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 7. BANKING AND SECURITIES 
 Part VII. State Securities Board 
  Chapter 115. Dealers and Salesmen 
  
  7 TAC sec.115.1 
 
  The State Securities Board adopts an amendment to sec.115.1, concerning 
dealers and salesmen, to add a time limit within which a new officer or partner 
must file an application, with changes to the proposed text as published in the 
November 20, 1992, issue of the Texas Register (17 TexReg 8128). The change 
makes the section gender neutral. 
 The section allows for the timely receipt by the Board of applications to 
register a new officer or partner. 
 The section places a 30-day filing requirement on applications to register a 
new officer or partner. 
 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. 
 
 
  sec.115.1. General 
 
  (a)-(c) (No change.) 
   
  (d) Officer or Partner Registration. Dealer or investment adviser applicants 
other than individuals must make an application to register an officer or 
partner in connection with the registration, and any such officer or partner 
must complete the necessary registration requirements. An applicant may 
designate as its officer or partner a principal registered on the Central 
Registration Depository System maintained by the National Association of 
Securities Dealers. If the officer or partner resigns or is otherwise removed 
from his or her position, the firm shall make an application to register another 
officer or partner within 30 days. 
   
  (e)-(h) (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 February 1, 1993. 
 TRD-9318449 
  Richard D. Latham 
 Securities Commissioner 
 State Securities Board 
    Effective date: February 23, 1993 
 Proposal publication date: November 20, 1992 
 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 
dealers and salesmen, to add a time limit within which changes to the evidence 
of registration must be submitted and clarify that surviving entities of certain 
transactions must be registered, without changes to the proposed text as 
published in the November 20, 1992, issue of the Texas Register (17 TexReg 
8128). 
 The section allows for the timely receipt by the Board of changes to the 
evidence of registration and applications to register surviving entities of 
certain transactions. 
 The section places a 30-day filing requirement on submission of changes that 
are to be reflected on the evidence of registration and sets forth the 
requirement that applications be filed to register new entities created as a 
result of certain transactions. 
 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 February 1, 1993. 
 TRD-9318450 
  Richard D. Latham 
 Securities Commissioner 
 State Securities Board 
    Effective date: February 23, 1993 
 Proposal publication date: November 20, 1992 
 For further information, please call: (512) 474-2233 
         
         Chapter 131. Guidelines for Confidentiality of Information 
  
  7 TAC sec.131.1, sec.131.2 
 
  The State Securities Board adopts amendments to sec.131.1 and sec.131.2, 
concerning the general provisions and disclosure for limited purposes provisions 
of the guidelines for confidentiality of information. Section 131.1 is adopted 
with changes to the proposed text as published in the November 20, 1992, issue 
of the Texas Register (17 TexReg 8128). The change makes the section gender 
neutral. Section 131.2 is adopted without changes and will not be republished. 
The sections have to do with permissible sharing of confidential information by 
the Securities Commissioner. Simultaneously, the Board is adopting the repeal of 
sec.131.3 and sec.131.4. The overall effect of the amendments and repeals is to 
expand the scope of permissible sharing of confidential information. 
 The section provides for greater flexibility in sharing confidential 
information with other regulators including those of foreign jurisdictions. 
 The section sets forth the parameters of permissible sharing of confidential 
information. 
 No comments were received regarding adoption of the amendments. 
 The amendments 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. 
 
 
  sec.131.1. General Provisions.  Pursuant to the authority given to the Board 
under the Securities Act, sec.28, as amended by Acts 1977, 65th Legislature, 
Chapter 327, effective August 29, 1977, the State Securities Board, recognizing 
the need for cooperative law enforcement among agencies responsible for 
prevention, detection, and prosecution of white collar crime, for the regulation 
and policing of persons who offer and sell securities, and for the regulation of 
offerings of securities, authorizes the Securities Commissioner in his or her 
discretion to supply information obtained during the course of investigations 
conducted pursuant to the Securities Act, sec.28, to any governmental authority 
or any quasi-governmental authority charged with overseeing securities 
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 February 1, 1993. 
 TRD-9318451 
  Richard D. Latham 
 Securities Commissioner 
 State Securities Board 
    Effective date: February 23, 1993 
 Proposal publication date: November 20, 1992 
 For further information, please call: (512) 474-2233 
         
