires implementation of the action on shorter notice. If an agency adopts the section without any changes to the proposed text, only the preamble of the notice and statement of legal authority will be published. If an agency adopts the section with changes to the proposed text, the proposal will be republished with the changes. TITLE 16. ECONOMIC REGULATION Part I. Railroad Commission of Texas Chapter 3. Oil and Gas Division Conservation Rules and Regulations 16 TAC sec.3.8 The Railroad Commission of Texas adopts an amendment to sec.3.8, concerning water protection (Statewide Rule 8), with changes to the proposed text as published in the October 27, 1991, issue of the Texas Register. Adoption of this amendment to sec.3.8 is necessary to bring the rule into compliance with the statutory requirements of Senate Bill 1103. The amendment deletes the salt water hauler bond requirement, substitutes a permit application fee, and enlarges the scope of the section to require most haulers of oil and gas wastes to obtain a permit. In subsection (a)(34), the list of items included in the definition of inert waste was expanded by adding plastic and fiberglass. In subsection (f)(1), the phrase "except inert wastes or asbestos-containing material" was deleted, and a separate sentence was added, that reads: "Hauling of inert waste, asbestos- containing material regulated under the Clean Air Act (42 United States Code, sec.sec.7401 et seq), or polychlorinated biphenyl (PCB) waste regulated under the Toxic Substances Control Act (15 United States Code Annotated sec.sec.2601, et seq) is excluded from this subsection." Further changes in subsection (f)(1) include the addition of two new sentences clarifying that the scope of the subsection does not extend to hauling oil and gas waste for recycling, but that for purposes of this subsection, recycling does not include injection of salt water or other oil and gas waste for purposes of enhanced recovery. In subsection (f)(1)(C)(ii), the term "vacuum truck" was added to the list of terms included in the definition of vehicle. The word "approved" in subsection (f)(1) (C)(iii) was replaced by commission-permitted." Extensive revisions were made to clarify subsection (f)(1)(C)(vi). The phrases "only those" and "or those other disposal facilities for which separate authorization by the commission has been granted" were deleted. The phrase "disposal system" was inserted before the word "operators." The last sentence which stated that the commission-permitted systems that the permittee is authorized to use will be listed as an attachment to the oil and gas waste hauler permit" was deleted, and a new sentence stating that "These disposal systems are listed as an attachment to the permit" was inserted after the first sentence. In addition, two separate sentences were added, reading: This permit also authorizes the hauler to use a disposal system operated under authority of a minor permit issued by the commission without submitting an affidavit from the system operator. Finally, this permit authorizes the transportation of oil and gas waste to a disposal facility permitted by another agency or another state provided the commission has granted separate authorization for the disposal." In subsection (f)(2)(A)(ii), the term "approved" was deleted. Subsections (f) (2)(A)(iii) and (iv) and (g)(1)(D) were amended by adding the phrase "type and" immediately before "volume of oil and gas waste." The phrase "commission- approved disposal facility" was replaced with "disposal system" in subsection (g)(1)(B). Three commenters suggested changes to the definition of inert waste. At the request of one commenter, plastic and fiberglass were added to the list of wastes that were considered inert. Another commenter suggested that transite pipe which contains non-friable asbestos material be included in the list of inert wastes. Since asbestos-containing material has already been exempted from the hauler permit requirements, the commenter was primarily interested in avoiding the permit requirements for disposal of wastes other than inert wastes. The commission declines to include in the definition of inert waste a waste that could, if improperly handled, become toxic. Finally, one commenter was uncomfortable with the terms "non-reactive" and "non-toxic," and suggested that they either be defined or be replaced with "nonhazardous as defined by RCRA." The terms were used, not as technical terms of art, but to indicate that a waste was virtually chemically inactive and not harmful to human health. The suggested language, "nonhazardous as defined by RCRA," would cause the exception to swallow the rule since, under RCRA (Resource Conservation and Recovery Act of 1976, 42 United States Code, sec.sec.6901 et seq), most oil and gas wastes are exempt from classification as hazardous, and would, therefore, be included in such a definition of inert waste. Three commenters offered suggestions on the categories of oil and gas waste that should be exempted from the waste hauler permit requirement. The first category recommended for exemption was hazardous waste because the commenter believed that existing regulations governing transportation of hazardous waste are adequate. The commission disagrees. Based on the preliminary results of the commission's hazardous waste questionnaire, most oil and gas operators will qualify as conditionally exempt small quantity generators under RCRA, and consequently, will be exempt from the manifest and record keeping requirements of RCRA. Since improper disposal of hazardous waste poses a serious environmental threat, the commission believes the transportation of oil and gas hazardous waste should be regulated in this subsection. On the other hand, PCB waste and