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 1. ADMINISTRATION
Part V. General Services Commission
Chapter 113. Central Purchasing Division
Purchasing
1 TAC sec.113.2, sec.113.10
The General Services Commission adopts amendments to sec.113.2, and sec.113. 10, 
concerning definitions and delegated purchases, without changes to the proposed 
text as published in the November 1, 1991, issue of the Texas Register  (16 
TexReg 6177).
The sections are adopted to implement changes to Texas Civil Statutes, Article 
601b, Article 3, which increase both the delegated purchase amount for state 
agencies and the purchase amount for which competitive bidding is required, and 
require agencies to maintain bidder's lists and solicit bids from all eligible 
bidders for purchases which exceed $5,000.
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 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.
Several comments were received regarding adoption of the amendments. One 
commenter opposed the adoption of the amendments to both sections, stating that 
they would have a negative impact on small businesses in the state by 
decentralizing the procurement process for purchases under $5,000, thus making 
it more difficult for small businesses, especially those located outside of 
Austin, to sell to the state. The same commenter also stated that the amendments 
would result in an increased workload for state agencies and additional costs to 
the state's taxpayers due to lack of competition and increased administrative 
expenses. Other commenters were in favor of the adoption of the amendments. Two 
commenters stated simply that they were in favor of the revised thresholds, 
while the others specifically stated their approval of permitting informal 
bidding for purchases between $1,000 and $2,500.
The Texas Rehabilitation Commission, University of Texas at Austin, Texas 
Department of Criminal Justice-Institutional Division, Texas Parks and Wildlife 
Department, University of Texas Health Science Center at San Antonio, and Texas 
Youth Commission commented in favor of the adoption and the Texas Association of 
Procurement Centers, Inc. commented against.
The commission disagrees with the comments opposing the increased threshold for 
delegated purchases as the increase is mandated by statute.
The amendments are adopted 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.
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 30, 1992.
TRD-9201487
Judith M. Porras
General Counsel
General Services Commission
Effective date: February 20, 1992
Proposal publication date: November 1, 1991
For further information, please call: (512) 463-3446
       
Purchasing
1 TAC sec.113.4
The General Services Commission adopts an amendment to  sec.113.4, concerning 
bid lists, with changes to the proposed text as published in the November 1, 
1991, issue of the  Texas Register (16 TexReg 6178).
The section is amended to comply with the provisions of Texas Civil Statutes, 
Article 601b, and specifically the newly enacted sec.3.101 thereof.
The section requires the commission to develop a standard bid list application 
form which may be used by agencies to establish an agency bid list, requiring 
agencies to establish and maintain agency bid lists, and authorizes charging a 
fee to recover costs. Agencies are also authorized to use the commission's bid 
list as their own.
Three parties submitted comments regarding the amendment to the section. One 
commenter recommended that a vendor's placement of a buyer agency on credit hold 
or shipment hold without 10 days prior written notice should be added a factor 
allowing removal from the bid list. The same commenter objected to the amendment 
to subsection (b)(1)(H) which increases the number of bid invitations to which a 
bidder fails to submit a bid prior to removal from the bidder list. The 
objection to the amendment is apparently based on a misunderstanding regarding 
the nature of a "failure to respond" as used in the section; the commenter 
characterizes such failures as "offense occurrences".
Other comments were in favor of the amendment to the section, but included 
additional comments or questions. One commenter inquired whether a vendor which 
has been removed from the lit and is subsequently granted reinstatement would be 
charged a fee for such reinstatement. Another commenter questioned the utility 
of allowing an agency to develop its own form but prohibiting its use in lieu of 
the form developed by the commission.
The University of Texas at Austin, and Texas Department of Criminal Justice-
Institutional Division commented in favor of the adoption and the University of 
Texas MD Anderson Cancer Center commented against.
The commission does not concur with the suggestion of an additional reason for 
removing a vendor from the bidders list, for the reason that the circumstance 
described would ordinarily constitute a breach of contract on the part of the 
vendor and would thus be covered by existing provisions; namely, Texas Civil 
Statutes, Article 601b, sec.3.11(e)(6).
The commission also does not concur with the suggestion that removal or 
suspension occur after four failures to respond to bid invitations, rather than 
the proposed eight nonresponses. The commenter appears to have confused the 
failure to respond to a bid invitation with failing to comply with a material 
provision in a contract. The commission takes the position that bidders which 
have paid a fee to be placed on the list should be allowed a longer period of 
time than previously given to remain on the list notwithstanding their failure 
to bid. The commission has conformed subsection (e) concerning the development 
of bid list applications to the state. This section does not prohibit agencies' 
due of their own forms and reflects the requirements of statutes.
The amendment is adopted 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 bidder's 
mailing list by complying with and meeting the following procedures and 
requirements.
(1) (No change.)
(2) A vendor may be considered for the bidder's 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 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 damages assessed by the 
commission;
(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, with rationale acceptable to the 
commission, that it wishes to remain on the list when a failure to respond:
(i) occurs on each of eight consecutive open market invitations concerning the 
affected class or item; or
(ii)  (No change.)
(I) failure to remit the annual bid list subscription fee;
(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;
(K) other factors listed in Texas Civil Statutes, Article 601b, sec.3.11.
(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, General Services Commission. No 
additional requirements for this list are necessary. 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.)
(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 and using 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.
(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 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 30, 1992.
TRD-9201489
Judith M. Porras
General Counsel
General Services Commission
Effective date: February 20, 1992
Proposal publication date: November 1, 1991
For further information, please call: (512) 463-3446
       
1 TAC sec.113.6
The General Services Commission adopts an amendment to section sec.113.6, 
concerning bid evaluation and award, with changes to the proposed text as 
published in the November 1, 1991, issue of the Texas Register (16 TexReg 6179).
The section is amended to comply with the provisions of Texas Civil Statutes, 
Article 601b, and specifically the newly-enacted sec.sec.3.202, 3.211, 3.212, 
and 3.32 thereof.
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.
Two parties submitted comments regarding the amendment to the section. One 
commenter pointed out an apparent typographical error in subsection (b)(9), 
stating that the language should read "as to quantity and quality" instead of 
"as to quantity and quantity." The other commenter stated concerning subsection 
(c)(4)(E) that the itemization of suggested factors for evaluation of an RFP 
makes it easier to identify what factors could and should be used.
The University of Texas at Austin and Texas Department of Transportation 
commented in favor of the adoption.
The commission concurs with the comments received and subsection (b) is changed 
as necessary to correct the identified error.
The amendment is adopted under Texas Civil Statutes, Article 601b, sec.3, which 
provides 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.)
(9) The commission shall give a preference to energy efficient product if the 
products meet state requirements a to quantity and quality as set forth in 
advertised specification 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 product offered and considering the cost 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.
(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. 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. Only criteria as designed in the 
solicitation may 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)-(G) (No change.)
(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 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 30, 1992.
TRD-9201486
Judith M. Porras
General Counsel
General Services Commission
Effective date: February 20, 1992
Proposal publication date: November 1, 1991
For further information, please call: (512) 463-3446
       
1 TAC sec.113.9
The General Services Commission adopts an amendment to  sec.113.9, which 
pertains to term contracts, without changes to the proposed text as published in 
the November 1, 1991, issue of the Texas Register (16 TexReg 6180).
The amendment is necessary to ensure compliance with recently enacted provisions 
of Texas Civil Statutes, Article 601b,  sec.3.181.
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.
No comments were received regarding adoption of the amendment.
The amendment is adopted 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.
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 30, 1992.
TRD-9201490
Judith M. Porras
General Counsel
General Services Commission
Effective date: February 20, 1992
Proposal publication date: November 1, 1991
For further information, please call: (512) 463-3446
       
1 TAC sec.113.11
The General Services Commission adopts an amendment to  sec.113.11, concerning 
Texas Department of Criminal Justice purchases, with changes to the proposed 
text as published in the November 1, 1991, issue of the Texas Register  (16 
TexReg 6180).
The section is amended to comply with technical amendments to Texas Civil 
Statutes, Article 601b, sec.3.23, and Texas Government Code, sec.sec.497.021 et 
seq.
The section clarifies the requirement that state agencies purchase supplies, 
materials, and/or equipment produced by the Texas Department of Criminal 
Justice, sets forth exceptions to this mandatory requirement, describes the 
manner in which such orders are to be handled, describes the procedure for 
certifying that goods can be purchased elsewhere at a lower price, and allows 
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 contact, the cost of which does not exceed $5,000.
One party submitted comments regarding the amendment to the section. The 
commenter asked whether an agency will be permitted to purchase from other 
sources without obtaining formal or informal bids if the Texas Department of 
Criminal Justice cannot supply the goods. No other comments were received.
The University of Texas at Austin commented in favor of the adoption.
The commission responds to the question raised by the commenter that purchases 
from other sources, in cases where the Texas Department of Criminal Justice 
cannot supply the goods, must comply with applicable competitive bidding rules 
and statutory requirements.
The amendment is adopted 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.  The commission is 
authorized by Texas Civil Statutes, Article 601b, sec.3.23, and Texas Government 
Code,  sec.sec.497.021 et seq, to enter into contracts with the Texas Department 
of Criminal Justice for the purchase of supplies, materials, and/or equipment 
produced by the Texas 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 Texas 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 Texas Department of Criminal Justice will not 
adequately serve its needs 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.
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 30, 1992.
TRD-9201491
Judith M. Porras
General Counsel
General Services Commission
Effective date: February 20, 1992
Proposal publication date: November 1, 1991
For further information, please call: (512) 463-3446
       
Purchase of Alternative Fuel Vehicles
1 TAC sec.113.25
The General Services Commission adopts an amendment to  sec.113.25, without 
changes to the proposed text as published in the November 1, 1991, issue of the 
Texas Register (16 TexReg 6181).
The amendment is necessary to ensure compliance with recent amendments to Texas 
Civil Statutes, Article 601b, sec.3.29(a).
The section will increase the horsepower of vehicles a state agency may purchase 
or lease from 145 SAE horsepower to 160 SAE net horsepower.
No comments were received regarding adoption of the amendment.
The amendment is adopted 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.
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 30, 1992.
TRD-9201494
Judith M. Porras
General Counsel
General Services Commission
Effective date: February 20, 1992
Proposal publication date: November 1, 1991
For further information, please call: (512) 463-3446
       
Inspection
1 TAC sec.sec.113.51, 113.52, 113.56
The General Services Commission adopts amendments to sec. sec.113.51, 113.52, 
and 113.56, concerning inspections and testing. Section 113.52 is adopted with 
changes to the proposed text as published in the November 1, 1991, issue of the 
Texas Register (16 TexReg 6181). Section 113.51 and sec.113.56 are adopted 
without change and will not be republished.
The sections are amended comply with recent amendments to Texas Civil Statutes, 
Article 601b, sec.3.17.
The sections require inspection and testing of all costly purchases, provide 
procedures for such inspections, require the commission to review existing 
contracts for recycling waste produced at state buildings under the commission's 
control, permit removal of vendors from the bid list for complaints, and make 
technical corrections.
Two parties submitted comments regarding the amendments to the sections. One 
commenter stated generally that it supported more intensive inspection and 
testing of products. The other commenter suggested that the term "costly" in 
sec.113.51 needs clarification, stating that the interpretation of what is 
costly is left up to the reader. The same commenter stated with regard to 
sec.113.52(b) that the rule would have a severe impact on agency operations in 
terms of receipt time if the commission intends to inspect every item the agency 
rejects for not meeting specifications. The commenter further stated that the 
same provision would severely affect vendors if items are held for a lengthy 
amount of time for a follow-up inspection. Finally, the commenter stated that 
the term "repeated complaints" should be clarified.
The Texas Department of Criminal Justice-Institutional Division commented in 
favor of the adoption and the Texas Department of Transportation commented 
against.
The commission does not concur with the comment that the term "costly" should be 
clarified. Flexibility of interpretation is required in order to account for the 
assessment of risk to the state that a given transaction represents. Such risk 
could arise not only from the cost of a particular item, but also from the 
complexity of the specifications for the item, the volatility of the market 
supplying that item, or other factors. Describing such purchases merely in terms 
of an arbitrary dollar threshold would not adequately provide for the impact of 
those factors upon the cost of an item. The commenter correctly states, however, 
that the interpretation of what is costly is left to the reader. This is 
consistent with the commission's approach, as seen in sec.113.52(b), wherein 
agencies are required to perform initial inspections and testing of such 
purchases. Further clarification of the term would interfere with the discretion 
of an agency in performing its responsibilities under these sections. The 
commission concurs with the comments regarding sec.113.52(b) pertaining to 
follow-up inspections. The section has been amended accordingly to eliminate the 
requirement that the specifications and inspection section conduct follow-up 
inspections in all cases, and now refers to such follow-up inspections in 
permissive rather than mandatory language. The commission does not concur with 
the comment pertaining to sec.113.56(d) requesting clarification of "repeated 
complaints." Although "repeated" means more than one, it would be inadvisable to 
establish a threshold number of complaints which would be regarded as 
constituting repeated complaints. The evaluation of such complaints involves the 
exercise of professional judgment in determining whether the complaints are 
warranted, considering the presence or absence of mitigating factors, and 
deciding whether sanctions are appropriate. Such an exercise of discretion 
requires more flexibility than would be possible under a restrictive definition 
of repeated complaints.
The amendments are proposed under Texas Civil Statutes, Article 601b, sec.3.01, 
which provides the General Services Commission with the authority to promulgate 
rules to accomplish the purpose of Article 3.
sec.113.52. Selection of Items for Inspection and/or Testing.
(a)  (No change.)
(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 may 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) 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.
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 30, 1992.
TRD-9201492
Judith M. Porras
General Counsel
General Services Commission
Effective date: February 20, 1992
Proposal publication date: November 1, 1991
For further information, please call: (512) 463-3446
       
Surplus Property Sales
1 TAC sec.113.76
The General Services Commission adopts new sec.113.76, without changes to the 
proposed text as published in the November 1, 1991, issue of the Texas Register  
(16 TexReg 6181).
The new section is necessary to ensure compliance with recent amendments to 
Texas Civil Statutes, Article 601b, sec.9.11.
The section provides a method for 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.
No comments were received regarding adoption of the new section.
The new section is adopted 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.
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 30, 1992.
TRD-9201493
Judith M. Porras
General Counsel
General Services Commission
Effective date: February 20, 1992
Proposal publication date: November 1, 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 adopts amendments to sec. sec.113.93, 113.95, 
and 113.99, concerning the competitive cost review program. Section 113.95 is 
adopted with changes to the proposed text as published in the November 1, 1991 
issue of the Texas Register (16 TexReg 6182). Section 113.93 and sec.113. 99 are 
adopted without changes and will not be republished.
The sections are amended to comply with recent amendments to the provisions of 
Texas Civil Statutes, Article 601b, Article 13.
The sections will 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.
Two parties submitted comments regarding the amendments to the sections. One 
commenter requested clarification that the December 1 deadline cited in sec.113. 
95(d) applies to the time for submission of the schedule rather than the time by 
which approval must be obtained. The same commenter recommended that the 
instructions referred to in sec.113.95(e) include, or consist entirely of, the 
"Competitive Cost Review Cost Analysis Guide" issued by the state auditor. In 
addition, the commenter noted the inadvertent omission of the step of requiring 
the agency to submit the completed management study to the commission for 
approval, and recommended including language correcting the omission. The other 
commenter made a number of comments, some of which were global and some which 
pertained to specific sections. Concerning the competitive cost review rules as 
a whole, the commenter stated that notwithstanding the commission's 
determination that there would be no fiscal implications for state or local 
government, the experience of the agency in question was that significant 
resources ($300,000) had been expended while achieving no significant savings to 
the agency. The commenter stated that additional requirements specified by House 
Bill 39 and the proposed rule changes would increase the amount of resources 
spent in complying with the statute. In addition, the commenter questioned when 
the changes would become effective, and inquired as to what legislation is 
currently in effect.
Concerning sec.113.95(a), the commenter stated that it had no written definition 
of what the term "coordinate" entails, and indicated its concern that the 
internal auditor's review functions described in sec.113.95(f) may constitute a 
conflict of interest with such coordinating activity. The commenter also stated 
that sufficient resources had not been appropriated to allow its internal 
auditor to fully implement the statutory provisions. With regard to 
sec.113.95(a), the commenter remarked that the development of a management study 
sufficiently comprehensive to accommodate private-sector practice would require 
additional resources to develop such information. Concerning sec.113.95(b), the 
commenter stated that additional staff resources would be required to provide 
information in the format prescribed by the state auditor's guidelines. The 
commenter requested guidance as to the format or details required for the report 
pertaining to commercial activities and related information referred to in 
sec.113.95(c), and suggested that the commission or the state auditor provide a 
mailing list and mailing labels for use in delivering the report to the required 
parties. The commenter also suggested that the deadlines of November 1 and 
December 1 (specified in sec.113.95(b) and sec.113.95(d), respectively) be 
adjusted to accommodate reasonable time lines for requesting, receiving, and 
incorporating comments into finalized document form. The commenter also noted 
that no time line was established for obtaining the commission's approval of 
management studies, and thus suggested that such review and approval process 
could span well over a fiscal year period. Regarding sec.113.99(a), the 
commenter stated that it was unclear whether the commission's comments and 
suggestions pertaining to the inventory of commercial activities were to be 
received and incorporated prior to the agency requesting board approval. The 
commenter stated that the phrase "timely study" as used in sec.113.99(b) was 
unclear in terms of actual time, and that if not further defined it should not 
be an item of review for compliance with the commission. Concerning the 
provision in sec.113.99(e) excluding measures not contained in the management 
study from consideration, the commenter stated that such exclusion would be 
detrimental to the comparison process. As an alternative, the commenter 
suggested language which would encourage agencies to include all relevant 
information into the management study. Finally, with respect to sec.113.99(f), 
the commenter suggested that the agency coordinator be included in the specified 
distribution list, and that the agency coordinator be directly advised of any 
other communications pertaining to competitive cost review activities.
The Texas Department of Transportation and Texas Department of Mental Health and 
Mental Retardation commented against the adoption of the amendments.
The commission does not concur that there will be fiscal implications for state 
government as a result of enforcing or administering the sections. The sections 
implement newly-enacted statutory requirements which are in addition to or in 
lieu of previously existing statutory requirements. The comments made in this 
regard pertain to past expenditures which could not have been made as a result 
of the adoption, enforcement, or administration of these sections. The 
commission does not concur that a conflict of interest results from an internal 
auditor's duties to coordinate activities, referred to in sec.113.95(a), and to 
review cost estimates, as required in sec.113.95(f). Both duties are required by 
statute, which must be read so as to give effect to both.
The comments raised in response to sec.113.95(a), to the effect that the 
management study must be sufficiently comprehensive to accommodate private-
sector interests, apparently refers to the portion of the rule which is being 
deleted. As such, it is not germane to the proposed amendments.
The comment pertaining to sec.113.95(b) that additional resources would be 
required to provide information in the format prescribed by the state auditor 
also refers to the portion of the rule being deleted. As such, the comment is 
not germane to the proposed amendment.
The commission disagrees that additional guidance must be given to agencies 
regarding the format for reporting information described in sec.113.95(c). The 
information may be reported in a manner determined by the agency in its 
discretion; additional requirements or prescribed formats would therefore hamper 
agencies' efforts to comply with. The commission also disagrees that further 
identification of the sources for receipt of the information is necessary; the 
intended recipients are adequately identified and are consistent with statutory 
requirements. The references to November 1 and December 1 deadlines pertain to 
statutory provisions which the commission is required by law to implement.
The commission concurs with the comment that the deadline of December 1 cited in 
sec.113.95(d) applies to the time for submission of the schedule, and amends the 
section accordingly.
The commission concurs with the comments regarding sec.113.95(e) that the 
instructions should include the state auditor's guidelines, and that explicit 
language requiring the agency to submit the completed management study for 
approval should be included. The commission amends the section accordingly.
The commission acknowledges that no time line was established in sec.113.95(f) 
for obtaining the commission's approval of management studies, as none is 
provided in the statute. The commission disagrees, however, that this should be 
construed as allowing unreasonable delays in such approvals.
The commission disagrees that the language in sec.113.99(a) is unclear with 
respect to the agency's receipt and incorporation of comments and suggestions 
relative to the inventory of commercial activities. The commission is to make 
comments and suggestions; whether such suggestions or comments are incorporated 
is within the discretion of the agency. The commission does not concur with the 
comment regarding the phrase "timely study" in sec.113.99(b). The commission 
disagrees that there is a need for clarification "in terms of actual time" of 
what is meant by this phrase. The phrase is intended to allow flexibility for 
the convenience of the agency as well as the commission. Moreover, the 
commission cannot agree to waive any item of review if such is required by 
statute.
The comment concerning provisions in sec.113.99(e) excluding certain measures 
from consideration pertains to language previously adopted by the commission, 
and is thus not part of proposed amendments subject to agency review and 
comments. It should be noted, however, that the requirements listed in sec.113. 
95(e) for management studies are not exclusive and thus may contain the relevant 
information to which the commenter refers.
The comment regarding sec.113.99(f) also pertains to language previously adopted 
by the commission, and is thus not part of proposed amendments subject to agency 
review and comments.
With respect to the comment concerning the "earliest date of adoption," the 
commission states that the changes are in effect as of the following date of 
certification is shown. In response to the inquiry as to what legislation is in 
effect, the legislation is that found in Texas Civil Statutes, Article 601b, 
Article 13.
The amendments are adopted under Texas Civil Statutes, Article 601b, 
sec.sec.3.01, 13.03, and 13.05, which provide the General Services Commission 
with the authority to promulgate rules to accomplish the purposes of Article 3 
and Article 13.
sec.113.95. State Agency Responsibilities.
(a) 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.
(b) 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.
(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.
(d) The agency shall then submit its schedule and activity inventory to its 
governing body by December 1 of each year for approval. The agency shall conduct 
the management study of the functions identified after approval of the governing 
body.
(e) The management study shall be conducted in accordance with the "Competitive 
Cost Review Analysis Guide" issued by the State Auditor's office, and 
instructions issued by the commission. The management study shall be forwarded 
to the commission for review and approval. As a minimum, a management study must 
contain:
(1) a description of the agency function;
(2) an analysis of the quality and quantity of the work of the agency in 
relation to that function; and
(3) a description of any efficiency initiatives that the agency could implement 
to perform the function more efficiently.
(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.
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 30, 1992.
TRD-9201488
Judith M. Porras
General Counsel
General Services Commission
Effective date: February 20, 1992
Proposal publication date: November 1, 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 adopts amendments to sec. sec.123.13, 123.15, 
and 123.18. Section 123.15 is adopted with changes to the proposed text as 
published in the November 1, 1991, issue of the Texas Register  (16 TexReg 
6183). Section 123.13 and sec.123.18 are adopted without changes and will not be 
republished.
The sections are adopted to clarify the exclusions of certain construction 
projects from the provisions of Texas Civil Statutes, Article 601b, Article 5 
and to define procedures for the selection of architects/engineers and bidding, 
in compliance with Article 601b, Article 5.
The amendment to sec.123.13 excludes certain repair and rehabilitation projects 
on state-owned buildings and leased buildings if such work is not required to be 
provided by the lessor. The amendment to sec.123.15 sets forth 
architect/engineer selection procedures and criteria and allow firms 30 days to 
prepare and submit information concerning their qualifications and experience. 
The amendment to sec.123.18 affords construction bidders 30 days to submit bids, 
except for emergencies or to prevent undue cost to a state agency; what 
constitutes an emergency is also defined.
No comments were received regarding adoption of the amendments.
The amendments are adopted under Texas Civil Statutes, Article 601b, sec.5.15, 
which authorize the General Services Commission to promulgate rules to necessary 
to accomplish the purposes of Article 5.
sec.123.15. Selection of Architect/Engineer for Professional Services.
(a) Selection of an architect/engineer for professional services shall be in 
accordance with Texas Civil Statutes, Article 601b, sec.5.22.
(b)  A using agency recommendation on an architect/engineer for a project should 
accompany the project request.
(c) When funds are appropriated for a construction project directly to the 
General Services Commission or when the using agency for which project funds are 
appropriated declines to make recommendations on an architect/engineer for a 
project, the following procedures shall be used for the architect/engineer 
selection.
(1) (No change.)
(2) 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 list of minimum 
qualifications that a prospective architect/engineer 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 
firms that meet or exceed the minimum qualifications for further consideration. 
It is recognized by the commission 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 
established for the project, but no additional firms will be considered unless 
the selection committee decides it can do so without undue administrative delay 
in the project.
(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.
(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; provided that only firms that have had previous 
experience on state construction projects shall be considered.
(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. 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 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. 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 an architect/engineer selection is completed, the firms interviewed 
but not selected will be advised of the selection committee determination.
(10) Items of consideration in making the initial selection will include, but 
not necessarily be limited to, the following:
(A) architect/engineer's experience with projects similar in character and or 
scope for which the architect/engineer is being considered;
(B)  location of architect/engineer's principal business office relative to the 
project site;
(C) compatibility between the number of employees of the architect/engineer firm 
and size and complexity of the project;
(D) (No change.)
(E) current professional service work load and capability of the 
architect/engineer to commence proceeding with the project at reasonable speed;
(F) (No change.)
(G) registration status of persons engaged in the practice of professional 
architectural or engineering services.
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 30, 1992.
TRD-9201483
Judith M. Porras
General Counsel
General Services Commission
Effective date: February 20, 1992
Proposal publication date: November 1, 1991
For further information, please call: (512) 463-3446
       
TITLE 7. BANKING AND SECURITIES
Part VII. State Securities Board
Chapter 101. General Administration
7 TAC sec.101.4
The State Securities Board adopts an amendment to sec.101.4 concerning 
examination of records without changes to the proposed text as published in the 
December 6, 1991, issue of the  Texas Register (16 TexReg 6985).
The amendment sets forth in the Agency's rules the Agency's procedures for 
addressing requests under the Texas Open Records Act.
The amendment serves as a guide for persons who inquire regarding how requests 
under the Texas Open Records Act are addressed by the Agency.
No comments were received regarding adoption of the amendment.
The amendment is adopted under Texas Civil Statutes, Article 581, sec.28-1, 
which provide that the board may make or adopt rules or regulations governing 
registration statements, applications, notices, and reports, and in the adoption 
of rules and regulations, may classify securities, persons, and matters within 
its jurisdiction, and prescribe different requirements for different classes.
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 28, 1992.
TRD-9201387
Richard D. Latham
Securities Commissioner
State Securities Board
Effective date: February 19, 1992
Proposal publication date: December 6, 1991
For further information, please call: (512) 474-2233
       
7 TAC sec.101.5
The State Securities Board adopts new sec.101.5 concerning the cost of copies of 
public records without changes to the proposed text as published in the December 
6, 1991, issue of the  Texas Register (16 TexReg 6986).
The new section provides notice of the costs for certified and noncertified 
photocopied reproductions of Agency records.
The new section reflects the costs recommended by the General Services 
Commission for certified and noncertified Agency records.
No comments were received regarding adoption of the new section.
The new section is adopted under Texas Civil Statutes, Article 581, sec.28-1, 
which provide that the board may make or adopt rules or regulations governing 
registration statements, applications, notices, and reports, and in the adoption 
of rules and regulations, may classify securities, persons, and matters within 
its jurisdiction, and prescribe different requirements for different classes.
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 28, 1992.
TRD-9201386
Richard D. Latham
Securities Commissioner
State Securities Board
Effective date: February 19, 1992
Proposal publication date: December 6, 1991
For further information, please call: (512) 474-2233
       
Chapter 115. Dealers and Salesmen
7 TAC sec.115.1
The State Securities Board adopts the an amendment to sec.115.1 concerning 
availability of records, without changes to the proposed text as published in 
the December 6, 1991, issue of the  Texas Register (16 TexReg 6986).
The section reflects in the Agency's rules a requirement regarding availability 
of records.
The section reflects the requirement that applicants for dealer and/or 
investment adviser registration execute an agreement to make records available 
to the commissioner or his representative.
No comments were received regarding adoption of the amendment.
The amendment is adopted under Texas Civil Statutes, Article 581, sec.28-1, 
which provide that the board may make or adopt rules or regulations governing 
registration statements, applications, notices, and reports, and in the adoption 
of rules and regulations, may classify securities, persons, and matters within 
its jurisdiction, and prescribe different requirements for different classes.
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 28, 1992.
TRD-9201382
Richard D. Latham
Securities Commissioner
State Securities Board
Effective date: February 19, 1992
Proposal publication date: December 6, 1991
For further information, please call: (512) 474-2233
       
7 TAC sec.115.4
The State Securities Board adopts an amendment to sec.115.4 concerning evidences 
of registration without changes to the proposed text as published in the 
December 6, 1991, issue of the  Texas Register (16 TexReg 6986).
The amendment is needed in order to comply with House Bill 1393, 72nd 
Legislature, Regular Session, 1991 concerning late renewal of licenses by 
certain military personnel and to set forth recently increased fees.
The amendments sets forth a new procedure to allow certain persons on active 
duty in the armed forces the renew their registration without having to pay a 
penalty for late renewal and reflects fee increases set forth in House Bill 11, 
72nd Legislature, 1st Called Session, 1991.
No comments were received regarding adoption of the amendment.
The amendment is adopted under Texas Civil Statutes, Article 581, sec.28-1, 
which provide that the board may make or adopt rules or regulations governing 
registration statements, applications, notices, and reports, and in the adoption 
of rules and regulations, may classify securities, persons, and matters within 
its jurisdiction, and prescribe different requirements for different classes.
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 28, 1992.
TRD-9201381
Richard D. Latham
Securities Commissioner
State Securities Board
Effective date: February 19, 1992
Proposal publication date: December 6, 1991
For further information, please call: (512) 474-2233
       
Chapter 133. Forms
7 TAC sec.133.1
The State Securities Board adopts an amendment to sec.133.1 concerning the Texas 
Open Records Act request, without changes to the proposed text as published in 
the December 6, 1991, issue of the Texas Register (16 TexReg 6987).
The amendment provides an updated form for persons who make requests under the 
Texas Open Records Act.
The amendment provides a form for Texas Open Records Act Requests.
No comments were received regarding adoption of the amendment.
The amendment is adopted under Texas Civil Statutes, Article 581, sec.28-1, 
which provide that the board may make or adopt rules or regulations governing 
registration statements, applications, notices, and reports, and in the adoption 
of rules and regulations, may classify securities, persons, and matters within 
its jurisdiction, and prescribe different requirements for different classes.
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 28, 1992.
TRD-9201385
Richard D. Latham
Securities Commissioner
State Securities Board
Effective date: February 19, 1992
Proposal publication date: December 6, 1991
For further information, please call: (512) 474-2233
       
7 TAC sec.133.2, sec.133.3
The State Securities Board adopts the repeal of sec.133.2, and sec.133.3 
concerning request for pubic records in storage form and open records act 
request without changes to the proposed text as published in the December 6, 
1991, issue of the  Texas Register (16 TexReg 6987).
The repeals are needed in order to eliminate unnecessary forms.
The repeals eliminate unnecessary forms.
No comments were received regarding adoption of the repeals.
The repeals are adopted under Texas Civil Statutes, Article 581, sec.28-1, which 
provide that the board may make or adopt rules or regulations governing 
registration statements, applications, notices, and reports, and in the adoption 
of rules and regulations, may classify securities, persons, and matters within 
its jurisdiction, and prescribe different requirements for different classes.
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 28, 1992.
TRD-9201384
Richard D. Latham
Securities Commissioner
State Securities Board
Effective date: February 19, 1992
Proposal publication date: December 6, 1991
For further information, please call: (512) 474-2233
       
