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 25. HEALTH SERVICES 
 Part I. Texas Department of Health 
  Chapter 289. Occupational Health and Radiation Control 
  
  Texas Regulations for Control of Radiation 
 
  25 TAC sec.289.126 
 
  The Texas Department of Health (department) adopts an amendment to 
sec.289.126, with changes to the proposed text as published in the May 29, l992, 
issue of the Texas Register  (17 TexReg 3895). The section adopts by reference 
Part 12 of the Texas Regulations for Control of Radiation (TRCR) titled, "Fees 
for Certificates of Registration, Radioactive Material(s) Licenses, Emergency 
Planning and Implementation, and Other Regulatory Services," without changes as 
proposed. 
 The amendment revises the format and fee amount for decontamination service 
licenses. The amendment reflects a more accurate accounting of costs to the 
department to regulate two types of decontamination service licenses: fixed site 
and mobile. The fees for decontamination service licenses also includes 
licensees authorized for naturally occurring radioactive material (NORM) 
decontamination. 
 No comments were received regarding adoption of the amendment. One individual 
was present at the public hearing. The individual made no suggestions for 
changes to the rule but asked several questions which were answered to his 
satisfaction by staff members. The only change the department made to the text 
of the rule was the amendment date. 
 The amendment is adopted under the Health and Safety Code, Chapter 401, which 
provides the Board of Health (board) with the authority to adopt rules and 
guidelines relating to the control of radiation; 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.289.126. Fees for Certificates of Registration, Radioactive Material(s) 
Licenses, Emergency Planning and Implementation, and Other Regulatory Services. 
 
  (a) The Texas Department of Health adopts by reference Part 12, "Fees for 
Certificates of Registration, Radioactive Material(s) Licenses, Emergency 
Planning and Implementation, and Other Regulatory Services" of the Department's 
document titled "Texas Regulations for Control of Radiation," as amended in 
September 1992. 
   
  (b) The document adopted by reference in this section is indexed and filed in 
the Bureau of Radiation Control, Texas Department of Health, located in the 
Exchange Building, 8407 Wallstreet, Austin, Texas 78754, and is available for 
public inspection during regular working hours. 
 
  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 August 24, 1992. 
 TRD-9211587 
  Robert A. MacLean, M.D. 
 Deputy Commissioner 
 Texas Department of Health 
    Effective date: September 14, 1992 
 Proposal publication date: May 29, 1992 
 For further information, please call: (512) 834-6688 
         
                   
  TITLE 31. NATURAL RESOURCES AND CONSERVATION 
 Part I. General Land Office 
  Chapter 19. Oil Spill Prevention and Response 
  