         
  7 TAC sec.131.3, sec.131.4 
 
  The State Securities Board adopts the repeal of sec.131.3 and sec.131.4, 
concerning other governmental agencies and quasi-governmental agencies with 
which the Securities Commissioner may share confidential information, without 
changes to the proposed text as published in the November 20, 1992 issue of the 
Texas Register (17 TexReg 8129). Simultaneously, the Board is adopting 
amendments to sec.131.1 and sec.131.2. The overall effect of the repeals and 
amendments is to expand the scope of permissible sharing of confidential 
information. 
 The sections are no longer needed. 
 Two unnecessary sections are being eliminated. 
 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 February 1, 1993. 
 TRD-9318452 
  Richard D. Latham 
 Securities Commissioner 
 State Securities Board 
    Effective date: February 23, 1993 
 Proposal publication date: November 20, 1992 
 For further information, please call: (512) 474-2233 
         
             
  TITLE 16. ECONOMIC REGULATION 
 Part II. Public Utility Commission of Texas 
  Chapter 23. Substantive Rules 
  
  Rates 
 
  16 TAC sec.23.23 
 
  The Public Utility Commission of Texas adopts an amendment to sec.23.23 with 
changes to the proposed text as published in the October 16, 1992, issue of the 
Texas Register (17 TexReg 7145). The amendment makes several changes to the 
manner by which the commission regulates the fuel costs of generating utilities. 
In addition, the amendment corrects one error in the recently adopted amendments 
that allow the certification of long-term fuel contracts. 
 The amendment allows each utility's fuel factor to be revised every six months 
according to a specified schedule, in the case of emergencies, or in a general 
rate case. Refunds or surcharges for over and under-collections are required 
according to certain limitations. The current method for allocating refunds and 
surcharges is maintained; however, the interest rate applied to over or under-
collections of fuel costs is changed to the rate set by the commission for over 
or undercharges pursuant to sec.23.45 of this chapter. 
 The amendment requires a reconciliation of fuel costs at least as often as once 
approximately every three years and provides a definition of the costs that are 
eligible for inclusion in the fuel factor. The amendment provides for a 
transition period between the existing rule and the proposal. 
 Finally, a correction is made to the recently adopted long-term fuel contract 
certification rule. The correction changes a reference to a long-term gas 
contract to a long-term fuel contract. 
 Comments were received from Brazos Electric Power Cooperative (Brazos), 
Consumers Union (CU), the operating subsidiaries of Central and South West 
Corporation (CSW), El Paso Electric Company (EPEC), Gulf States Utilities 
Company (GSU), Houston Lighting and Power Company (HL&P), the Lower Colorado 
River Authority (LCRA), Northeast Texas Electric Cooperative, Inc. and Tex-La 
Electric Cooperative of Texas, Inc. (NTEC), Office of Public Utility Counsel 
(OPC), San Miguel Electric Cooperative (SMEC), Southwestern Public Service 
(SPS), Texas Industrial Energy Consumers (TIEC), and Texas Utilities Electric 
Company, (TU Electric). Enron filed comments responsive to OPC's comments. 
 Several commenters noted that, except for the definition of eligible fuel, the 
proposal resulted from many hours of discussion and represented a consensus 
among the parties participating in the workshops and forums on this matter. 
 EPEC, LCRA, TU Electric, SPS, HL&P, NTEC supported the amendments but 
recommended some minor changes, which are addressed below. CSW supported the 
adoption of the proposal as published. CU opposed adoption of the proposal, 
particularly the definition of eligible fuel. Several commenters only commented 
on particular provisions without stating whether they supported or opposed the 
proposal as a whole. 
 OPC recommended that the commission reject the proposed revision to the 
contract certification portion of the rule and instead repeal the entire 
contract certification portion of the rule. Enron responded with the argument 
that repeal of the contract certification rule would be beyond the commission's 
authority in this rulemaking because natural gas companies would have no notice 
that such could occur. The commission supports the contract certification rule 
and does not believe it should be repealed. The proposed change, which corrects 
an error in the rule, is being adopted. 