Chapter 133. Forms.
7 TAC sec.133.15
The State Securities Board adopts an amendment to sec.133.15 application for 
registration as an individual securities dealer or investment adviser.
The amendment is adopted without changes to the proposed text as published in 
the December 6, 1991, issue of the Texas Register (16 TexReg 6988).
The amendment is needed to reflect current filing fees.
The form reflects the increased fee contained in House Bill 11, 72nd 
Legislature, 1st Called Session, 1991.
No comments were received regarding adoption of the amendment.
The amendment is adopted under Texas Civil Statutes, Article 581, sec.28-1, 
which provide that the board may make or adopt rules or regulations governing 
registration statements, applications, notices, and reports, and in the adoption 
of rules and regulations, may classify securities, persons, and matters within 
its jurisdiction, and prescribe different requirements for different classes.
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 28, 1992.
TRD-9201380
Richard D. Latham
Securities Commissioner
State Securities Board
Effective date: February 19, 1992
Proposal publication date: December 6, 1991
For further information, please call: (512) 474-2233
       
7 TAC sec.133.17, sec.133.19
The State Securities Board adopts new sec.133.17 concerning multiple 
registration-undertaking to disclose affiliations; and an amendment to 
sec.133.19 concerning application for registration of a corporation or 
partnership as a securities dealer or investment advisor or as a securities 
salesman without changes to the proposed text as published in the December 6, 
1991, issue of the  Texas Register (16 TexReg 6988), however there was one 
change made to the form itself in  sec.133.17 in order to make it clear that 
affiliations include situations in which persons or business organizations own, 
of record or beneficially, any interest amounting to 10% or more of the voting 
control in any registered entity with whom the registrant is affiliated.
Section 133.17 provides a standardized form to make it easier for applicants for 
multiple registration to undertake to disclose certain affiliations in 
accordance with 7 TAC sec.115.1(e)(1)(A).
Section 133.19 is needed to reflect current filing fees.
Section 133.17 creates a form upon which to make the required undertaking.
The form in sec.133.19 reflects the increased fee contained in House Bill 11, 
72nd Legislature, 1st Called Session, 1991.
No comments were received regarding adoption of the amendment and new section.
The new section and amendment are adopted under Texas Civil Statutes, Article 
581, sec.28-1, which provide that the board may make or adopt rules or 
regulations governing registration statements, applications, notices, and 
reports, and in the adoption of rules and regulations, may classify securities, 
persons, and matters within its jurisdiction, and prescribe different 
requirements for different classes.
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 28, 1991.
TRD-9201376
Richard D. Latham
Securities Commissioner
State Securities Board
Effective date: February 19, 1992
Proposal publication date: December 6, 1991
For further information, please call: (512) 474-2233
       
7 TAC sec.sec.133.20, 133.23, 133.24
The State Securities Board adopts amendments to sec.133.20, 133.23, and 133. 24 
concerning forms, without changes to the proposed text as as published in the 
December 6, 1991, issue of the Texas Register (16 TexReg 6988).
Section 133.20 is needed to reflect current filing fees. Section 133.23 provides 
a new form to make it easier for applicants to certify that Texas franchise 
taxes either are not owed or that payment of such taxes has been made, Section 
133.24 is needed to reflect current filing fees.
In sec.133.20, the form reflects the increased fee contained in House Bill 11, 
72nd Legislature, 1st Called Session, 1991. Section 133.23 creates a new form 
upon which an applicant may set forth the franchise tax related in formation. In 
sec.133.24, the form reflects the increased fee contained in House Bill 11, 72nd 
Legislature, 1st Called Session, 1991.
No comments were received regarding adoption of the amendments and new sections.
The amendments and new section are proposed under Texas Civil Statutes, Article 
581, sec.28.1, which provide that the board may make or adopt rules and 
regulations governing registration statements, applications, notices, and 
reports, and the adoption of rules and regulations, may classify securities, 
persons, and matters within its jurisdiction, and prescribe different 
requirements for different classes.
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 28, 1992.
TRD-9201378
Richard D. Latham
Securities Commissioner
State Securities Board
Effective date: February 19, 1992
Proposal publication date: December 6, 1991
For further information, please call: (512) 474-2233
       
TITLE 22. EXAMINING BOARDS
Part V. Texas State Board of Dental Examiners
Chapter 101. Dental Licensure
22 TAC sec.101.1
The Texas State Board of Dental Examiners adopts an amendment to sec.101.1, 
concerning general qualifications, with changes to the proposed text as 
published in the November 15, 1991, issue of the Texas Register (16 TexReg 
6629).
The board adopts this rule to provide further clarification of dental 
examination procedures and to eliminate duplicative language in the rule.
The section states the general qualifications for any person desiring to 
practice dentistry in the State of Texas.
Comments received regarded suggested word changes for further clarification of 
the rule.
The name of a group or association making comments for the section was as 
followed: Texas Department of Health. The agency agrees with comments.
The amendment is adopted under Texas Civil Statutes, Article 4551f(6)(a)-(c), 
which provide the Texas State Board of Dental Examiners with the authority to 
adopt and enforce such rules and regulations not inconsistent with the laws of 
the state as may be necessary for the performance of its duties and/or to ensure 
compliance with the state laws relating to the practice of dentistry to protect 
the public health and safety.
sec.101.1. General Qualifications.
(a) (No change.)
(b) An applicant for licensure from the Texas State Board of Dental Examiners 
shall:
(1) make written application to the board which shall indicate compliance with 
all requirements of said application to the board. Written application shall be 
received not later than 30 days prior to the announced examination date;
(2) present proof of graduation from a dental school accredited by the 
Commission on Dental Accreditation of the American Dental Association or if the 
applicant has not completed the last term of dental school prior to making 
application, the dean of the accredited school shall certify that the applicant 
is a candidate for graduation to occur prior to the examination date;
(3) present proof of having passed the examination for dentists in its entirety 
given by the National Board of Dental Examiners;
(4) present proof of successful completion of a current course in basic life 
support given by the American Heart Association or the American Red Cross prior 
to the applicant's examination for licensure;
(5) pay an examination and licensure fee as required by law and the rules and 
regulations of the board; and
(6) satisfactorily pass either an oral, written, or clinical practical 
examination or any combination thereof as may be determined by the board.
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 30, 1992.
TRD-9201462
C. Thomas Camp
Executive Director
Texas State Board of Dental Examiners
Effective date: February 20, 1992
Proposal publication date: November 15, 1991
For further information, please call: (512) 477-2985
       
Chapter 103. Dental Hygiene Licensure
22 TAC sec.103.1
The Texas State Board of Dental Examiners adopts an amendment to sec.103.1, 
concerning general qualifications, without changes to the proposed text as 
published in the November 15, 1991, issue of the Texas Register (16 TexReg 
6630).
The board adopts this rule to consolidate duplicative rule language and to 
clarify dental hygiene examination procedures.
The section states the general qualifications for any person desiring to 
practice dental hygiene in the State of Texas.
No comments were received regarding adoption of the amendment.
The amendment is adopted under Texas Civil Statutes, Article 4551f(6)(a)-(c), 
which provide the Texas State Board of Dental Examiners with the authority to 
adopt and enforce such rules and regulations not inconsistent with the laws of 
the state as may be necessary for the performance of its duties and/or to ensure 
compliance with the state laws relating to the practice of dentistry to protect 
the public health and safety.
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 30, 1992.
TRD-9201463
C. Thomas Camp
Executive Director
Texas State Board of Dental Examiners
Effective date: February 20, 1992
Proposal publication date: November 15, 1991
For further information, please call: (512) 477-2985
       
22 TAC sec.103.12
The Texas State Board of Dental Examiners adopts the repeal of sec.103.12, 
concerning examination required, without changes to the proposed text as 
published in the November 15, 1991, issue of the Texas Register (16 TexReg 
6631).
The board is repealing this rule since all pertinent information is covered in 
other rules.
No comments were received regarding adoption of the repeal.
The repeal is adopted under Texas Civil Statutes, Article 4551f(6)(a)-(c), which 
provide the Texas State Board of Dental Examiners with the authority to adopt 
and enforce such rules and regulations not inconsistent with the laws of the 
state as may be necessary for the performance of its duties and/or to ensure 
compliance with the state laws relating to the practice of dentistry to protect 
the public health and safety.
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 30, 1992.
TRD-9201464
C. Thomas Camp
Executive Director
Texas State Board of Dental Examiners
Effective date: February 20, 1992
Proposal publication date: November 15, 1991
For further information, please call: (512) 477-2985
       
22 TAC sec.103.13
The Texas State Board of Dental Examiners adopts the repeal of sec.103.13, 
concerning national board, without changes to the proposed text as published in 
the November 15, 1991, issue of the Texas Register (16 TexReg 6631).
The board is repealing this rule since all pertinent information is covered in 
other rules.
No comments were received regarding adoption of the repeal.
The repeal is adopted under Texas Civil Statutes, Article 4551f(6)(a)-(c), which 
provide the Texas State Board of Dental Examiners with the authority to adopt 
and enforce such rules and regulations not inconsistent with the laws of the 
state as may be necessary for the performance of its duties and/or to ensure 
compliance with the state laws relating to the practice of dentistry to protect 
the public health and safety.
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 30, 1992.
TRD-9201465
C. Thomas Camp
Executive Director
Texas State Board of Dental Examiners
Effective date: February 20, 1992
Proposal publication date: November 15, 1991
For further information, please call: (512) 477-2985
       
22 TAC sec.103.14
The Texas State Board of Dental Examiners adopts the repeal of sec.103.14, 
concerning application deadline, without changes to the proposed text as 
published in the November 15, 1991, issue of the Texas Register (16 TexReg 
6631).
The board is repealing this rule since all pertinent information is covered in 
other rules.
No comments were received regarding adoption of the repeal.
The repeal is adopted under Texas Civil Statutes, Article 4551f(6)(a)-(c), which 
provide the Texas State Board of Dental Examiners with the authority to adopt 
and enforce such rules and regulations not inconsistent with the laws of the 
state as may be necessary for the performance of its duties and/or to ensure 
compliance with the state laws relating to the practice of dentistry to protect 
the public health and safety.
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 30, 1992.
TRD-9201466
C. Thomas Camp
Executive Director
Texas State Board of Dental Examiners
Effective date: February 20, 1992
Proposal publication date: November 15, 1991
For further information, please call: (512) 477-2985
       
Chapter 109. Conduct
Fair Dealing
22 TAC sec.109.144
The Texas State Board of Dental Examiners adopts an amendment to sec.109.144, 
concerning records and their transfer, without changes to the proposed text as 
published in the November 15, 1991, issue of the Texas Register  (16 TexReg 
6631).
The board adopts this rule to clarify patient records ownerships and transfer 
for the protection of public health and provisions directed under revised 
statutory language.
The section states that a Texas dental licensee practicing dentistry in Texas 
shall make, maintain, and keep adequate records of diagnosis made and the 
treatment performed upon each dental patient. It also discusses the transfer of 
those records. In addition, it states that dental records are the sole property 
of the dentist who performs the dental service. The dentist who leaves a 
location, whether for retirement, sale, or whatever reason, shall either take 
all records with him, make a written transfer of records to the succeeding 
dentist, or make written agreement for the maintenance of records.
The Texas Association of Orthodontists commented in support of the rule.
The amendment is adopted under Texas Civil Statutes, Article 4551f(6)(a)-(c), 
which provide the Texas State Board of Dental Examiners with the authority to 
adopt and enforce such rules and regulations not inconsistent with the laws of 
the state as may be necessary for the performance of its duties and/or to ensure 
compliance with the state laws relating to the practice of dentistry to protect 
the public health and safety.
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 30, 1992.
TRD-9201467
C. Thomas Camp
Executive Director
Texas State Board of Dental Examiners
Effective date: February 20, 1992
Proposal publication date: November 15, 1991
For further information, please call: (512) 477-2985
       
Mobile or Moveable Offices
22 TAC sec.109.153
The Texas State Board of Dental Examiners adopts an amendment to sec.109.153, 
concerning practice requirements: upon approval, without changes to the proposed 
text as published in the November 15, 1991, issue of the Texas Register  (16 
TexReg 6632).
The board adopts this rule to provide for the protection of public health and 
welfare and enhance the quality of dental health care in Texas, and to provide 
the public access to information.
The section states that all dental service is to be performed upon indigents or 
those physically unable to be transported to a dental office.
Comments received regarded suggested word changes for further clarification of 
the rule.
The name of a group or association making comments for the section was Texas 
Department of Health. The agency agrees with comments.
The amendment is adopted under Texas Civil Statutes, Article 4551f(6)(a)-(c), 
which provide the Texas State Board of Dental Examiners with the authority to 
adopt and enforce such rules and regulations not inconsistent with the laws of 
the state as may be necessary for the performance of its duties and/or to ensure 
compliance with the state laws relating to the practice of dentistry to protect 
the public health and safety.
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 30, 1992.
TRD-9201468
C. Thomas Camp
Executive Director
Texas State Board of Dental Examiners
Effective date: February 20, 1992
Proposal publication date: November 15, 1991
For further information, please call: (512) 477-2985
       
Anesthesia and Anesthetic Agents
22 TAC sec.109.174
The Texas State Board of Dental Examiners adopts an amendment to sec.109.174, 
concerning sedation/anesthesia permit, without changes to the proposed text as 
published in the November 15, 1991, issue of the Texas Register  (16 TexReg 
6632).
The board adopts this rule to provide a means to recover administrative costs in 
issuing permits for the protection of public health and welfare and enhance the 
quality of dental health care in Texas.
The section states the annual renewal fees for dental license renewal 
certificates. It also states fees for new permit issuances after March 1, 1992.
No comments were received regarding adoption of the amendment.
The amendment is adopted under Texas Civil Statutes, Article 4551f(6)(a)-(c), 
which provide the Texas State Board of Dental Examiners with the authority to 
adopt and enforce such rules and regulations not inconsistent with the laws of 
the state as may be necessary for the performance of its duties and/or to ensure 
compliance with the state laws relating to the practice of dentistry to protect 
the public health and safety.
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 30, 1992.
TRD-9201469
C. Thomas Camp
Executive Director
Texas State Board of Dental Examiners
Effective date: February 20, 1992
Proposal publication date: November 15, 1991
For further information, please call: (512) 477-2985
       
22 TAC sec.109.175
The Texas State Board of Dental Examiners adopts an amendment to sec.109.175, 
concerning permit requirements, without changes to the proposed text as 
published in the November 15, 1991, issue of the Texas Register (16 TexReg 
6633).
The board adopts this rule to provide for the protection of public health and 
welfare and enhance the quality of dental health care in Texas, and to provide 
the public access to information.
The section states standard of care requirements of the inhalation conscious 
sedation procedure.
No comments were received regarding adoption of the amendment.
The amendment is adopted under Texas Civil Statutes, Article 4551f(6)(a)-(c), 
which provide the Texas State Board of Dental Examiners with the authority to 
adopt and enforce such rules and regulations not inconsistent with the laws of 
the state as may be necessary for the performance of its duties and/or to ensure 
compliance with the state laws relating to the practice of dentistry to protect 
the public health and safety.
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 30, 1992.
TRD-9201470
C. Thomas Camp
Executive Director
Texas State Board of Dental Examiners
Effective date: February 20, 1992
Proposal publication date: November 15, 1991
For further information, please call: (512) 477-2985
       
Retired Status
22 TAC sec.109.181
The Texas State Board of Dental Examiners new sec.109.181, concerning 
educational or other requirements, without changes to the proposed text as 
published in the November 15, 1991, issue of the Texas Register (16 TexReg 
6633).
The board adopts this rule to provide for the protection of public health and 
welfare and enhance the quality of dental health care in Texas, and to provide 
the public access to information.
The section states the requirements for continuing or remedial education courses 
for a retired dentist who has applied to be reinstated into active practice.
No comments were received regarding adoption of the new section.
The new section is adopted under Texas Civil Statutes, Article 4551f(6)(a)-(c) , 
which provide the Texas State Board of Dental Examiners with the authority to 
adopt and enforce such rules and regulations not inconsistent with the laws of 
the state as may be necessary for the performance of its duties and/or to ensure 
compliance with the state laws relating to the practice of dentistry to protect 
the public health and safety.
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 30, 1992.
TRD-9201471
C. Thomas Camp
Executive Director
Texas State Board of Dental Examiners
Effective date: February 20, 1992
Proposal publication date: November 15, 1991
For further information, please call: (512) 477-2985
       
Infection Control
22 TAC sec.109.220
The Texas State Board of Dental Examiners adopts an new  sec.109.220, concerning 
purpose, without changes to the proposed text as published in the November 15, 
1991, issue of the  Texas Register (16 TexReg 6634).
The board adopts this rule to provide for the protection of public health and 
welfare and enhance the quality of dental health care in Texas.
The section states the purpose of rules in this subchapter to establish proper 
sterilization, disinfection, and other infection control procedures in the 
practice of dentistry.
Comments received were as follows: Texas Department of Health-clarification of 
wording for technical accuracy; Texas Dental Association-clarification of 
wording for technical accuracy; Texas Association of Orthodontists-clarification 
of wording for technical accuracy; UTHScience Center-Houston Branch-
clarification of wording for technical accuracy.
The names of groups and associations making comments for and against the section 
are as follows: for-Texas Department of Health; Texas Association of 
Orthodontists; UTHSC-Houston Branch; and against-Texas Dental Association.
House Bill 7 and OSHA require that health care workers comply with universal 
precautions and infection control procedures otherwise. The 72nd Legislature has 
given statutory authority to the Texas State Board of Dental Examiners to 
investigate infection control and to adopt rules accordingly.
The new section is adopted under Texas Civil Statutes, Article 4551f(6)(a)-(c) , 
which provide the Texas State Board of Dental Examiners with the authority to 
adopt and enforce such rules and regulations not inconsistent with the laws of 
the state as may be necessary for the performance of its duties and/or to ensure 
compliance with the state laws relating to the practice of dentistry to protect 
the public health and safety.
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 30, 1992.
TRD-9201477
C. Thomas Camp
Executive Director
Texas State Board of Dental Examiners
Effective date: February 20, 1992
Proposal publication date: November 15, 1991
For further information, please call: (512) 477-2985
       
22 TAC sec.109.221
The Texas State Board of Dental Examiners adopts new sec.109.221, concerning 
definitions, without changes to the proposed text as published in the November 
15, 1991, issue of the Texas Register (16 TexReg 6634).
The board adopts this rule to provide for the protection of public health and 
welfare and enhance the quality of dental health care in Texas.
The section states the definitions of the terms "health care workers," 
"invasive-procedure" and "universal precaution" as those terms are defined in 
the Texas Health and Safety Code, sec.85.202, as amended, Acts 72nd Legislature, 
First Called Session, sec.36, Chapter 14 (1991), and guidelines from the Centers 
for Disease Control as applied to the practice of dentistry.
Comments received were as follows: Texas Department of Health-clarification of 
wording for technical accuracy; Texas Dental Association-clarification of 
wording for technical accuracy; Texas Association of Orthodontists-clarification 
of wording for technical accuracy; UTHScience Center-Houston Branch-
clarification of wording for technical accuracy.
The names of groups and associations making comments for and against the section 
are as follows: for-Texas Department of Health; Texas Association of 
Orthodontists; UTHSC-Houston Branch; and against-Texas Dental Association.
House Bill 7 and OSHA require that health care workers comply with universal 
precautions and infection control procedures otherwise. The 72nd Legislature has 
given statutory authority to the Texas State Board of Dental Examiners to 
investigate infection control and to adopt rules accordingly.
The new section is adopted under Texas Civil Statutes, Article 4551f(6)(a)-(c) , 
which provide the Texas State Board of Dental Examiners with the authority to 
adopt and enforce such rules and regulations not inconsistent with the laws of 
the state as may be necessary for the performance of its duties and/or to ensure 
compliance with the state laws relating to the practice of dentistry to protect 
the public health and safety.
sec.109.221. Definitions.  The following words and terms, when used in this 
subchapter, shall have the following meanings, unless the context clearly 
indicates otherwise. The definitions of the term "health care worker," 
"invasive-procedure," and "universal precautions," as those terms are defined in 
the Texas Health and Safety Code, sec.85.202, as amended, Acts 72nd Legislature, 
First Called Session, sec.36, Chapter 14 (1991), (hereinafter referenced as THSC 
sec.....) and guidelines from the Centers for Disease Control (CDC), as applied 
to the practice of dentistry, are incorporated herein by reference.
   Sterilization  -A process by which all forms of life with a defined 
environment are completely destroyed.
   Disinfection-The partial elimination of active growth stage bacteria and the 
inactivation of some viruses. The potential for infection remains after 
disinfection, including infection with M. tuberculosis, hepatitis A virus (HAV), 
and hepatitis B virus (HBV). The human immunodeficiency virus (HIV) may also 
remain active following disinfection.
   Barrier techniques -The use of protective items against infection-
transmission during any intraoral or invasive procedure to include appropriate 
gloves for the procedure performed. This definition shall include protective eye 
wear and nasal/oral masks when "splash, spatter, or aerosol" of body fluids is 
possible or expected.
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 30, 1992.
TRD-9201478
C. Thomas Camp
Executive Director
Texas State Board of Dental Examiners
Effective date: February 20, 1992
Proposal publication date: November 15, 1991
For further information, please call: (512) 477-2985
       
Infection Control
22 TAC sec.109.222
The Texas State Board of Dental Examiners adopts new sec.109.222, concerning 
required sterilization and disinfection, with changes to the proposed text as 
published in the November 15, 1991, issue of the Texas Register (16 TexReg 
6634).
The board adopts this rule to provide for the protection of public health and 
welfare and enhance the quality of dental health care in Texas.
The section states that sterilization and disinfection is required for all 
surgical and other instruments used intraorally and extraorally that are used 
invasively or in a contact with or penetration of soft tissue, bone, or other 
hard tissues.
Comments received were as follows: Texas Department of Health-clarification of 
wording for technical accuracy; Texas Dental Association-clarification of 
wording for technical accuracy; Texas Association of Orthodontists-clarification 
of wording for technical accuracy; UTHScience Center-Houston Branch-
clarification of wording for technical accuracy.
The names of groups and associations making comments for and against the section 
are as follows: for-Texas Department of Health; Texas Association of 
Orthodontists; UTHSC-Houston Branch; and against-Texas Dental Association.
House Bill 7 and OSHA require that health care workers comply with universal 
precautions and infection control procedures otherwise. The 72nd Legislature has 
given statutory authority to the Texas State Board of Dental Examiners to 
investigate infection control and to adopt rules accordingly.
The new section is adopted under Texas Civil Statutes, Article 4551f(6)(a)-(c) , 
which provide the Texas State Board of Dental Examiners with the authority to 
adopt and enforce such rules and regulations not inconsistent with the laws of 
the state as may be necessary for the performance of its duties and/or to ensure 
compliance with the state laws relating to the practice of dentistry to protect 
the public health and safety.
sec.109.222. Required Sterilization and Disinfection.
(a) Sterilization is required for all surgical and other instruments that may be 
used intraorally or extraorally, where these instruments may be used invasively 
or in contact with or penetration of soft tissue, bone, or other hard tissue. 
Other non-surgical instruments, such as plastic instruments, that may come into 
contact with tissue must be disinfected with an American Dental Association 
(ADA) registered solution that is tuberculocidal.
(b) All instruments subject to sterilization must undergo at least one of the 
following procedures:
(1) steam autoclave;
(2) chemical vapor;
(3) dry-heat oven;
(4) ethylene oxide;
(5) chemical sterilant (used in dilution amounts and time periods according to 
manufacture's recommendations or accepted OSHA standards). Sterilization 
equipment and its adequacy shall be tested and verified in accord with ADA 
recommendations.
(c) Following a dental procedure, all instrumentation and operatory equipment 
that may have become contaminated with blood, saliva, or tissue debris must be, 
at a minimum, disinfected and preferably sterilized by a CDC or ADA-approved 
method before utilization again for patient care.
(d) Prior to sterilization, all instruments must be free of any visible debris 
and must be either scrubbed thoroughly with a detergent and water solution or 
debrided in an ultrasonic device containing cleaning solution.
(e) Oral prosthetic appliances and devices from a dental laboratory must be 
washed with a detergent and water solution, rinsed, disinfected, and rinsed 
before the appliance or device is placed into a patient's mouth.
(f) Disposable (non-resterilizable) items, including, but not limited to, 
gloves, needles, intravenous fluids, intravenous administration tubing, 
intravenous catheters/needles, and like items, shall not be used in the 
treatment of more than one patient.
(g) All items contaminated by body fluids during patients care must be treated 
as biohazardous material. Before extracted teeth are returned to a patient or 
other party, the teeth must be rendered non-biohazardous. All contaminated 
single-use items must be disposed of through established OSHA guidelines for 
such disposal. Teeth or tissue fragments to be used for microscopic, testing, or 
educational purposes must be sterilized prior to use. Such tissues must be 
handled and stored as biohazardous material until sterilization is performed.
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 30, 1992.
TRD-9201479
C. Thomas Camp
Executive Director
Texas State Board of Dental Examiners
Effective date: February 20, 1992
Proposal publication date: November 15, 1991
For further information, please call: (512) 477-2985
       
22 TAC sec.109.223
The Texas State Board of Dental Examiners adopts new sec.109.223, concerning 
dental health care workers, with changes to the proposed text as published in 
the November 15, 1991, issue of the  Texas Register (16 TexReg 6635).
The board adopts this rule to provide for the protection of public health and 
welfare and enhance the quality of dental health care in Texas.
The section states all dental health care workers shall comply with universal 
precautions as prescribed for dentistry by the Centers for Disease Control and 
the Texas Health and Safety Code, sec.85.202 et seq, as amended, 1991, in the 
care, handling, and treatment of patients in the dental office or other setting 
where dental procedures of any type may be performed.
Comments received were as follows: Texas Department of Health-clarification of 
words for technical accuracy; Texas Association of Orthodontists-clarification 
of words for accuracy; Texas Dental Association-clarification of words for 
technical accuracy; University of Houston Health Science Center-clarification of 
words for technical accuracy.
The names of groups and associations making comments for the section are as 
follows: Texas Department of Health; Texas Association of Orthodontists; UTHSC-
Houston Branch; Texas Dental Association. The agency agrees with comments.
The new section is adopted under Texas Civil Statutes, Article 4551f(6)(a)-(c) , 
which provide the Texas State Board of Dental Examiners with the authority to 
adopt and enforce such rules and regulations not inconsistent with the laws of 
the state as may be necessary for the performance of its duties and/or to ensure 
compliance with the state laws relating to the practice of dentistry to protect 
the public health and safety.
sec.109.223. Dental Health Care Workers.
(a) All dental health care workers shall comply with universal precautions, as 
recommended for dentistry by the Centers for Disease Control and required by the 
Texas Health and Safety Code, sec.85.202, et seq, as amended, 1991, in the care, 
handling, and treatment of patients in the dental office or other setting where 
dental procedures of any type may be performed.
(b) All dental health care workers who have exudative lesions or weeping 
dermatitis shall refrain from contact with equipment, devices, and appliances 
that may be used for or during patient care, where such contact holds potential 
for blood or body fluid contamination, and shall refrain from all patient care 
and contact until the condition(s) resolvers unless barrier techniques would 
prevent patient contact with the dental health care worker's blood or body 
fluid.
(c) A dental health care worker(s) who knows he or she is infected with HIV or 
HBV and who knows he or she is HBeAg positive may not perform any invasive 
procedures unless and until the worker has reported his/her health status to an 
expert review panel, as provided for herein, and has sought and received counsel 
from panel as to what procedures, if any, the worker may continue to perform, 
pursuant to provisions of THSC, sec.85.204, et seq, as amended, 1991.
(d) An expert review panel shall be named upon, or as soon thereafter as 
possible, the effective date of these rules and shall be comprised of experts 
designated by the board in the fields of infectious disease with emphasis in HIV 
and HBV epidemiology; dentistry with expertise in diagnosis and treatment of 
oral manifestations of HIV; and HBV infection; and public health. The expert 
review panel shall conduct its review(s) and make its determinations with 
confidentiality, except that such information shall be reported to the Texas 
State Board of Dental Examiners as provided herein. The release of information 
by the panel, relating to the workers' infectious disease status shall be to the 
board secretary and executive director, and any such information shall be 
utilized only for the purposes of monitoring the worker's compliance with 
conditions set by the review panel. In each instance of panel review of a health 
care worker's infectious disease status, the panel shall include, where 
possible, the health care worker's personal physician.
(e) A dental health care worker periodically may petition the panel for any 
redetermination(s) as to a change in the worker's status for purposes of 
reassessing patient-care duties that may or may not be performed.
(f) A dental health care worker who knows he/she is infected with HIV, or HBV 
and knows he or she is HBeAg positive, and who is not restricted from performing 
invasive procedures must comply with all infection control rules herein to 
include universal precautions, applicable to dentistry, as those are set out by 
the Centers for Disease Control and provisions of THSC sec.85.201, et seq, as 
amended, 1991.
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 30, 1992.
TRD-9201480
C. Thomas Camp
Executive Director
Texas State Board of Dental Examiners
Effective date: February 20, 1992
Proposal publication date: November 15, 1991
For further information, please call: (512) 477-2985
       
22 TAC sec.109.224
The Texas State Board of Dental Examiners adopts new sec.109.224, concerning 
disciplinary procedures, with changes to the proposed text as published in the 
November 15, 1991, issue of the  Texas Register (16 TexReg 6636).
The board adopts this rule to provide for the protection of public health and 
welfare and enhance the quality of dental health care in Texas.
The section states the disciplinary procedures for dental health care workers 
who fail to comply with notifications to the board within 24 hours, or next 
working day, of confirmed testing of positive results for HIV and HBV 
antibodies.
The following comments were received. Texas Department of Health-clarification 
of words for technical accuracy; Texas Association of Orthodontists-
clarification of words for accuracy; Texas Dental Association-clarification of 
words for technical accuracy.
The names of groups and associations making comments for the section were as 
follows: Texas Department of Health; Texas Association of Orthodontists; UTHSC-
Houston Branch; Texas Dental Association. The agency agrees with comments.
The new section is adopted under Texas Civil Statutes, Article 4551f(6)(a)-(c) , 
which provide the Texas State Board of Dental Examiners with the authority to 
adopt and enforce such rules and regulations not inconsistent with the laws of 
the state as may be necessary for the performance of its duties and/or to ensure 
compliance with the state laws relating to the practice of dentistry to protect 
the public health and safety.
sec.109.224. Disciplinary Procedures.
(a) A dental health care worker shall notify the expert review panel directly 
through the Texas State Board of Dental Examiners (TSBDE) director within 24 
hours, or the next working day, of confirmed testing of positive results for HIV 
or HBeAg seropositivity. Failure by the health care worker to do so may result 
in disciplinary action, including license revocation or suspension, as may be 
determined by the board in accord with Texas Civil Statutes, Article 4549, 
sec.3.
(b) A dental health care worker who is subject to the review panels counsel and 
prescribed conditions for practice, and who is allowed to continue to practice 
in part or in total, shall comply with all terms and conditions of the panel's 
determination and with any other matters of compliance within these rules and 
the Dental Practice Act.
(c) A dental health care worker who is subject to the review panel's counsel, 
and who experiences a break in protective barrier technique while treating a 
patient, is required to temporarily cease treatment until the protective barrier 
can be fully restored. If bleeding or body fluid exposure to the patient 
presents a continued potential exposure after protective barrier restoration, 
the infected health care worker must cease further direct contact or treatment 
of that patient, but the health care worker shall be responsible for the safety 
of said patient in the procedure termination. Following a protective barrier 
break, the infected health care worker must file an oral report with the TSBDE 
director no later than 24 hours, or the next working day, following the 
occurrence. The oral report must be followed with a written report within 72 
hours to the director, who shall cause a copy of said report to be filed with 
the expert review panel. Failure of the health care worker to do so shall result 
in immediate disciplinary action by the board, after review and consultation 
with the review panel, in accord with this section. For purposes of this 
section, a break in protective barrier includes, but is not limited to, a cut, 
tear, or puncture in gloves or a cut, abrasion, or break of the skin which could 
expose the patient to the potential for infection.
(d) A dental health care worker who is found to be in violation of the review 
panel's determinations of the worker's conditions of practice as established by 
the panel, or in violation of universal precautions and these rules, is subject 
to disciplinary action by the board as described in subsection (a) of this 
section.
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 30, 1992.
TRD-9201481
C. Thomas Camp
Executive Director
Texas State Board of Dental Examiners
Effective date: February 20, 1992
Proposal publication date: November 15, 1991
For further information, please call: (512) 477-2985
       