  Subchapter A. General Provisions 
 
  
  The General Land Office (GLO) adopts amendments to sec. sec.19.2, and 19.11-
19. 13, concerning the prevention of and response to oil spills in coastal 
waters. The General Land Office adopts sec.19.2(a)(5)(B) with changes to the 
proposed text as published in the June 5, 1992, issue of the Texas Register  (17 
TexReg 4061). Sections 19.11-19.13 are adopted without changes and will not be 
republished. In response to comments, several clarifications, discussed as 
follows, were made. 
 Section 19.2(a)(5) is clarified, in response to a comment that mobile or 
portable units should not be confused with vessels. 
 Section 19.2(a)(5)(D) and is clarified by adding certain bodies of water that 
were inadvertently omitted. Further certain boundaries describing the counties 
where coastal waters are located were in error and those errors are now 
corrected. 
 The sections were amended to clarify and simplify facility certification 
procedures. 
 Facilities subject to the certification requirement will now have a clear 
boundary for determining potential impacts to coastal waters. Drilling rigs, in 
coastal waters, are now subject to certification only when they are actually 
operating in a fixed location. 
 Certain small commercial facilities and underground storage facilities now have 
a less comprehensive certification process. 
 Several commenters noted that the adoption of the Coastal Facility Designation 
Line obviated the need for the previously adopted definition of "facility" at 
sec.19.2(a)(5)(B). GLO concurs that the previous definition is no longer needed. 
However, according to the rules of the Administrative Procedure and Texas 
Register Act, sec.19.2(a)(5)(B) must be deleted in a separate rulemaking. The 
Coastal Facility Designation Line being adopted today will later be renumbered 
as sec.19.2(a)(5)(B) after a new rule deletes the present sec.19.2(a)(5)(B). The 
Coastal Designation Line delineates the area within which a facility is 
potentially subject to the jurisdiction of OSPRA's facility certification rules. 
Any facility can request a waiver from certification requirements by complying 
with the amendments to sec.19.4 which will be published the next rulemaking. 
 One commenter stated that GLO did not have the legal authority to require 
certification of facilities that were not waterfront or offshore. OSPRA, sec.40. 
109 requires registration of terminal facilities, defined at sec.40.003(22), as 
operating "where a discharge of oil from the facility could threaten coastal 
waters" OSPRA also defines a discharge of oil as one which enter" into coastal 
waters or at a place adjacent to coastal waters where, unless controlled or 
removed, an imminent threat of pollution to coastal waters exists," 
sec.40.003(7). The many sections of OSPRA that discuss "threats to coastal 
waters" make it apparent that the legislature intended to address not only 
spills directly into coastal waters but also those spills in areas adjacent to 
coastal waters. These spills can represent an equal or even greater threat, 
depending on topography and quantity, than spills from an area immediately on 
the water's edge. However, GLO will exempt oil exploration, production, and 
development facilities that are not offshore or waterfront in a new rulemaking. 
 The requirement that a facility be certified is an integral part of one of the 
primary purposes of OSPRA: to insure an adequate plan for response to a spill. 
The planning necessary to protect coastal waters must be extended to those 
facilities which represent a potential threat to coastal resources. The General 
Land Office interprets OSPRA to require spill response planning for all 
facilities that represent a threat to coastal waters. 
 International Association of Drilling Contractors, Exxon Company, U.S.A., West 
Gulf Maritime Association, Texas Waterway Operators Association, Holliday 
Environmental Services, Inc., Railroad Commission of Texas. 
 None of the commenters opposed adoption of these changes. The commenters 
suggested clarifications, which have been made. 
 278>31 TAC sec.19.2 
 The amendment is adopted under the Natural Resources Code, sec.40.007, which 
authorizes the Land Commissioner to promulgate rules necessary and convenient to 
the administration of the Oil Spill Prevention and Response Act of 1991. 
 
 
  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)-(4) (No change.) 
   
  (5)  Facility-Mobile or portable units, other than a vessel, generally are 
considered facilities only when they are fixed in location and operating in 
coastal waters of the State of Texas. 
 
  (A)-(C) (No change.) 
   
  (D)  A place where a discharge of oil from a facility could potentially 
threaten coastal waters is any place located on the coastal side of the line 
drawn on the map attached at Appendix 1 to these sections. 
           
  APPENDIX 1-COASTAL FACILITY DESIGNATION LINE 
 <p All areas east and south of the following boundary are considered areas in 
which spills threaten coastal waters: beginning at the International Toll Bridge 
in Brownsville, thence northward along U.S. Highway 77 to the junction of 
Paredes Lines Road (FM Road 1847) in Brownsville, thence northward along FM Road 
1847 to the junction of FM Road 106 east of Rio Hondo, thence westward along FM 
Road 106 to the Junction of FM Road 508 in Rio Hondo, thence northward along FM 
Road 508 to the junction of FM Road 1420, thence northward along FM Road 1420 to 
the junction of State Highway 186 east of Raymondville, thence westward along 
State Highway 186 to the junction of U.S. Highway 77 near Raymondville, thence 
northward along U.S. Highway 77 to the junction of FM Road 774 in Refugio, 
thence eastward along FM Road 774 to the junction of State Highway 35 south of 
Tivoli, thence northward along State Highway 35 to the junction of State Highway 
185 between Bloomington and Seadrift, thence northwestward along State Highway 
185 to the junction of FM Road 616 in Bloomington, thence northeastward along FM 
Road 616 to the junction of State Highway 35 east of Blessing, thence southward 
along State Highway 35 to the junction of FM Road 521 north of Palacios, thence 
northeastward along FM Road 521 to the junction of State Highway 36 south of 
Brazoria, thence northward along State Highway 36 to the junction of State 
Highway 332 in Brazoria, thence eastward along State Highway 332 to the junction 
of FM Road 2004 in Lake Jackson, thence northeastward along FM Road 2004 to the 
junction of Interstate Highway 45 between Dickinson and La Marque, thence 
northwestward along Interstate Highway 45 to the junction of Interstate Highway 
610 in Houston, thence east and northward along Interstate Highway 610 to the 
junction of Interstate Highway 10 in Houston, thence eastward along Interstate 
Highway 10 to the Louisiana State Line. The areas described previously include 
the 12-hour migration rule referenced at sec.19.31 of this title (relating to 
Jurisdiction). 
 <p Please note that facilities north and west of the boundary are not subject 
to certification pursuant to the Oil Spill Prevention and Response Act. 
  AREAS OF EXTENDED TIDAL INFLUENCE/IMPACT POTENTIAL 
 