 SMEC noted that the rule does not state what the consequences are for failing 
to file a request to make a surcharge as required by the proposal. SMEC 
suggested that the proposal be amended to state that, in the absence of good 
cause, the failure to file a required petition for surcharge means that the 
utility has waived its right to make the surcharge and must write off the under-
collected balance. Furthermore, SMEC suggested that the proposal should be 
further changed so that a utility that has chosen not to petition for a 
surcharge and has waived its right to collect the under-collection should be 
excepted from the requirement that fuel be reconciled at least every three 
years. SMEC submitted that in such circumstances reconciliation is unnecessary 
and only increases the regulatory expenses that have to be borne by the 
ratepayer. 
 The commission does not believe it would be appropriate to make the changes 
suggested by SMEC. First, it should be noted that this part of the proposal is 
the result of lengthy discussions between the parties who attended the 
workshops. Also, there are a number of requirements in the proposal, but the 
proposal does not explicitly state the consequences of failure to comply with 
any of the requirements. There is no reason to single out this requirement. The 
commission may wish to consider the waiver part of SMEC's proposal at a later 
time, but the commission disagrees that waiver of surcharges will eliminate the 
need to require reconciliations on a regular basis. Reconciliation proceedings 
consider many more issues than simply under-collections and those issues should 
be considered on a regular basis. 
 The definition part of the proposal drew the most comments. TIEC was the most 
vocal in opposition to the definition, but OPC and CU objected to three elements 
of the definition for reasons similar to those underlying TIEC's opposition. 
 TIEC commented that the proposed definition of eligible fuel expenses lacks an 
underlying consistent policy that could give guidance as to why some fuel 
related costs were included and others excluded from the definition of fuel 
costs. As an example, TIEC noted that storage costs of fuel before the fuel is 
delivered to the generation site are eligible fuel costs, but storage costs at 
the generation site are not eligible. TIEC suggested that the commission should 
state the underlying policy reason, and toward that end, TIEC offered a 
discussion of why fuel costs should be treated differently. TIEC commented that 
the fundamental method of recovery of costs is through base rates, and that 
special treatment is afforded fuel only because it may be subject to wide 
variation on a cost per unit basis. TIEC maintains that consequently only costs 
that are volatile should be allowed to be recovered outside of base rates, and 
to do otherwise, distorts the rate making process. Along these lines, TIEC 
offered language changes to the purpose section of the proposal that would limit 
eligible fuel expense to commodity costs and those costs associated with 
acquiring fuel but not easily separated from the price of fuel. 
 TIEC commented that the division in the proposal of those costs incurred off-
site and those incurred at the generating site is inappropriate. TIEC stated 
that the distinction results in non-fuel costs being recovered through the fuel 
factor. TIEC points to natural gas storage as an example. Also, TIEC maintains 
that the division is illogical and subject to manipulation by the utility. To 
demonstrate their point, TIEC noted that a utility typically stores coal at the 
generating site, but seldom stores natural gas at the site. The proposal would 
treat these storage costs different, but not because of an underlying policy. 
TIEC also contended that utilities may manipulate their storage practices in 
order to make on-site storage appear to be off-site storage. 
 In contrast to OPC's, CU's, and TIEC's comments, GSU, HL&P, CSW, TU Electric, 
and LCRA, opposed any definition based on a distinction between "fixed" versus 
"variable" costs. 
 GSU commented that a more restrictive definition of eligible fuel than that 
proposed would be a significant change from current commission practice, would 
limit the ability of utilities to pursue aggressive, cost-saving fuel 
strategies, reduce the utility's flexibility at a time when significant changes 
are occurring in the natural gas market. 
 HL&P commented that further delineation of fuel costs within the FERC accounts 