Chapter 113. Requirements for Dental Offices
22 TAC sec.113.2
The Texas State Board of Dental Examiners adopts an amendment to sec.113.2, 
concerning x-ray laboratories, without changes to the proposed text as published 
in the November 15, 1991, issue of the Texas Register (16 TexReg 6636).
The board adopts this rule to provide for the protection of public health and 
welfare and enhance the quality of dental health care in Texas, and to provide 
the public access to information.
The section states that laboratories such as x-ray laboratories must be in the 
dental office of a legally practicing dentist. All patients must be protected 
during the time of exposure to x-rays with a lead apron and equipment that is 
properly monitored by the authorized agency.
Comments received are as follows: Texas Dental Association-recommends that these 
words be deleted: "and by equipment that is properly monitored by the authorized 
agency."
The name of a group or association making comments against the section was as 
follows: Texas Dental Association.
The agency clarified that it was not the dentist who was required to monitor x-
ray equipment; rather, it was equipment that was properly monitored when being 
used with a patient, all for safety reasons.
The amendment is adopted under Texas Civil Statutes, Article 4551f(6)(a)-(c) 
which provide the Texas State Board of Dental Examiners with the authority to 
adopt and enforce such rules and regulations not inconsistent with the laws of 
the state as may be necessary for the performance of its duties and/or to ensure 
compliance with the state laws relating to the practice of dentistry to protect 
the public health and safety.
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 30, 1992.
TRD-9201472
C. Thomas Camp
Executive Director
Texas State Board of Dental Examiners
Effective date: February 20, 1992
Proposal publication date: October 15, 1991
For further information, please call: (512) 477-2985
       
Chapter 114. Extension of Duties of Auxiliary Personnel-Dental Assistants
22 TAC sec.114.1
The Texas State Board of Dental Examiners adopts new sec.114.1, concerning 
permitted duties, with changes to the proposed text as published in the October 
11, 1991, issue of the Texas Register (16 TexReg 5692).
The board adopts this rule to provide for the protection of public health and 
welfare and enhance the quality of dental health care in Texas.
The section states that a dental assistant may perform a dental act(s) delegated 
by a dentist which after being performed, is capable of being reversed or 
corrected. The delegating dentist shall remain responsible for any delegated 
act.
Comments received were as follows: Texas Association of Orthodontists 
recommended word changes to rule-delete "no potential," Texas Dental 
Association-recommended word changes to rule-"A supervising dentist may delegate 
the performance of dental acts to a dental assistant, provided the delegation of 
such acts is not prohibited by the Dental Practice Act, Article 455le-1 
subsection (b)(1), (2)(A), (2)(B), or (3).
The names of groups and associations making comments for and against the section 
are as follows: for: Texas Association of Orthodontists; and against: Texas 
Dental Association. The agency agrees with recommended comments.
The new section is adopted under Texas Civil Statutes, Article 4551f(6)(a)-(c) , 
which provide the Texas State Board of Dental Examiners with the authority to 
adopt and enforce such rules and regulations not inconsistent with the laws of 
the state as may be necessary for the performance of its duties and/or to ensure 
compliance with the state laws relating to the practice of dentistry to protect 
the public health and safety.
sec.114.1. Permitted Duties.  In delegating a dental act, or acts, to a dental 
assistant, the dentist shall delegate only those acts of which, after being 
performed by the dental assistant, the results are capable of being reversed or 
corrected. The delegating dentist shall remain responsible for any delegated 
act.
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 30, 1992.
TRD-9201473
C. Thomas Camp
Executive Director
Texas State Board of Dental Examiners
Effective date: February 20, 1992
Proposal publication date: October 11, 1991
For further information, please call: (512) 477-2985
       
Chapter 115. Extension of Duties of Auxiliary Personnel Dental Hygiene
Dental Hygiene
22 TAC sec.115.2
The Texas State Board of Dental Examiners adopts an amendment to sec.115.2, 
concerning permitted duties and radiologic procedures, without changes to the 
proposed text as published in the November 15, 1991, issue of the Texas Register  
(16 TexReg 6637).
The board amends this rule for consistency with statutory changes to the Dental 
Practice Act.
The section further clarifies the duties a dental hygienist may perform in the 
dental office of his or her employer under his or her supervision, direction, 
and responsibility.
No comments were received regarding adoption of the amendment.
The amendment is adopted under Texas Civil Statutes, Article 4551f(6)(a)-(c), 
which provide the Texas State Board of Dental Examiners with the authority to 
adopt and enforce such rules and regulations not inconsistent with the laws of 
the state as may be necessary for the performance of its duties and/or to ensure 
compliance with the state laws relating to the practice of dentistry to protect 
the public health and safety.
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 30, 1992.
TRD-9201474
C. Thomas Camp
Executive Director
Texas State Board of Dental Examiners
Effective date: February 20, 1992
Proposal publication date: November 15, 1991
For further information, please call: (512) 477-2985
       
22 TAC sec.115.3
The Texas State Board of Dental Examiners adopts an amendment to sec.115.3, 
concerning institutional employment, without changes to the proposed text as 
published in the October 11, 1991, issue of the Texas Register  (16 TexReg 
5692).
The board adopts this rule to provide for the protection of public health and 
welfare and enhance the quality of dental health care in Texas, and to provide 
the public access to information.
The section allows custodial care institutions (public or private) to employ a 
dental hygienist when a licensed dentist is on the staff of said institution 
after approval of the state board. The hygienist is governed by the same laws 
and rules pertaining to supervision and responsibility as a hygienist in the 
employ of a dentists in private practice. The hygienist may perform those duties 
permitted under the supervision and responsibility of a licensed dentist.
No comments were received regarding adoption of the amendment.
The amendment is adopted under Texas Civil Statutes, Article 4551f(6)(a)-(c), 
which provide the Texas State Board of Dental Examiners with the authority to 
adopt and enforce such rules and regulations not inconsistent with the laws of 
the state as may be necessary for the performance of its duties and/or to ensure 
compliance with the state laws relating to the practice of dentistry to protect 
the public health and safety.
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 30, 1992.
TRD-9201475
C. Thomas Camp
Executive Director
Texas State Board of Dental Examiners
Effective date: February 20, 1992
Proposal publication date: November 15, 1991
For further information, please call: (512) 477-2985
       
Dental Hygiene
22 TAC sec.115.10
The State Securities Board adopts an amendment to sec.115.10, concerning 
radiologic procedures, without changes to the proposed text as published in the 
December 15, 1991, issue of the  Texas Register (16 TexReg 6638).
The board amends this rule to eliminate provisions and dates that have expired 
or are no longer applicable.
The sections states the criteria necessary for a dentist to certify that a 
dental assistant is qualified to perform radiographic procedures.
No comments were received regarding adoption of the amendment.
The amendment is adopted under Texas Civil Statutes, Article 4551f(6)(a)-(c), 
which provide the Texas State Board of Dental Examiners with the authority to 
adopt and enforce such rules and regulations not inconsistent with the laws of 
the state as may be necessary for the performance of its duties and/or to ensure 
compliance with the state laws relating to the practice of dentistry to protect 
the public health and safety.
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 30, 1992.
TRD-9201476
Richard D. Latham
Securities Commissioner
State Securities Board
Effective date: February 20, 1992
Proposal publication date: November 15, 1991
For further information, please call: (512) 477-2985
       
Part VI. Texas State Board of Registration for Professional Engineers
Chapter 131. Practice and Procedure
Application for Registration
22 TAC sec.sec.131.53, 131.55, 131.57, 131.58
The Texas State Board of Registration for Professional Engineers adopts 
amendments to sec.sec.131.53, 131.55, 131.57, and 131.58, concerning application 
for registration, without changes to the proposed text as published in the 
December 20, 1991, issue of the Texas Register (16 TexReg 7433).
The amendments were necessary to provide consistency in the terminology between 
the Texas Engineering Practice Act and board rules and clarify the registration 
requirements.
The amendments to sec.sec.131.53, 131.57, and 131.58 provide consistency with 
the language contained in the Act when there is a reference to the registration 
fee. Section 131.55 requires an applicant registered in another country as 
either a chartered engineer or a professional engineer to submit documents 
substantiating the registration.
No comments were received regarding adoption of the amendments.
The amendments are adopted under Texas Civil Statutes, Article 3271a, sec.8(a), 
which provide the board with the authority to make and enforce all rules and 
regulations necessary for the performance of its duties.
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 29, 1992.
TRD-9201396
Charles E. Nemir, P.E.,
Executive Director
Texas State Board of Registration for Professional Engineers
Effective date: February 19, 1992
Proposal publication date: December 20, 1991
For further information, please call: (512) 440-7723
       
22 TAC sec.131.54
The Texas State Board of Registration for Professional Engineers adopts an 
amendment to sec.131.54, concerning general application information, without 
changes to the proposed text as published in the November 19, 1991, issue of the 
Texas Register (16 TexReg 6678).
The amendment was necessary to provide authorization for the executive director 
to exempt applicants from the TOEFL (Texas of English as a Foreign Language) and 
the TSE (Texas of Spoken English) examinations.
The section provides that an applicant who is a native of a country where the 
primary language is other than English may apply for an exemption from the TOEFL 
and the TSE examinations by submitting substantiating evidence satisfactory to 
the executive director that he or she is proficient in the English language.
No comments were received regarding adoption of the amendment.
The amendment is adopted under Texas Civil Statutes, Article 3271a, sec.8(a), 
which provide the board with the authority to make and enforce all rules and 
regulations necessary for the performance of its duties.
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 29, 1992.
TRD-9201393
Charles E. Nemir, P.E.,
Executive Director
Texas State Board of Registration for Professional Engineers
Effective date: February 19, 1992
Proposal publication date: November 19, 1991
For further information, please call: (512) 440-7723
       
Examinations
22 TAC sec.131.101, sec.131.104
The Texas State Board of Registration for Professional Engineers adopts 
amendments to sec.131.101 and sec.131.104, concerning examinations, without 
changes to the proposed text as published in the December 20, 1991, issue of the 
Texas Register (16 TexReg 7434).
The amendments were necessary to clarify examination procedures and establish 
the provision for the renewal of the engineer-in-training certificate.
The amendment to sec.131.101(b)(2) requires an applicant who is requesting an 
exemption from one or both of the examinations based on twenty or more years of 
outstanding technical achievement and widespread professional recognition to 
appear before the board for a personal interview. Section 131.101(d)(2) 
specifies that applicants applying under the Texas Engineering Practice Act, 
sec.21, must pass the principles and practice of engineering examination on the 
first attempt if the examination is required for registration. The amendment to 
sec.131.104 provides for a one-time renewal of an engineer-in-training 
certificate upon the approval of the board.
No comments were received regarding adoption of the amendment.
The amendment is adopted under Texas Civil Statutes, Article 3271a, sec.8(a), 
which provide the board with the authority to make and enforce all rules and 
regulations necessary for the performance of its duties.
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 29, 1992.
TRD-9201395
Charles E. Nemir, P.E.,
Executive Director
Texas State Board of Registration for Professional Engineers
Effective date: February 19, 1992
Proposal publication date: December 20, 1991
For further information, please call: (512) 440-7723
       
Registration
22 TAC sec.131.133
The Texas State Board of Registration for Professional Engineers adopts an 
amendment to sec.131.133, concerning certificates of registration, without 
changes to the proposed text as published in the December 20, 1991, issue of the 
Texas Register (16 TexReg 7434).
The amendment was necessary to establish Control Systems as an acceptable branch 
of engineering under which applications for registration may be submitted.
The amendment adds Control Systems to the list of recognized branches of 
engineering under which applications for registration will be accepted and for 
which a principles and practice examination will be available from the National 
Council of Examiners for Engineering and Surveying.
No comments were received regarding adoption of the amendment.
The amendment is adopted under Texas Civil Statutes, Article 3271a, sec.8(a), 
which provide the board with the authority to make and enforce all rules and 
regulations necessary for the performance of its duties.
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 29, 1992.
TRD-9201394
Charles E. Nemir, P.E.
Executive Director
Texas State Board of Registration for Professional Engineers
Effective date: February 19, 1992
Proposal publication date: December 20, 1991
For further information, please call: (512) 440-7723
       
22 TAC sec.131.139
The Texas State Board of Registration for Professional Engineers adopts an 
amendment to sec.131.139, concerning reregistration, without changes to the 
proposed text as published in the December 20, 1991, issue of the Texas Register  
(16 TexReg 7435).
The amendment was necessary to clarify the reregistration requirements.
The amendment deletes erroneous language and stipulates that the board will 
recognize the successful passing of any examination previously required of an 
applicant for an original registration who subsequently applies for 
reregistration.
No comments were received regarding adoption of the amendment.
The amendment is adopted under Texas Civil Statutes, Article 3271a, sec.8(a), 
which provide the board with the authority to make and enforce all rules and 
regulations for the performance of its duties.
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 29, 1992.
TRD-9201397
Charles E. Nemir, P.E.
Executive Director
Texas State Board of Registration for Professional Engineers
Effective date: February 19, 1992
Proposal publication date: December 20, 1991
For further information, please call: (512) 440-7723
       
TITLE 25. HEALTH SERVICES
Part I. Texas Department of Health
Chapter 325. Solid Waste Management
Subchapter A. General Information
The Texas Department of Health (department) adopts an amendment to sec.325.5 
concerning definitions and new sec.sec.325.1051 - 325.1054 concerning recycling 
rate reporting requirements. The amendments and new sections are adopted with 
changes to the proposed text as published in the October 8, 1991 issue of the 
Texas Register (16 TexReg 5556).
The amendment and new sections implement the requirements of Senate Bill 1340, 
72nd Texas Legislature, 1991, which amended the Solid Waste Disposal Act, Health 
and Safety Code, Chapter 361, by adding new Subchapter N concerning solid waste 
recycling programs. Section 325.5 covers definitions and the amendment clarifies 
the definition of composting. The new sections contain reporting requirements 
through which progress toward achieving legislatively established solid waste 
recycling goals can be measured.
Public hearings to receive comments and recommendations on the proposed rules 
were conducted in Lubbock, Austin, Houston, Grand Prairie, Corpus Christi, and 
Midland. In addition, the department received written comments during the 
official comment period.
Concerning the preamble to the rules, one commenter questioned the savings in 
waste disposal costs by meeting the recycling goal of 40% considering the cost 
of collection and the low values for many recyclables. Commenters also stated 
that local governments should not be penalized for non-compliance. In response, 
the department points out that the legislators have simply proposed a goal. No 
mandates or penalties have been established. Instead, achievement of the 
recycling goal will be accomplished largely through vigorous market development 
and stringent environmental controls on disposal. Accordingly, no changes were 
made.
Concerning the proposed rules generally, one commenter questioned the benefit of 
conducting an expensive full-scale Texas-wide recycling survey through the 
councils of governments (COGs) as proposed. He suggested that the state employ a 
sampling technique that would require less resources and have less financial 
impact on government and industry. In response, the department has revised 
sec.325.1053 in part in order to depend less on COGs to collect and assimilate 
data for this project. However, the department believes that a state-wide 
project is justified for the sake of accuracy and completeness, particularly 
with so little public data in existence on recycling in Texas.
Also, concerning sec.325.1053, a commenter addressed the need for the 
methodology to be compatible between regions because materials will be flowing 
between regions. The department's response is that it simplified the reporting 
requirements to develop only a state-wide recycling rate. However, the rules 
will serve as a standard for recycling rate measurements for any geographic area 
of the state.
Concerning the rules generally, a commenter suggested that the rules be 
coordinated with the impending recycling rate project sponsored by the 
department. The department's response is that it will consider proposing further 
revisions to these rules based on the outcome of this project due for completion 
by the Fall, 1992.
A commenter asked what recycling goals planning regions should set for 
themselves. The department's response is that it recognizes that achieving a 40% 
recycling rate by 1994 would be an amazing accomplishment for any region of the 
state. Consequently, a realistic goal should be set knowing the composition of 
the region's waste stream and the viable markets for recyclables. Accordingly, 
no change is necessary.
A commenter suggested that while including existing recycling activities will 
help achieve the goal, the department should concentrate on crediting new and 
increased levels of recycling. Because a 40% recycling rate is a lofty goal and 
because Senate Bill 1340 allows taking into consideration ongoing community 
recycling programs, the department's response is that the goal should fully 
credit existing recycling activities. Accordingly, no change is necessary.
Concerning proposed sec.325.1051(b)(1), several commenters discussed the issue 
of double counting by suggesting that counting at the state level rather than at 
the regional level is less likely to count materials more than once. Commenters 
suggested that materials should be counted when transferred to a consumer of 
recyclable materials in the state or when transported out of the state for any 
purpose. The department concurs and has included language to this effect in the 
adopted sec.325.1053(c). As result, the department also changed adopted sec.325. 
1051(b).
Related comments addressed miscounting the materials that are collected for 
recycling but are rejected at the processing facility due to contamination or 
other reasons. In response, the department has included direction in the adopted 
sec.325.1053(c) to avoid this potential for overcounting.
Concerning sec.325. 1052, "Definitions," one commenter questioned whether the 
intent of Senate Bill 1340 was to have its definitions apply only to Subchapter 
Z of the rules. In particular, Senate Bill 1340 specifically amends the Health 
and Safety Code,  sec.363.004, to include a definition for yard waste. The 
department concurs and the definition of yard waste and several other statutory 
definitions with broad applications have been moved to adopted sec.325.5.
Concerning sec.325.1052, several commenters suggested revisions to definitions 
that were included in Senate Bill 1340. The department disagrees because it is 
not authorized to modify statutory definitions.
Concerning sec.325.1052, the department has deleted the definition for 
"abandoned automobiles"; because this item was deleted from the list of 
materials; the department assumes that abandoned autos are generally recycled as 
are other automobiles.
Concerning sec.325.1052, as regards the definition for "base year," one 
commenter suggested that 1990 recycling quantities would have to be estimated, 
while another commenter noted that estimated 1990 landfill disposal tonnages 
appear to be high. The department's response is that it will consider redefining 
the base year after reviewing the results from the recycling rate study.
Concerning sec.325.1052, as regards the definition for "diversion rate," one 
commenter noted that the National Recycling Coalition (NRC) Measurement 
Standards and Reporting Guidelines define this term to include only recovered 
materials. The term does not also include source reduced material as the 
department intended. The department concurs because the NRC does not define a 
term that includes recovered and source reduced materials; however, the 
department has replaced "diversion rate" with "waste stream reduction rate."
Concerning sec.325.1052, a commenter suggested that a definition be added for 
the term "high-grade office paper." In response, the department has replaced 
that item in the list of recyclables in adopted sec.325.1053(e) with "white 
ledger" and "colored ledger" which are more useful to the paper recycling 
industry.
Concerning sec.325.1052, as regards the definition for "recycling rate," one 
commenter asked whether the following materials would be included in the 
recycling rate, diversion rate, or neither: goods handled in thrift shops and 
salvage operations; backyard composted yard waste; grass clippings left in place 
through "Don't Bag It" programs; direct land applied yard waste; compost not put 
to beneficial use. The department's response is that those materials handled 
only by the generator or source will be accounted for in the waste stream 
reduction rate (formerly called the diversion rate). Only those materials 
collected by another party would be included in both rates. In the case of 
compost not put to beneficial use, the volume reduction that occurred as part of 
the composting process could count toward a landfill reduction rate, as would 
the volume reduction due to incineration. However, since the material was 
probably collected and handled by more than just the generator, this material 
would not contribute to the waste stream reduction rate.
The commenter further asked whether recycling of pre-consumer materials or 
commercial and industrial used oil, well-established practices, would be 
counted. The department's response is that those materials which are already 
recycled at high rates should not be counted. Also, these rules are for the 
municipal waste stream which does not include industrial waste. However, knowing 
that the recycling industry cannot always distinguish between pre- and post-
consumer materials or industrial and municipal materials, the department will 
refine these rules in the future as better practices become apparent.
Concerning sec.325.1052, a commenter suggested a better definition for "source-
reduced waste". The department concurs and has included one in the definition in 
the adopted section.
Concerning sec.325.1053(a)(1), one commenter pointed out that the phrase, 
"quantities of recyclable materials recovered" is not consistent with the 
definition for recyclable materials which also includes diverted materials. The 
department concurs and has corrected similar references to recyclable materials 
in sec.325.1053(e) and sec.325.1054(a).
Concerning sec.325.1053(a)(1), several commenters noted that the recycling 
industry does not keep records to determine their materials' regional sources. 
Their suggestion was to centralize the counting process. The department's 
response is that it has de-emphasized regional counting in place of state-wide 
counts in the adopted sec.325.1053.
Concerning sec.325.1053(b), several commenters noted the difficulty in getting 
figures from the recycling industry. Some suggested incentives including awards 
or recognition in the short term and tax credits and grants and public finance 
programs in the long term. Others suggested guaranteeing confidentiality. In 
response, the department has included in the adopted sec.325.1053(b) a statement 
concerning confidentiality.
Concerning sec.325.1053, many commenters noted that while COGs are uniquely 
positioned to conduct this effort, the cost to COGs to collect the information 
and report the rates has been underestimated with no mention of a funding 
mechanism. One commenter suggested a funding formula of $5000 plus $0.01 per 
capita population per year, totaling $300,000 annually from the solid waste 
management fund. The department's response is that its retreat from requiring 
regional reports makes funding a moot point.
Concerning sec.325.1053, one commenter suggested that municipalities report 
directly to the state. Another suggested landfill permit holders estimate waste 
imported. The department's response is that, as much as possible, the department 
will collect information from those handling the materials directly, rather than 
work through regional representatives.
Concerning sec.325.1053(a)(2), several commenters noted that the reporting 
deadlines were unrealistic. The department's response is that it realizes that 
the data collection effort may take several months, if only to allow the data 
generators to assimilate and report the data themselves. Consequently, the 
department has removed any due dates at this time in anticipation that future 
rule amendments will include realistic dates.
Concerning the proposed sec.325.1053(a)(2), one commenter questioned whether 
totaling the regional results into a state-wide figure meant averaging. The 
commenter also suggested for the department's purposes that COGs note to and 
from what region or state waste is imported and exported. The department's 
response is that, without regional reports, the "totaling" question is a moot 
point, but reporting waste imported into and exported from the state is still 
relevant. In the interest of clarity, the intention of the proposed rules was to 
apply the rate formulas to the sums of state-wide reported quantities of 
recycled and disposed materials. Accordingly, no change is necessary.
Concerning proposed sec.325.1053(c), several commenters stated that the list of 
materials was too lengthy and that a complete count in all materials would be 
impractical. Some suggested that the materials be phased in and that existing 
reporting systems be integrated into this effort to minimize redundancy. In 
response, the department has included a lengthy list of materials in adopted 
sec.325.1053(e) in order to standardize reports and ensure that certain 
materials be included as a component of municipal solid waste and eligible for 
credit toward the recycling goal.
Concerning sec.325.1053(c), commenters suggested adding "other" categories for 
durable goods and organics, a mixed plastics category and separate categories 
under "(8) other materials" for asphalt pavement, household batteries, household 
hazardous waste. Other commenters suggested that the categories match the lists 
provided in the format guide for regional solid waste management plans and the 
United States Environmental Protection Agency characterization of municipal 
solid waste. The department generally concurs and has rearranged and adjusted 
the list of materials in sec.325.1053(e) generally to match these other lists.
Concerning sec.325.1053(c)(8)(E), one commenter noted that the recycling 
industry generally cannot distinguish between industrial and municipal 
recyclables. Consequently, reporting separately the recycling of industrial 
waste routinely handled with municipal waste would be difficult. Another 
commenter questioned whether non-municipal solid waste routinely handled as 
municipal solid waste be taken into account in the calculation of the rates. The 
department concurs and has taken out the industrial waste category for 
simplicity.
Concerning sec.325.1053(d), one commenter suggested that dry tons be used for 
municipal sludge, if not for all recycled and disposed materials. The department 
concurs and has added such language to subsection (f).
Concerning proposed sec.325.1053(e), one commenter questioned the motives in 
penalizing entities which have taken a lead in recycling these materials. 
Another commenter suggested including only abandoned automobiles among those 
proposed. Another commenter suggested that if reclaimed asphalt pavement is 
included, that its credit be limited to that recycled after the base year. The 
department's response is that there is not enough information available at this 
time to specify which materials should not receive full credit toward the 
recycling rate. Instead, the department has chosen to specify a base year 
recycling rate in adopted  sec.325.1053(g) to determine which materials shall 
not receive full credit toward the recycling goal. Only new recycling will be 
counted toward the goal for materials with a recycling rate greater than eighty 
percent in the base year.
Concerning sec.325.1054, one commenter suggested that the rates be measured for 
the residential and commercial sectors separately. The department's response is 
that it hopes that this enhancement will be possible some day but feels that 
there is not enough information at this time to determine the separate rates.
Concerning sec.325.1054(a), a commenter suggested that the formulas include 
multiplication by 100 percent. The commenter also suggested that the term "tons 
disposed" be clarified to include landfilled, illegally dumped or incinerated 
waste. Another commenter asked whether waste disposed included that disposed of 
in on-site or unpermitted facilities, through open-burning, or improper disposal 
methods. The department concurs by including recommended multiplication factor 
and has clarified the definition of "D" in the formulas concerning tons disposed 
of, in sec.325.1054(a).
Concerning sec.325.1054(a), one commenter suggested that a clear statement in 
the formula that "R" represents materials generated only in the report area, 
that "D" represents materials disposed of but not necessarily generated in the 
report area, and that "E" represents materials exported minus those materials 
imported. Another commenter asked whether "R" is material recovered for 
recycling or just that recycled. The department concurs and has added language 
to the formulas in sec.325.1054(a) to clarify these points.
Concerning sec.325. 1054(b), one commenter suggested that the term "diversion 
rate" include incineration. The intent was to determine the rate at which 
materials were kept from entering the waste steam through source reduction and 
recycling. Although incineration is a landfill reduction measure, it does not 
meet the intent of this term. For clarity, the department has changed the term 
"diversion rate" to "waste stream reduction rate" in sec.325.1054(b).
Concerning proposed sec.325. 1054(b), other commenters were pleased to see the 
inclusion of a rate which credited overall waste stream reduction and not just 
recycling. However, one commenter suggested that the rule include an absolute 
measure of waste reduction that does not depend on a base year. In response the 
department has included in adopted sec.325.1054(c) formulas for average annual 
and daily per capita waste generation rates for annual comparisons.
In addition to responding to the comments received, the department made several 
editorial changes throughout the sections for clarification.
Companies, groups, and associations which submitted comments during the public 
hearings or in writing included the following: the Recycling Coalition of Texas; 
the Environmental Defense Fund; R. W. Beck, and Associates; Commercial Metals 
Company; Cyclean; Vista Fibers; Texas Association of Regional Councils; Ark-Tex 
Council of Governments; Capital Area Planning Council; Deep East Texas Council 
Of Governments; Golden Crescent Regional Planning Commission; Heart of Texas 
Council of Governments; Houston-Galveston Area Council; Nortex Regional Planning 
Commission; North Central Texas Council of Governments; South Plains Association 
of Governments; South Texas Development Council; Texoma Council of Governments; 
Texas cities of Arlington, Denton, Irving, Fort Worth, Littlefield, and Lubbock. 
Generally the commenters supported the rules; however, they expressed some 
concerns and made suggested changes.
25 TAC sec.325.5
amendment is adopted under the Health and Safety Code (code), sec.361.427, which 
provides the department with the authority to adopt rules concerning recycling; 
sec.sec.361.011 and 361.024 which establish the department's jurisdiction over 
municipal solid waste management and provide the Board of Health (board) with 
the authority to adopt rules to manage and control municipal solid waste; and 
sec.12.001 which provides the board with the authority to adopt rules for the 
performance of every duty imposed by law on the board, the department, and the 
Commissioner of Health.
sec.325.5 Definitions.  The following words and terms, when used in this 
chapter, shall have the following meanings, unless the context clearly indicates 
otherwise. Other definitions, pertinent to specific sections, are contained 
within the appropriate sections.
   Compost-The disinfected and stabilized product of the decomposition process 
that is used or sold for use as a soil amendment, artificial top soil, growing 
medium amendment, or other similar uses.
   Composting-The controlled biological decomposition of organic materials 
through microbial activity. Depending on the specific application, composting 
can serve as both a volume reduction and a waste treatment measure. A beneficial 
organic composting activity is an appropriate waste management solution that 
shall divert compatible materials from the solid waste steam that cannot be 
recycled into higher grade uses and convert these materials into a useful 
product that can serve as a soil amendment or mulch.
   Recyclable material -A material that has been recovered or diverted from the 
non-hazardous solid waste stream for purposes of reuse, recycling, or 
reclamation, a substantial portion of which is consistently used in the 
manufacture of products which may otherwise be produced using raw or virgin 
materials. Recyclable material is not solid waste. However, recyclable materials 
may become solid waste at such time, if any, as it is abandoned or disposed of 
rather than recycled, whereupon it will be solid waste with respect only to the 
party actually abandoning or disposing of the material.
   Recycling-A process by which materials that have served their intended use or 
are scrapped, discarded, used, surplus, or obsolete are collected, separated, or 
processed and returned to use in the form of raw materials in the production of 
new products. Except for mixed municipal solid waste composting, that is, 
composting of the typical mixed solid waste stream generated by residential, 
commercial, and/or institutional sources, recycling includes the composting 
process if the compost material is put to beneficial reuse.
   Yard waste-Leaves, grass clippings, yard and garden debris, and brush, 
including clean woody vegetative material not greater than six inches in 
diameter, that results from landscaping maintenance and land-clearing 
operations. The term does not include stumps, roots, or shrubs with intact root 
balls.
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 31, 1992.
TRD-9201545
Robert A. MacLean, M.D.
Deputy Commissioner
Texas Department of Health
Effective date: February 21, 1992
Proposal publication date: October 8, 1991
For further information, please call: (512) 458-7271
       