  (1) ARROYA COLORADO FROM SOUTH OF HWY 106 TO THE PORT OF HARLINGEN. 
   
  (2) NUECES RIVER AT THE HWY 666 CROSSING OF THE NUECES RIVER. 
   
  (3) GUADALUPE RIVER AND ASSOCIATED RIVERINE ENVIRONMENT INCLUDING THE VICTORIA 
BARGE CANAL TO THE HWY 175 RIVER CROSSING. 
   
  (4) PALMETTO BEND DAM ON THE LAVACA RIVER. 
   
  (5) TRES PALACIOUS RIVER 4.0 MILES ABOVE THE HWY 521 CROSSING. 
   
  (6) COLORADO ABOVE THE PORT OF BAY CITY 1.3 MILES SOUTH OF THE MISSOURI 
PACIFIC RAILROAD. 
   
  (7) SAN BERNARD TO TIDAL 2 MILES UPSTREAM OF HWY 35 CROSSING. 
   
  (8) CHOCOLATE BAYOU TO TIDAL 2.6 MILES DOWNSTREAM OF HWY 35. 
   
  (9) BUFFALO BAYOU 6.5 MILES WEST OF THE TURNING BASIN. 
   
  (10) SAN JACINTO RIVER TO THE LAKE HOUSTON DAM. 
   
  (11) TRINITY RIVER TO 1.9 MILES SOUTH OF HWY 90 IN LIBERTY COUNTY. 
   
  (12) NECHES RIVER 7 MILES UPSTREAM OF IH-10. 
   
  (13) SABINE RIVER TO MORGAN BLUFF. 
     
  NOTE: AREAS OF EXTENDED TIDAL INCLUDE WATERWAYS AND FACILITIES 100 YARDS 
LANDWARD FROM CUT BANK. 
 
  [graphic] 
   
  (6)-(15) (No change.) 
   
  (16) Underground storage tank-Any tank or container used for storing oil which 
is located completely under the surface of the earth. Tanks which are partially 
buried or which are contained in aboveground vaults or other aboveground 
containment structures are not considered underground tanks for the purpose of 
certification requirements under these sections. 
   
  (17) 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. 
   
  (18) 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. 
   
  (19) 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 
occurring in weather conditions most likely to cause oil discharged from the 
facility to enter coastal waters. 
   
  (b) (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 September 16, 1992. 
 TRD-9211660 
  Garry Mauro 
 Commissioner 
 General Land Office 
    Effective date: September 16, 1992 
 Proposal publication date: June 5, 1992 
 For further information, please call: (512) 463-5019 
         
         
  31 TAC sec.sec.19.11-19.13 
 
  The amendments are adopted under the Natural Resources Code, sec.40.007, which 
authorizes the commissioner to promulgate rules necessary and convenient to the 
administration of the Oil Spill Prevention and Response 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 August 21, 1992. 
 TRD-9211661 
  Garry Mauro 
 Commissioner 
 General Land Office 
    Effective date: September 16, 1992 
 Proposal publication date: June 5, 1992 
 For further information, please call: (512) 463-5019 
         