asbestos-containing material transporters are subject to comprehensive regulation by state and federal authorities, including regulations requiring manifesting, compliance with Department of Transportation (DOT) hazardous material regulations, and registration with the Transportation Division of the commission. Because these other regulations are adequate to monitor transportation of these wastes, the commission has decided to exempt them from regulation under this subsection. Another commenter suggested that hydrostatic test water be exempted because it poses no threat to the environment. The commission disagrees. Hydrostatic test water may be too mineralized or too contaminated with hydrocarbons not to pose a threat to the environment if mishandled. The third recommendation for a waste exemption was oil and gas wastes being taken to landfills permitted by the Texas Water Commission (TWC) or the Texas Department of Health (TDH). The commenter argued that waste being taken to a TWC-permitted facility was already adequately regulated since, in most cases, it must be accompanied by a manifest. Moreover, the commenter argued that TDH placed such tough restrictions on waste being taken to municipal landfills under its jurisdiction that any waste accepted was so innocuous that it posed little threat to the environment. The commission disagrees. Although a manifest may be required for TWC-permitted facilities, non-hazardous wastes going to such a facility may be exempt from DOT regulations. Wastes destined for a municipal landfill, while not hazardous, frequently contain petroleum hydrocarbons and other constituents that may pose a threat to the environment if improperly managed. One commenter complained that the scope of the rule was unclear since subsection (f)(1) prohibits hauling or disposing of oil and gas waste without a permit. He argued that this language could be interpreted to require all haulers of oil and gas waste, regardless of their destination, to obtain a permit. He was concerned that haulers of oil and gas waste for recycling might be covered under the amended rule, and asked for clarification. Because the rest of the statute and the rule refer to hauling and disposing, the commission has interpreted the statute to require permits only for haulers of oil and gas waste for disposal. The rule has been amended to clarify the scope of the permit requirement. All four commenters found the alternating use of the terms "approved disposal systems" and "commission-permitted disposal systems" confusing, and requested clarification of whether the rule only applies to transportation to disposal facilities permitted by the commission or to transportation to any disposal facility. The rule is intended to cover hauling of oil and gas waste to any disposal site. The distinction the rule was trying to make was that for commission-permitted disposal systems listed on the permit attachment, the permit alone provides sufficient authority to haul and dispose of the waste. However, for disposal facilities permitted by a different agency or state, or for special short-term roadspreading or landfarming projects permitted by the commission, a minor permit or other separate authority must be obtained from the commission before the hauler can pick up and transport the waste. Records must be kept of all wastes hauled by a permitted hauler to any disposal facility. The language of the rule has been modified to clarify this procedure. One commenter suggested that the commission require the operator of a commission-permitted disposal system to give an affidavit to any already permitted waste hauler granting the hauler permission to use his or her system. The commission declines to require anyone to do business with someone just because they have a permit. One commenter complained that the certification requirement in subsection (f) (1)(A)(iii) would require the hauler to assume the manufacturer's warranty and/or products liability exposure. The commission disagrees. The statute requires a permit applicant to "affirmatively show that the vehicles are designed so that they will not leak during transportation of oil and gas waste." For the purposes of this statute, the commission believes that this affirmative showing can best be accomplished by allowing a hauler to certify to the suitability of his or her vehicles' design for their intended use and to make the vehicle available for inspection at the request of commission personnel. One commenter wanted a provision added to subsection (f)(1)(A)(iii) allowing a hauler to supplement his approved disposal systems list during the year. The commission believes that subsection (f)(1)(C)(iv) provides for this opportunity by allowing a hauler's permit authority to be amended to include any change in conditions. The following commenters requested clarification of the section, but did not offer any specific indication whether or not they supported the section: El Paso Natural Gas Company, Texaco Exploration and Production, Inc., Texas Independent Producers & Royalty Owners Association, and Texas Mid-Continent Oil & Gas Association. The amendment is adopted under the Oil and Gas Waste Haulers Act, Texas Water Code, Chapter 29, as revised by the 72nd Legislature in Senate Bill 1103. sec.3.8. Water Protection. (a) Definitions. The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise. (1)-(33) (No change.) (34) Inert wastes-Non-reactive, non-toxic, and essentially insoluble oil and gas wastes, including, but not limited to, concrete, glass, wood, metal, wire, plastic, fiberglass, and trash. (b)-(e) (No change.) (f) Oil and gas waste haulers. (1) A person who transports oil and gas waste for hire by any method other than by pipeline shall not haul or dispose of oil and gas