Subchapter P. Fees and Reports
Facilities
25 TAC sec.325.602, sec.325.603
The Texas Department of Health (department) adopts amendments to sec.325.602 and 
sec.325.603 without change to the proposed text as published in the November 26, 
1991, issue of the  Texas Register (16 TexReg 6837). The amendments implement 
the requirements of House Bill 11, First Called Session, 72nd Texas Legislature, 
1991, which amended the Solid Waste Disposal Act, Health and Safety Code, 
Chapter 361, by authorizing the department to establish a new disposal fee 
structure for municipal solid waste management. The amendment to sec.325.602 
establishes a new disposal fee structure for municipal solid waste management. 
The amendment to sec.325.603 amends the provisions concerning the date the 
quarterly report is due in order to correspond to the amendment being made in 
sec.325.602.
A public hearing was held to receive comments on the proposed amendments. The 
department also received written comments during the official comment period. A 
summary of the comments and the department's responses are as follows.
Concerning sec.325.602 in general, several commenters raised questions 
concerning the utilization of monies generated by the solid waste disposal fees 
and made various suggestions as to where any additional collected funds might be 
best directed. The department's response is that it understands the concerns of 
the various commenters; however, the utilization of fee revenues is established 
in the Health and Safety Code, sec.361.014. The amendment to sec.325.602 
addresses only the collection of the prescribed fee and does not cover how the 
fees are to be spent. The department does not agree that the statutory 
restrictions or guidelines on how the fees are to be expended should be repeated 
in sec.325.602 and, therefore, has adopted the section without modification.
Concerning sec.325.602(a)(2) and (b)(2), one commenter recommended that these 
two paragraphs, which will allow various measurement options for both landfilled 
and other processed solid waste, not be adopted. The commenter stated that 
inclusion of these paragraphs violated the intent of House Bill 11, which for 
landfilled waste is to pay the greater of $0.50 per ton or $0.50 per cubic yard 
for compacted waste; and the greater of $0.50 per ton or $0.10 per cubic yard 
for uncompacted waste. In response, the department believes the flexibility 
contained in these two paragraphs is not inconsistent with the intent of House 
Bill 11 and that it does not provide attractive or dangerous loopholes for 
operators seeking to reduce fee costs. The department believes there is a 
definite need for the measurement flexibility contained in these two paragraphs 
and, therefore, has adopted the entire section without change.
Concerning sec.325.602(b), one commenter recommended that no fee be collected 
for the processing (disposal) of solid waste compost, provided the finished 
compost is beneficially used. The department's response is that sec.325.602(b) 
includes a fee (at one half the rate charged for landfilled solid waste) for 
shredded and composted municipal solid waste because such a fee is specifically 
set forth in the Health and Safety Code, sec.361.013(a). The provisions in 
sec.361. 013(a) also require the collection of a fee for sludges that are 
applied to the land for beneficial use, and on the basis of this requirement the 
department believes that the legislature did not intend to waive the disposal 
fee in those cases where beneficial use is achieved. Accordingly, the department 
has adopted the subsection without change.
Companies, groups, cities, and associations which submitted comments during the 
public hearings or in writing included the Houston-Galveston Area Council, the 
City of Monahans, and Texas Disposal Systems, Inc. The commenters were not for 
or against the amendments in their entirety, but they had concerns and 
recommendations.
The amendments are adopted under the Health and Safety Code, sec.361.011, which 
establishes the department's jurisdiction over municipal solid waste management; 
sec.361.024, which provides the board with the authority to adopt rules to 
manage and control municipal solid waste; and sec.12.001, which provides the 
board with the authority to adopt rules for the performance of every duty 
imposed by law on the board, the department, and the commissioner of health.
This agency hereby certifies that the 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 31, 1992.
TRD-9201547
Robert A. MacLean, M.D.
Deputy Commissioner
Texas Department of Health
Effective date: February 21, 1992
Proposal publication date: November 26, 1991
For further information, please call: (512) 458-7271
       
TITLE 25. HEALTH SERVICES
Part I. Texas Department of Health
Chapter 325. Solid Waste Management
Subchapter Z. Waste Minimization and Recyclable Materials
Recycling Rate Reporting Requirements
25 TAC sec.sec.325.1051-325.1054
The new sections are adopted under the Health and Safety Code (code), 
sec.361.427, which provides the department with the authority to adopt rules 
concerning recycling; sec.sec.361.011 and 361.024 which establish the 
department's jurisdiction over municipal solid waste management and provide the 
Board of Health (board) with the authority to adopt rules to manage and control 
municipal solid waste; and sec.12.001 which provides the board with the 
authority to adopt rules for the performance of every duty imposed by law on the 
board, the department, and the Commissioner of Health.
sec.325.1051 Purpose and Scope.
(a) Purpose. The purpose of these sections in this undesignated head title 
establish reporting requirements through which progress toward achieving the 
established recycling goals can be measured. It is the state's goal to achieve 
by January 1, 1994, the recycling of at least 40% of the state's total municipal 
solid waste stream.
(b) Scope. These sections shall be used to determine local, regional, and state-
wide recycling rates. These sections also provide guidance for determining waste 
stream reduction and per capita waste generation rates.
sec.325.1052 Definitions of Terms and Abbreviations.  The following words and 
terms, when used in this undesignated head title shall have the following 
meanings, unless the context clearly indicates otherwise.
   Base year-The year 1990 used as a reference for recycling credit limits and 
for determining the amount of waste reduced at the source.
   Municipal sludge -Any solid, semisolid, or liquid waste generated from a 
municipal wastewater treatment plant, water supply treatment plant, or any other 
such waste having similar characteristics and effect, exclusive of the treated 
effluent from a wastewater treatment plant.
   Net tons of waste exported-The difference between that portion of the 
municipal waste stream generated within specific geographic boundaries and 
exported for disposal and that portion which is generated outside the boundaries 
and imported for disposal during a specified time period.
   Recycling rate -That percentage of the municipal solid waste stream which is 
recovered or diverted for recycling.
   Source-reduced waste -A material or product, previously or typically entering 
the municipal solid waste stream, which has been prevented from entering that 
stream through source reduction.
   Source reduction -Any action that averts the discarding of products or 
materials by reducing material use or waste at the source, including redesigning 
products or packaging so that less material is used, voluntary or imposed 
behavioral changes in the use and reuse on-site of materials, or products, or 
increasing durability or reusability of materials or products.
   Total municipal solid waste stream-The sum of the state's total municipal 
solid waste that is disposed of as solid waste, measured in tons, and the total 
number of tons of recyclable material that has been diverted or recovered from 
the total municipal solid waste and recycled.
   Waste stream reduction rate-That percentage of the municipal solid waste 
stream which is source-reduced or recovered or diverted for recycling.
Keeping and Reporting Requirements.
(a)  Annual rates. Annually, the department shall determine, in accordance with 
the formulas of sec.325.1054 of this title (relating to Recycling, Waste Stream 
Reduction, and Per Capita Waste Generation Rates), the state-wide recycling rate 
and, when possible, the waste stream reduction and per capita waste generation 
rates. Also, when possible, the department shall determine the rates for 
specific materials and for particular geographic areas of the state.
(b) Record keeping. Processors, handlers, and collectors of recyclable materials 
are encouraged to report and keep appropriate records to facilitate measuring 
recycling rates. The department shall protect confidential information received 
from these businesses to the extent authorized by law.
(c)  Multiple counting. Diligence shall be practiced in collecting and reporting 
information to prevent multiple counting of any materials. Usually, materials 
will be counted as they are transferred to a recyclable material end- user or 
consumer in the state or as they are transferred out of state. The quantities of 
materials rejected and disposed of by the end-user shall be deducted from the 
quantities counted for recycling.
(d) Required minimum information for reporting. The following information at a 
minimum shall accompany the reporting of recycling rates for clarification:
(1) report area or geographic area covered by the report;
(2) reporting period - the year or portion of a year covered by the report;
(3) tons of each material, categorized per subsections (e) of this section, 
recovered or diverted for recycling from the total municipal solid waste stream 
generated within the report area during the report period;
(4) tons of municipal solid waste generated within the report area during the 
report period;
(5) tons of municipal solid waste generated during the report period within the 
report area but disposed of outside the report area;
(6) tons of municipal solid waste generated outside the report area but disposed 
of inside the report area during the report period;
(7) average populations within the report area during the report period and the 
base year, 1990; and
(8) the calculated recycling, waste stream reduction, and per capita waste 
generation rates using the formulas contained in sec.325.1054 of this title 
(relating to Recycling, Waste Stream Reduction, and Per Capita Waste Generation 
Rates).
(e) Materials recovered or diverted for recycling. To the extent possible, 
materials recovered or diverted for recycling shall be reported according to the 
following categories, using the major categories when finer detail is not 
possible:
(1) food waste;
(2) glass:
(A) glass containers;
(B) plate glass; and
(C) other glass;
(3) leather and hides;
(4) metal;
(A) aluminum;
(i) cans and containers; and
(ii) other aluminum;
(B) ferrous metal;
(i) steel cans and containers; and
(ii) other ferrous metal;
(C) other nonferrous metal;
(5) paper and paperboard:
(A) computer print out;
(B) white ledger;
(C) colored ledger;
(D) old corrugated cartons/kraft;
(E) old newspaper;
(F) printers' waste;
(G) old magazines;
(H) mixed paper; and
(I) other paper and paperboard;
(6) plastic:
(A) plastic containers;
(i) polyethylene terephthalate (PET, or Code 1 plastic);
(ii) high density polyethylene (HDPE, or Code 2 plastic);
(iii) polyvinyl chloride (PVC, or Code 3 plastic);
(iv) low density polyethylene (LDPE, or Code 4 plastic);
(v) polypropylene (PP, or Code 5 plastic);
(vi) polystyrene (PS, or Code 6 plastic); and
(vii) other plastic containers (Code 7 plastic);
(B) mixed plastic; and
(C) other plastic;
(7) rubber;
(8) textiles and apparel;
(9) wood;
(10) yard debris; and
(11) other materials, not included elsewhere;
(A) asphalt pavement;
(B) appliances;
(C) batteries;
(i) household; and
(ii) lead-acid;
(D) construction-demolition debris;
(E) hazardous household materials;
(F) municipal sludge;
(G) tires;
(H) used oil and oil filters;
(I) other inorganic materials;
(J) other organic materials; and
(K) other municipal solid waste materials.
(f) Units. All materials shall be reported in dry tons. For those materials 
normally measured by volume, the report shall indicate the volumetric quantity 
and the multiplier used to convert to weight in dry tons.
(g)  Recycling credit limits. Except for lead-acid batteries, only the amount 
recycled in addition to 1990 quantities can be credited toward the state 
recycling goal for materials with an individual recycling rate greater than 80% 
in the base year, 1990.
sec.325.1054 Recycling, Waste Stream Reduction, and Per Capita Waste Generation 
Rates.
(a) Recycling rate. The recycling rate is calculated by dividing the tons of 
material recovered or diverted for recycling by the tons of total municipal 
solid waste generated, where the total municipal solid waste generated is the 
sum of the tons recycled, the tons disposed of, and tons of waste exported minus 
the tons of waste imported. The formula for the recycling rate can be expressed 
as follows:
[graphic]
(b) Waste stream reduction rate. The waste stream reduction rate is calculated 
by dividing the sum of the tons recycled and tons source-reduced by the sum of 
the tons recycled, tons source-reduced, tons disposed of, and net tons of waste 
exported. The formula for the diversion rate can be expressed as follows:
[graphic]
(c) Per capita waste generation rates.
(1) Per capita annual waste generation rate. The per capita annual waste 
generation rate is calculated by dividing the annual tons of municipal solid 
waste generated by the population of the area. The formula for this term can be 
expressed as follows:
[graphic]
(2) Per capita daily waste generation rate. The per capita daily waste 
generation rate is calculated by dividing the annual rate, above, by 365 days as 
follows:
[graphic]
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 31, 1992.
TRD-9201546
Robert A. MacLean, M.D.
Deputy Commissioner
Texas Department of Health
Effective date: February 2, 1992
Proposal publication date:October 8, 1991
For further information, please call: (512) 458-7271
       
TITLE 28. INSURANCE
Part II. Texas Workers' Compensation Commission
Chapter 133. Medical Benefits-General Medical Provisions
Subchapter D. Dispute and Audit of Bills by Insurance Carriers
28 TAC sec.sec.133.300-133.304
The Texas Workers' Compensation Commission adopts new sec. sec.133.300-133.304, 
concerning procedures for carrier payment, audit, and dispute of health care 
providers' bills for services rendered to injured workers under the Texas 
Workers' Compensation Act (the Act), with changes to the proposed text as 
published in the July 30, 1991, issue of the Texas Register  (16 TexReg 4141).
Section 133.300 is changed in subsection (b) by increasing the presumed time for 
carrier receipt of a bill from three to five days after it was sent; in 
subsection (c) by adding a reference to another section to clarify the 
definition of a properly completed bill; in subsection (d) by requiring the 
carrier to annotate bills with its own legal name, if the provider has not done 
so; by adding a new subsection (e) to exempt carriers who have been approved by 
the commission to submit bills electronically from the requirements of manually 
annotating bills and returning them to the provider; by deleting redundant 
details relating to carrier dispute of bills in subsection (f), and referencing 
instead  sec.133.304 (relating to Notice of Medical Payment Dispute); in 
subsection (h) by requiring that a submitted bill be properly completed before 
the carrier's time limit for payment begins to run, by requiring the make a 
partial payment if the audit delays payment, by clarifying that the partial 
payment shall be no less than 50% of the billed charges, but may be more, and by 
exempting carriers from the requirement to act on a disputed, partly-paid bill 
by the 60th day after receipt when the provider is unable to schedule an on-site 
audit on the dates proposed by the carrier.
Section 133.301 is changed in subsection (a) by expressly stating that the 
carrier-required audit of medical services may be either a desk audit or an on-
site audit; in subsection (a)(6) by substituting the phrase "services not 
documented or substantiated" for "services not documented in the medical record; 
" in subsection (a)(9) by permitting the carrier to audit treatments or services 
that appear to be "unreasonable," in addition to "unnecessary;" in subsection 
(c) by increasing from seven to 10 days the maximum time for a health care 
provider to respond to a carrier request for additional documentation to support 
the billed charges, and by adding the provision that, if the provider fails to 
respond to such a request, the carrier shall pay no less than 50% of the amount 
billed within 45 days of receipt of the completed bill; by deleting subsections 
(d) and (e), which duplicated provisions in sec.133.300, and renumbering the 
following subsections accordingly; in renumbered subsection (d) by substituting 
the term "billed" for "charged," and by substituting the phrase "the reasons for 
reductions" for "a Notice of Medical Payment Dispute;" in renumbered subsection 
(e) by permitting, rather than requiring, a health care provider who disagrees 
with the results of an audit to request carrier review, and by limiting the 
provider's time for requesting carrier review to one calendar year from the date 
of receipt of the notice of medical payment dispute.
Section 133.302 is changed by substituting the term "completed bill" for "bill" 
in subsections (a) and (b)(7).
Section 133.303 is changed in subsection (a) by requiring a provider who is 
unable to schedule an on-site audit on the dates proposed by the carrier to 
supply the carrier in writing with an alternate date and time within seven days 
of receipt of the carrier's notice of intent to audit; in subsection (b) by 
requiring that the provider's designated liaison have authority to negotiate a 
resolution of the disputed issues; in subsection (c) by requiring that the 
carrier's agent have authority to act on behalf of the carrier; in subsection 
(d) by substituting the phrase "disputed issues between the treatments and/or 
services listed in the medical record and the billed charges" for "discrepancies 
between the medical record and the billed charges;" by inverting and renumbering 
subsections (e) and (f); in renumbered subsection (e) by permitting the carrier 
to request a refund after completing an on-site audit, by increasing the time 
for carrier post-audit action from 15 days to 30, by defining the date of 
completion of an on-site audit to be the seventh day after the audit date, and 
by deleting language referencing partial payment when an audit occurs; in 
renumbered subsection (f) by requiring the carrier to send the provider "reasons 
for reductions" instead of "notice of medical payment dispute" within a time 
frame that has been increased from 15 days after the audit to 30 days after the 
date of completion of the audit; and in subsection (g) by increasing from 15 to 
30 days the time for a provider to respond to a carrier request for refund, and 
by substituting the phrase "carrier's request for a refund" for "notice of 
medical payment dispute (Form TWCC-62) as described in sec.133.304."
Section 133.304 is changed by transferring the substance of subsection (b) to 
subsection (c), deleting subsection (b), and renumbering the following 
subsections accordingly; in renumbered subsection (c) by correcting two 
erroneous references to other commission guidelines, and by referencing the new 
Medical Fee Guideline ground rules; in renumbered subsection (d) by permitting 
the carrier to submit the notice of medical payment dispute in lieu of stamping 
the bill with the required statement; in renumbered subsection (e) by requiring 
that the completed bill contain the legal name of the carrier, in addition to 
the previously listed requirements; in renumbered subsection (i), in the 
carrier's notice to the injured worker, by substituting the phrase "[charges] 
exceeded the medical policies and fee guidelines" for "are not in compliance 
with those medical policies and fee guidelines," by deleting the words "We are 
solely responsible for payment of these medical bills," and by substituting the 
phrase "any portion of the charges," for "the charges in dispute;" in renumbered 
subsection (j) by requiring the carrier's notice to the worker to be provided 
the first time a medical payment dispute arises, and at least annually 
thereafter, within 12 months of the date that health care is provided; by adding 
new subsection (k), permitting a carrier to, with commission approval, 
incorporate billing information with the notice of medical payment dispute 
instead of sending the provider a copy of the bill as submitted; by adding new 
subsection (1), permitting a carrier to propose, for commission approval, an 
alternative form of the notice of medical payment dispute; and by deleting 
references to Form TWCC-62 in subsections (b), (d), and (e), to reflect the 
options for notice of medical payment disputes provided in response to public 
comment.
In addition to the changes noted previously, the commission has made minor 
changes to all five sections for the sake of greater clarity. These changes are 
not intended to change the substance of the sections.
Comments concerning the proposal were filed by the Alliance of American 
Insurers, Allstate, Employers Casualty Company and Employers National Insurance 
Company, General Care Review, Hammerman Gainer, Highlands Insurance Group, 
Kemper National Insurance Company, Liberty Mutual Insurance Group/Boston, 
Medical Cost Consultants, Medical Cost Management Services, and Methodist 
Hospitals of Dallas.
Regarding comment addressing several sections simultaneously, one commenter 
suggested substituting the phrase "completed bill" for "bill" in 
sec.sec.133.300(h) , 133.301(e), and 133.302(a) and (b)(7). The commissioners 
agreed, and changed the sections accordingly. This commenter also suggested 
changing sec.133.300 and sec.133.301 to clarify that, while the carrier's 
initial payment may be no less than 50% of the billed charges, it may be as much 
as 100% of the billed charges. The commissioners agreed, and changed sec.133.300 
as suggested. They did not act on the suggested change to sec.133.301, because 
the subsection referenced was deleted to eliminate duplicated information 
already contained in sec.133.300.
Regarding sec.133.300, one commenter suggested requiring the carrier's payment 
to be at least 80% of the billed charges. The commissioners disagreed with this 
suggestion, finding that the Act, Texas Civil Statutes, Article 8308-4.68, sets 
the base payment at 50% of the billed charges.
Regarding sec.133.300, one commenter asked whether the term "amount billed" 
meant total charges or the payment pursuant to the "TWCC's DRG" system. The 
commissioners determined that the term "amount billed" refers to the total 
charges.
Regarding sec.133.300, certain commenters suggested simplifying and eliminating 
duplication by reorganizing sec.133.300 to contain all provisions concerning 
payment of medical bills. The commissioners disagreed, finding that the current 
format is consistent with that of other commission rules and necessarily 
separates some provisions for clarity and ease of reference. The commissioners 
did agree with the need to eliminate duplication, and amended the section to 
delete from subsection (e) the phrases "because of an explicitly stated fee 
guideline amount established by the commission or because of a negotiated 
contract," and "by returning the completed medical bill," and to delete 
subsection (f) in its entirety.
Regarding sec.133.300, several commenters "were concerned that manual and 
duplicate reporting would inhibit efficiency within the system," and requested 
"reconsideration of the requirement to annotate and return hard copies of bills 
when adjustments have been made in accordance with fee schedules or negotiated 
contracts where bills are submitted electronically." The commissioners agreed, 
and added subsection (e) to exempt from these requirements carriers who have 
been approved by the commission to transmit bills electronically.
Regarding sec.133.300, one commenter recommended revising subsection (c)(1) and 
(2) to identify information which must be contained on a bill in order for it to 
constitute a "properly completed bill." Finding that sec.134.800 adequately 
identifies the information required to complete a bill, the commissioners added 
a reference to this section in subsection (c).
Regarding sec.133.301, one commenter suggested increasing the number of days for 
a health care provider to supply the carrier with additional documentation from 
seven to 14 days. The commissioners were in general agreement with the need for 
more time, but increased the period to 10 days, to be consistent with the time 
period provided in sec.133.2 (relating to Sharing Medical Reports and Test 
Results).
Regarding sec.133.301, one commenter suggested that the section address whether 
a provider's failure to submit a required medical report after an examination 
relieves the carrier of the duty to pay the 50% required partial payment. The 
commissioners agreed with this suggestion, and added the following sentence to 
subsection (c): "If the health care provider fails to send the requested 
documentation, records, or information to the carrier, the carrier shall pay no 
less than 50% of the amount billed within 45 days of receipt of the health care 
provider's completed bill."
Regarding sec.133.301, one commenter suggested that a provider who disagrees 
with the results of an audit be required to request carrier review "within 30 
days of receipt of the notice of medical payment dispute." The commissioners 
agreed with the need for an express time limit, but set it instead at one 
calendar year from receipt of the notice of medical payment dispute, to 
correspond to the one year time limit established in sec.133.305 (relating to 
Request for Medical Dispute Resolution).
Regarding sec.133.301, several commenters recommended adding an introductory 
paragraph specifying the responsibilities of the carrier. The commissioners 
disagreed, noting that subsection (a) of sec.133.300 serves this purpose. 
Regarding sec.133.301, several commenters suggested changing subsection (a) to 
specify that the carrier's audit may be either a desk audit and or an on-site 
audit. The commissioners agreed, and changed the subsection accordingly.
Regarding sec.133.303, several commenters suggested specifying the means and the 
time limit for a provider to notify a carrier of an alternative on-site audit 
date. The commissioners agreed, and amended the section to require the provider 
to send the carrier written notice of a proposed alternative audit date and time 
no later than seven days from receipt of the carrier's notice of intent to 
audit.
Regarding sec.133.303, one commenter suggested requiring that the provider's 
designated liaison during the audit have the authority to negotiate a resolution 
of disputes, and that the carrier's agent have the authority to act on the 
carrier's behalf. The commissioners agreed, and incorporated the suggested 
language into subsections (b) and (c).
Regarding sec.133.303, one commenter suggested postponing the carrier's 
liability for interest when payment is delayed because the provider rejected the 
carrier's proposed dates for on-site audit and proposed a later date. The 
commissioners disagreed, finding that the Act, Texas Civil Statutes, Article 
8308-8.27, requiring interest to be paid as of the 61st day after receipt of the 
bill, allowed for no exceptions.
Regarding sec.133.303, one commenter suggested defining the phrase "completion 
of the on-site audit" as seven days after the date the audit was conducted, 
noting that since the need for additional information is often discovered during 
the audit, and since the provider has seven days to submit such information, the 
carrier may be left with only eight days to complete the audit report. The 
commissioners agreed, and changed the section as suggested.
Regarding sec.133.303, one commenter suggested that the language in subsection 
(e) be changed from "date of the on-site audit" to "date that the audit is 
completed." The commissioners agreed, and changed the section as suggested.
Regarding sec.133.303, several commenters noted that the time frames for action 
were too short, and requested extending them from 15 to 30 days. The 
commissioners agreed, and changed subsections (e), (f), and (g) as suggested.
Regarding sec.133.304, several commenters suggested simplifying and eliminating 
duplication by reorganizing sec.133.304, and revising the method by which a 
notice of payment dispute is communicated to the commission, the health care 
provider and the injured worker. The commissioners disagreed, finding that the 
current format is consistent with that of commission rules and necessarily 
separates some provisions for clarity and ease of reference.
Regarding sec.133.304, several commenters suggested reconsidering the proposed 
requirement to annotate and return hard copies of bills to medical providers 
when adjustments have been made pursuant to an explicitly stated fee guideline 
or a negotiated contract. The commissioners agreed, and changed subsection (d) 
to permit carriers to incorporate information about such adjustments in the 
notice of medical payment dispute.
Regarding sec.133.304, one commenter recommended utilizing additional exception 
codes beyond "F", "B", or "C". The commissioners disagreed and retained the 
proposed provision permitting alternative notification methods only when these 
three codes apply. In all other cases, the commission believes that the provider 
needs the hard copy of the bill returned for record-keeping purposes, or to 
support a request for dispute resolution.
Regarding sec.133.304, one commenter suggested permitting a carrier to propose 
an alternative form of the notice of medical payment dispute, subject to the 
approval of the commission. The commissioners agreed, and added subsection (l) 
for this purpose.
Regarding sec.133.304, one commenter suggested that commission Form TWCC-62, 
Notice of Medical Payment Dispute, be used for all bill reductions, regardless 
of the nature of the reduction. The commissioners disagreed, relying instead on 
the alternative provided by new subsections (k) and (l).
Regarding sec.133.304, one commenter suggested revising the next by Insurance 
Carriers to the last sentence in subsection (j) to "Neither you nor your 
employer should be billed for the charges in dispute." The commissioners 
disagreed, and retained the proposed "will," on the grounds that it more 
vigorously conveyed the statutory prohibition against billing the injured 
worker.
Regarding sec.133.304, one commenter stated that the wording in subsection (j) 
is incorrect, misleading, and would not be appropriate for carriers to make. The 
commissioners agreed, and deleted the first sentence "We are solely responsible 
for payment of these medical bills."
Regarding sec.133.304, one commenter suggested that the commission establish a 
procedure for providers to bill the injured worker or the injured worker's 
health insurer for the non-job-related services while assuring that the workers' 
compensation carrier only pays for the job-related services. The commissioners 
disagreed. The Act and commission rules provide guidelines and procedures for 
providers to bill carriers for medical treatment for job-related injuries and 
illnesses. The commission has no jurisdiction to establish billing methods or 
procedures for non-job-related services.
The new sections are adopted under Texas Civil Statutes, Articles 8308-8.01(b) , 
which authorize the commission to provide rules for the review and audit of 
payment by insurance carriers of charges for medical services provided under the 
Act; and 8308-2.09(a), which authorizes the commission to adopt rules necessary 
to implement and enforce the Texas Workers' Compensation Act.
sec.133.300. Carrier Payment of Bills From Health Care Providers.
(a) An insurance carrier is responsible for the acts or omissions that violate 
the Texas Workers' Compensation Act (the Act) or commission rules committed in 
the performance of services for the insurance carrier by an audit company or 
auditor under contract with the carrier to review or monitor health care 
services.
(b) The carrier shall date stamp each health care provider bill upon receipt. 
Failure to date stamp the bill creates a rebuttable presumption that the bill 
from the health care provider was received five days after it was sent to the 
carrier.
(c) The carrier shall process for payment all properly completed billings for 
medical services submitted on commission approved forms as described in 
sec.134.800 of this title (relating to Health Care Provider Billing).
(1) The carrier will return to the provider those bills improperly completed or 
on improper forms within seven days of receipt of the bill from the provider.
(2) The carrier's time limit for payment of medical bills does not begin until 
receipt of properly completed bills that are on commission approved forms.
(d) Except as described in subsection (e) of this section, the carrier shall 
annotate the medical bills as follows:
(1) legal name of the carrier, if absent;
(2) amount paid;
(3) the date paid; and
(4) if appropriate, the payment exception code, as described on Form TWCC-62, 
Notice of Medical Payment Dispute.
(e) When a carrier is approved by the commission to submit medical bills 
electronically, the carrier may be relieved of the requirements to manually 
annotate bills and submit the annotated bill to the health care provider.
(f) If the carrier disputes the health care provider's charge, the carrier shall 
notify the provider of the reduction as described in sec.133.304 of this title 
(relating to Notice of Medical Payment Dispute).
(g) The injured employee shall be notified of medical payment disputes as 
described in sec.133.304 of this title.
(h) Payment of all allowable charges shall be remitted to the health care 
provider no later than 45 days after receipt of the completed bill by the 
carrier, unless the insurance carrier's audit of health care services will delay 
payment beyond the 45th day after receipt of the completed bill by the carrier. 
If the audit delays payment, the shall pay no less than 50% of the amount billed 
no later than the 45th day after the receipt of the completed bill. Desk audits 
and on-site audits shall be performed as described in sec.133.301 and 
sec.133.303 of this title (relating to Carrier Audit of Bills from Health Care 
Providers, and Procedures for On-Site Audits; Payments After Audit). Except as 
provided in sec.133.303 of this title, if the payment as required by this 
subsection and the Act, Texas Civil Statutes, Article 8308-4.68(b), has been 
made, the supplemental payment or request for refund, and a notice of medical 
payment dispute as described in sec.133.304 of this title, shall be provided no 
later than 60 days after receipt of the completed bill from the health care 
provider.
(i)  An insurance carrier or a health care provider shall pay interest pursuant 
to the Act, Texas Civil Statutes, Articles 8308-8.27 and 8308-1.04, without 
order of the commission.
sec.133.301. Carrier Audit of Bills From Health Care Providers.
(a)  The insurance carrier shall be responsible for making appropriate payment 
of charges for medical services received from the health care provider which may 
require a desk or an on-site audit. The audit when conducted may include, but is 
not limited to, examination for:
(1) compliance with the fee guidelines established by the commission;
(2) compliance with the treatment guidelines established by the commission;
(3) duplicate billing;
(4) inappropriate itemization of services;
(5) billing for treatments or services unrelated to the compensable injury;
(6) billing for services not documented or substantiated;
(7) accuracy of coding in relation to the medical record and
(8) correct calculations; and
(9) provision of unnecessary and/or unreasonable treatments or services.
(b) Neither the carrier nor the carrier's agent shall change codes on the 
medical bills submitted by the provider without affording the provider the 
opportunity to submit additional documentation, prior to payment.
(c)  The health care provider shall submit to the carrier, no later than 10 days 
from receipt of a request, any additional documentation, records, or information 
related to the treatments, services, or the charges billed. If the health care 
provider fails to send the requested documentation, records, or information to 
the carrier, the carrier shall pay no less than 50% of the amount billed within 
45 days of receipt of the health care provider's completed bill.
(d) If the payment for any item differs from the amount the health care provider 
billed, the carrier shall submit the reasons for reductions, as described in 
sec.133.304 of this title (relating to Notice of Medical Payment Dispute), with 
the payment of the bill.
(e) A health care provider who disagrees with the results of an audit may 
request review by the insurance carrier and submit supporting documentation as 
necessary within one calendar year of receipt of the notice of medical payment 
dispute.
(f) Unresolved disputes may be submitted for review by the commission as 
described in sec.133.305 of this title (relating to Request for Medical Dispute 
Resolution).
sec.133.302. Notification of Intent to Perform On-site Audit.
(a)  No later than 45 days after the receipt of the completed bill, the carrier 
or the carrier's agent shall notify the health care provider in writing of the 
intent to perform an on-site audit.
(b) The carrier or the carrier's agent shall include the following information 
on the notification of intent to audit to the health care provider:
(1) the employee's full name, address, and social security number; performed;
(2) date of injury;
(3) the date(s) of service for which the audit is being performed;
(4) the insurance carrier's name and address;
(5) the name and telephone number of the person to contact with questions about 
the audit;
(6) the name of the individual who will represent the carrier and who will 
perform the on-site audit; and
(7) two proposed dates no later than 60 days after receipt of the completed bill 
by the insurance carrier for the on-site audit.
sec.133.303. Procedure for On-site Audits: Payments After Audit.
(a) If the provider is unable to schedule an on-site audit on the dates proposed 
by the carrier, the provider shall notify the carrier in writing, within seven 
days of the carrier's notification of intent to perform an audit, of an 
alternate on-site audit date and time.
(b) The provider shall designate one person, with authority to negotiate a 
resolution of disputes, to serve as the liaison between the provider and the 
carrier and to be available to the carrier's agent.
(c) The carrier's agent, with authority to act on behalf of the carrier, shall 
personally appear for the on-site audit at the scheduled date and time.
(d) On the day of the on-site audit, the provider's liaison and the carrier's 
agent shall meet for an exit interview. The carrier's agent shall present a list 
of disputed issues between the treatments and/or services listed in the medical 
record and the billed charges. The provider's liaison and the carrier's agent 
will discuss and attempt to resolve the issues in dispute.
(e) The payment of all allowable charges or a request for refund shall be 
submitted to the health care provider no later than 30 days after completion of 
the on-site audit. The completion of the on-site audit shall be defined as seven 
days after the date of the on-site audit.
(f) The carrier shall submit to the health care provider the reasons for 
reductions as described in sec.133. 304 of this title (relating to Notice of 
Medical Payment Dispute) within 30 days after the date of the completion of the 
on-site audit.
(g) Any refunds due to the carrier from the health care provider shall be paid 
within 30 days of receipt of the carrier's request for a refund.
sec.133.304. Notice of Medical Payment Dispute.
(a) The report described in Texas Workers' Compensation Act, (the Act), Texas 
Civil Statutes, Article 8308-4.68(d), shall be named Form TWCC-62, Notice of 
Medical Payment Dispute.
(b) Except when disputed charges are limited to reductions according to an 
explicitly stated fee guideline or negotiated contract amounts, a copy of the 
notice of medical payment dispute shall be sent to the health care provider and 
a copy shall be kept in the injured employee's file at the carrier's office. The 
notice of medical payment dispute shall accompany the medical bill except as 
provided in subsection (k) of this section.
(c)  Explicitly stated fee guideline amounts are defined and limited to:
(1)  the product of the appropriate conversion factor and a specific relative 
value unit or set fee amount, as described in sec.134.201 of this title 
(relating to the Medical Fee Guideline) including the application of the Medical 
Fee Guideline ground rules;
(2) the result of a calculation as described in sec.134.501 of this title 
(relating to the Pharmaceutical Fee Guideline); or
(3) the result of a calculation as described in sec.134.400 of this title 
(relating to the Acute Care Hospital and Inpatient/Outpatient Services Fee 
Guideline).
(d) If the reductions in payment are limited to reductions by explicitly stated 
fee guideline or negotiated contract amounts, the insurance carrier shall stamp 
on the bill the following information, or submit a notice of medical payment 
dispute: "The reductions in payment are made according to the Texas Workers' 
Compensation Commission established fee guidelines (payment exception codes "F" 
or "B") or negotiated contract (payment exception code "C"). If you have 
questions contact: [name of auditor or adjuster] at [telephone number with area 
code]"
(e) If the reductions in payment are made as described in subsections (b) and 
(c) of this section, the annotated and overstamped medical bill shall serve as 
adequate notification of medical payment dispute to the health care provider. In 
this situation the notice of medical payment dispute does not have to be sent to 
the provider. The completed bill shall serve as the notice of medical payment 
dispute and shall include:
(1)  legal name of the carrier;
(2) amount paid;
(3) the date paid; and
(4) the payment exception code "F", "B", or "C" as described on Form TWCC-62, 
Notice of Medical Payment Dispute.
(f) The stamp described in subsection (d) of this section shall not be used when 
there are reasons for reductions other than explicitly stated fee guidelines or 
negotiated contract amounts, or when there is a combination of reasons for 
reductions or denials in payment.
(g) When a treatment or service is reduced or denied on the recommendation of a 
peer review initiated by the carrier, a copy of the reviewer's report and the 
professional discipline and specialty information (not to include name, address, 
letterhead, or other specific identification) of the reviewer shall be included 
with the notice of medical payment dispute and submitted to the health care 
provider, injured employee, and employee's representative. This subsection does 
not apply to non-peer review auditors, adjusters, reviewers, or other carrier 
representatives.
(h) A copy of the notice of medical payment dispute shall be sent to the 
employee if an insurance carrier files the notice because:
(1) liability for or compensability of the claim is contested;
(2) the employee is alleged to have violated the Act, Texas Civil Statutes, 
Articles 8308-4.62 or 8308-4.63;
(3) the carrier alleges that the employee requested or authorized treatments or 
services not related to the compensable injury;
(4) the carrier alleges the treatment or service rendered was unnecessary care 
for the injury; or
(5) the treatment or service is not according to treatment guidelines 
established by the commission.
(i) If an insurance carrier disputes medical charges for reasons other than 
those listed in subsection (b) of this section, the insurance carrier shall 
provide the following notice to the employee: "(Name of carrier) pays for 
medical services in accordance with the medical policies and fee guidelines 
established by the Texas Workers' Compensation Commission. Some of the charges 
submitted for medical services you received in connection with your workers' 
compensation injury exceeded the medical policies and fee guidelines." "Neither 
you nor your employer will be billed for any portion of the charges. This notice 
does not require a response or any other action on your part."
(j) The notice required by subsection (i) of this section must be provided the 
first time a medical payment dispute arises and at least annually thereafter 
within 12 months of the date that health care services are provided for a 
compensable injury, and it may be provided with a payment of income benefits.
(k)  In lieu of the requirement to send a copy of the health care provider's 
submitted medical bill, an insurance carrier may incorporate billing information 
with the notice of medical payment dispute, subject to approval from the 
commission.
(l) A carrier may propose an alternative form of the notice of medical payment 
dispute, which the commission will review and approve upon determination that 
the contents and format of the proposed form is sufficient for the purposes of 
this rule.
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 30, 1992.
TRD-9201449
Ernest Boardman
Acting General Counsel
Texas Workers' Compensation Commission
Effective date: February 20, 1992
Proposal publication date: July 30, 1991
For further information, please call: (512) 440-3972
       