               
  TITLE 40. SOCIAL SERVICES AND ASSISTANCE 
 Part II. Texas Rehabilitation Commission 
  Chapter 101. General Rules 
  
  40 TAC sec.101.11 
 
  The Texas Rehabilitation Commission adopts an amendment to sec.101.11, 
concerning administrative review of agency action and fair hearing for 
applicants and clients, without changes to the proposed text as published in the 
July 24, 1992, issue of the Texas Register (17 TexReg 5191). 
 The section adopts by reference Texas Rehabilitation Commission Rehabilitation 
Services Manual Number 20-2 which contains procedures for applicant and client 
hearings effective June 1, 1992. 
 The section increases awareness to members of the public of the detailed 
procedures used by the commission in applicant and client hearings. It will also 
provide increased awareness to those who represent applicants and clients in 
hearings. 
 No comments were received regarding adoption of the amendment. 
 The amendment is adopted under the Texas Human Resources Code, Title 7, which 
provides the Texas Rehabilitation Commission with the authority to make 
regulations governing personnel standards, the protection of records and 
confidential information, the manner and form of filing applications, 
eligibility, investigation, and determination for hearings, and other 
regulations necessary to carry out the purposes of this chapter. 
 
  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 August 24, 1992. 
 TRD-9211627 
  Charles W. Schiesser 
 Associate Commissioner 
 Texas Rehabilitation Commission 
    Effective date: September 15, 1992 
 Proposal publication date: July 24, 1992 
 For further information, please call: (512) 483-4051 
         
             
  TITLE 43. TRANSPORTATION 
 Part I. Texas Department of Transportation 
  Chapter 11. Design Division 
  