waste off a lease, unit, or other oil or gas property where it is generated unless such transporter has qualified for and been issued an oil and gas waste hauler permit by the commission. Hauling of inert waste, asbestos-containing material regulated under the Clean Air Act (42 United States Code, sec.sec.7401 et seq), or polychlorinated biphenyl (PCB) waste regulated under the Toxic Substances Control Act (15 United States Code Annotated, sec.sec.2601 et seq) is excluded from this subsection. This subsection is not applicable to the hauling of oil and gas wastes for recycling. For purposes of this subsection, injection of salt water or other oil and gas waste into an oil and gas reservoir for purposes of enhanced recovery does not qualify as recycling. A person who has a salt water hauler permit does not need to apply for an oil and gas waste hauler permit until the person is scheduled to file an application for permit renewal. (A) Application for an oil and gas waste hauler permit will be made on the commission-prescribed form, and in accordance with the instructions thereon, and must be accompanied by: (i) the permit application fee required by sec.3.76 of this title (Statewide Rule 78) (relating to Fees Required To Be Filed); (ii) vehicle identification information to support commission issuance of an approved vehicle list; (iii) an affidavit from the operator of each commission-permitted disposal system the hauler intends to use stating that the hauler has permission to use the system; and (iv) a certification by the hauler that the vehicles listed on the application are designed so that they will not leak during transportation. (B) An oil and gas waste hauler permit may be issued for a term not to exceed one year, subject to renewal by the filing of an application for permit renewal and the required application fee for the next permit period. The term of an oil and gas waste hauler permit will be established in accordance with a schedule prescribed by the director to allow for the orderly and timely renewal of oil and gas waste hauler permits on a staggered basis. (C) Each oil and gas waste hauler shall operate in strict compliance with the instructions and conditions stated on the permit issued which provide the following. (i) (No change.) (ii) Each vehicle used by a permittee shall be marked on both sides and the rear with the permittee's name and permit number in characters not less than three inches high. (For the purposes of this permit, "vehicle" means any truck tank, trailer tank, tank car, vacuum truck, dump truck, garbage truck, or other container in which oil and gas waste will be hauled by the permittee.) (iii) Each vehicle must carry a copy of the permit including those parts of the commission-issued attachments listing approved vehicles and commission-permitted disposal systems that are relevant to that vehicle's activities. This permit authority is limited to those vehicles shown on the commission-issued list of approved vehicles. (iv) This permit is issued pursuant to the information furnished on the application form, and any change in conditions must be reported to the commission on an amended application form. The permit authority will be revised as required by the amended application. (v) This permit authority is limited to hauling, handling, and disposal of oil and gas waste. (vi) This permit authorizes the permittee to use commission-permitted disposal systems for which the permittee has submitted affidavits from the disposal system operators stating that the permittee has permission to use the systems. These disposal systems are listed as an attachment to the permit. This permit also authorizes the permittee to use a disposal system operated under authority of a minor permit issued by the commission without submitting an affidavit from the disposal system operator. Finally, this permit authorizes the transportation of oil and gas waste to a disposal facility permitted by another agency or another state provided the commission has granted separate authorization for the disposal. (vii) The permittee must file an application for a renewal permit, using the permittee's assigned permit number, before the expiration date specified in this permit. (viii) The permittee must compile and keep current a list of all persons by whom the permittee is hired to haul and dispose of oil and gas waste, and furnish such list to the commission upon request. (ix) Each vehicle must be operated and maintained in such a manner as to prevent spillage, leakage, or other escape of oil and gas waste during transportation. (x) Each vehicle must be made available for inspection upon request by commission personnel. (2) A record shall be kept by each oil and gas waste hauler showing daily oil and gas waste hauling operations under the permitted authority. (A) Such daily record shall be dated and signed by the vehicle driver and shall show the following information: (i) identity of the property from which the oil and gas waste is hauled; (ii) identity of the disposal system to which the oil and gas waste is delivered; (iii) the type and volume of oil and gas waste received by the hauler at the property where it was generated; and (iv) the type and volume of oil and gas waste transported and delivered by the hauler to the disposal system. (B) (No change.) (C) Such record shall be kept on file for a period of three years from the date of operation and recordation. (g) Record keeping. (1) Oil and gas waste. When oil and gas waste is hauled by vehicle from the lease, unit, or other oil or gas property where it is generated to an off-lease disposal facility, the person generating the oil and gas waste shall keep, for a period of three years from the date of generation, the following records: (A) identity of the property from which the oil and gas waste is hauled; (B) identity of the disposal system to which the oil and gas waste is delivered; (C) name and address of the hauler, and permit number (WHP Number) if applicable; and (D) type and volume of oil and gas waste transported each day to disposal. (2) Retention of run tickets. A person may comply with the requirements of paragraph (1) of this subsection by retaining run tickets or other billing information created by the oil and gas waste hauler, provided the run tickets or other billing information contain all the information required by paragraph (1) of this subsection. (3) (No change.) (h)-(i) (No change.) This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 6, 1992. TRD-9200210 Martha V. Swanger Hearings Examiner, Gas Utilities/LP Gas-Legal Division Railroad Commission of Texas Effective date: January 28, 1992 Proposal publication date: October 29, 1991 For further information, please call: (512) 463-6977 Chapter 11. Surface Mining and Reclamation Division Subchapter D. Coal Mining 16 TAC sec.11.221 The Railroad Commission of Texas adopts an amendment to sec.11.221, concerning revegetated lands grazing requirements, without changes to the proposed text as published in the December 6, 1991, issue of the Texas Register (16 TexReg 6991). The amendment of the section will increase flexibility in reclamation land use requirements. Range land and pasture and reclamation land uses will have to meet revegetation standards, but livestock grazing will not be required. San Miguel Electric Cooperative, Inc. USDA Soil Conservation Service, Texas Mining and Reclamation Association, Texas Parks and Wildlife Department, and Texas Utilities Services, Inc. supported the change. The amendment is adopted under Texas Civil Statutes, Article 5920-11, sec.6, which provide the Railroad Commission of Texas with the authority to promulgate rules pertaining to surface coal mining operations. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 6, 1992. TRD-9200211 Martha V. Swanger Hearings Examiner, Gas Utilities/LP-Gas Section, Legal Division Railroad Commission of Texas Effective date: January 28, 1992 Proposal publication date: December 6, 1991 For further information, please call: (512) 463-6841 TITLE 22. EXAMINING BOARDS Part XV. Texas State Board of Pharmacy Chapter 291. Pharmacies Community Pharmacy (Class A) 22 TAC sec.sec.291.32-291.34 The Texas State Board of Pharmacy adopts amendments to sec.sec.291.32-291.34, concerning personnel, operational standards, and records in a Class A (community) pharmacy, without changes to the proposed text as published in the September 13, 1991 Texas Register (16 TexReg 5051). These rules allow a pharmacist other than the pharmacist-in-charge to sign the record of training for supportive personnel. No comments were received regarding adoption of the amendments. The amendments are adopted under the Texas Pharmacy Act, sec.16 and sec.17 (Texas Civil Statutes, Article 4542a-1), which provides the Texas State board of Pharmacy with the authority to adopt rules for the proper administration and enforcement of the Act and to specify the minimum standards for maintenance of prescription drug records within the practice of pharmacy. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 8, 1992. TRD-9200242 Fred S. Brinkley, Jr., R.Ph., M.B.A. Executive Director/Secretary Texas State Board of Pharmacy Effective date: January 29, 1992 Proposal publication date: September 13, 1991 For further information, please call: (512) 832-0661 Institutional Pharmacy (Class C) 22 TAC sec.291.73, sec.291.76 The Texas State Board of Pharmacy adopts amendments to sec.291.73 and sec.291. 76, concerning personnel in a Class C pharmacy and Class C pharmacies located in a free standing ambulatory surgical center, without changes to the proposed text as published in the September 13, 1991 issue of the Texas Register (16 TexReg 5052). These amendments allow a pharmacist other than the pharmacist-in-charge of the pharmacy to sign the record of training for supportive personnel. No comments were received regarding adoption of the amendments. The amendments are adopted under the Texas Pharmacy Act, sec.16 and sec.17 (Texas Civil Statutes, Article 4542a-1), which provides the Texas State Board of Pharmacy with the authority to adopt rules for the proper administration and enforcement of the Act and to specify the minimum standards for maintenance of prescription drug records within the practice of pharmacy. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 8, 1992. TRD-9200243 Fred S. Brinkley, Jr., R.Ph., M.B.A. Executive Director/Secretary Texas State Board of Pharmacy Effective date: January 29, 1992 Proposal publication date: September 13, 1991 For further information, please call: (512) 832-0661 Clinic Pharmacy (Class D) 22 TAC sec.291.91, sec.291.93 The Texas State Board of Pharmacy adopts amendments to sec.291.91 and sec.291. 93 without changes to the proposed text as published in the September 13, 1991 Texas Register (16 TexReg 5053). These amendments specify the definition of "indigent" and the criteria necessary for Class D Pharmacy to be eligible to maintain an expanded formulary. The amendments also specify the criteria the agency may consider in approving or disapproving the petition for an expanded formulary. No comments were received regarding adoption of the amendments. The amendments are adopted under the Texas Pharmacy Act, sec.16 and sec.17 (Texas Civil Statutes, Article 4542a-1) which provides the Texas State Board of Pharmacy the authority to adopt rules for the proper administration and enforcement of the Act, specify minimum standards for professional environment, technical equipment, and security in the prescription dispensing area, maintenance of prescription drug records and procedures for the delivery, dispensing in a suitable container appropriately labeled, or providing of prescription drugs or devices within the practice of pharmacy. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 8, 1992. TRD-9200244 Fred S. Brinkley, Jr., R.Ph., M.B.A. Executive Director/Secretary Texas State Board of Pharmacy Effective date: January 29, 1992 Proposal publication date: September 13, 1991 For further information, please call: (512) 832-0661 TITLE 34. PUBLIC FINANCE Part I. Comptroller of Public Accounts Chapter 3. Tax Administration Subchapter O. State Sales and Use Tax 34 TAC sec.3.297 The Comptroller of Public Accounts adopts an amendment to sec.3.297, concerning carriers, with changes to the proposed text as published in the September 10, 1991, issue of the Texas Register (16 TexReg 4930). An amendment was proposed for this section and published on December 7, 1990 (15 TexReg 7010). This amendment was never adopted. The amendment to this section incorporates changes made during the 1989 legislative session. The amendment allows an exemption for machinery, tools, and equipment used by persons repairing aircraft for certificated or licensed carriers and an exemption for tangible personal property that is permanently attached to the certificated or licensed carrier of persons or property. The amendment distinguishes between the type of items that are exempted and those that are taxable. The exemptions provided by the legislature are effective September 1, 1989. An amendment also removes the requirement that an owner or operator of a vessel operating exclusively in foreign or interstate coastwise commerce issue an exemption certificate listing the foreign or interstate destination of the vessel. The change was to subsection (d)(1)(A). The subsection was rewritten to clarify that the exemption for machinery, tools, and equipment did not include consumable supplies used to perform the repair, remodeling, or maintenance activities. "Cleaning solvents" was moved from subsection (d)(3) to (d)(1)(A) as an example of a consumable supply. A comment on the amendment was received from Southwest Airlines Company. Southwest Airlines requested that the section be amended to allow an exemption for cleaning solvents and the supplies used exclusively in the repair, remodeling, or maintenance of aircraft, aircraft engines, or aircraft component parts used by or on behalf of a certificated or licensed carrier. The comptroller declined to accept Southwest Airline's request stating that the terms "machinery, tools, and equipment" in the Tax Code, sec.151.328(d), were too restrictive to include consumable supplies. Had the legislature wanted to include consumable supplies in sec.151.328(d), it could have done so by using the broader terms "tangible personal property" as were used in sec.151.328(e). Another comment was received on a subsection not being amended. The comment was received from J.C. Law Publications in Austin, regarding the comptroller's definition of "licensed course of instruction" in subsection (c)(6). Several reasons were presented why the definition should be expanded to include aircraft used to provide instructions under Part 61 of the Federal Aviation Administration regulations. The comptroller responded that both Part 61 and Part 141 were examined by comptroller personnel before including the exemption in the section to determine legislative intent in the phrase "licensed course of instruction." Part 61 provided for "certified flight instructors" to train pilots. Part 141 provided for "certified pilot schools" with an "approved course of training." While Parts 61 and 141 both provide for pilot training, the comptroller chose sto apply the exemption in the narrowest possible way by limiting the exemption to aircraft used in flight training under Part 141. The comptroller noted that the legislature has never seen fit to broaden the exemption. Even though several bills have been introduced to include Part 61 training, the bills were never passed into law. The comptroller declined to accept the suggestion to broaden the exemption. The amendment is adopted under the Tax Code, sec.111.002, which provides the comptroller with the authority to prescribe, adopt, and enforce rules relating to the administration and enforcement of the provisions of the Tax Code, Title 2. sec.3.297. Carriers. (a) Carriers generally. (1) (No change.) (2) Use tax is not due on carrier devices acquired outside this state when moved into the state for use in the regular course of business of transporting persons or property by a person qualified under paragraph (1) of this subsection. (3) (No change.) (4) Except as provided under subsection (d) of this section, taxable items brought into this state to be assembled into licensed and certificated carrier devices are not exempt from the taxes imposed by the Tax Code, Chapter 151, Subchapter D. (5) (No change.) (6) Sales tax is due on licensed and certificated carrier devices purchased under valid resale or exemption certificates which are put to a use other than the one specified in the certificate. The sales tax is based on the fair market rental value of the licensed and certificated carrier device for the period of time used. At any time the person using the carrier device in a taxable manner may stop paying tax on the fair market rental value and instead pay sales tax on the original purchase price. When the person elects to pay sales tax on the purchase price, credit will not be allowed for taxes previously paid on the fair market rental value. See sec.3.285 of this title (relating to Resale Certificate; Sales for Resale) and sec.3.287 of this title (relating to Exemption