TITLE 31. NATURAL RESOURCES AND CONSERVATION
Part I. General Land Office
Chapter 19. Oil Spill Prevention and Response
Subchapter A. General Provisions
31 TAC sec.sec.19.1-19.6
The General Land Office (GLO) adopts new Chapter 19, Subchapters A-D, 
sec.sec.19.1-19.6, 19.11-19.20, 19.31-19.39, and 19.51-19.54, concerning 
prevention of oil spills in coastal waters, response to such spills, and 
compensation and liability for the response costs and damages incurred. Sections 
19.1-19.4, 19. 11-19.18, 19.20, 19.31-19.38, and 19.52-19.54 are adopted with 
changes to the proposed text as published in the August 9, 1991, issue of the 
Texas Register (16 TexReg 4335). Sections 19.5, 19.6, 19.19, 19.39, and 19.51 
are adopted without changes and will not be republished.
The new chapter implements the Oil Spill Prevention and Response Act of 1991, 
Chapter 40, Natural Resources Code (OSPRA). With respect to oil spills in the 
marine environment, OSPRA provides a comprehensive legal framework and funding 
system allowing the State of Texas to establish and monitor oil spill prevention 
and response requirements for vessels and facilities that handle oil, to 
establish and carry out an effective program for state response to oil spills, 
to provide timely and equitable settlement and compensation of claims for those 
harmed by oil spills, and to provide for assessment and restoration for 
environmental damage from oil spills. OSPRA supports and complements the Oil 
Pollution Act of 1990, Public Law 101-380 (OPA). For example, compliance with 
OPA requirements for proof of financial responsibility and for oil spill 
response plans for vessels and facilities that handle oil constitutes compliance 
with certain provisions of OSPRA. Federal agencies delegated oil spill 
prevention and response duties under OPA include the Department of 
Transportation, the Environmental Protection Agency, the Department of Commerce, 
and the U.S. Army Corps of Engineers. These federal agencies are currently 
developing programs and regulations to implement OPA, which establishes 
rulemaking and programmatic deadlines extending as late as 1993. Since federal 
program implementation and rulemaking will affect key provisions of OSPRA, the 
GLO proposes this chapter to establish interim requirements and procedures under 
OSPRA pending full implementation of OPA. OSPRA also leaves Texas the 
flexibility to establish regulatory requirements that differ from federal 
requirements if there is a substantial state interest to protect. The GLO 
intends to develop a state prevention and response program for oil spills in 
coastal waters that provides full capability to protect the environment and the 
health and welfare of the inhabitants of the Texas coast.
Subchapter A of the proposed Chapter 19 sets out general provisions applicable 
to the other subchapters of the proposed chapters. These include definitions, 
provisions for access to property by personnel or agents of the GLO in carrying 
out response actions and other activities under OSPRA, and provisions on filing 
various forms and information with the GLO.
Subchapter B deals with oil spill prevention and preparedness regulations. It 
centers mainly on the OSPRA requirement that coastal facilities handling oil 
obtain a discharge prevention and response certificate from the GLO. It also 
addresses the OSPRA requirements that vessels and facilities have spill response 
plans and proof of financial responsibility for liability from oil spills. It 
contains provisions setting the parameters for vessel and facility audits, 
drills, and inspections by the GLO to determine oil spill prevention and 
response capability, as well as denial of entry into port for vessels violating 
OSPRA. Finally, Subchapter B specifies requirements for discharge cleanup 
organizations, which are those entities formed for the specific purpose of 
engaging in oil spill response and cleanup. Subchapter C establishes practices 
and reporting requirements the GLO and persons responsible for coastal oil 
spills must follow in responding to oil spills under GLO jurisdiction. These 
include provisions whereby the GLO will assume a proactive role in determining 
the adequacy and course of oil spill response and the remediation of natural 
resource damage. Subchapter C also outlines the respective roles of the Texas 
Water Commission, the Texas Railroad Commission, and the GLO in coastal oil 
spill response. Subchapter D prescribes procedures for compensation and 
reimbursement to state agencies and others for costs incurred in responding to 
coastal oil spills and for property and other monetary damages from such spills.
Regarding sec.19.2(a)(1), Coastal Waters, many commenters suggested that a map 
would clarify the jurisdictional boundaries of the statute. In an effort to 
clarify the definition without requiring reference to an extraneous document, 
the GLO has adopted the U.S. Environmental Protection Agency/U.S. Coast Guard 
on-scene coordinator boundaries with additions to encompass the OSPRA 
jurisdictional reach of waters navigated by vessels with a capacity of 10,000 U. 
S. gallons or more of oil as fuel or cargo. Two comments concerned whether 
coastal waters include tidally influenced groundwater. No change was made based 
on this inquiry. The statutory definition limits the scope of "coastal waters" 
to surface waters. (OSPRA sec.40.003(2)).
Another commenter suggested that all of the statutory definitions be repeated in 
the regulations but this was not adopted. The purpose of regulations is to 
enhance and detail statutory matters, not to repeat them. Similarly, suggestions 
that all definitions in the regulations be exactly the same as the statute 
undermines the purpose of regulations.
Other commenters were concerned with defining the limits of navigational 
obstruction. No change was made because this will be a practical determination 
based on present and past actual usages, and which should be clarified by the 
amended definition now adopted. The location of an artificial obstruction does 
not take the waters within that obstruction out of the jurisdiction of the 
statute as suggested by several commenters. OSPRA reaches any place where a 
discharge therefrom would threaten coastal waters.
One commenter asked for a definition of "artificial obstruction." This was not 
added because there are many types of artificial obstructions which inhibit 
navigation and the meaning is clear enough without naming all possible types.
In sec.19.1(a)(2), Coastal Facility, a new definition has been provided in 
response to comments requesting a definition of "immediately" as applied to the 
phrase "immediately enters coastal waters."
Some commenters expressed the opinion that pipelines ought to be excluded from 
the definition. Such an exclusion would leave unregulated a major form of 
transportation of oil within the state. The suggestion was therefore not 
adopted.
One commenter stated that the definition substantively changed the definition in 
the statute. This comment did not cause any change in the regulation since the 
revised definition is consistent with the parameters of the statute. Some 
commenters suggested that use of the phrase "handles oil" might create confusion 
between OSPRA, the Resource Conservation and Recovery Act, and the Clean Water 
Act and might infringe on the jurisdiction of the Texas Water Commission. This 
phrase and its definition were not changed because each referenced statute 
addresses very different environmental concerns and establishes different 
regulatory schemes. To the extent that spill prevention, containment, and 
counter measure (SPCC) plans required under the Clean Water Act are similar to 
discharge contingency plans required by OSPRA, the regulations attempt to 
coordinate the requirements in the discharge contingency plan rules.
One commenter opened that OSPRA's jurisdiction was limited to waterfront or 
offshore facilities but no change was made in response to this comment because 
the statutory definition clearly encompasses more. The jurisdiction extends to 
anyplace where an unauthorized discharge of oil, not abated or contained, could 
enter coastal waters within 12 hours.
In order to clarify the definitions section, this definition was merged with the 
definition for "facility."
Concerning sec.19.1(a)(4), Discharge Cleanup Organization, many commenters asked 
whether cooperatives were included in the definition of discharge cleanup 
organization. Since the statute clearly mentions such groups, no changes to the 
regulation were made.
Concerning sec.19.1(a)(5), Environmentally Sensitive Areas, commenters requested 
that government locate and identify these areas. This type of comment addresses 
policy concerns rather than the scope or meaning of the regulation, therefore no 
change was made other than a minor clarification. Certain areas have been 
identified by other governmental agencies and the OSPRA directed statewide 
contingency plan. Forthcoming statewide GIS systems will assist those regulated 
entities not familiar with the resources in their community.
Many comments were critical of the definition of "facility," sec.19.1(a)(5), as 
expanding the definition of the statute, but a comparison of the language of 
each shows that it did not. However, in light of comments which indicated 
confusion about what was specifically included in this definition, some 
clarifying changes were made.
The descriptive inclusions in the regulations are particularly relevant in 
determining the size of the facility for the purposes of terminal registration. 
There were several commenters which recommended that the references to 
"interrelated" facilities be deleted. This simplifies regulatory compliance by 
treating such entities as one facility, therefore, this comment was not adopted.
Finally, several commenters expressed concern that public port authorities would 
be held to a Comprehensive Environmental Response, Compensation, and Liability 
Act (CERCLA) type standard of liability by virtue of ownership of docks without 
any operational control over them. This concern is addressed in the definition 
of owner/operator and the GLO cannot by regulation affect statutory and common 
law liability theories. No changes are made. In order to clarify the definition 
section, this definition was merged with the definition of "coastal facility."
Regarding sec.19.1(a)(9), Handle, commenters suggested that the phrases "dispose 
of" and "produce" and "treat" were somehow exclusively within the province of 
the Texas Water Commission or the Railroad Commission. Since the purpose of 
these descriptive phrases is to include all types of facilities from which a 
discharge could threaten coastal waters, it is natural that such facilities may 
also be in the jurisdiction of another agency. It is the intention of the GLO to 
use such terms of art to make clear the reach of the statute. No changes were 
made in response to these comments.
Section sec.19.1(a)(14), Owner or Operator, generated one of the largest numbers 
of comments. The phrase "in possession" of a facility or vessel was believed to 
be beyond the scope of the statute and the situation of a vessel at dock 
possibly becoming the responsibility of the dock owner created consternation. 
The thrust of the statute is to place liability on those in the best position to 
influence prevention and response compliance. This section was changed to 
respond to the many comments received.
Other comments on this section were inquiries regarding the definition of the 
word "person." In order to make clear the extent of the rule, a definition of 
person was included. Comments regarding sec.19.1(a)(15), Regulated Vessel, noted 
that the gap between the federal definition and the state definition should be 
eliminated, but these are statutory so no change was made. Several commenters 
questioned including pleasure craft and emergency response vessels. This 
determination was made by the legislature, and the GLO is not authorized to 
lessen the scope of the statute by regulation and so no change was made.
Several commenters addressed sec.19.1(a)(16), suggesting the addition of the 
words "of oil" each time this phrase was used. The statute applies to oil only 
and not to any other substance so the addition was not adopted. One comment 
indicated that a discharge in violation of a state or federal permit was not an 
unauthorized discharge. Such an interpretation is contrary to the purpose of the 
Clean Water Act and it would be inappropriate in rules designed to keep waters 
as pristine as possible. (OSPRA, sec.40.002.)
One commenter said that spills from couplings and transfer hoses should be 
considered de minimis and therefore excluded. The United States General 
Accounting Office (G.A.O./ R.C.E.D.-91-161, Coast Guard: Oil Spills Continue 
Despite Waterfront Facility Inspection Program) has recently determined that 
more than half of the spills of oil at waterfront facilities occur during 
transfer operations. GLO has decided that such an exemption would be imprudent 
and inconsistent with the intent of the legislation.
Many commenters in sec.19.1(a)(18), Waste, suggested that defining waste was 
exclusively within the jurisdiction of the Texas Water Commission. The 
definition is applicable only to these regulations. The point was not entirely 
clear but the GLO is only regulating cleanup of oil spills and does not by these 
rules impact or affect the power or ability of other agencies to regulate waste 
disposal. Other commenters pointed out that the definition implied by omission 
that recycling was not acceptable or encouraged. In order to emphasize that 
waste minimization is an integral part of an appropriate cleanup response, the 
definition was changed to specifically mention recycling. One commenter 
regarding sec.19.1(a)(19), Worst case discharge, suggested that weather was 
irrelevant and should not have to be considered. Such a view undermines the 
concept of worst case scenario. The definition adopted in these rules is 
consistent with the federal definition and so was not changed.
Other comments were directed at weakening the definition by adding qualifiers 
such as "reasonably foreseeable" or "foreseeable in light of past history," or 
as a "25 year-24-hour rainfall event." These changes were not made because good 
response planning must include consideration of catastrophic events.
One commenter asked whether there is a required response time for a worst case 
discharge. The definition is not intended to outline all the parameters of 
contingency planning, therefore no change was made to address this issue.
Another commenter asked that the GLO define "adverse weather" and suggested that 
no one should have to respond in a hurricane. Nothing in this kind of 
contingency planning requires foolhardy or dangerous activities on the part of 
responders. The point is to have a plan in the event weather complicates 
response. No change is made in response to this comment.
One commenter recommended adding equipment failure to the definition as a 
component of circumstances that could cause a worst case discharge. This 
addition was not made because it was not the intent of this definition to detail 
the myriad of circumstances which could cause such a discharge; rather, the 
phrase is used as a term of art defined only to provide a reference to the kind 
of planning that is required under the regulations.
Section 19.3 and sec.19.18, Audits, Drills and Inspections and Access to 
Property, generated many comments. Some indicated that there was no authority to 
conduct unannounced entries. However, OSPRA specifically authorizes them in 
sec.40.116. No change was made. Other commenters stated that the GLO is required 
to notify the owner prior to entry onto private property; again, no change was 
made because OSPRA specifically states that the commissioner need only make a 
reasonable effort to obtain the owner's consent. (OSPRA sec.40.007(d)). Changes 
were made to clarify the commissioner's authority. Several commenters noted that 
the taking of photographs may cause a safety hazard and that the GLO 
representatives must comply with applicable safety requirements of the facility. 
Changes were made to clarify that the GLO will comply with all federal and state 
safety requirements.
One commenter stated that the GLO representatives are not entitled to interfere 
with facility operations. While the GLO will make every reasonable effort not to 
disrupt business, a certain amount of interruption with operations may be the 
result of any administrative inspection. No change was made based on this 
comment because such a requirement would unreasonably limit the ability of the 
GLO to perform its statutory duties.
One commenter suggested that the GLO was required to split samples of substances 
or media taken during an audit or inspection. While nothing in the statute or 
common law imposes such a requirement, this may be an issue of concern in 
enforcement proceedings if there is a failure to preserve the samples. It is a 
policy issue and not a legal requirement, so no change was made.
Another commenter said that personnel interviews should be limited. Again, this 
is a policy matter and does not directly affect the validity of the regulation 
so it was not added. Changes were made which delineated the time, place, and 
scope of audits, inspections, and drills pursuant to the requirements of New 
York v Burger, 107 S.Ct. 2636 (1987).
One commenter concerning sec.19.11, Categories of Coastal Facilities, suggested 
that all facilities which store 1,100 gallons or less of oil be exempted even if 
they are industrial facilities and another commenter suggested that all 
facilities handling less than 10,000 gallons of oil be exempt. These comments 
were not adopted because in order to comply with the intent of the legislation 
the broader category of facilities should be included.
A commenter inquired whether or not public port authorities would be required to 
obtain certificates. These provisions would apply to a public entity to the 
extent that the entity has storage or transfer capacity of its own, apart from 
the storage and transfer capacity of its tenants. The issue of ownership of the 
land underlying a facility is addressed in the definition of owner/operator and 
there was no change made to this section.
A commenter questioned the distinction between intermediate and major 
facilities. These distinctions were reviewed and a change was made. Now, two 
categories of facilities must register: small and major. Application fees based 
on size remain the same. Because the national contingency plan categorizes the 
introduction of a spill in the 250,000 gallon range as a major spill, the GLO 
decided that facilities with this storage or transfer or throughput capacity 
should be certified at the level of a major facility.
Concerning, sec.19.12, Facility Certification, some commenters suggested that 
the applicable dates be changed to a time certain after the effectiveness of the 
rule. This change was made for ease of administration.
Other commenters pointed out that in order for facilities to submit a discharge 
contingency plan for approval, they needed the list of certified discharge 
cleanup operators. This change was made and, under the revisions herein, 
discharge cleanup operators will be certified prior to applications being due 
for facilities.
Some commenters pointed out that the regulations ought to specifically state 
that operations may continue pending review of their applications. The GLO 
intends to complete processing of all applications by January 1, 1993, and has 
made that date the deadline for allowing operations without a certificate. This 
change is reflected throughout the deadline dates previously set forth.
Comments were received criticizing the apparent requirement that both the owner 
or operator file for certification. A change was made to reflect the fact that 
while this may be required under some circumstances it will general rule.
Many comments were objections to the requirement of having the application 
signed by a person of the rank of at least vice-president. One particularly 
noted that the company may not even have a vice president in Texas or who is 
familiar with Texas law. This comment illustrates the point of the requirement 
which is to insure that the need for compliance with the statute and the 
regulations is noticed and addressed at a high managerial level. The GLO 
believes that compliance will receive greater attention when persons at the 
level of vice-president have direct responsibility, so no change was made.
A commenter noted that since fees are already assessed on oil storage tanks the 
additional fees imposed by this certification requirement should be deleted. 
However, the fee is a reasonable amount commensurate with processing costs and 
is specifically authorized by statute, so no change is made.
Most comments on sec.19.13 and sec.19.14, Applications for Small and Major 
Facilities, were in the nature of suggestions limiting the amount or kind of 
information required. Changes were made to add requirements specifically stated 
in OSPRA,  sec.40.111.
Many commenters stated that the requirement of listing past discharges of oil 
and hazardous substances at the facility be deleted as being beyond the scope of 
the statute or limited to CERCLA reportable quantities. OSPRA states that in 
assessing penalties the commissioner shall consider past history, therefore, 
this information is relevant to carrying out the purpose of the law. The 
quantity of oil reportable under the statute is not related to any specific 
amount, thus all past oil discharges are relevant to determining prevention and 
containment capabilities. Similarly, past discharges of hazardous substances may 
indicate weaknesses in prevention or containment capabilities which need to be 
reviewed. Gathering this information is important for determining geographic 
response needs and priorities. One commenter inquired whether a facility would 
have to list permitted discharges. Discharges specifically authorized by permit 
are not requested here; however, any unpermitted discharge or discharge in 
excess of permitted levels should be reported under this section. Most entities 
keep spill logs and discharge monitoring reports that should ease the burden of 
compliance with this requirement. For these reasons the section was not amended.
Several commenters sought clarification of the need for relaying information 
related to the size of the largest vessel docking at the facility, but this is a 
statutory requirement and cannot be amended via regulation.
A few commenters challenged the need for the site plan to be certified by a 
registered professional engineer and stated that certification by any manager 
should suffice. This requirement is similar to many such requirements in federal 
regulations and insures protection for both the regulated entity and the 
government by having an independent assessment of the facility's site. Many 
facilities may not have ever assessed all of their storage, throughput, and 
transfer capabilities. This mandate insures accuracy.
Many comments asked that "environmentally sensitive" areas be mapped. This is an 
ongoing process that has not yet been completed. The comments on the 
"environmentally sensitive" definition were addressed in the definition section 
comments. A further definition of "in the vicinity of" is not deemed necessary 
since the language appears self-explanatory.
Some commenters indicated that the cost of a certified site plan for "pipelines" 
would be prohibitive, but neither the statute nor the regulations contemplate 
that all pipelines be plotted but only those located where a discharge therefrom 
would enter coastal waters. This is critical information for effecting 
prevention and response measures. Several comments from regulatory agencies 
asked for a clarifying statement regarding notification requirements. These 
entities wanted it made clear that notice to the GLO would not replace or 
supplant notice to them. Several comments from the regulated community took the 
opposite approach by inquiring whether the GLO will notify other agencies. 
Unfortunately, the multiple and duplicative reporting requirements cannot be 
remedied by regulation. However, OSPRA does mandate a statewide phone line for 
discharge reporting; this is to be part of the statewide discharge contingency 
plan now being developed.
One commenter suggested that material safety data sheets be submitted for 
describing the types of oil handled. This useful change was adopted.
One commenter suggested that requiring submission of an actual contract with a 
discharge cleanup operator may divulge information that is confidential. The 
language of the statutory provision allows for the submission of the "terms of 
the agreement" where the facility is a member of a discharge cleanup 
organization, but does not otherwise address this issue. The section was changed 
to allow disclosure requirements to be similar for all regulated entities.
Another commenter suggested that information supplied in the applicant's SPCC 
plan should not need to be duplicated. The GLO is also awaiting future changes 
in federal regulations which will address the impact of the Oil Pollution Act's 
effect on SPCC's requirements and is requiring submission of the SPCC plan. To 
the extent that it already contains the requested information in sufficient 
detail, a cover letter indicating where the information is located within the 
plan will satisfy these rules.
One commenter asked that a generalized description of facility maintenance be 
sufficient for information on schedules, methods, and procedures. A generalized 
description is not sufficient and this requirement is not being lessened because 
it is vital in determining prevention capabilities.
Concerning, sec.19.15, Issuance, Modification, and Suspension, one commenter 
noted that making a certificate voidable upon discovering that false information 
was intentionally submitted was not a serious enough response. In agreement with 
this observation, the section was changed. A certificate issued in reliance on 
information later proven to be fraudulently submitted is now considered void 
from the issuance date.
Many comments were received about the information considered to be material for 
the purpose of reporting changes. The requirement that all personnel changes 
were considered material was challenged in these comments. The section was 
changed. Only changes that affect response capability need to be reported within 
10 days.
Related comments suggested that 10 days was too short a period of time for 
reporting changes. Because changes affecting response capability go to the heart 
of the regulations no change in this deadline was made; however, routine 
personnel changes need no longer be reported within 10 days if they do not 
impact capability. The rule was changed to allow 30 days to report changes.
A few commenters suggested that the GLO alone should not determine adequacy of 
response, and that such a determination should be made in conjunction with the 
U.S. Coast Guard. This change was not made because the GLO has independent 
authority under the statute and because the federal authorities do not respond 
to every spill of interest to the state.
A commenter inquired what level of management changes must be reported to GLO. 
Since the regulation discusses changes in "discharge prevention and response 
capability," the management levels relevant to that function from the lowest to 
the highest level should be reported.
One commenter remarked that the words "gas pipeline" should be removed from the 
section which describes review of applications by the Railroad Commission. The 
basis for the comment was that there can be no regulation of gas under the 
statute. Since this is statutory language and there can be discharges of oil 
from pumps and other appurtenances of gas pipelines, it is appropriate that such 
facilities be regulated.
One commenter noted that the introductory statement allowed the GLO to request 
more information to resolve questions regarding the application. This was seen 
as a method of continually asking for information until the certification was 
effectively barred. The GLO will not harass anyone in this manner and believes 
that the explicit delineation of this implicit authority was fair notice to the 
regulated community. No change was made.
Several commenters noted that a certificate should not be suspended in the event 
of a spill or any technical violation. Whether a violation is "technical" or 
integral to the regulatory scheme may be a matter of dispute. A spill that is 
the product of violations of the regulations may be cause for suspension. Each 
of these matters is for the sound discretion of the commissioner as he exercises 
his enforcement authority. In any event, the use of suspension, which 
effectively closes down a business, will be reserved for only the most serious 
matters. However, there may be instances where situations that endanger the 
public health, safety, or welfare or seriously impact natural resources or 
threaten to do so may call for a suspension.
One commenter noted that the authority to suspend certifications under OSPRA is 
narrower than that articulated here. Clarifying language was adopted in this 
section to conform to the statutory specificity.
Another comment stated that OSPRA only requires annual reporting of changes. 
However, the statute says that each registrant shall report annually on the 
status of its plan and its response capability. The statute does not prohibit 
the additional requirement of this section for reporting certain significant 
changes sooner. In addition, OSPRA, sec.40.110(b) specifically provides that the 
commissioner may review a certificate at "any time there is a material change in 
the terminal facility's discharge prevention and response plan or response 
capability." Many comments were received regarding the statement at 
sec.19.16(d), Person in Charge, regarding joint and several liability. The most 
prevalent remark was that OSPRA does not establish this kind of liability. 
However, a review of the statutory language at sec.sec.40.153, 40.202, and 
40.251 indicates that joint and several liability is established. One commenter 
observed that criminal liability cannot be established without an act or 
omission by an individual. Another commenter opened that only managers should be 
held liable. This subsection was meant only to be a summary of statutory 
liability. The restatement did not affect any existing standards of liability 
and generated such controversy that it was deleted.
Several commenters suggested that there was no necessity for giving the name of 
the person in charge, but the GLO believes that the ability to rapidly contact 
the correct person is crucial in emergency response situations. This requirement 
was not deleted.
One commenter noted that a large corporation has many persons in charge on any 
one day and thus this section did not deal with the reality of large 
organizations. Several other commenters recommended that the person in charge be 
the person who can initiate response actions. The language of this section 
addresses both of these comments. The person in charge is whomever the facility 
designates to notify the GLO of a spill and to ensure compliance with OSPRA. The 
person in charge is also defined as the person who has independent authority to 
deploy response equipment and personnel and to expend funds for response. The 
section clearly states the role and powers of the person in charge. There was no 
change based on these comments.
The comments received relating to sec.19.17, Vessel Response Plan and Proof of 
Financial Responsibility, questioned the manner in which the GLO will regulate 
those vessels which are covered by state law but are not included in federal 
law. One comment pointed out that federal regulations for vessel response plans 
will not be promulgated until February 1993. The vessels currently covered by 
the state will not have to comply until GLO issues applicable rules. Interim 
rules may be issued prior to final federal rules. Some commenters suggested that 
vessels covered by state law should not have to have discharge response plans. 
However, no change was made since this is a statutory requirement.
One commenter stated that emergency response vessels that carry in excess of 
10,000 gallons of fuel should not have to meet financial responsibility rules. 
Again, no change can be made because this is a statutory requirement.
One comment addressing sec.19.19, Denial of Entry Into Port, suggested that 
vessels not in compliance should be "impounded." Such an action may sometimes be 
appropriate and within the commissioner's authority but the GLO does not now 
adopt this as a rule or policy. No change is made in this section.
Another commenter questioned whether the denial would be coordinated with the 
U.S. Coast Guard. It is the current policy of the GLO to coordinate all its 
activities related to vessels with the appropriate federal authorities. One 
commenter inquired as to the methods the GLO will utilize in enforcing this 
section where vessels are covered only by state law and not federal law. No 
response is made to this comment since it is inappropriate to publicly discuss 
enforcement procedures.
Many commenters addressing sec.19.20, Certification of Discharge Cleanup 
Organizations, asked if cooperative associations were included. As the statutory 
definition includes cooperatives as well as "any group of...any...persons" 
organized for the purposes of spill response or natural resources rehabilitation 
and rescue, it is clear that the legislature intended this category to be very 
broad. A similar comment about the inclusion of "mutual aid organizations" is 
also referred to the statutory definition.
Several commenters stated that these certification requirements inhibited mutual 
aid. The reasons for this remark were not detailed. The language of the section 
was changed to make it clear that these requirements do not affect the "good 
samaritan" provisions of the statute, nor do they prohibit an owner or operator 
from assisting another in an emergency situation. The section intends to set 
forth requirements for those who desire certification in order to be listed on a 
spill contingency plan, to be hired by the fund for response actions and to be 
recognized under the statute. No group or organization is required to be 
certified.
A few commenters recommended that "vacuum trucks" not be required to obtain 
certification. There does not appear to be any rational basis for exempting one 
category of spill responders from certifications and the statute includes a 
broad category. This change was not made.
Many commenters noted that requiring a plan for the disposal of waste generated 
from an unauthorized discharge of oil did not take into account the realities of 
transportation and waste disposal regulations. Apparently the difficulty 
involved in entry into the transportation business has resulted in cleanup 
organizations that are unable to transport the waste from the temporary staging 
area. The section was changed to reflect this problem and now only requires an 
ability to "arrange for disposal."
Many commenters indicated that discharge cleanup organizations should not be 
required to have ex officio representatives of local governments on their boards 
or governing bodies. The requirement is statutory and cannot be limited by 
regulation.
Several of the commenters on this subsection indicated a misreading of the 
section. Changes were made to clarify that the requirement applies only to not-
for-profit entities. The Marine Spill Response Corporation is specifically 
exempted by statute and the regulations cannot add further exemptions for 
similar groups. Further commenters on this subsection asked for a definition of 
local government. A definition was not provided because the meaning seems clear, 
but a change was made to indicate that the representatives should be from the 
same geographic area as that served by the organization. Other comments about 
volunteer organizations included requiring only those properly trained to engage 
in wildlife rehabilitation and rescue. This change was made to ensure that the 
Parks and Wildlife Department's rules are followed.
Another commenter recommended that volunteer groups not be allowed to 
participate in any response operations. Such a restriction was not included 
since there may be occasions when volunteers can contribute to beach cleaning or 
other useful operations.
One commenter suggested that the GLO require information about the 
organization's insurance coverage. This change was adopted.
Another commenter noted that organizations should have a health and safety plan 
and this addition was also made. Another additional requirement is that 
certified organizations have a waste minimization plan. This is important for 
the obvious environmental benefits derived from waste minimization and because 
it will contribute to lower cleanup costs by reducing the quantity of supplies 
utilized and lessening disposal costs. The subsection that resulted in the most 
negative comments was the one describing factors the GLO will utilize in 
determining certification. The subsection was changed to reflect the fact that 
the number of organizations already certified will be considered for the purpose 
of insuring adequate coverage of the coastal area and not for limiting 
competition.
Several commenters requested longer time periods for reporting changes and 
clarifying which changes need to be reported. An amendment was made to increase 
the time available for reporting changes to 30 days and to specify that a 
material change is a change which affects discharge response capability.
Many commenters concerning sec.19.31, Jurisdiction, asked for clarification of 
the word "threatening," as used in the rules, to discuss when a discharge 
threatens to enter coastal waters. This is included in this section and in the 
definition of facility. Comments addressing sec.19.32, Reporting an Unauthorized 
Discharge, indicated the belief that the regulations require reporting by both 
the person in charge and the person responsible for the discharge. It is correct 
that both persons have the duty to report, but both need not report, the same 
incident. Changes were made to clarify the existence of a dual duty but not of 
repetitive reporting.
Many commenters requested clarification of the requirement to report 
"immediately." Immediately is now defined to mean within one hour of the 
discovery of the discharge. Compliance with this time limit will include a 
review of whether appropriate monitoring and inspecting could have resulted in 
an earlier discovery. This and other factors were added to the definition of 
"immediately."
Several commenters were concerned with the imputation of compliance where a 
third party gives notice on behalf either the person in charge or the 
responsible person. The language was changed to clarify that the person who has 
the duty to report may delegate that task to another. The person with the duty 
will then be deemed to have complied. This does not mean that notification from 
a third party, not authorized or delegated by one with a duty, will meet the 
reporting requirements. This section is strictly interpreted because the statute 
creates strict criminal liability for knowing or having reason to know of a 
discharge and failing to report it. (OSPRA, sec.40.251(b)(2)).
Several commenters pointed out that, at the outset of a spill, one may not be 
able to accurately convey all of the information requested. In recognition of 
the incomplete information often available at the outset, this section was 
changed to impose a continuing duty to report material changes in the 
information requested. Upon the arrival of the state on-scene coordinator, the 
continuing duty to report new information ceases. The importance of continual 
reporting should be obvious when one considers that many large spills of oil and 
other hazardous substances are initially reported quite inaccurately. The 
necessity of appropriate response and the time needed for mobilization of 
resources mandates a continuing obligation to inform the GLO.
Many persons commented that requiring immediate notification of owners of 
property which may be damaged was onerous and unrealistic, given the remoteness 
of certain coastal areas. The language of this subsection was modified to make 
the requirement more realistic, and yet still achieve the objective of 
minimizing loss of property.
Concerning, sec.19.33, Response, several commenters requested a definition of 
"predominantly" in the phrase "predominantly a hazardous substance." A change 
was made to describe the factors which will be reviewed in making this 
determination. The natural resource trustees requested that the rules reflect 
the current practice of notifying them of unauthorized discharges. This change 
was made.
Many commenters asserted that the GLO did not have the authority, experience, or 
expertise to direct spill response and that the GLO cannot act without approval 
from the federal government. These commenters misinterpret specific statutory 
powers granted to the GLO to: "ensure the removal and cleanup of pollution from 
(oil) spills" (OSPRA, sec.40.002(b)(2)); to "direct all state discharge response 
and cleanup operations" (OSPRA, sec.40.004(a)); to "act independently to the 
extent no federal on-scene coordinator ...has assumed federal authority" (OSPRA, 
sec.40.102(c)) and to give "directions or orders" related to abating, 
containing, and removing pollution (OSPRA, sec.40.106(a)). No changes were made 
in response to these remarks.
A change to delineate the authority of the Railroad Commission was requested and 
made. Use of the phrase "response operations center" was discontinued to avoid 
confusion with similar language used by the Department of Public Safety.
Several commenters addressing sec.19.34, Duties of Responsible Person, 
questioned the need for reporting deviations from a contingency plan during 
response operations. The requirement remains because such information is 
necessary in order to assess the potential impacts of such deviations and 
because it is useful in measuring the original adequacy of the plan.
Some commenters asked for a delineation of factors which will be evaluated in 
determining the adequacy of response. Since the determination can seriously 
impact a responsible person, the section was changed to add certain factors.
One commenter suggested that the GLO should not require a response to small 
spills. Since a harmful quantity of oil is one defined as causing a "sheen" and 
since the discharge of any unpermitted amount violates the Clean Water Act, such 
a policy would be illegal as well as unwise.
One commenter noted that the statute allows the responsible person 48 hours to 
give written justification for refusal to comply with directions from the state 
on-scene coordinator. The rule was changed to conform to the statute.
19.35, Assistance, was more restrictive than OSPRA regarding the ability of any 
person to offer assistance. The section was changed to clarify that it does not 
limit the statutory scheme. As rewritten, it is now consistent with the limited 
immunity provisions of the statute.
Several commenters suggested that there should not be a requirement that 
assistance be "cost-efficient" or "effective" for waiver of the prior 
authorization requirement. Such parameters are necessary to encourage prudent 
activities by those who respond prior to the arrival of governmental 
authorities. No change was made. One comment requested details on the method of 
authorization. Change were not made because such a determination depends on the 
exigencies of the situation and should remain within the sound discretion of the 
on-scene coordinators.
One commenter requested that certain operations such as vacuum trucks be allowed 
to respond without prior authorization. The section does not prohibit response 
by unauthorized parties, but such response may not be reimbursable from the 
fund. It may not come within the limited immunity provisions either unless the 
responder is acting on behalf of the responsible person or with authorization.
Many commenters were concerned that sec.19.36, Disposal, restricted the ability 
to recycle. The definition of waste in the definitions section was revised to 
reflect this concern.
One commenter stated that only the responsible person can determine where the 
waste will be taken. This is clearly not so since both the Texas Water 
Commission and the Department of Health have jurisdiction over waste. There will 
also be times when there is no readily identifiable responsible person. One 
change was made to require that the on-scene coordinator be informed in writing 
of the final disposal site of the waste. The section was also changed to 
explicitly discuss the requirement of waste minimization and to require the 
removal of waste from the scene of the spill.
Several commenters addressing sec.19.37, Completion of Response, mentioned that 
the completion of response operations should consider the natural resource 
trustees' concerns. The section was amended to require consideration of these 
important interests. Some commenters recommended that trustees must concur 
concerning completion of the response. This change was considered too cumbersome 
as well as an abdication of the role of the on-scene coordinator, so it was not 
adopted.
Many commenters noted that 10 days was not enough time for a final report. This 
was changed to allow 30 days. Similarly, even 30 days is not enough to give an 
evaluation of damaged natural resources. The section was amended to require only 
preliminary listing of known damages.
Another commenter asked what methods would be used to determine that cleanup 
operations were complete. Rather than have detailed rules on cleanup standards 
at this point, the GLO will rely on the expertise of cleanup contractors, 
governmental agencies, and natural resource trustees in making this decision. 
The statewide contingency plan will enumerate these standards.
Concerning, sec.19.38, Remediation, one commenter suggested that the elements of 
a required remediation be further expanded and delineated. This section was 
intentionally written broadly pending development of federal natural resource 
damage assessment regulations mandated under the OPA.
A few commenters requested that the GLO formulate a remediation plan and/or give 
technical assistance. The function of developing a remediation plan may be 
assumed by the trustees but usually the responsible party is given the 
opportunity to present a plan. In the event that a responsible party does not 
present a remediation plan within the required time, the trustees, will proceed 
to do so. The trustees are available for technical guidance but this fact was 
not added to the rule. The language of the section was amended to emphasize the 
cooperative efforts of all state trustees, and to clarify that the GLO does not 
intend to approve plans or develop plans without the participation of all 
trustees.
One commenter suggested that responsible parties be allowed to appeal 
unrealistic plans and another suggested hearings on the type of plan required. 
This change was not adopted because it would further complicate an already 
complex procedure and would not advance the protection or restoration of natural 
resources. In practice, a responsible party need not participate in a plan 
developed by the trustees. Litigation in such an event will occur during any 
cost recovery action. There is no reason for allowing litigation at an earlier 
stage.
Several commenters requested that negotiation of a remedy acceptable to all be 
allowed. Although negotiation is always appropriate when agreed to by all 
parties and although the trustees are already empowered to negotiate, the change 
was made so that it is clear that the GLO and other trustees are not limited to 
any set number of methods for achieving a acceptable plan.
One commenter stated that "monitoring" alone should be all that is required. 
While there may be some instances where nothing more is needed, the rule does 
not attempt to define all the potential courses of action. Furthermore, to 
specifically mention that there may be an occasion where affirmative action is 
not required may create the false impression that this is a preferred method. No 
change was made because there are no other specific kinds of action delineated 
in the rule.
One commenter mentioned that a responsible party should be entitled to a 
"release" upon completion of the remediation plan. While this may in fact be the 
practice, there is no need to change this rule to make it include all the 
procedural and substantive practice that has developed in this area. These 
regulations will be revised to conform to the federal rules, therefore no change 
was made.
Section 19.52, Designation of the Responsible Person; Advertising Claims, was 
changed to comply with the stricter statutory requirements. The GLO must 
"immediately" designate a responsible person once there has been sufficient 
inquiry to make the determination. Several commenters requested guidance on the 
decision-making process. Certain review factors were therefore added to this 
subsection.
A few commenters objected to the direction to inform the GLO of "claims 
procedures." The statute is specific about time limitations and in order to 
ensure compliance with these limits an efficient method of handling claims is 
critical. No change was made since the GLO wants to maintain the ability to 
review claims procedures.
Several commenters complained about the requirement of radio and television 
advertisements of claims procedures. This was changed to make the direction 
discretionary with the GLO. One comment asked that "locality" be defined for 
notice purposes. A change was made to provide a definition.
There were many commenters objecting to the time limits set out in sec.19.53, 
Claims Procedures, but they cannot be changed since they are statutory.
The statute discusses a "reasonable response" to a claim within a certain time 
period; the regulation was drafted with the phrase "settled." This attempt to 
expedite the process was met with many commenters objecting to such a stringent 
timeline. Therefore, the section was changed to conform to statutory language.
One commenter stated that the GLO is limited in its authority to hear cases on 
damages and there should be a change to note that only "actual damages" may be 
claimed. Because the statute does not provide for punitive or nominal damages, 
this clarification seems unnecessary. No change is made. The statute does 
discuss consequential damages such as local governments' loss of taxes or the 
net costs of increased entitlement (OSPRA, sec.40.003(6)(A)(ii)). Since the 
statute delineates a broad category of damages that are recoverable, no specific 
limits are set in the rule.
A few commenters requested that the responsible party be given a copy of any 
claim submitted to the fund. Since the procedure is for the claimant to first 
present the claim to the responsible party, such a specific statement is 
unnecessary. Another commenter stated that the responsible party should be 
allowed to submit evidence to the GLO. The responsible party has the opportunity 
to challenge a proposed award amount and to have a hearing, so through discovery 
there is sufficient opportunity for the responsible party to be evaluate the 
claim.
One commenter suggested that claims be consolidated for the purposes of 
hearings. This is a reasonable comment, but the rules for hearings are already 
promulgated and a consolidation motion is for the sound discretion of the 
hearing examiner.
No one who commented opposed adoption of the chapter. Those who commented 
objected to or requested changes to specific sections or subsections. The 
following gave comments: Clean Gulf Associates; Office of Railroad Commission of 
Texas; Texas Mid-Continent Oil and Gas Association; Marine Spill Response 
Corporation; Internal Association of Drilling Contractors; Shell Oil Company; 
OMI Corporation; Texas Chemical Council; Texas Waterway Operators Association; 
Galveston Bay Foundation; The Port of Houston Authority; Marathon Oil Company; 
Dow Chemical Company; Gulf States Utilities Company; Haight, Gardner, Poor and 
Haven; Koch Industries, Inc.; Petroleum Marketers Association of America; Texas 
Water Commission; Port of Corpus Christi Authority; Amoco Corporation; 
Brownsville Navigation District; Canal Barge Company, Inc.; Lyondell 
Petrochemical Company; Star Enterprise; Exxon Company, U.S.A.; Texas Oil 
Marketers Association; West Gulf Maritime Association; Mobil Oil Corporation; 
Chevron U.S.A.; Georgia Gulf Corporation; The Frantz Co; Phillips Petroleum 
Company; Clark, Thomas, Winters and Newton; Texas Department of Public Safety; 
Texas Parks and Wildlife Department; BP Chemicals; Norse Shipping Houston, Inc.; 
International Technology Corporation;, Boeing Petroleum Services, Inc.; 
Maritrans Operating Partners L.P.; Koch Refining Company; Leboeuf, Lamb, Leiby 
and Macrae; BP America, Inc.; and INTERTANKO.
The new sections are adopted under the Natural Resources Code, sec.40.007, which 
authorizes the land commissioner to promulgate rules necessary and convenient to 
the administration of OSPRA.
sec.19.1. Purpose.  This subchapter establishes a final rule under the Oil Spill 
Prevention and Response Act of 1991 (OSPRA), Texas Natural Resources Code, 
Chapter 40, which became law March 28, 1991. OSPRA supports and complements the 
Oil Pollution Act of 1990 (OPA), Public Law 101-380, which became law on August 
18, 1990. This subchapter is intended to establish basic rules to provide for 
orderly and efficient administration of OSPRA until more comprehensive 
rulemaking can occur in coordination with the rulemaking process by federal 
agencies under OPA. The General Land Office intends to amend this subchapter in 
anticipation of and in response to federal rulemaking, as well as when 
development of Texas' own oil spill prevention and response program so requires.
sec.19.2. Definitions.
(a) The following words and terms, when used in this chapter, shall have the 
following meanings, unless the context clearly indicates otherwise.
(1) Coastal waters-All tidally influenced waters extending from the head of tide 
in the arms of the Gulf of Mexico seaward to the three marine league limit of 
Texas' jurisdiction; and nontidally influenced waters extending from the head of 
tide in the arms of the Gulf of Mexico inland to the point at which navigation 
by regulated vessels is naturally or artificially obstructed. The term includes 
the entirety of the Gulf Intracoastal Waterway (GIWW) within Texas, and the 
following waters: Starting from Echo, Texas, 30 degrees 09'10"N 93 degrees 
42'25"W (Orange County) and proceeding south on the Sabine River to the 
intersection with the GIWW, thence westerly along the GIWW, including Adams and 
Cow Bayous to the Highway 87 bridges, to Port Arthur. This includes the Neches 
River to a point 22 miles north, 30 degrees 07' 48"N 94 degrees 05'00"W. Then 
along the GIWW towards Port Arthur, including Taylors Bayou south of Highway 73. 
From Port Arthur along the GIWW to, and including, East Bay, Trinity Bay, Cedar 
Bayou to 29 degrees 44'55"N 94 degrees 55' 47"W, Lynchburg Canal to 29 degrees 
41'00"N 94 degrees 59'00"W, to the San Jacinto River 2.5 miles NW of the I-10 
bridge, Houston Ship Channel to the turning basin, thence 6.5 miles west on 
Buffalo Bayou at 29 degrees 46'00"N 94 20'46"W. The Houston Ship Channel 
includes: Buffalo Bayou to Highway 59, Brays Bayou to the Broadway Street 
Bridge, Sims Bayou to Highway 225, Vince Bayou to North Ritchie Street, Hunting 
Bayou to I-10, Greens Bayou to I-10, Boggy Bayou to Highway 225, Tucker Bayou to 
Old Battleground Road, Carpenter's Bayou to Sheldon Road, and General Land 
Office Title 31, Part I Chapter 19, Subchapter A Goose Creek to Highway 146. 
Proceed south and include Barber Cut, Bayport Channel, Clear Lake, Dickinson 
Bay, Moses Lake, Dollar Bay, Texas City Channel (including turning basin), Swan 
Lake, Jones Bay, and continuing at the junction of West Bay and the GIWW in 
Galveston. Continue westerly along the GIWW to the Port of Freeport, including 
Greens Lake, Chocolate Bay/Bayou to nine miles NW of the GIWW 29 degrees 14'42"N 
95 degrees 13'30"W, the Old Brazos River and the New Brazos River up to the 
Missouri-Pacific Railroad bridge in Brazoria, and the Dow Barge Canal. Then 
southerly along the GIWW through and including, Jones Lake and Creek, the San 
Bernard River to Sweeney, Texas 29 degrees 03'55"N 95 degrees 40'15"W, Cowtrap 
Lake, Matagorda Bay, the Colorado River to the Port of Bay City 28 degrees 
51'45"N 96 degrees 01'45"W, Culver Cut (West Branch Colorado River to 28 degrees 
42'N and the entire middle branch), Crab Lake, Oyster Lake, Tres Palacios Bay to 
28 degrees 47'N, Turtle Bay, Caranchua Bay, Keller Bay, Cox Bay, Lavaca Bay, 
Lavaca River to 28 degrees 50'N, Chocolate Bay/Bayou to 96 degrees 40'W, 
Powderhorn Lake, Robinsons Lake, Blind Bayou, La Salle Bayou, Broad Bayou, and 
Boggy Bayou. Continuing southerly on GIWW from Port O'Connor through San Antonio 
Bay, including, Guadalupe Bay, Mission Lake, Green Lake, Victoria Barge Canal, 
Guadalupe River to 28 degrees 30'N, Goff Bayou, Hog Bayou, Corey Bay, Buffalo 
Lake, Alligator Slide Lake, Twin Lake, Mustang Lake, and Jones Lake. Then 
continuing through Mesquite Bay including: Dunham Bay, Long Lake, Sundown Bay, 
and the Aransas Wildlife Refuge. Continuing southerly through Street Charles Bay 
including: Burgentine Bay/Burgentine Creek to 28 degrees 17'N, Salt Creek to 28 
degrees 16'N, and Cavaso Creek to 97 degrees O1'W. Thence through Copano Bay 
including, Copano Creek, Mission Bay/River, Chiltipin Creek to 97 degrees 18'W, 
Aransas River to 97 degrees 18'W, Swan Lake, Port Bay, and Salt Lake. Then 
southerly including: Little Bay, Aransas Bay, Conn Brown Harbor, Redfish Cove, 
Redfish Bay, La Quinta Channel, Corpus Christi Bay, Nueces Bay, Nueces River to 
U.S. 77, Rincon Industrial Channel, Rincon Bayou, Tule Lake, Corpus Christi 
Inner Harbor, Oso Creek, Oso Bay, and Cayo Del Oso. Continuing south, through 
and including, Packery Channel, Laguna Madre, Baffin Bay, Alazan Bay, Cayo del 
Hinoso, Petrolino Creek, Cayo Del Infiernillo, Cayo del Grullo, Laguna Salada, 
Laguna de los Olmos, and Comitas Lake. Continuing through the Laguna Madre to 
Redfish Bay, Port Mansfield Harbor, Four Mile Slough, Arroyo Colorado River to 
Harlingen 26 degrees 11'53"N 97 35'57"W, Laguna Atascosa, Arroyo Colorado 
Cutoff, El Realito Bay, Laguna Vista Cove, Port Isabel Harbor, Brownsville Ship 
Channel, Bahia Grande, Vadia Ancha, San Martin Lake, and South Bay. Where the 
coastal area is defined by a body of water such as a bay or lake, it includes 
any small bays or lakes encompassed therein.
(2) Commissioner-The commissioner of the General Land Office.
(3)  Discharge cleanup organization-A corporation, partnership, proprietorship, 
organization, or association that intends to make itself available to engage in 
response actions to abate, contain, or remove an unauthorized discharge or 
pollution or damage from an unauthorized discharge.
(4) Environmentally sensitive areas-Streams and water bodies, aquifer recharge 
zones, springs, wetlands, agricultural areas, bird rookeries, endangered or 
threatened species (flora and fauna) habitat, wildlife preserves or conservation 
areas, parks, beaches, dunes, or any other area protected or managed for its 
natural resource value.
(5) Facility-
(A) Any pipeline, structure, equipment, or device used for handling oil, 
including, but not limited to, underground and aboveground tanks, impoundments, 
mobile or portable drilling or workover rigs, barge mounted drilling or workover 
rigs, and portable fueling facilities located offshore or on or adjacent to 
coastal waters as defined in paragraph (1) of this subsection or any place where 
a discharge of oil from the facility could enter coastal waters or threaten to 
enter coastal waters.
(B) A discharge threatens to enter coastal waters when the failure to abate or 
contain it allows it to enter coastal waters within 12 hours.
(C) A combination of interrelated or adjacent tanks, impoundments, pipelines, 
gathering lines, flow lines, separator or treatment facilities, and other 
structures, equipment, rolling stock, or devices under common ownership 
generally will be considered a single facility under OSPRA. The term includes 
facilities owned by units of federal, state, or local government as well as 
privately owned facilities.
(6) Fund-The coastal protection fund established under OSPRA.
(7) Federal fund-The oil spill liability trust fund established under OPA.
(8) Handle-To transfer, transport, pump, treat, process, store, dispose of, 
drill for, or produce.
(9) Harmful quantity of oil-The presence of oil from an unauthorized discharge 
in a quantity sufficient either to create a visible film or sheen upon or 
discoloration of the surface of the water or a shoreline, tidal flat, beach, or 
marsh, or to cause a sludge or emulsion to be deposited beneath the surface of 
the water or on a shoreline, tidal flat, beach, or marsh.
(10) National contingency plan-The plan prepared under the Federal Water 
Pollution Control Act (33 United State Code, sec.1321 et seq) and the 
Comprehensive Environmental Response, Compensation, and Liability Act of 1980 
(42 United State Code, sec.9601 et seq), as revised from time to time.
(11)  OPA-The Oil Pollution Act of 1990, Public Law 101-380.
(12)  OSPRA-The Oil Spill Prevention and Response Act of 1991, Chapter 40, 
Natural Resources Code.
(13) Owner or operator-Any person, individual, partnership, corporation, 
association, governmental unit, or public or private organization of any 
character:
(A) owning, operating or responsible for operating, or chartering by demise a 
vessel;
(B) owning, operating, or responsible for operating a facility; or
(C) operating a facility by lease, contract, or other form of agreement. The 
term does not include a person who owns only the land underlying a facility or a 
person who owns only a security interest in a vessel or facility if the person 
does not participate in the operation of the vessel or facility, does not own a 
controlling interest in the owner or operator of the vessel or facility, and is 
not controlled by or under common ownership with the owner or operator of the 
vessel or facility.
(14) Regulated vessel-A vessel with a capacity to carry 10,000 U.S. gallons or 
more of oil as fuel or cargo.
(15) Unauthorized discharge-Discharges excluding those of authorized by and in 
compliance with a government permit, seepage from the earth solely from natural 
causes, and unavoidable, minute discharges of oil from a properly functioning 
engine, of a harmful quantity of oil from a vessel or facility either:
(A) into coastal waters; or
(B) on any waters or land adjacent to coastal waters where harmful quantities of 
oil may enter coastal waters or threaten to enter coastal waters if the 
discharge is not abated nor contained and the oil is not removed.
(16) Underwriter-An insurer, a surety company, a guarantor, or any other person, 
other than an owner or operator of a vessel or facility, that undertakes to pay 
all or part of the liability of an owner or operator.
(17) Waste-Oil or contaminated soil, debris, and other substances removed from 
coastal waters and adjacent waters, shorelines, estuaries, tidal flats, beaches, 
or marshes in response to an unauthorized discharge. Waste means any solid, 
liquid, or other material intended to be disposed of or discarded and generated 
as a result of an unauthorized discharge of oil. Waste does not include 
substances intended to be recycled if they are in fact recycled within 90 days 
of their generation or if they are brought to a recycling facility within that 
time.
(18) Worst case unauthorized discharge-The largest foreseeable unauthorized 
discharge under adverse weather conditions. For facilities located above the 
high water line of coastal waters, a worst case discharge includes those weather 
conditions most likely to cause oil discharged from the facility to enter 
coastal waters.
(b) All other terms used in this chapter and defined in OSPRA have the meaning 
assigned to them by OSPRA.
sec.19.3. Inspections and Access to Property.
(a) Officers, employees, or authorized agents of the General Land Office (GLO) 
may enter and inspect any land, building, facility, vessel, device, equipment, 
or other property to respond to an unauthorized discharge, to determine 
compliance or noncompliance with the Oil Spill Prevention and Response Act of 
1991 (OSPRA) or any rule, order, or certificate issued under OSPRA, to ascertain 
discharge prevention and response capability, and to assess natural resources 
damages. Drills, audits, and inspections may be announced or unannounced. If 
unannounced, GLO will make a reasonable effort to obtain the consent of the 
owner of the vessel or facility prior to entry. In the event of a response to an 
unauthorized discharge of oil or the threat of an unauthorized discharge of oil, 
GLO will also make a reasonable effort to obtain consent; this effort will be 
consistent with the need for prompt abatement and containment actions for the 
protection of health, safety, and natural resources. A reasonable effort to 
obtain consent means that a readily identifiable owner or owner's representative 
has been afforded the opportunity to accompany GLO during the audit or 
inspection or to be kept informed of GLO activities during a response event.
(b) The GLO's officers, employees, and agents will present credentials and 
explain the purpose and scope of the requested entry onto private property. Upon 
gaining access to the property, GLO's representative may:
(1)  sample and test any substance or environmental media;
(2) observe the performance of equipment;
(3) take photographs and videotapes and other recordings;
(4) review and copy documents;
(5) inspect discharge prevention and response equipment and supplies;
(6) inspect containment and drainage areas and any other portion of the facility 
or vessel where oil is handled.
(c) The GLO's officers, employees, and agents must observe a vessel's or 
facility's standard safety requirements. Standard safety requirements as set 
forth in OSHA and applicable regulations or in any State of Texas statute or 
rule will be observed. Any additional or other requirement imposed by the owner 
or operator will be observed only to the extent that it does not unreasonably 
hinder the objective of the authorized entry.
sec.19.4. Waiver.
(a) Upon written request, the commissioner may waive a provision of this chapter 
if the commissioner determines that the application of the provision would be 
inconsistent with the fundamental intent and purpose of the Oil Spill Prevention 
and Response Act of 1991.
(b)  Where adequate precautions are taken to avoid environmental and property 
damage and other necessary governmental agencies have consented, the 
commissioner may allow the discharge of limited amounts of oil into or upon 
coastal waters or adjacent waters, shorelines, estuaries, tidal flats, beaches, 
or marshes, as part of a drill, demonstration of response capability or 
technology, or other study or project to further discharge prevention or 
response capability.
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 31, 1992.
TRD-9201535
Garry Mauro
Commissioner
General Land Office
Effective date: February 21, 1992
Proposal publication date: September 9, 1991
For further information, please call: (512) 463-5394
       