as desired by TIEC would be burdensome. HL&P noted that the published proposal 
was in line with current practice. HL&P stated that TIEC would prefer that costs 
recovered through the fuel factor be limited because its clients' bills are 
predominantly kwh related. 
 CSW opposed the "fixed" versus "variable" distinction made by OPC and TIEC and 
pointed out that, in the past, attempts to apply this dichotomy have led to a 
fair amount of litigation. CSW commented that there is no easy way to divide " 
fixed" from "variable" cost, that it is fact specific to a particular situation, 
and as a consequence such a distinction would lead to constant controversy. CSW 
stated that it is to the ratepayer's advantage to include as much costs as 
possible in eligible fuel because such costs are subject to the same standards 
of review as other costs, are subject to refund if found unreasonable, and will 
be reflective of actual costs which will not always be going up. CSW stated that 
if more fuel related costs were moved into base-rates, the investment community 
would likely demand a higher return to compensate for the greater perceived 
risk. 
 LCRA urged the commission to reject any definition that depends on a division 
between volatile and non-volatile fuel costs. LCRA noted that the commission has 
previously rejected such a definition and that such a definition will 
unnecessarily constrain utilities' fuel procurement practices and may act as a 
disincentive for the utility to choose the most economical option. LCRA 
commented that such a definition may deter a utility from purchasing an asset 
that could lower fuel costs because the utility would be faced with the burden 
of regulatory lag in regard to the asset. LCRA commented that the utilities' 
fuel procurement decisions should be solely driven by the economics of the 
choices. LCRA noted that the process of reconciling costs makes for more 
accurate recovery of reasonable costs than does the traditional test-year 
adjusted for known and measurable changes. 
 TU Electric commented that the proposed definition of eligible fuel codifies 
the current practice of the commission with the exception of the exclusion of 
reservation fees for purchased power and that the proposal properly rejects a 
definition based on a division based on fixed versus variable costs. 
 TU Electric and CSW each presented a rather detailed history of the treatment 
of fuel costs since the commission's conception, with the point of the history 
being, as stated by TU Electric, that "non-commodity and non-variable fuel costs 
have not only been included in the fuel factor since the very inception of this 
commission, but this commission has also properly and repeatedly rejected the 
notion that non-commodity or non-variable costs should be excluded from the fuel 
factor". Starting with the commission's original rules authorizing an automatic 
adjustment clause, TU Electric and CSW traced the fuel rule changes at the 
commission and noted in each instance that the language allowed all fuel costs 
(except for certain specified expenses) to be recovered separately from base 
rates. TU Electric and CSW also noted the rule proposals by the City of Dallas, 
the Texas Municipal League, and the commission staff that would have required 
the base-rating of fixed fuel costs were rejected by the commission. TU Electric 
and CSW also noted two recent cases in which the commission unequivocally 
rejected a dichotomy based on fixed versus variable costs. 
 TU Electric disagreed with the comment by TIEC that the rule proposal would 
significantly expand the definition of eligible fuel. TU Electric also disagreed 
with TIEC's statement that the commission's inclusion of natural gas storage 
facilities in reconcilable fuel costs in Docket 8425, Application of Houston 
Lighting and Power Company was limited to the facts of that case. In support of 
its position, TU Electric noted that such facilities were also included in fuel 
costs in TU Electric's last case. 
 TU Electric responded to TIEC's claim that there is no consistent policy basis 
underlying the proposal's separation of eligible versus ineligible fuel costs by 
stating that the policy basis is simple: all fuel and fuel related costs 
incurred up to the time the fuel is delivered to the generating station should 
be included in the definition of eligible fuel. 
 TU Electric stated that the proposed definition is in the customers' best 
interest for a number of reasons. TU Electric suggested that if significant 