Certificates). (b) Vessels. (1)-(3) (No change.) (4) Materials and supplies, including items commonly known as ships' stores and sea stores, sold to owners or operators of ships or vessels operating exclusively in foreign and interstate commerce for use and consumption in the operation and maintenance of such ships or vessels, are exempt from the sales and use tax. (A)-(B) (No change.) (C) Any owner or operator of such vessels shall, when giving an exemption certificate, set forth the title or position of the person issuing the certificate, and the name of the vessel on which such items are to be loaded. (D) (No change.) (5) Closely associated service companies provide servicing operations such as stevedoring, loading, and unloading vessels. Tax is due on taxable items sold, leased, or rented to the service company without regard to the fact that such property may be used on vessels involved in interstate or foreign commerce. (c) Aircraft other than aircraft used by licensed and certificated carriers. (1) The term "aircraft" does not include rockets or missiles, but does include: (A)-(C) (No change.) (2) Sales or use tax is not due on aircraft sold to a nonresident or foreign government. (3)-(4) (No change.) (5) Persons repairing or remodeling aircraft other than aircraft used by persons qualified under subsection (a)(1) of this section should refer to sec.3. 359 of this title (relating to Motor Vehicles and Private Aircraft). (6) Sales or use tax is not due on aircraft purchased and used for the exclusive purpose of pilot training in a licensed course of instruction. Licensed course of instruction means pilot training or instruction conducted by a flight training school which has been certified or granted provisional certification under Federal Aviation Administration Regulations, 14 Code of Federal Regulations, Part 141 (1974). Any nonexempt use of the aircraft will cause the purchaser to become liable for the sales tax on either the fair market rental value of the aircraft for the period of nonexempt use or upon the original purchase price. See sec.3.287 of this title (relating to Exemption Certificates). (d) Licensed and certificated carriers. Sales or use tax is not due on aircraft used by persons defined in subsection (a)(1) of this section in the regular course of business of transporting persons or property for hire. (1) The following items or services used in the repair, remodeling, or maintenance of aircraft or aircraft engines or component parts by or for a person qualified under subsection (a)(1) of this section are exempt if purchased by the aircraft owner or operator, by the aircraft manufacturer, or by a repair facility licensed and certified by the appropriate regulatory agency. (A) Machinery, tools, and equipment used directly and exclusively in the repair, remodeling, or maintenance. Included in the exemption provided by this paragraph is equipment used to sustain or support safe and continuous operations or to keep the aircraft in good working order by preventing the decline, failure, lapse, or deterioration such as battery chargers or diagnostic equipment. Consumable supplies, such as cleaning solvents, used in providing the repair, remodeling, or maintenance, but that are not part of or used in the aircraft, are not included in the exemption provided by this paragraph. (B) Repair, remodeling, and maintenance services. (2) Tax is not due on tangible personal property that is permanently affixed or attached as a component part of an aircraft used as a licensed and certificated carrier device of persons or property even though the property may be detached from the aircraft for servicing, maintenance, or other purposes. Exempt component parts include items such as air cargo containers that are secured or attached to the aircraft while in flight, radar equipment or other electronic devices used for navigational or communications purposes, food carts, smoke detectors, fire extinguishers, and seats. (3) Tax is not due on hydraulic fluids, gases, and lubricants used or consumed on or in the aircraft. Pillows, blankets, trays, ice for drinks, kitchenware, or toilet articles are not exempt from tax. (4) Machinery, tools, and equipment that support the overall carrier operation such as baggage loading or handling equipment, garbage and other waste disposal equipment, or reservation making or booking machinery and equipment do not qualify for exemption. (e) Taxable uses of tangible personal property purchased tax free. Persons making a taxable use of tangible personal property purchased tax free should refer to sec.3.285 and sec.3.287. (f) Rolling stock. (1) Sales or use tax is not due on the sale or use of locomotives and rolling stock. (2) Sales or use tax is not due on the fuel or supplies essential to the operation of locomotives and trains if required by federal or state regulation. (g) Motor carriers. The sale and use of motor carriers is taxed by the Tax Code, Chapters 152 and 157, and will not be subject to the limited sales and use taxes. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 7, 1992. TRD-9200187 Martin Cherry Chief, General Law Section Comptroller of Public Accounts Effective date: January 28, 1992 Proposal publication date: September 10, 1991 For further information, please call: (512) 463-4028 TITLE 37. PUBLIC SAFETY AND CORRECTIONS Part III. Texas Youth Commission Chapter 81. Administrative Provisions General 37 TAC sec.81.13 The Texas Youth Commission (TYC) adopts new sec.81.13, concerning the selection process of an architect/engineer, with changes to the proposed text as published in the November 12, 1991, issue of the Texas Register (16 TexReg 6581). The adoption of this section will allow TYC to detain committed youth longer periods of time in residential facilities due to additional bed space. The time limit within which an agreement must be reached has been changed from 45 days to be within a reasonable time. Instructions on contacting staff with inquiries have been added. When the project is being considered for a new facility, a different committee makes the architect/engineer selection. The change is the addition of a committee member who is a TYC board member or person appointed by the board and who shall serve as the chairman of the committee. The new rule will allow the commission to select architects and engineers necessary to begin construction of four new dormitories and a new facility in Beaumont as authorized by the 72nd Legislature. No comments were received regarding adoption of the new section. The new section is adopted under the Human Resources Code, sec.61.048, which provides TYC with the authority to promulgate rules relating to award of contracts for construction. sec.81.13. Selection Process of an Architect/Engineer. (a) Policy. The Texas Youth Commission (TYC) obtains architect/engineer services through a systematic process. (b) Rules. (1) TYC solicits proposals from architects, engineers, and other design professionals based on the following: (A) request for proposals prepared by maintenance and construction department; (B) user recommendation; (C) expressed interest in seeking TYC consultants contracts; (D) general knowledge of consultants available in the project area; and (E) legal advertisement of request for proposals. (2) All inquiries or other contacts concerning the request for proposals, other than the initial request to receive the RFP, shall be directed to the director of plant operations and development. (3) The director of plant operations and development, chief of planning and design, and chief of building engineering and management rate proposals received based on evaluation criteria in the request for proposals. (4) Not less than five firms (short list) are selected based on the combined ratings from paragraph (2) of this subsection. (5) Interview committee composed of director of plant operations and development, chief of planning and design, superintendent at facility, business manager at the facility and plant maintenance manager at the facility, meet to review short list and interview process. (6) Chief of planning and design mails questionnaire to references for firms on short list. (7) Interview committee reviews the returned questionnaires for the firms on the short list, interviews firms on short list at the facility, rates each firm based on the interview, ranks firms in order, and recommends three top firms to the board for selection. (8) The director of plant operations and development presents the findings of the interview committee to the board and recommends selections. (9) Upon selection of a consultant and an alternate by the board, the chief of planning and design negotiates an architectural/engineering agreement for execution with the firm selected at the fee stated. (10) If an agreement can not be executed within a reasonable time with the selected consultant, the consultant shall be notified that the firm is no longer being considered and negotiations shall begin with the alternate firm selected by the board. (11) TYC enters into an architectural/engineering agreement. (12) In the event the project under consideration is a new facility, the superintendent, business manager, and plant maintenance manager, shall be replaced by appointments made by the executive director, director of institutions, or director of community services depending on the facility and director of finance. A current board member or other person appointed by the board will be added to the interview committee and shall serve as the chair for the committee. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 6, 1992. TRD-9200191 Ron Jackson Executive Director Texas Youth Commission Effective date: January 28, 1992 Proposal publication date: November 12, 1991 For further information, please call: (512) 483-5244 TITLE 40. SOCIAL SERVICES AND ASSISTANCE Part I. Texas Department of Human Services Chapter 29. Purchased Health Services Subchapter D. Medicaid Home Health Program The Texas Department of Human Services (DHS) adopts amendments to sec.29.301 and sec.29.607, without changes to the proposed text as published in the December 6, 1991, issue of the Texas Register (16 TexReg 6997). The justification for the amendments is to comply with requirements of the Omnibus Budget Reconciliation Act of 1990, sec.4751. The purpose of the amendments is to clarify that hospitals and home health agencies participating in the Texas Medical Assistance Program must furnish adult individuals with information regarding their right to make and/or transfer treatment decisions. The information includes the individuals' right to make known their decisions regarding their medical care through verbal or written and properly executed directives, such as Advance Directives to Physicians/Living Will and Durable Powers of Attorney for Health Care. The Omnibus Budget Reconciliation Act requires DHS to supply to providers information about individuals' rights to give directives about their own medical care. However, it is inappropriate for DHS to recommend to providers the use of these directives in individual cases. Individuals who desire this advice should contact their attorney or legal aid society. When an individual has issued no directive, has no legal guardian, and has been determined by the physician to be incapable of understanding and exercising his rights, treatment decisions must be made according to the Texas Natural Death Act, sec.672.009. The amendments will function by informing recipients about their rights to give advance directives upon admission to a hospital or prior to receiving services of the home health agency. No comments were received regarding adoption of the amendments. 