Subchapter B. Spill Prevention and Preparedness
31 TAC sec.sec.19.11-19.20
The sections as adopted under the Natural Resources Code,  40.007, which 
authorizes the commissioner to promulgate rules necessary and convenient to the 
administration of the OSPRA.
sec.19.11. Categories of Coastal Facilities.
(a) There are three types of coastal facilities: exempt, small, and major. 
Coastal facilities are classified according to oil storage and transfer 
capacity. Small and major facilities are regulated under this subchapter.
(b) Exempt facilities are farm or residential tanks with a capacity of 1,100 
U.S. gallons or less that are used for storing oil for farm or residential 
purposes only. An owner or operator of an exempt facility is not required to 
obtain a discharge prevention and response certificate or have a discharge 
prevention and response plan or proof of financial responsibility.
(c) Small facilities are facilities, other than exempt facilities, that have a 
storage or daily transfer capacity not exceeding 10,000 U.S. gallons of oil.
(d) Major facilities are facilities that have a oil storage or daily oil 
transfer capacity of more than 10,000 U.S. gallons.
sec.19.12. Facility Certification.
(a) The owner of a regulated facility must apply to the General Land Office 
(GLO) for a discharge prevention and response certificate six months after this 
rule becomes final. No facility may commence or continue operations after 
January 1, 1993, without a discharge and response certificate issued by GLO. 
Application forms are available from the General Office, Oil Spill Response 
Prevention and Response, 1700 North Congress Avenue, Room 740, Austin, Texas 
78701-1495.
(b) In the case of a facility whose owner is a different person or entity than 
its operator, the commissioner may require both the owner and operator to file 
an application for certification. The commissioner may also require only one of 
the parties to file an application.
(c) For corporate applicants, the application must be signed by an officer of at 
least the rank of vice-president. For partnerships, the application must be 
signed by a partner. All applications must also be signed by the person 
responsible for operation of the facility; this includes, for example, the 
facility manager, or an area manager if the facility does not have management on 
site.
(d)  An applicant for a discharge prevention and response certificate must pay 
an application fee when the application is filed. The amount of the fee is 
determined by the type of regulated facility, as follows:
(1) $100 for small facilities that have a storage or daily transfer capacity not 
exceeding 10,000 U.S. gallons;
(2) $1,000 for major facilities that have a storage or daily transfer capacity 
not exceeding 250,000 U.S. gallons; and
(3) $2,500 for all other major facilities.
(e)  A regulated facility may not handle oil after January 1, 1993, without a 
discharge prevention and response certificate issued by GLO.
sec.19.13. Applications for Small Facilities. All applicants for certification 
as small facilities must submit the following information:
(1) the names and addresses including street address and directions from the 
nearest highway of the facility, the owner of the facility, the operator of the 
facility, the person or persons in charge required by sec.19.16 of this title 
(relating to Person in Charge), and the registered agent for service as required 
by the Oil Spill Prevention and Response Act of 1991;
(2) a description of the facility, including:
(A) the date the facility began operations under the current owner or operator, 
whichever is earlier, the types of oil handled, the material safety data sheets 
for all the types of oil handled, the oil storage and transfer capacity, the 
throughput capacity, and the average daily throughput; and
(B) the location of the facility by latitude and longitude, N.A.D. 27 or N.A.D. 
83 or by state plane coordinates indicating zone or by Universal Transverse 
Mercator coordinates indicating zone and all environmentally sensitive areas 
that would be affected by a worst case discharge from the facility;
(3) proof of financial responsibility as required by regulations either adopted 
or continued in effect under the Oil Pollution Act of 1990, Public Law 101-380, 
sec.1016 (33 United State Code, sec.2716), if applicable to the facility;
(4) a copy of the applicant's current discharge prevention and response plan 
required by the Federal Water Pollution Control Act, sec.311(j) (33 United 
States Code, sec.1321), including the spill prevention containment and 
countermeasure plan required by 40 Code of Federal Regulations to the facility; 
if applicable
(5) either a discharge response contract or a basic ordering agreement with a 
discharge cleanup organization or other person or the terms of any such contract 
or agreement showing capability to respond to a worst case discharge at the 
facility, or proof that the applicant can independently so respond;
(6) an estimate of a worst case discharge for the facility, including the 
rationale used to establish the estimate;
(7) a list of both oil and hazardous substance discharges at the facility within 
the previous year; and
(8) a list of environmental permits and registration or identification numbers 
that have been applied for or obtained for the facility, including those for 
wastewater discharges, air emissions, handling of solid or hazardous waste, 
injection wells, and underground or aboveground storage tanks.
sec.19.14. Applications for Major Facilities. All major facility applications 
must contain the following information:
(1) the names and addresses including street address and directions from the 
nearest highway of the facility, the owner of the facility, the operator of the 
facility, the person or persons in charge required by sec.19.16 of this title 
(relating to Person in Charge), and the registered agent for service as required 
by the Oil Spill Prevention and Response Act of 1991;
(2) a description of the facility, including:
(A) the date the facility began operations under the current owner or operator, 
whichever is earlier, the types of oil handled, the material safety data sheets 
for all the types of oil handled, the oil storage and transfer capacity, the 
throughput capacity, and the average daily throughput; and
(B) the location of the facility by latitude and longitude, N.A.D. 27 or N.A.D. 
83 or by state plane coordinates indicating zone or by Universal Transverse 
Mercator coordinates indicating zone and all environmentally sensitive areas 
that would be affected by a worst case discharge from the facility;
(C) the dimensions and oil capacity of the largest vessel docking or providing 
service at the facility and a description of the vessels under the operational 
control of the facility;
(D) a site plan of the facility certified by a registered professional engineer 
or registered public land surveyor showing:
(i) the location of all structures in which oil is handled and vessel and tank 
car or truck transfer areas;
(ii)  vicinity maps showing vehicular access to the facility, pipelines to and 
from the facility, nearby environmentally sensitive areas, and nearby 
residential or other populous areas; and
(iii) drainage and diversion plans of the facility, such as sewers, outfalls, 
catchment or containment systems or basins, diversion systems, and all 
watercourses into which surface runoff from the facility drains (all of which 
may be shown on the site plan or maps); and
(E) the most recent available aerial photographs;
(3) proof of financial responsibility as required by regulations either adopted 
or continued in effect under the Oil Pollution Act of 1990, Public Law 101-380, 
sec.1016 (33 United States Code, sec.2716), if applicable to the facility;
(4) the number and qualifications of personnel employed at the facility with 
discharge prevention and response duties;
(5) current discharge prevention or response training programs and requirements 
for the facility's personnel and for outside contractors working at the 
facility;
(6) a statement of the applicant's discharge prevention and response capability, 
including:
(A) a statement of whether the applicant's response capability will primarily be 
based on contracts or agreements with third parties or on the applicant's own 
personnel and equipment;
(B) a copy of the applicant's current discharge prevention and response plan 
required by the Federal Water Pollution Control Act, sec.311(j) (33 United 
States Code, sec.1321), including the spill prevention containment and 
countermeasure plan required by 40 Code of Federal Regulations 112.3, if 
applicable to the facility;
(C) a description of the facility's preventive measures, including:
(i) leak detection and discharge prevention safety systems, devices, equipment, 
or procedures;
(ii)  schedules, methods, and procedures for testing, maintaining, and 
inspecting storage tanks, pipelines, and other structures within or appurtenant 
to the facility that contain or handle oil;
(iii) schedules, methods, and procedures for conducting discharge response 
drills;
(D) a description of the facility's response plan, including:
(i)  planned response actions, the chain of command, lines of communication, and 
procedure for notifying the General Land Office in the event of an unauthorized 
discharge;
(ii) response equipment and supplies available to respond to an unauthorized 
discharge at the facility, its ownership and location, and the time required to 
deploy it at the facility;
(iii)  plans for sampling, testing, and measuring the volume of substances 
discharged;
(iv) plans for the recovery, storage, separation, transportation, and disposal 
of waste from an unauthorized discharge;
(v)  the probable direction and rate of flow for unauthorized discharges at the 
facility;
(vi) plans for protection of environmentally sensitive areas in the event of an 
unauthorized discharge; and
(vii)  plans for providing emergency medical treatment, site safety and 
security, and fire prevention in the event of an unauthorized discharge;
(7) any discharge response or cleanup contracts or basic ordering agreements, or 
the terms of either, the applicant has with a discharge cleanup organization or 
other person;
(8) an estimate of a worst case discharge for the facility, including the 
rationale used to establish the estimate;
(9) a list of both oil and hazardous substance discharges at the facility within 
the previous year;
(10) a list of environmental permits and registration or identification numbers 
that have been applied for or obtained for the facility, including those for 
wastewater discharge, air emissions, handling of solid or hazardous waste, 
injection wells, and underground or aboveground storage tanks.
sec.19.15. Issuance; Modification and Suspension.
(a) Prior to issuance or denial of a certificate, the General Land Office may 
require an applicant to submit additional information to resolve any substantial 
questions concerning the applicant's discharge prevention and response 
capability. The GLO may also require an applicant to develop and implement 
additional discharge prevention and response measures to achieve adequate 
discharge prevention and response capability.
(b) The GLO will issue certificates to those facilities that submit completed 
applications unless the preponderance of all evidence demonstrates the applicant 
lacks the capability to respond adequately to a worst case unauthorized 
discharge at the particular facility.
(c)  If GLO refuses to issue a certificate to an applicant, the applicant may 
request and is entitled to a hearing on the denial in the same manner provided 
for certificate suspensions under Chapter 21 of this title (relating to Oil 
Spill Prevention and Response Hearings Procedures).
(d) At least 30 days prior to issuance or renewal of a certificate for an oil or 
gas pipeline or a facility used in the exploration, development, or production 
of oil or gas, the GLO will send the Railroad Commission a copy of the 
application for review and comment.
(e) The certificate will be issued for a term of five years. The GLO may issue 
certificates on terms and conditions appropriate to the facility or type of 
facility. All certificates are subject to review and modification by the GLO in 
the event of a material change in spill response capability. All certificates 
are subject to suspension in the event the registrant violates the Oil Spill 
Prevention and Response Act of 1991 (OSPRA), rules or orders adopted or issued 
thereunder, or any requirement of the facility's certificate. A certificate may 
also be suspended if a registrant does not have a discharge response plan or 
does not have adequate containment, prevention, or cleanup ability. A 
certificate is void ab initio if the registrant knowingly submitted false 
information in the application for the certificate or in support of the 
application.
(f) Material changes in discharge prevention and response capability include, 
among other things:
(1) changes in the facility's oil storage or handling capacity, discharge 
response equipment, or its construction, operation, or maintenance that 
materially affect discharge prevention and response capability or the risk of an 
unauthorized discharge;
(2) closure of the facility or a change of the facility's person in charge, 
management, ownership, or key response personnel;
(3) a material change in the discharge cleanup organization listed as the 
primary basis of a facility's discharge response capability (see sec.19.20(h) of 
this title (relating to Certification of Discharge Cleanup Organizations));
(4) a determination by GLO that the owner or operator responded inadequately to 
an unauthorized discharge at the facility; or
(5)  promulgation of federal rules under OPA, substantial amendments to this 
chapter or other changes in applicable law.
(g) Registrants must report changes in discharge prevention response capability.
(1) Except for subsection (f)(4) and (5) of this section, a registrant must 
inform GLO in writing of a material change in response capability within 10 days 
of the change. Personnel changes must be reported within 30 days unless they 
affect spill response capability.
(2) Each registrant must report annually any changes in the information in its 
application for a certificate. The report must be in writing and must be filed 
by the anniversary of the date the certificate was issued.
(h)  Issuance of a certificate does not estop the state in an action brought 
under OSPRA, or any other law, from alleging a violation of any such law, other 
than failure to have a certificate.
sec.19.16. Person in Charge.
(a) Upon applying for a certificate, the applicant must designate a person or 
persons in charge of the facility for purposes of ensuring that General Land 
Office (GLO) is notified of unauthorized discharges at the facility and that the 
facility meets all other requirements of the Oil Spill Prevention and Response 
Act of 1991 (OSPRA). The designation must be by name and by job title.
(b) A facility must have a person in charge at the facility at all times the 
facility is normally attended by personnel. For those facilities or at those 
times at which personnel are not normally present, the facility must at all 
times have a person in charge on call and capable of travelling to the facility 
to respond to an actual or threatened unauthorized discharge. The person in 
charge must have the independent authority to deploy response equipment and 
personnel and to expend funds for response actions.
(c) It is the duty of the owner and the operator of the facility to inform the 
person in charge of the duties established under OSPRA and this chapter for 
persons in charge with respect to unauthorized discharge prevention and 
response.
sec.19.17. Vessel Response Plans and Proof of Financial Responsibility.  
Regulated vessels operating in coastal waters must have response plans as 
required by the Federal Water Pollution Control Act, sec.311 (33 United States 
Code, sec.1321) and proof of financial responsibility as required by the Oil 
Pollution Act of 1990, Public Law 101-380 (OPA) sec.1016 (33 United States Code, 
sec.2716). Regulated vessels are those vessels whose capacity to carry oil as 
fuel or cargo exceeds 10,000 U.S. gallons. Those vessels covered by the Oil 
Spill Prevention and Response Act of 1991 (OSPRA) but not by OPA will be 
required to meet the financial responsibility requirements of OSPRA, 
sec.40.202(a) (1) and (2) when rules are adopted under that section. Those 
vessels will also be required to meet the vessel contingency plan requirements 
of sec.40.114 when rules are adopted thereunder.
sec.19.18. Audits, Drills, and Inspections to Determine Prevention and Response 
Capability.
(a) An audit is a full review of a facility's or vessel's compliance with the 
requirements of the Oil Spill Prevention and Response Act of 1991 (OSPRA) and 
regulations adopted pursuant thereto. An audit may be announced or unannounced. 
Audits will be commenced between the hours of 7 a.m. and 6 p.m. The owner and/or 
operator of the facility or vessel subject to audit must produce records related 
to unauthorized discharges of oil into coastal waters, discharge contingency 
plans, equipment inventory, maintenance and repair, material safety data sheets 
for oil handled, oil storage and throughput, financial responsibility, personnel 
certification and training, and daily records and other documents and records 
containing information relevant to compliance with OSPRA. The representative of 
the General Law Office (GLO) conducting the audit is authorized to view all 
equipment at the facility that is available for responding to unauthorized 
discharges of oil. The GLO representative is authorized to enter any portion of 
the facility and vessel where oil is handled and where discharge prevention and 
response equipment and supplies are stored and maintained. Although the audit 
may be unannounced, prior to entering the facility, the GLO representative will 
make a reasonable effort to obtain the consent of the owner or operator or his 
representative.
(b)  An inspection is a review of a specified area or areas of a facility or 
vessel for a specified purpose. An inspection may be announced or unannounced. 
The GLO will make a reasonable effort to obtain the consent of the owner or 
operator or a representative of either prior to entering property to conduct the 
inspection. The inspection will be commenced between the hours of 7 a.m. and 6 
p. m. At the commencement of the inspection, the GLO representative will inform 
the owner or operator of the area or areas to be inspected and the purpose of 
the inspection. The areas and purposes of an inspection are limited to those set 
forth in subsection (a) of this section.
(c) A drill is a test of equipment and personnel in operation. A drill is in 
response to a mock discharge which is conducted by GLO representatives who 
determine the extent and parameters of the exercise. A drill may be announced or 
unannounced. Prior to entering property in order to conduct the drill, GLO will 
make a reasonable effort to obtain consent of the owner or operator or 
representative of either to enter the property. Drills will be commenced between 
the hours of 7 a.m. and 6 p. m. and all drills involving vessels will be 
conducted in cooperation with the United States Coast Guard. A drill involving a 
facility will be conducted in cooperation with any other governmental agencies 
whom GLO intends to involve in the mock operation.
(d) A vessel or facility will not be subjected to more than a total of two 
audits and/or drills in one 12-month period. This limitation will not apply to 
any vessel or facility that has violated OSPRA, any regulation promulgated 
thereunder, or any order of the commissioner.
(e)  The owner or operator of the vessel or facility must bear its own costs of 
the audit, drill, or inspection and may not be reimbursed its costs from the 
fund.
(f) Performance of an audit, drill, or inspection does not estop the state in an 
action brought under OSPRA or any other law from alleging a violation of OSPRA 
or any such law.
sec.19.20. Certification of Discharge Cleanup Organizations.
(a)  Persons or organizations desiring certification as discharge cleanup 
organizations must apply to the General Land Office (GLO) before June 15, 1992. 
Application forms are available from GLO.
(b) After August 1, 1992, a discharge cleanup organization must be certified by 
the GLO to be listed by an owner or operator as a source of adequate response 
equipment and/or personnel in a facility or vessel discharge prevention and 
response plan.
(c) An owner or operator of the facility or vessel will not be required to 
comply with this section if its response activities are limited to its own 
unauthorized discharges or to assistance rendered to others in emergency 
situations. The requirements of this section apply to those organizations who 
engage in the business of emergency spill response and cleanup operations.
(d) Discharge cleanup organizations will be categorized as either industry or 
volunteer.
(1) Industry organizations are those entities capable of containing, abating, 
removing and disposing of, or arranging for the disposal of oil and waste from 
an unauthorized discharge. Industry organizations have personnel trained 
pursuant to 29 Code of Federal Regulations, sec.1910.120 and subsequent 
revisions and have equipment or access to equipment sufficient to perform 
response operations pursuant to national and state contingency plans.
(2) Volunteer organizations are those entities whose primary purpose is 
protecting, rescuing, or rehabilitating wildlife and natural resources injured 
or damaged by an unauthorized discharge. Volunteer organizations must be 
permitted by the Texas Parks and Wildlife Department or have certification from 
an organization with equivalent standards for the purposes of wildlife 
rehabilitation and other response activities concerning rescuing of any animal 
affected by a discharge. Volunteer organizations are also those entities who 
assist in other response activities approved by the on-scene coordinator but who 
do not receive compensation for their efforts.
(e) Industry organizations must be certified by GLO in order to be listed on a 
vessel or facility discharge response plan, and in order to be employed by GLO 
when it expends fund monies in response to a discharge. Certificates will be 
issued for a three-year term with annual review. Certificates may be suspended 
if the discharge cleanup organization fails to maintain adequate response 
capability. Pursuant to sec.21.1 et seq of this title (relating to Oil Spill 
Prevention and Response Hearing Procedures) the notice of suspension can be 
challenged.
(f) Applicants for certification as an industry organization must submit the 
following information:
(1) the applicant's name and address, its legal form or status, the names and 
addresses of the persons owning or operating the organization, and its 
membership if applicable;
(2) the geographic area the applicant will serve;
(3) the equipment and supplies owned by the applicant and available for 
abatement, containment, and removal of pollution from an unauthorized discharge 
of oil; if the applicant intends to rely in whole or in part on equipment and 
supplies owned by a separate entity then the applicant must submit the name of 
the owner and the location of the equipment and supplies, and the procedure for 
accessing such equipment and supplies;
(4) a certified statement of the applicant's general liability insurance 
coverage, and workmen's compensation and automobile liability insurance 
coverage;
(5) the number of employees and whether they are employed on a full- or part-
time basis and the number of employees which the applicant can command in the 
event of a major spill event; the training of such personnel including whether 
they have received training pursuant to 29 Code of Federal Regulations, 
sec.1910.120; the experience and other relevant qualifications of all personnel;
(6) the applicant's standard operating plan for containment, recovery, storage, 
separation, transportation, disposal or arrangements for disposal or recycling 
of oil or waste, and minimization of waste generated from an unauthorized 
discharge.
(7) the applicant's health and safety plan;
(g) In certifying industry organizations, GLO will consider factors including:
(1) the applicant's size, membership, and quality of response capability (which 
includes among other things the experience of the applicant's owners, operators, 
and personnel, the applicant's ability to properly dispose of waste or to 
arrange for the proper disposal of waste and recycling of materials generated by 
the discharge, the plan for waste minimization from discharges, the quantity and 
quality of equipment or supplies owned or available to the applicant, and the 
proximity of such equipment and supplies to the area the applicant intends to 
serve); and
(2) the geographic distribution of discharge cleanup organizations in the 
coastal area for the purpose of insuring sufficient response capability;
(h) Industry organizations must report material changes in response capability 
to GLO within 30 days of the change. Material changes in response capability 
include among other things:
(1) a change in the location or a significant change in the quantity of the 
organization's response equipment or supplies; or
(2) a change in the organization's ownership or full-time personnel to the 
extent that such change affects discharge response capability it shall be 
reported within 72 hours.
(i) Volunteer organizations who register with GLO are considered certified. 
Registration forms are available from GLO. The registration must include the 
organization's size, experience in discharge response, ability to properly 
dispose of or arrange for the disposal of waste from discharges, the 
qualifications of persons who will lead or coordinate response activities for 
the organization, and the quantity and quality of equipment and supplies owned 
or available to the organization. Volunteer organizations engaged in wildlife 
rescue or rehabilitation will be certified only if they comply with requirements 
of the Texas Parks and Wildlife Department's regulations related to such 
organizations or with equivalent regulations. The GLO may suspend a certificate 
if the organization's response activities are inconsistent with state or federal 
requirements.
(j) Volunteer discharge cleanup organizations or any discharge cleanup 
organization that is a not-for-profit entity must appoint a minimum of two ex 
officio representatives from local governments to its governing body to advise 
it on discharge response matters. The representatives from local government may 
be from any level or agency of local government but must be from the geographic 
area to be served by organization. The Marine Spill Response Corporation and for 
profit entities are exempt from this requirement pursuant to the Oil Spill 
Prevention and Response Act of 1991, sec.40.117(b).
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 31, 1992.
TRD-9201536
Garry Mauro
Commissioner
General Land Office
Effective date: February 21, 1992
Proposal publication date: August 9, 1991
For further information, please call: (512) 463-5394
       