  Environmental and Public Involvement for Highway Improvement Projects 
 
  43 TAC sec.11.82 sec.11.85 
 
  The Texas Department of Transportation adopts amendments to sec.11.82 and 
sec.11.85, concerning environmental and public involvement for highway 
improvement projects, with changes to the proposed text as published in the June 
12, 1992, issue of the Texas Register (17 TexReg 4243). 
 Senate Bill 352, 72nd Legislature, 1991, enacted Texas Civil Statutes, Article 
6673g, which requires the Texas Transportation Commission to provide a procedure 
for a public hearing to be requested on an environmental review for which a 
public hearing is not required by law. Senate Bill 352 also amended Texas Civil 
Statutes, Article 6674w-1, by requiring the department to adopt rules providing 
abutting landowners and affected local governments and public officials with 
notice and opportunity for comment on major highway projects, and an additional 
notice and opportunity for comment on major highway projects when certain 
conditions have changed significantly from the time the project originally 
underwent public review and comment, and also providing procedures for informing 
such persons of impending construction. Senate Bill 2, 72nd Legislature, First 
Called Session, 1991, amended Texas Civil Statutes, Article 6673g to require the 
commission to provide for early coordination of department environmental reviews 
with the Texas Parks and Wildlife Department and the Texas Natural Resources 
Conservation Commission. In order to comply with the recent legislative 
requirements and to continue with the department's desire to have an open public 
comment process throughout project development, it is necessary to adopt on a 
permanent basis amendments to sec.11.82 and sec.11. 85. 
 Section 11.82 is amended to include definitions for the terms affected local 
government and affected public official. The term "environmental clearance" that 
was originally proposed has been deleted from final adoption. Section 11.85 is 
amended to: include a procedure for a public hearing to be requested on an 
environmental review for which a public hearing is not required by law; provide 
for early coordination of environmental reviews with the Texas Parks and 
Wildlife Department and the Texas Natural Resources Conservation Commission; 
provide abutting landowners and affected local governments and public officials 
with notice and opportunity for comment on major highway projects, and an 
additional notice and opportunity for comment on major highway projects when 
certain conditions have changed significantly from the time the project 
originally underwent public review and comment; and provide procedures for 
informing such persons of impending construction. 
 Pursuant to the Administrative Procedure and Texas Register Act, Texas Civil 
Statutes, Article 6252-13a, sec.5, the department conducted a public hearing on 
June 30, 1992, to seek comments concerning the proposed amendments to sec.11.82 
and sec.11.85 concerning environmental and public involvement for highway 
improvement projects. Representatives of Sierra Club-Houston Regional Group (Air 
Quality Committee) and Barton Springs Polar Bear Club indicated they were in 
favor of the proposed amendments. Representatives of Sierra Club- Lone Star 
Chapter and Sierra Club-Houston Regional Group indicated they were opposed to 
the amendments. The following outlines the oral and written comments received. 
 One commenter was concerned about the separation of the Environmental Affairs 
Division and the Environmental Section of the Highway Design Division, and 
requested that these two groups work closely together, and stated that the 
present situation is confusing to the public. The Environmental Section of the 
Division of Highway Design (Section) is responsible for the review and 
processing of environmental documents and coordination with resource agencies 
necessary to obtain environmental clearance of projects. The Division of 
Environmental Affairs is charged with coordination, planning, and oversight of 
all environmentally-related activities of the department, both internal and 
external, and this includes oversight of the activities of the Section. The 
Section and the Division of Environmental Affairs work closely together to 
ensure that environmental issues are fully considered and that environmentally 
sound decisions are made during the project development process. 
 In sec.11.82, one commenter questioned the need for the definition of 
"environmental clearance" since he didn't see it used in the rules. If the 
definition is kept, the commmenter requested that "the signing of" be added 
after "significant impact or" and "before a record of decision" in that one 
definition. The department will revise the propose amendment and delete the 
definition. 
 In sec.11.82, one commenter suggested that the definition of "public meetings" 
be changed to state "should be held" rather than "may be held", and that notices 
of public hearings should be given in the local press. The definition states 
that public meetings..."may be held with local public officials, interested 
citizens..." The definition of public meeting states "may be held" to indicate 
that the audience of a public meeting may differ from project to project. The 
wording as adopted does not exclude any of the listed groups or individuals, or 
anyone not listed, from being notified of or attending a public meeting. Section 
11.85(b)(2) subsequently provides the conditions under which public meetings 
will be held. With regard to public hearing notices in the local press, the 
department's original adoption of these sections included such a provision in 
sec.11.85(b)(4)(B), and the rules currently provide for that notice. 
 In sec.11.85(a), one commenter suggested that early coordination include the 
general public. Early coordination is established in federal and state 
environmental regulations for interagency cooperation. The department considers 