40 TAC sec.29.301 The amendment is adopted 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. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 7, 1992. TRD-9200195 Nancy Murphy Agency liaison, Policy and Document Support Texas Department of Human Services Effective date: February 1, 1992 Proposal publication date: December 6, 1991 For further information, please call: (512) 450-3765 Subchapter G. Hospital Services 40 TAC sec.29.607 The amendment is adopted 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. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 7, 1992. TRD-9200196 Nancy Murphy Agency liaison, Policy and Document Support Texas Department of Human Services Effective date: February 1, 1992 Proposal publication date: December 6, 1991 For further information, please call: (512) 450-3765 Subchapter M. Rural Health Clinics 40 TAC sec.29.1205 The Texas Department of Human Services (DHS) adopts the repeal of sec.29. 1205, concerning limitations, without changes to the proposed text as published in November 26, 1991, issue of the Texas Register (16 TexReg 6850). The justification for the repeal is to reduce paperwork requirements for rural health clinic providers and to help ensure access to medical care for clients. The repeal will function by removing the limitation of no more than 12 visits per recipient in a 12-month period beginning with the date of the first visit to a rural health clinic. No comments were received regarding adoption of the repeal. The repeal is adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which authorizes the department to administer public and medical assistance programs. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 8, 1992. TRD-9200236 Nancy Murphy Agency liaison, Policy and Document Support Texas Department of Human Services Effective date: February 1, 1992 Proposal publication date: November 26, 1991 For further information, please call: (512) 450-3765 Chapter 49. Child Protective Services Subchapter C. Eligibility for Child Protective Services 40 TAC sec.49.320 The Texas Department of Human Services adopts an amendment to sec.49.320, concerning foster care assistance eligibility requirements. The amendment is adopted without changes to the proposed text as published in the November 29, 1991, issue of the Texas Register (16 TexReg 6917). The amendment is justified because it provides for high-quality medical care for foster children. The amendment will function by including court proceedings requirements in the department's rules. The department received no comments regarding adoption of the amendment. The amendment is adopted under the Human Resources Code, Title 2, Chapter 22, which authorizes the department to administer public assistance programs; and Chapter 41, which authorizes the department to enforce laws for the protection of children. The amendment is also adopted under Texas Family Code, Title 2, Chapter 34, which authorizes the department to provide services to alleviate the effects of child abuse and neglect. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 8, 1992. TRD-9200239 Nancy Murphy Agency liaison, Policy and Document Support Texas Department of Human Services Effective date: February 1, 1992 Proposal publication date: November 29, 1991 For further information, please call: (512) 450-3765 TITLE 43. TRANSPORTATION Part I. Texas Department of Transportation Chapter 17. Division of Motor Vehicle Titles and Registration Motor Vehicle Registration 43 TAC sec.17.51 The Texas Department of Transportation adopts an amendment to sec.17.51 concerning registration reciprocity agreements, concerning registration reciprocity agreements without changes to the proposed text as published in the November 5, 1992, issue of the Texas Register (16 TexReg 6247). The amended section provides for the most recent edition of the AAMVA International Registration Plan with Official Commentary published on March 1, 1991, to be adopted by reference. The amendment also includes the definition of certain regulatory terms, the department's procedure for issuance of apportioned license, the audit of apportioned vehicle operational records, the department's assessment of additional registration fees which may be due the state, the notification of assessments and/or cancellation of the registrant's operating privileges for failure to comply, an informal conference procedure to seek resolution, and a formal administrative hearing appeal process consistent with principles of due process and the Administrative Procedure and Texas Register Act. The amendment is necessary in order to comply with the provisions of the International Registration Plan with Official Commentary as published on March 1, 1991 edition, thereby protecting the interests of the citizens of Texas by implementing a more effective and uniform administration of the vehicle registration law. No comments were received regarding adoption of the amended section. The amended section is adopted under Texas Civil Statutes, Article 6666 and Article 6675a-16, which provide the Texas Transportation Commission with the authority to establish rules for the conduct of the work of the Texas Department of Transportation, and for the orderly administration of statutory provisions relating to vehicle registration reciprocity agreements. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 7, 1992. TRD-9200203 Diane L. Northam Legal Administrative Assistant Texas Department of Transportation Effective date: January 28, 1992 Proposal publication date: November 5, 1991 For further information, please call: (512) 463-8630