Subchapter C. Spill Response
31 TAC sec.sec.19.31-19.39
The new sections are adopted under the Natural Resources Code, sec.40.007, which 
authorizes the commissioner to promulgate rules necessary and convenient to the 
administration of OSPRA.
sec.19.31. Jurisdiction.  The General Land Office (GLO) has jurisdiction over 
and will respond to any actual or threatened unauthorized discharge that enters 
or threatens to enter coastal waters. A discharge threatens to enter coastal 
waters when the location and direction of the flow of the discharge, if left 
unabated, would enter coastal waters within 12 hours.
sec.19.32. Reporting an Unauthorized Discharge.
(a) To report an actual or threatened unauthorized discharge, phone the General 
Land Office (GLO) at 1-800-832-8224. This line will be staffed at all times.
(b)  The person in charge of the facility or vessel from which an unauthorized 
discharge emanates or threatens to emanate and the person responsible for the 
discharge both have the duty to immediately report the discharge to GLO. 
Reporting by either of those persons or by an employee or agent of either shall 
satisfy the notice requirement.
(c) Immediately, for purposes of this section, means within one hour of the time 
the discharge is discovered. In determining immediate notification GLO will 
consider the need for initial abatement, containment, and response actions, the 
accessibility of communication devices and the reasonableness of the person's 
efforts to immediately report, and whether the discharge could reasonably have 
been discovered earlier.
(d) Notification by any person who has been authorized or requested by the 
person in charge or by the responsible person to give notice of the discharge 
shall be imputed to the person who has the duty to report for purposes of 
determining compliance with this section.
(e) The notification, in order to be deemed complete, shall accurately describe 
the following:
(1) the substance and quantity actually discharged or potentially dischargeable 
and the rate of discharge;
(2) the time, location by latitude and longitude, N.A.D. 27 or N.A.D. 83 or by 
state plane coordinates indicating zone or by Universal Transverse Mercator 
coordinates indicating zone, if known, and the apparent cause of the actual or 
potential discharge;
(3)  the size of the area actually impacted by the discharge and the area 
potentially impacted and whether or not any environmentally sensitive areas will 
be affected;
(4) the nature of any response actions undertaken and the identity of the person 
or discharge cleanup organization engaged or engaging in response activities;
(5) the name and title of the responsible person, the person in charge, and the 
person reporting the discharge; and
(6) the manner in which the responsible person and the facility or vessel 
involved in the actual or threatened discharge may be contacted.
(f) The duty to report is a continuing one where any material changes occur 
prior to the arrival of a state on-scene coordinator. Material changes include, 
but are not limited to, changes in the quantity, quality, or location of the 
discharge event. Both the responsible person and the person in charge have the 
duty to report material changes to GLO.
(g) If an unauthorized discharge threatens to damage or pollute property other 
than that of the owner or operator or responsible person, the person in charge 
and the responsible person must make reasonable efforts to notify the owners of 
property threatened by the discharge. A reasonable effort to notify includes 
taking steps to identify and contact such owners within a time period that 
allows them to take measures to minimize damage to their property. In 
determining compliance with this requirement, the location of the discharge and 
the accessibility of ownership information will be considered.
(h) If the discharge immediately threatens public health, safety, or welfare, 
then the responsible person and the person in charge must notify the appropriate 
local health, fire, and law enforcement authorities.
sec.19.33. Response.
(a) When the General Land Office (GLO) receives notice of an actual or 
threatened unauthorized discharge, GLO will determine whether state response 
action is required. If state response action is required, GLO will assess the 
discharge and determine whether further response actions should be initiated or 
required. If assessments of the discharge indicate it involves predominantly a 
hazardous substance, GLO shall coordinate all response actions until the Texas 
Water Commission can assume responsibility over hazardous substance discharge 
response operations. A substance is predominantly a hazardous substance when 
analytical testing of a representative sample indicates the presence of more 
than 50% of a substance that is not oil as defined by the Oil Spill Prevention 
and Response Act of 1991, and that is a hazardous substance as defined by the 
Texas Water Commission or its successor agency. Pending results of analytical 
tests of the substance, the determination of its predominant characteristics 
shall be made by investigating the source of the discharge, its physical 
properties, and its behavior in the environment. The GLO will notify the state 
natural resource trustees of the actual or threatened unauthorized discharge.
(b) In response to any actual or threatened unauthorized discharge, the 
commissioner may designate a state on-scene coordinator to act on the 
commissioner's behalf at the site of the actual or threatened discharge.
(1) It is the duty of the state on-scene coordinator, in cooperation with the 
federal on-scene coordinator to assess in detail all aspects of the actual or 
threatened unauthorized discharge, evaluate and direct the responsible person's 
response activities, initiate and direct other response activities, carry out 
orders of the commissioner, and report at regular intervals to the commissioner. 
The state on-scene coordinator has an ongoing duty to evaluate, assess, and 
direct all response activities in order to insure compliance with applicable 
contingency plans, discharge response plans, and to ensure public health and 
safety, and to minimize to the greatest extent possible property damage and 
damages to natural resources.
(2) In the event a discharge appears to be from a facility for the exploration, 
development, or production of oil or gas or from an oil or gas pipeline, a 
Railroad Commission designee shall act as the state on-scene coordinator for 
spills of 240 barrels or less. When the spill exceeds 240 barrels, it is the 
responsibility of GLO to provide the state on-scene coordinator.
(c) The GLO will coordinate its response with the federal on-scene coordinator 
and will contact other state agencies who have jurisdiction over the 
unauthorized discharge.
(d) Based on the assessment of the state on-scene coordinator, GLO will 
determine whether and where to establish an on-scene command post. The state on-
scene command post will serve as the single point of communication and 
coordination for state oversight and coordination of response actions. The post 
will be staffed until response operations are declared complete.
sec.19.34. Duties of Responsible Person.
(a) In the event of an actual or threatened unauthorized discharge, it is 
immediately the duty of the responsible person to initiate response action, or 
to ensure that the person in charge will initiate response action. The 
responsible person or the person in charge must inform the General Land Office 
(GLO) of the person's strategy for responding to the unauthorized discharge, 
including whether the facility's or vessel's discharge prevention and response 
plan will be adequate for abating, containing, and removing pollution or whether 
it appears that an adequate response to the discharge will require deviation 
from the plan. The response strategy and proposed deviations from the plan must 
be reported to the on-scene coordinator on a regular basis throughout response 
operations.
(b) The GLO may determine that the responsible person is unknown or appears 
unwilling or unable to respond adequately to the discharge, including reasonably 
foreseeable worst case scenarios of the discharge. The commissioner may delegate 
this determination to the state on-scene coordinator. In the event of such a 
determination the state on-scene coordinator may order the responsible person to 
take certain response actions. The state on-scene coordinator may also initiate 
response action by the state, either in addition to or in lieu of further 
response actions by the responsible person. As soon as possible after a 
determination of inadequate response, the state on-scene coordinator will notify 
the responsible person or the person acting for the responsible person of the 
inadequacy of response and inform the person of the intended corrective action. 
A determination that a responsible person appears unwilling or unable to respond 
adequately will be made by evaluating the resources committed to the response, 
the degree of cooperation with directions of the on-scene coordinator, the 
ability to commit further resources, and adherence to response and contingency 
plans.
(c) The responsible person or anyone acting on behalf of the responsible person 
must notify the state on-scene coordinator if the person intends not to comply 
with, or has not complied with, state response orders or actions. The GLO may 
determine the person has unreasonably failed to comply with state response 
actions if noncompliance is for any reason other than an objective and 
reasonable belief that compliance unavoidably conflicts with federal 
requirements or poses an unjustifiable risk to public safety or natural 
resources. Any failure to comply may be grounds for a determination of 
inadequate response under subsection (b) of this section.
(d) The responsible person must orally state the reasons for noncompliance with 
an order of the state on-scene coordinator and must give written justification 
for the refusal within 48 hours as required by the Oil Spill Prevention and 
Response Act of 1991, sec.40.106.
sec.19.35. Assistance.
(a) Other than persons employed by the responsible person or certified discharge 
cleanup organizations under contract with the responsible person, or any person 
conducting initial emergency response assistance, no person shall conduct 
cleanup operations without the approval of the on-scene coordinator. 
Authorization may be given individually or blanket authorization may be given to 
any group or class of persons or organizations. The General Land Office (GLO) 
will give preference to those persons who are certified as discharge cleanup 
organizations and to trained and qualified personnel.
(b) Any person or discharge cleanup organization participating in response 
operations shall not receive or be eligible to receive compensation from the 
fund unless the participation was authorized by GLO. A person or organization is 
entitled to a qualified immunity from liability for damages, response costs, or 
penalties only if acting pursuant to request of the on-scene coordinator, the 
responsible person, or in accord with the applicable contingency plan or 
response plan.
(c) The GLO may waive the prior authorization requirement only if the assistance 
rendered was consistent with applicable contingency plans, and response plans, 
and was effective, cost-efficient, reasonably necessary, and did not endanger 
life, property, or natural resources.
sec.19.36. Disposal.
(a) Waste from unauthorized discharges must be disposed of only at sites that 
have all necessary permits to accept the type of waste discharged. Each 
responsible person or discharge cleanup organization removing waste shall inform 
the on-scene coordinator in writing of the name and location of the site where 
the waste will be disposed.
(b)  All responsible persons and discharge cleanup organizations engaged in 
spill response operations shall minimize the generation of waste by utilizing 
techniques such as reusing sorbent pads, recycling recovered oil, recovering 
boom, and best available technologies.
(c) The responsible person must remove all waste generated from an unauthorized 
discharge of oil from the temporary staging area within 14 days of the 
completion of all response operations.
sec.19.37. Completion of Response.
(a) The General Land Office (GLO) will consider the opinions of the designated 
natural resource trustees in determining whether response actions are complete.
(b) In addition to reporting an unauthorized discharge at the time it occurs, 
the responsible person must file a written report of any such discharge with GLO 
within 30 days of the response actions being declared complete. The report must 
contain details of the information listed in sec.19.32(d)(2) of this title 
(relating to Reporting an Unauthorized Discharge) and must state the known 
extent of the damages to and loss of real and personal property. The report must 
also contain a listing of known damages to natural resources. Reporting forms 
are available from GLO.
sec.19.38. Remediation.
(a) The designated natural resource trustees for the State of Texas are the 
General Land Office (GLO), the Texas Water Commission, and the Parks and 
Wildlife Department. If GLO determines, in conjunction with the designated 
natural resource trustees, that an unauthorized discharge has damaged natural 
resources, the trustees may require the responsible person or persons to 
remediate the damage. If the natural resources trustees require remediation, the 
trustees will notify the responsible person in writing that a remediation plan 
must be submitted. Within a reasonable time determined by the natural resources 
trustees, the responsible person must submit a remediation plan to the natural 
resources trustees for review and approval.
(b) The remediation plan must include the following:
(1) a map showing the area affected by the unauthorized discharge and a survey 
of the natural resources damaged by the discharge;
(2) a plan showing locations, times, and methods for sampling, testing, and 
monitoring to determine the extent of contamination and natural resources injury 
and loss;
(3) a schedule of remediation activities and increments of time within which 
remediation goals are to be achieved;
(4) a description of performance measures to evaluate the effectiveness of 
remediation; and
(5)  any other matter reasonably required by the trustees.
(c) The responsible person must carry out remediation of natural resource 
damages pursuant to the remediation plan approved by the trustees.
(d)  Remediation includes, but is not limited to, restoration, rehabilitation, 
and replacement of damaged natural resources. It also includes mitigation 
activities to prevent further or future damage or further diminution in the 
value of the affected resource.
(e) The GLO, in conjunction with the other natural resource trustees of the 
state, may enter into negotiations with the responsible persons for remediation 
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 31, 1992.
TRD-9201537
Garry Mauro
Commissioner
General Land Office
Effective date: February 21, 1992
Proposal publication date: August 9, 1991
For further information, please call: (512) 463-5394
       