public meetings and other forms of preliminary public involvement to provide the 
public with a form of "early coordination," and that the public is always 
welcome to view project files and other data throughout the planning process. 
The review of environmental documents is kept until after agency coordination is 
complete, to ensure that the public is reviewing a more complete document. 
 In sec.11.85(a)(1)(B), one commenter suggested that there be no exemptions from 
Regional Review Agency (RRA) review. The department exempts only those projects 
considered not significant enough to merit complete RRA review, however, that 
exemption from RRA review does not exempt the department from coordination with 
state and federal resource agencies. In fact, exempted projects are routinely 
coordinated with these agencies. 
 In sec.11.85(a)(3)(B), one commenter was concerned that early coordination did 
not include federal agencies under (a)(3)(B), and requested that these be 
included. It should be noted that these amendments addressed only the Texas 
Parks and Wildlife Department and the Texas Natural Resources Conservation 
Commission because of specific legislative mandates. The wording in sec.11.85(a) 
(3)(B) is inclusive of other state and federal resource agencies. The department 
coordinates projects with federal resource agencies, as well as routine 
coordination with the Texas Water Commission, the Texas Parks and Wildlife 
Department, and the Texas Historical Commission. 
 In sec.11.85(a)(3)(B), one commenter was concerned that mitigation plans are 
not defined, so that there will be specific requirements for what constitutes a 
plan, and so that there will be equity in objectively judging any mitigation 
plans. Another commenter requested that the definition for mitigation be changed 
by taking out "compensating for the impact by replacing or providing substitute 
resources or environments." The commenter suggested that, for instance, the 
department could not replace over 2,000 trees which are over 70 years old. In 
the initial adoption of these sections, the department included a definition for 
mitigation which is used by other agencies as well. The department considers 
this definition to be sufficient for what constitutes mitigation. With regard to 
the department's inability to mitigate for older trees, the department 
acknowledges that it is not always practicable to fully mitigate adverse 
impacts, However, again it should be noted that the department develops project 
specific mitigation through coordination with state and federal resource 
agencies and that the type and scope of mitigation reflects the individual 
project and project area. 
 In sec.11.85(b), two commenters suggested that notices of opportunity for 
public hearings also be mailed to landowners within visual view or in the 
minimum, a one mile distance from the project. The language in amendments to 
sec.11.85(b)(3)(C), and sec.11.85(b)(4)(C) was taken directly from legislative 
mandate, in which direct mailings to property owners abutting a proposed project 
is required. Individuals not abutting the project are notified through press 
notices and letters to organizations. The department does not consider it 
feasible to identify landowners within "visual view" or within a one-mile 
distance from a project. 
 In sec.11.85(b), one commenter requested that verbal and written comments be 
presented for a period of 30 days following a hearing. Section 11.85(b)(4)(D) 
provides for 10 days following a public hearing for the public to comment on the 
public hearing proposals. The department considers this time to be adequate for 
the public to comment, particularly given that all public hearing elements, such 
as schematics and environmental documents are available at the time the public 
hearing notice is published, which is 30 days prior to the hearing. It should 
also be noted that the 10-day comment period applies only to the public hearing 
record. The public is welcome to comment on projects at any time during project 
development, and have their comments considered. 
 In sec.11.85(b), one commenter requested that all landowners be notified when a 
roadway improvement is initiated, and that the department should not wait until 
a public hearing is held when decisions have been made. The department includes 
landowners through early public involvement through public meetings and informal 
meetings with individuals and interested groups. This is provided for in 
existing sec.11.85(b)(1)-(2). With regard to public hearings and decision-
making, it is explicitly stated in sec.11.85(4) that public hearings are held to 
present project alternatives. Final project decisions have not been made, and 
the public hearing is an important part of that decision. 
 In sec.11.85(b)(2)(E), one commenter suggested that the rule be amended to 
state that meetings take place at a time and place convenient to the public in 
the vicinity of the state project at a time not closer than 20 days to national 
holidays. The department plans and schedules all public involvement to be of 
ready access to the public. However, were the department limited to scheduling 
public meetings more than 20 days from national holidays, this would severely 
limit when any public involvement would take place. For instance, January, 
February, May, July, September, November, and December, over half a calendar 
year, would be either completely eliminated, or severely restricted as to when 
any public involvement could take place. 
 In Section 11.85(b)(3)(C), three commenters suggested that river authorities, 
special districts, school districts, and other jurisdictions be added to the 
list of those receiving notice of opportunity for hearing. One of the commenters 
also requested that any elected or appointed board containing elected officials 
also be included, and that the term "affected public official" be used 
inclusively, rather than exclusively. The department does not concur with the 
suggestion. The proposed rule includes the governing body of a county or 