Subchapter D. Compensation and Liability
31 TAC sec.sec.19.51-19.54
The new sections are adopted under the Natural Resources Code, sec.40.007, which 
authorizes the commissioner to promulgate rules necessary and convenient to the 
administration of OSPRA.
sec.19.52. Designation of Responsible Person; Advertising Claims.
(a) The General Land Office (GLO) will conduct a preliminary investigation of 
the discharge. If GLO determines that the unauthorized discharge has caused any 
damages compensable under the Oil Spill Prevention and Response Act of 1991 
(OSPRA), GLO will identify the person or persons who appear responsible for the 
discharge.
(1) Upon a determination that damages compensable under OSPRA have resulted from 
an actual unauthorized discharge of oil or are likely to result from a 
threatened discharge, GLO will immediately designate the responsible person. GLO 
will make this determination based on the actual conditions observed at the site 
of the discharge or threatened discharge and will consider the following 
factors:
(A) the quantity of oil discharged or potentially dischargeable;
(B) the location and probable path of the discharge;
(C) the proximity to real or personal property owned by a person other than the 
responsible party;
(D) the natural resources likely to be affected;
(E) any other circumstance or factor relevant to an assessment of the impact of 
the actual or threatened discharge.
(2)  The GLO shall give notice to the responsible person immediately upon a 
determination that damages have resulted or will result from the discharge. The 
notice will be in writing and may also be conveyed orally. The designation may 
be challenged within five days of the written notice. One or more persons or 
entities may be designated as persons responsible. The designation will be made 
by reviewing and assessing the following factors:
(A) the owner, operator, or charterer of the vessel or facility from which the 
discharge emanates;
(B) the person responsible for the discharge;
(C) the apparent cause of the discharge;
(D)  whether or not any defense to liability is obviously applicable to the 
discharge;
(E) any other relevant factor which comes to the attention of GLO.
(b) Failure to challenge a proposed designation is not an admission of liability 
for the unauthorized discharge.
(c) A challenge to the proposed designation must be made within five days in 
writing, fully state the grounds for the challenge, and be filed with GLO. If 
the proposed designation is challenged or GLO is unable to make a designation 
for any other reason, GLO shall advertise the manner in which claims for 
response costs and damages must be filed.
(d) If the proposed designation is not challenged within five days, the 
designated responsible person must inform GLO of its intended advertising, 
claims, and payment procedures, including the name of any agent handling claims 
on the responsible person's behalf and the name of any underwriter for liability 
from the discharge. As a part of all claims procedures, the designated 
responsible person must inform all claimants of the availability of the state 
fund and the federal fund to pay claims.
(e)  Claims advertisements by GLO or designated responsible persons must be 
printed each day for one week, beginning no later than 14 days after completion 
of the designation process, in the newspaper of largest general circulation in 
the locality in which the unauthorized discharge occurred. The locality means 
the county and contiguous counties where real or personal property affected by 
the discharge is located. Advertisements must also be placed in designated 
newspapers of general circulation anywhere in the State of Texas when the 
commissioner so orders due to the impact of the discharge on natural resources 
and on persons economically reliant on the use of acquisition of the natural 
resources. Advertising requirements may also include radio and television 
announcements of claims procedures.
sec.19.53. Claims Procedures.
(a) The Oil Spill Prevention and Response Act of 1991 established the fund to 
provide immediately available compensation for response costs incurred and 
damages suffered as a result of an unauthorized discharge. The intent of this 
section is to avoid economic displacement and to simplify resolution of 
liability issues by creating procedures conducive to settlement and adjustment 
of claims in as orderly, efficient, and timely a manner as possible. "Reasonably 
responded" for the purposes of this section means that the receipt of the claim 
has been acknowledged, that claimant has been advised of the need for any 
further documentation to complete claims processing, and that the claimant has 
been advised in writing whether or not the responsible person will make an offer 
of settlement on any part or all of the claim and the date by which such offer 
will be made.
(b) If there is a designated responsible person, all claims must be presented to 
the designated responsible person first.
(1) If the claim is for $50,000 or less and is not reasonably responded to 
within 30 days of presentation to the designated responsible person, the 
claimant may present the claim to the General Land Office (GLO).
(2) If the claim is for over $50,000 and is not reasonably responded to within 
90 days of presentation to the designated responsible person, the claimant must 
present the claim to the federal fund prior to the presentation to GLO. If a 
claim presented to the federal fund is not settled within 60 days of 
presentation, the claimant may then present it to GLO.
(c) If there is no designated responsible person, either because the identity of 
the person responsible for the unauthorized discharge is unknown or a proposed 
designation is challenged, claims of $50,000 or less may be presented to GLO 
first. Claims over $50,000 must be presented to the federal fund first. Any such 
claim not reasonably responded to within 60 days may then be presented to GLO.
(d) A claim is presented when GLO actually receives it. Claimants must present 
claims to GLO within 180 days from the date the claim is first eligible to be 
filed with GLO. When necessary to meet this deadline, the claimant may present 
the claim even though it is under consideration by the responsible person or the 
federal fund. The GLO may toll the 180-day period if the claimant cannot present 
it within that time for reasons beyond the claimant's control.
(e) Claims must be in writing, must be signed and verified by the claimant or 
the claimant's agent or legal representative, and must include the following 
information:
(1)  whether it is for damages or response costs or both;
(2) the cause, nature, and dollar amount of the claim;
(3) whether the claim is covered by insurance or other benefits for which the 
claimant is eligible;
(4) the amount and nature of any compensation or earnings the claimant received 
as a consequence of the unauthorized discharge; and
(5) an oath or affirmation that the same claim is not being pursued through any 
other claim, suit, settlement, or proceeding.
(f) The GLO may prescribe appropriate claim forms. Claimants must present claims 
to GLO accompanied by evidence supporting the claim and proof that all 
prerequisites to filing a claim with GLO have been satisfied, including a copy 
or summary of any offer of settlement or payment by the responsible person or 
the federal fund. Claimant must provide GLO with a copy of the claim previously 
submitted to the designated responsible person. The GLO may require additional 
information or evidence to support a claim.
(g) The GLO shall review the evidence and any settlement offer and may require 
or consider additional evidence or proof from the claimant or from the 
designated responsible person.
(h) The GLO may, in its discretion, treat separately each class of damages or 
costs set out in a claim. The GLO may make partial awards of damages or costs 
set out in the claim based on separate classes of damages or costs or for other 
good cause.
(i) If GLO determines that the settlement offer was reasonable, and the claimant 
did not make reasonable settle, or that the evidence submitted is insufficient 
to support the claim, GLO will deny the claim. The GLO will inform the claimant 
and the designated responsible person of denial in writing. After denial, if a 
claimant attempts reasonable efforts to settle and the person responsible or the 
federal fund does not tender a reasonable settlement offer, GLO may allow the 
claim to be reinstated.
(j) If GLO determines a settlement offer is not reasonable, or if a settlement 
offer is not a prerequisite to the claim, GLO will propose an award amount. The 
GLO will notify the claimant and the responsible person of the proposal in 
writing.
(k)  The GLO will hold a hearing on the proposed award if either the claimant or 
the designated responsible person files a written request for a hearing within 
20 days of issuance of the proposal.
(l) If no hearing is requested within 20 days, or after the hearing if one is 
requested, GLO will either notify the claimant and the designated responsible 
person of denial or tender the award to the claimant and notify the designated 
responsible person of the award amount. The claimant may reject the tender by 
returning it to GLO within 10 days of receipt.
(m) Acceptance of an award is final settlement as to the claimant and 
constitutes a full release as to the claimant. If the tender is refused or not 
accepted within 10 days, the claimant is ineligible for compensation from the 
fund for the claim.
(n) Compensation may be claimed and awarded for costs necessarily incurred for 
claims preparation and presentation.
(o) The GLO will not consider any claim filed by a claimant who is pursuing 
substantially the same claim through litigation.
sec.19.54. Natural Resource Damages. To determine natural resource damages for 
purposes of an action under the Oil Spill Prevention and Response Act of 1991, 
the General Land Office (GLO) may use the natural resource damages assessment 
methods adopted by the U.S. Department of Interior under the Comprehensive 
Environmental Response, Compensation, and Liability Act of 1980 (42 United 
States Code, sec.sec.1321 et seq), or by the U.S. Department of Commerce under 
the Oil Pollution Act of 1990, Public Law 101-380. The GLO may also use the 
guidelines on fish and wildlife values established by the Parks and Wildlife 
Department for civil liability for violations of the Parks and Wildlife Code. 
These guidelines are found at sec.sec.69.20, et seq of this title (relating to 
Fish and Wildlife Values). The GLO may use any other methods of assessment that 
it deems reasonable given the particular resources affected.
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 31, 1992.
TRD-9201538
Garry Mauro
Commissioner
General Land Office
Effective date: February 21, 1992
Proposal publication date: August 9, 1991
For further information, please call: (512) 463-5394
       
Part II. Texas Parks and Wildlife Department
Chapter 55. Law Enforcement
Subchapter E. Depredating Animal Control and Wildlife Management from Aircraft
31 TAC sec.sec.55.142, 55.143, 55.145, 55.151, 55.152
Texas Parks and Wildlife Commission adopts amendments to  sec.sec.55.142, 
55.143, 55.145, 55.151, and 55.152, concerning law enforcement, without changes 
to the proposed text as published in the December 17, 1991, issue of the Texas 
Register (16 TexReg 7313).
The adopted section will allow the department to regulate exotic depredating 
animals that may be hunted by use of aircraft.
The adopted section will function to permit the department to regulate the 
number and type of exotic animal as authorized by statute.
No comments were received regarding the adoption of the amendments.
The amendments are adopted under the Texas Parks and Wildlife Code, Chapter 43, 
Subchapter G, as amended by Senate Bill 1217, 72nd Legislature, that added 
exotic animal to the list of depredating animals that may be controlled by use 
of aircraft.
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 February 3, 1992.
TRD-9201592
Paul M. Shinkawa
Director, Legal Services
Texas Parks and Wildlife Department
Effective date: February 24, 1992
Proposal publication date: December 17, 1991
For further information, please call: (512) 389-4845
       
Subchapter H. Special Game Warden Program
31 TAC sec.sec.55.401, 55.403, 55.405, 55.407, 55.409, 55.411
The Texas Parks and Wildife Department adopts new sec. sec.55.401, 55.403, 55. 
405, 55.407, 55.409, and 55.411, concerning law enforcement, without changes to 
the proposed text as published in the December 20, 1991, issue of the Texas 
Register (16 TexReg 7442).
New legislation requires the commission to establish a new Law Enforcement 
Commission for honorably retired game wardens.
The adopted section will function to permit the department to provide additional 
law enforcement personnel for special assignments, as needed.
No comments were received regarding adoption of the new section.
The new section is adopted under the Texas Parks and Wildlife Code, Chapter 55, 
Subchapter E, as amended by House Bill 1578, 72nd Legislature, which provides 
the Texas Parks and Wildlife Commission with the authority to set rules to 
determine compensation for the services of a special game warden.
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 February 3, 1992.
TRD-9201567
Paul M. Shinkawa
Director, Legal Services
Texas Parks and Wildlife Department
Effective date: February 24, 1992
Proposal publication date: December 20, 1991
For further information, please call: (512) 389-4845
       
Part III. Texas Air Control Board
Chapter 101. General Rules
31 TAC sec.101.1
The Texas Air Control Board (TACB) adopts an amendment to sec.101.1, concerning 
definitions, with changes proposed text as published in the August 2, 1991, 
issue of the Texas Register (16 TexReg 4207). The amendment modifies the 
definition of "incinerator" to include any combustion device which burns more 
than 10% of solid waste on a total Btu heat input averaged over a one-hour 
period or more than 1.0% of solid waste on an annual basis. A definition of 
"solid waste" is added in order to obtain consistent enforcement of existing 
rules applicable to facilities which incinerate various types of solid waste. 
The existing definition of "industrial solid waste" is revised to delete the 
reference to hazardous waste and make the definition consistent with that of the 
Texas Water Commission (TWC).
A public hearing was held in Austin on August 27, 1991. Testimony was received 
from eight commenters during the comment period which ended August 29, 1991. 
Opposing the proposal were City Public Service of San Antonio (CPS); Texas 
Chemical Council (TCC): Dupont Gulf Coast Regional Manufacturing Services 
(Dupont); Southwestern Public Service Company (SPS): Sterling Chemicals 
(Sterling); Dow Chemical (Dow); Houston Lighting and Power (HLP); Texaco, 
Incorporated (Texaco); and an individual. None of the commenters supported the 
proposal, and the United States Environmental Protection Agency had no comment. 
The following discussion initially addresses the more general comments and then, 
addresses the comments which deal with specific parts of the regulation.
The stated objectives of these rule revisions were a cause of concern to an 
individual who felt that the proposed definition of incinerator and the 
exclusion of hazardous waste incinerators from the coverage of these revisions 
would allow operators of hazardous waste incinerators to easily escape 
regulation. The same individual also felt that consistency between TACB regu- 
lations and those of TWC would not adequately protect public health since TWC 
does not have an equivalent level of expertise in matters relating to 
incineration.
Existing hazardous waste incinerators are subject to sec.111.124, concerning 
burning hazardous waste fuels in commercial combustion facilities, and federal 
boiler and industrial furnace rules. New hazardous waste incinerators must also 
meet stringent permitting requirements of TACB and/or TWC. Consequently, there 
appears to be adequate regulatory coverage in this important area. Consistent 
definitions between TACB and TWC are vital in eliminating potential confusion 
and misunderstandings between the public, regulators, and regulated industry.
The proposed clarification of the definition of incinerator to include any 
combustion device which burns more than 5.0% of solid waste on a total Btu basis 
generated many comments. CPS, TCC, Dupont, Sterling, and Dow all commented that 
the reason behind the proposal is not clear and that this definition will 
include units such as utility boilers. They pointed out that there is a 
difference in design between devices which burn for waste reduction and those 
that burn for energy recovery. CPS, TCC, Dupont, and SPS stated that there is no 
basis in other statutes or scientific studies that the 5.0% threshold is 
protective of human health or the environment.
The staff has reviewed operating permits, existing TACB and federal regulations, 
and scientific literature and agreed that the burning of solid waste at an 
hourly heat input rate 10% does not pose a significant threat to human health or 
the environment and is a good method of waste disposal. The definition of 
"incinerator" has been changed to include only those combustion devices which 
burn more than 10% of solid waste. The practice of burning waste oil, as is the 
case with the commenters, is regulated under 40 Code of Federal Regulations, 
Part 266.40-44 and is a common and safe practice among boiler operators. CPS, 
SPS, and HLP commented that the burning of waste oils in utility boilers is 
safer than other methods of disposal and this is particularly true with regard 
to oil contaminated with polychlorinated biphenyls (PCB). All three utilities 
would like to continue their practice of burning PCB contaminated oils and other 
waste oils in their high efficiency boilers on a 10% by volume basis. They also 
pointed out the savings in fuel and alternate disposal costs which are passed on 
to consumers. SPS continued their comments and stated that they have documented 
reduced nitrogen oxides (NO point=4.02p set=4.42p ) emissions at gas fired 
plants and reduced sulfur dioxide (SO) emissions at coal fired plants as a 
result of burning waste oils.
High efficiency boilers are characterized by a combustion efficiency in excess 
of 99.9% and utility boilers are in this category. Procedures are established in 
40 Code of Federal Regulations, Part 761.60 for the burning of PCB contaminated 
oils in high efficiency boilers on a 10% by volume basis. The TACB staff has 
reviewed the research cited in the testimony of CPSSA (Hunt, Gary et.al., 
Environmental Science Technology, 1984, 18, 171-179) which shows a PCB 
destruction rate in utility boilers in excess of 99.9997% and validates the 
federal procedures. The staff has concluded that the burning of PCB contaminated 
and other waste oils on a 10% heat input basis does not pose a threat to human 
health or the environment and agreed that burning is a more attractive 
alternative than disposal at a landfill. Additionally, by burning the oil in the 
utility boiler instead of a commercial incinerator, the heat value of the oil is 
recovered and the disposal savings passed to consumers. The definition of 
"incinerator" has been changed so that boilers burning PCB contaminated oils in 
accordance with 40 Code of Federal Regulations, Part 761.60 will not be subject 
to TACB incinerator rules. Reductions in NO point=4.02p set=4.42p 
 emissions are dependent on several factors, including the sulfur content of 
fuels and the operating temperature of the boiler. Operating at a 10% feed rate 
of waste oil would not necessarily decrease the amount of these pollutants, but 
neither does it cause an increase.
HLP stated that monitoring an hourly injection rate of waste oil would require 
the installation of separate storage tanks, pumps, and monitoring equipment on 
their units burning non-PCB contaminated oils. The commenter proposed that an 
alternate criterion for defining an incinerator should be added that would allow 
a 1.0% heat input of waste averaged annually.
This request for a revised definition is reasonable and an alternative has been 
added to the incinerator definition. Procedures for burning non-PCB waste oil 
are established in 40 Code of Federal Regulations, Part 266.40-44, and HLP 
complies with these requirements. HLP and other utilities burn PCB contaminated 
oil in units equipped with hourly flow meters as required by 40 Code of Federal 
Regulations, Part 76.60. Federal regulations do not specify a feed rate for 
waste oil, unless contaminated with PCB.
Dupont, Sterling, Dow, TCC, and Texaco requested that a definition of "hazardous 
waste" be added to sec.101.1 since this term is used in sec.111.121. A new 
definition can not be added without consideration through public hearings. This 
issue will be reviewed by the staff for possible inclusion in future rule-
making.
The amendment is adopted under the Texas Clean Air Act  sec.382.017, (TCAA), 
Texas Health and Safety Code Annotated (Vernon 1990), which provides TACB with 
the authority to adopt rules consistent with the policy and purposes of the 
TCAA.
sec.101.1. Definitions. Unless specifically defined in the Texas Clean Air Act 
(the Act) or in the rules of the board, the terms used by the board have the 
meanings commonly ascribed to them in the field of air pollution control. In 
addition to the terms which are defined by the Act, the following terms when 
used in this chapter shall have the following meanings, unless the context 
clearly indicates otherwise.
   Incinerator-An enclosed combustion apparatus and appur- tenances thereto 
which is used in the process of burning wastes for the primary purpose of 
reducing its volume and weight by removing the combustibles of the waste and 
which is equipped with a flue for conducting products of combustion to the 
atmosphere. Any combustion device which burns 10% or more of solid waste on a 
total Btu heat input basis averaged over any one-hour period shall be considered 
an incinerator. A combustion device without instrumentation or methodology to 
determine hourly flow rates of solid waste and burning 1.0% or more of solid 
waste on a total British thermal unit heat input basis averaged annually shall 
also be considered an incinerator. An open-trench type (with closed ends) 
combustion unit may be considered an incinerator when approved by the executive 
director.
   Industrial solid waste-Solid waste resulting from or incidental to a process 
of industry or manufacturing, or mining or agricultural operations.
   Solid waste-Garbage; rubbish; refuse; sludge from a waste treatment plant, 
water supply treatment plant, or air pollution control equipment; and other 
discarded material, including solid, liquid, semisolid, or containerized gaseous 
material resulting from industrial, municipal, commercial, mining, and 
agricultural operations and from community and institutional activities.
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 27, 1992.
TRD-9201363
Lane Hartsock
Deputy Director, Air Quality Planning
Texas Air Control Board
Effective date: February 19, 1992
Proposal publication date: September 2, 1991
For further information, please call: (512) 908-1451
       
Chapter 111. Control of Air Pollution From Visible Emissions and Particulate 
Matter
Incineration
31 TAC sec.111.121, sec.111.127
The Texas Air Control Board (TACB) adopts amendments to  sec.111.121 and 
sec.111.127, with changes to the proposed text as published in the August 2, 
1991, issue of the Texas Register (16 TexReg 4207). The amendment to sec.111. 
121, concerning single-, dual-, and multiple-chamber incinerators, stipulate 
that the requirements of the section do not apply to hazardous waste 
incinerators and that incinerators may operate at oxygen concentrations less 
than 4.0% by volume provided they meet emissions limits for carbon monoxide 
and/or total hydrocarbons. The amendment to sec.111.127, concerning monitoring 
and recordkeeping requirements, stipulates that compliance with carbon monoxide 
and hydrocarbon emissions may be demonstrated using a rolling hourly average.
A public hearing was held in Austin on August 27, 1991. Testimony was received 
from seven commenters during the comment period which ended August 29, 1991. 
Southwestern Public Service (SPS) and Houston Lighting and Power (HL&P) 
supported the proposal and four commenters opposed it. Opposing the proposal 
were Texaco, Incorporated (Texaco), Dupont Gulf Coast Regional Manufacturing 
Services (Dupont), Sterling Chemicals (Sterling), and Texas Chemical Council 
(TCC). The United States Environmental Protection Agency (EPA) neither supported 
nor opposed the proposal. The following discussion initially addresses the more 
general comments and then, addresses the comments which deal with specific parts 
of the two sections.
One of the stated objectives of the proposed revisions was to achieve 
consistency with similar rules of the Texas Water Commission (TWC). This 
objective was a cause of concern to an individual who felt that consistency 
between TACB regulations and those of TWC would not adequately protect public 
health since TWC does not have an equivalent level of expertise in matters 
relating to incineration. The same individual also felt the exclusion of 
hazardous waste incinerators from the coverage of these revisions would allow 
operators of hazardous waste incinerators to easily escape regulation.
Consistent definitions between TACB and TWC are vital in eliminating potential 
confusion and misunderstandings among regulatory agencies, the regulated 
community, and the public. Existing hazardous waste incinerators are subject to 
sec.111.124, concerning burning hazardous waste fuels in commercial combustion 
facilities and to federal boiler and industrial furnace rules (40 Code of 
Federal Regulation 266, Subpart H). New hazardous waste incinerators just also 
meet stringent permitting requirements of TACB and/or TWC. Consequently, there 
appears to be adequate regulatory coverage in this important area.
Texaco suggested that the new sentence added to the opening paragraph of 
sec.111.121 be changed to state that: "The requirements of this section do not 
apply to incinerators which burn hazardous waste." The proposed sentence stated 
that: "The requirements of this section do not apply to hazardous waste 
incinerators." The term "hazardous waste incinerator" refers to operations 
conducted under a specific set of regulations and is being retained in the new 
sentence to eliminate any confusion. In addition the commenter's suggested 
language could allow an excessive number of incinerators to claim exemption from 
this section.
Dupont, Sterling, and TCC commented that facilities newly affected by the 
proposed expansion of the definition of incinerator will need 12 months to 
retrofit, calibrate equipment, and achieve compliance. The two commenters 
requested an extension of the compliance date of December 31, 1991, as specified 
in sec.111.121(6), to December 31, 1992. Since the installation and adjustment 
of control equipment can require many months. The request for an extension 
appears reasonable. The expansion of the definition of incinerator will be 
accomplished through concurrent rulemaking in sec.101.1 of this title, 
concerning definitions.
With regard to sec.111.127, the City of Quitman commented that the installation 
of continuous emission monitors is prohibitively expensive for operators of 
small incinerators and requested the development of alternate standards for 
small, municipal incinerators.
Given the small volume of waste burned in the Quitman and similar units, the 
development of alternate standards appears a reasonable action. A sentence has 
been added to the subsection to give operators of municipal incinerators 
constructed prior to 1990 which burn less than 2,000 pounds per hour of 
municipal solid waste, the option of installing monitors or performing a carbon 
monoxide stack test to establish oxygen and temperature operating parameters. 
Continued monitoring of these parameters is sufficient to maintain adequate 
combustion efficiency needed to minimize levels of air contaminants.
SPS and HL&P supported the changes to sec.111.121 and  sec.111.127 and EPA had 
no comment.
The amendments are adopted under the Texas Clean Air Act (TCAA), sec.382.017, 
Texas Health and Safety Code, Annotated (Vernon 1990), which provides TACB with 
the authority to adopt rules consistent with the policy and purposes of the 
TCAA.
sec.111.121. Bingle-, Dual-, and Multiple-Chamber Incinerator.  No person shall 
cause, suffer, allow, or permit the burning of domestic, municipal, commercial, 
or industrial solid waste as defined in sec.101.1 of this title (relating to 
Definitions) in a single-, dual-, or multiple-chamber incinerator, unless the 
conditions listed in paragraphs (1)-(7) of this section are met. For purposes of 
this section, the term "commercial waste" shall be defined as waste material 
generated from retail and wholesale establishments. The requirements of this 
section do not apply to hazardous waste incinerators.
(1)-(3) (No change.)
(4) Oxygen content shall be maintained at greater than 4.0% by volume of the 
emissions of the incinerator, measured at the exit of the incinerator, or at an 
alternate location approved by the executive director or a designated 
representative of TACB. Incinerators subject to the requirements of this section 
may operate at oxygen concentrations less than 4.0% by volume if compliance with 
paragraph (3) of this section can be continuously demonstrated at a lower oxygen 
concentration.
(5) (No change.)
(6)  Compliance with the requirements of this section shall be as soon as 
practicable, but no later than July 31, 1990, except in the case of industrial 
solid waste incinerators, which shall be in compliance as soon as practicable, 
but no later than December 31, 1992.
(7) Incinerators burning not more than 100 pounds per hour of domestic, 
municipal, commercial, or industrial solid waste, based on the total weight of 
materials burned, shall be subject to an opacity limit of 5.0% averaged over a 
six-minute period and the requirements of sec.111.127(d) of this title (relating 
to Monitoring and Recordkeeping Requirements), but shall be otherwise exempt 
from the provisions of sec.sec.111.121, 111.123, 111.125, 111.127, and 111.129 
of this title (relating to Incineration).
sec.111.127. Monitoring an Recordkeeping Requirements.
(a)  Incinerators burning not more than 100 pounds per hour of medical waste as 
specified in sec.111.123 of this title (relating to Medical Waste Incinerators) 
shall install, calibrate, maintain, and operate a monitoring device that 
continuously measures and records the temperature of the exhaust gas of the 
incinerator. All incinerators burning more than 100 pounds per hour of waste as 
specified in sec.111.121 of this title (relating to Single-, Dual-, and 
Multiple-Chamber Incinerators) and sec.111.123 shall install, calibrate, 
maintain, and operate a monitoring device that continuously measures and records 
the oxygen content and temperature of the exhaust gas of the incinerator. The 
monitoring device for incinerators equipped with a wet scrubbing device shall 
continuously measure and record the pressure drop of the gas flow through the 
wet scrubbing device. Commercial medical waste incinerators and incinerators 
burning more than 225 pounds per hour of domestic, municipal, commercial, 
medical, or industrial solid waste shall be equipped with continuous emissions 
monitors which measure and record in-stack carbon monoxide in addition to the 
other requirements of this section. For non-medical incinerators, a total 
hydrocarbon monitor may be substituted for the carbon monoxide monitor if a 
total hydrocarbon standard is established pursuant to sec.111.121(3). For 
municipal incinerators built prior to 1990 and burning less than 2,000 pounds 
per hour of municipal solid waste, a stack test for carbon monoxide may be 
performed to establish oxygen and temperature requirements necessary to maintain 
minimum carbon monoxide emissions, and monitoring of these parameters may be 
substituted for the carbon monoxide monitoring device. The oxygen, total 
hydrocarbon, and carbon monoxide monitoring devices described in this section 
must be certified for use following procedures outlined in 40 Code of Federal 
Regulations 60, Appendix B, Performance Specifications 3 and 4, respectively. 
Such certification must be approved by the executive director or a designated 
representative of the Texas Air Control Board (TACB). Compliance determinations 
may be made based on results of monitoring with a certified monitor. Compliance 
with the carbon monoxide and/or total hydrocarbon requirements specified in 
sec.111.121(3), sec.111.123(3)(D), and sec.111.124(4) of this title (relating to 
Burning Hazardous Waste Fuels in Commercial Combustion Facilities) may be 
demonstrated using a rolling hourly average. The rolling hourly average shall be 
defined as the arithmetic mean of the 60 most recent one-minute concentrations 
measured by the continuous monitoring system.
(b)-(d) (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 21, 1992.
TRD-9201362
Lane Hartsock
Deputy Director, Air Quality Planning
Texas Air Control Board
Effective date: February 19, 1992
Proposal publication date: September 2, 1991
For further information, please call: (512) 908-1451
       
TITLE 34. PUBLIC FINANCE
Part I. Comptroller of Public Accounts
Chapter 3. Tax Administration
Subchapter O. State Sales and Use Tax
34 TAC sec.3.299
The Comptroller of Public Accounts adopts an amendment to sec.3.299, concerning 
newspapers, magazines, publishers, exempt writings, without changes to the 
proposed text as published in the December 20, 1991, issue of the Texas Register  
(16 TexReg 7454).
The amendment is the result of a change in the Tax Code, Chapter 151 made by the 
72nd Legislature, 1991. The amendment expands the definition of newspaper to 
include newspapers furnished without charge. Another amendment, unrelated to 
legislative action, defines the term "other short intervals." The expansion of 
the definition of newspapers to include free newspapers is effective September 
1, 1991.
No comments were received regarding adoption of the amendment.
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.
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 31, 1992.
TRD-9201506
Martin Cherry
Chief, General Law Section
Comptroller of Public Accounts
Effective date: February 21, 1992
Proposal publication date: December 20, 1991
For further information, please call: (512) 463-4028
       
Subchapter S. Interstate Motor Carrier Sales and Use Tax
34 TAC sec.3.445
The Comptroller of Public Accounts adopts an amendment to sec.3.445, concerning 
computation of proportioned tax on trailers and semitrailers, without changes to 
the proposed text as published in the December 20, 1991, issue of the Texas 
Register (16 TexReg 7454).
The amendment reflects the changes to the Tax Code, Chapter 157, made by the 
72nd Legislature, 1991 First Called Session. The tax rate used in the 
computation was increased.
No comments were received regarding adoption of the amendment.
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.
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 31, 1992.
TRD-9201502
Martin Cherry
Chief, General Law Section
Comptroller of Public Accounts
Effective date: February 21, 1992
Proposal publication date: December 20, 1991
For further information, please call: (512) 463-4028
       
34 TAC sec.3.447
The Comptroller of Public Accounts adopts an amendment to sec.3.447, concerning 
owner-operator contracts, without changes to the December 20, 1991, issue of the 
Texas Register (16 TexReg 7455).
The amendment reflects the changes to the Tax Code, Chapter 157, made by the 
72nd Legislature, 1991, First Called Session. An exclusion was added due to the 
change in the proportioned tax rate.
No comments were received regarding adoption of the amendment.
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.
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 31, 1992.
TRD-9201503
Martin Cherry
Chief, General Law Section
Comptroller of Public Accounts
Effective date: February 21, 1992
Proposal publication date: December 20, 1991
For further information, please call: (512) 463-4028
       
Subchapter S. Interstate Motor Carrier Sales and Use Tax
34 TAC sec.3.448
The Comptroller of Public Accounts adopts an amendment to sec.3.448, concerning 
trip-lease agreements, without changes to the proposed text as published in the 
December 20, 1991, issue of the Texas Register (16 TexReg 7455).
The amendment reflects the changes to the Tax Code, Chapter 157, made by the 
72nd Legislature, 1991, First Called Session. The exclusion is changed due to 
the tax rate increase.
No comments were received regarding adoption of the amendment.
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.
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 31, 1992.
TRD-9201504
Martin Cherry
Chief, General Law Section
Comptroller of Public Accounts
Effective date: February 21, 1992
Proposal publication date: December 20, 1991
For further information, please call: (512) 463-4028
       
Subchapter U. Public Utility Gross Receipts Tax
34 TAC sec.3.511
The Comptroller of Public Accounts adopts an amendment to sec.3.511, concerning 
due date for assessment, without changes to the proposed text as published in 
the December 20, 1991, issue of the Texas Register (16 TexReg 7456).
The amendment reflects legislative changes required by House Bill 11, 72nd 
Legislature, 1991, First Called Session, increasing the interest rate from 10% 
to 12%. Subsection (d) is omitted as it is no longer valid.
No comments were received regarding adoption of the amendment.
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.
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 31, 1992.
TRD-9201505
Martin Cherry
Chief, General Law Section
Comptroller of Public Accounts
Effective date: February 21, 1992
Proposal publication date: December 20, 1991
For further information, please call: (512) 463-4028
       
Subchapter Y. Controlled Substances Tax
34 TAC sec.3.681
The Comptroller of Public Accounts adopts an amendment to sec.3.681, concerning 
imposition and rate of tax, without changes to the proposed text as published in 
the December 24, 1991, issue of the Texas Register (16 TexReg 7638).
The amendment was proposed to conform with changes made to the Controlled 
Substances Tax by the 72nd Legislature, 1991. It creates a new category of 
taxable substances not sold by weight and provides a definition for that term. 
The changes are effective September 1, 1991.
No comments were received regarding adoption of the amendment.
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.
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 31, 1992.
TRD-9201447
Martin Cherry
Chief, General Law Section
Comptroller of Public Accounts
Effective date: February 20, 1992
Proposal publication date: December 24, 1991
For further information, please call: (512) 463-4028
       
34 TAC sec.3.682
The Comptroller of Public Accounts adopts an amendment to sec.3.682, concerning 
tax payment certificates, without changes to the proposed text as published in 
the December 24, 1991, issue of the Texas Register (16 TexReg 7638).
The amendment was proposed to conform with changes made to the Controlled 
Substances Tax by the 72nd Legislature, 1991, to be effective September 1, 1991. 
The amendment provides for the creation of a new tax payment certificate for 
taxable substances not sold by weight.
No comments were received regarding adoption of the amendment.
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.
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 30, 1992.
TRD-9201448
Martin Cherry
Chief, General Law Section
Comptroller of Public Accounts
Effective date: February 20, 1992
Proposal publication date: December 24, 1991
For further information, please call: (512) 463-4028