municipality and their elected officials. The department believes that those are 
the governing bodies having direct and primary involvement in the planning and 
development of projects. 
 In sec.11.85(b)(4), one commenter stated that terminology used in sec.11.85(b) 
(4) is not clear, that such terms can be used to deny public requests, and that 
these terms should be defined. The terms suggested for definition included 
"feasible proposal," "appropriate environmental studies," "substantial public 
interest," "high-profile FONSI," and "encourage and solicit public comment." The 
department considers the wording in sec.11.85(b)(4) to be adequate. The terms do 
have meaning in common usage and are readily understood. They here indicate that 
the department will have public hearings only when project proposals have 
substance, rather than earlier when project development is less well-formed, the 
latter case being when public meetings are more appropriate. Full hearings would 
be premature until the availability of data is sufficient to allow for 
meaningful public understanding and comment/input. The department believes that 
the record amply demonstrates that it acts in good faith, and is in no way 
trying to circumvent public hearings when needed. It is simply sound policy and 
more effective to have public hearings at the appropriate phase in project 
development. 
 In sec.11.85(e), one commenter stated that in sec.11.85(e) "changed 
significantly" should be defined and criteria developed and published to 
determine what this means. The department has adopted the definition of 
"significantly" as found in 42 United States Code, sec.4432, and considers this 
adequate for what constitutes "changed significantly." 
 In sec.11.85(e), the proposed rule requires the department to offer an 
additional opportunity for public hearing for certain projects if conditions 
relating to land use, traffic volumes, and traffic patterns have changed 
significantly from the time the project originally underwent public review and 
comment. Two commenters requested that the discovery of environmental features 
or problems be added to land use, traffic volumes, and traffic patterns. Land 
use is a comprehensive term and the department interprets it to include 
environmental matters. 
 In sec.11.85, one commenter requested that the financial impact of the amount 
of real property removed from public tax rolls and the financial impact on each 
taxing entity after a 40-year period of time, for the entity and in total. The 
commenter also suggested that there be a financial disclosure of the costs of 
construction broken down into the various categories, and also statements of the 
time for construction to take place and the length of time to complete the 
entire structure. For major federal actions, federal environmental regulations 
require the analysis of the economic impact of a project, including property 
removed from tax rolls, and the construction, right-of-way, utility, and other 
costs associated with project construction. As to the suggestion for a 40-year 
study on individual taxing entities, the department analyzes economic impacts 
which are reasonably foreseeable. Given the uncertainties of future land 
development following project completion, population shifts, the development of 
future commercial interests, and other factors, the department considers 
analyses 40 years in the future to be of little value. With regard to financial 
disclosure of construction costs, and statements for time for construction, the 
department does include this information, particularly for environmental impact 
statements and other projects where sequenced construction is necessary. This 
information is also included in public hearing presentations. 
 In sec.11.85, one commenter requested that the department mail public 
involvement notices to other interested parties, and that the department keep a 
current list of such parties who want to be informed of specific projects. The 
department concurs with the comment, and has revised sec.11.85 to indicate this. 
 Concerning sec.11.88, one commenter requested that all draft environmental 
impact statements (DEISs) be made available to each public library within two 
miles of a new project. The department's existing procedures state in sec.11. 
88(d)(6) that "The DEIS may also be reviewed at designated public locations." 
The department routinely places copies of DEISs for inspection at public 
libraries, and at other public locations, such as city halls. The distance of a 
library from a project is not given, because of practicality. In an urban 
setting, there may very well be a library within two miles of a project. In a 
suburban or rural setting, however, the distance from a project to a library may 
be greater. The department wishes to maximize public availability, and will 
therefore choose the location(s) most suitable to a particular project. 
 One commenter did not see anything related to air quality, or mitigation in the 
proposed amendments, and requested that such be added to the rules. The initial 
adoption of these sections includes specific information on mitigation, and air 
quality studies are a routine part of the department's environmental 
investigations. 
 One commenter wished that the department had implemented the commenter's 
recommendations when the Environmental and Public Involvement for Highway 
Improvement Projects rules were originally promulgated in 1991, and submitted 
their original letter into the hearing record. This comment does not 
specifically address the present amendments. The procedure for requesting new 
rulemaking is prescribed in sec.1.11 of this title (relating to Petition). 
 The new sections are adopted under Texas Civil Statutes, Articles 6666, 6673g, 
and 6674w-1, which provide the Texas Transportation Commission with the 
authority to promulgate rules and regulations for the conduct of the work of the 
Texas Department of Transportation, and specifically for providing notice and 
public involvement in project development. 
 
 
  sec.11.82. Definitions.  The following words and terms, when used in this 
undesignated head, shall have the following meanings, unless the context clearly 
indicates otherwise. 
   
     Affected local government-The governing body of a county or municipality in 
which a project is located. 
   
     Affected public official-An elected official of a county or municipality in 
which a project is located, or a member of the United States Congress or the 
Texas Legislature in whose district a project is located. 
   
     Department-Texas Department of Transportation. 
 
   
  sec.11.85. Early Coordination and Public Involvement. 
 
  (a)  Early coordination. Early coordination with appropriate agencies, local 
governmental entities, and the public shall play a vital role in project 
planning and environmental development of state projects. District offices and 
the division shall be responsible for initiating early coordination and the 
continuation of coordination with local governmental entities and applicable 
agencies throughout project planning. 
 
  (1)-(2) (No change.) 
   
  (3) During early coordination the division will be responsible for: 
 
  (A) (No change.) 
   
  (B) providing state project data and analyses to applicable agencies, which, 
shall include coordination of environmental reviews and mitigation proposals 
with the Texas Natural Resources Conservation Commission and the Texas Parks and 
Wildlife Department, prior to the written report explaining the department's 
decision regarding a project, thereby assisting in the determination of state 
project impacts and mitigation plans. 
       
  (b)  Public involvement. Public involvement shall be encouraged as an 
important element of project planning. It shall be initiated by the pertinent 
district office and will depend on and be consistent with the type and 
complexity of each state project. Districts shall also maintain a list of 
individuals and groups interested in state project development, and shall 
provide notification of public hearing activities to these individuals and 
groups. 
 
  (1)-(2) (No change.) 
   
  (3) An opportunity for public hearing, as another form of public involvement, 
shall be afforded for state projects in order to determine local interest for 
holding a public hearing, when required under Texas Civil Statutes, Article 
6674w-1, or when the state project requires the acquisition of significant 
amounts of right-of-way; there is a substantial change in the layout or function 
of the connecting roadways or of the facility being improved; there is 
measurable adverse impact on abutting real property; or there is otherwise a 
substantial social, economic, or environmental effect. 
 
  (A)-(B) (No change.) 
   
  (C) Notices of the opportunity for public hearing shall also be mailed to 
landowners abutting the roadway as identified by tax rolls, and affected local 
governments and public officials. 
   
  (D) No further action will be taken to hold a public hearing if at the end of 
the time set for affording an opportunity for a public hearing no requests are 
received. (However, the district office will be responsible for submitting a 
certified statement to this effect to the division.) 
     
  (4) A public hearing, as another form of public involvement, shall be held: to 
present project alternatives; to encourage and solicit public comment; after 
location and design studies are developed, to the extent that the public can be 
given a feasible proposal with appropriate environmental studies; after the 
environmental document is considered technically complete; for projects with 
substantial public interest such as EIS state projects or high-profile FONSI 
state projects, or when a request for hearing is received as discussed in 
paragraph (3) of this subsection; or when a state project requires the taking of 
public land designated as a park, recreation area, wildlife refuge, historic 
site, or scientific area, as covered in the Parks and Wildlife Code, 
sec.sec.26.001 et seq. 
 
  (A)-(B) (No change.) 
   
  (C) Notices of the public hearing shall also be mailed to landowners abutting 
the roadway as identified by tax rolls, and affected local governments and 
public officials. 
 
  (i)-(ii) (No change.) 
     
  (D) The public shall have 10 days after the close of a public hearing to 
submit written comments to the district office regarding a proposed state 
project. 
   
  (E) Public hearings shall be considered complete on the submission by the 
district office of a verbatim transcript and its certification to the division 
for review and approval. 
     
  (5) (No change. ) 
     
  (c) (No change.) 
   
  (d) Public involvement on projects where a public hearing is not required by 
law. For projects for which a public hearing is not required by law, the 
department will hold a public hearing in accordance with subsection (b)(4) of 
this section if at least 10 individuals request a hearing. 
   
  (e) Public involvement following project approval. The department shall offer 
an additional opportunity for public hearing for projects which have already 
undergone public review and comments, and which involve either the additional of 
at least one travel lane or construction of a project on new location, and in 
which conditions relating to land use, traffic volumes, and traffic patterns 
have changed significantly from the time the project originally underwent public 
review and comment. The opportunity for public hearing will be afforded in 
accordance with subsection (b)(3)(A)-(D) of this section. 
   
  (f) Notice of construction. The department will send notice of impending 
construction of a project to landowners abutting the roadway as identified by 
tax rolls, and affected local governments and public officials. 
 
  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 August 26, 1992. 
 TRD-9211650 
  Diane L. Northam 
 Legal Administrative Assistant 
 Texas Department of Transportation 
    Effective date: September 16, 1992 
 Proposal publication date: June 12, 1992 
 For further information, please call: (512) 463-8630