amounts of fuel costs are moved to base-rates, investors may perceive the 
utility to be more risky, particularly because of the potential of regulatory 
lag, and thus demand a higher return. Further, the customer may end up paying 
more or less than the actual fuel costs because base-rates are not reconcilable. 
TU Electric noted that more rate-cases may be necessary if a significant amount 
of fuel costs are base-rated and that this would result in the customers bearing 
greater rate-case expense. TU Electric suggested that a definition based on a 
distinction between fixed and variable costs may spawn more litigation at the 
commission. TU Electric suggested that contracting practices could change in 
order to make all costs appear variable, and thus recoverable through the fuel 
factor, and that this change in contracting practices may result in higher fuel 
prices. Finally, TU Electric stated that residential and small commercial 
customers could end up paying a larger share of a utility's fuel costs if non-
variable fuel costs are placed in base-rates. This was contended to be possible 
because the base-rated fuel costs might be allocated based on demand rather than 
energy. 
 The commission rejects the use of a distinction between volatile versus non-
volatile costs as a basis for determining which costs should be included in 
eligible fuel costs. The commission finds some merit in the comments from both 
sides of the debate over whether the definition of eligible fuel should be based 
on a distinction between "fixed" or non-volatile versus "variable" or volatile. 
One could come to the conclusion, as did TIEC, that because the treatment 
afforded fuel costs is special that the commission should strive to limit such 
special treatment to only those costs that caused the need for the special 
treatment, that is the volatile, unpredictable costs. But in this case, the 
commission is persuaded that such a limitation would have unintended, 
detrimental side-effects. It appears that such a limitation on costs that can be 
included in eligible fuel could distort the decision making process in regard to 
fuel decisions and this could be detrimental to the ratepayers. The commission 
is confident that only those costs that are reasonable will be paid by the 
ratepayer whether the costs are included in base-rates or in the fuel factor. 
Fuel costs are afforded special treatment, but the special treatment may be as 
advantageous to the ratepayer as it is to the utility. In fact, as suggested by 
CSW and TU Electric, the commission may have more control over the 
reasonableness of the utility's expense if the cost is subject to 
reconciliation. 
 As for TIEC's comment that it is illogical to exclude generating site storage 
of fuel and include off-site storage and that the utilities may abuse the 
process by manipulating their fuel storage practices, the commission disagrees. 
There is a logical reason why on-site storage should be excluded while off-site 
should be included. The off-site/on-site distinction is an easy way to recognize 
a more important underlying distinction. The commission is not really concerned 
whether storage is on or off site; rather the commission wants to avoid 
regulations that distort buying decisions. There are two characteristics of 
natural gas storage that makes it possible for a regulation that requires base-
rate treatment to distort decision making: Natural gas storage facilities are a 
scarce resource; Natural gas storage is a service that has traditionally been 
offered by third parties. Thus, a utility could be faced with the decision of 
buying storage service from a third party or obtaining one of the few storage 
facilities available. The commission does not want to distort that decision. It 
is unlikely that a utility would be in the same dilemma with regard to coal, 
lignite, or fuel oil. By coincidence, natural gas is almost always stored off-
site while other fuels are almost always stored on-site. Thus, the distinction 
is logical. In regard to TIEC's contention that the utilities may manipulate 
their fuel storage practices, the commission believes that such actions would be 
readily apparent and could be addressed should they occur. The commission also 
notes that even if they did, the ratepayer would still only pay the reasonable 
cost of the storage. 
 As for TIEC's statement that the definition does not have an underlying policy, 
the commission submits that the underlying policy has been set out in the 
previous paragraphs. The bottom line is that all fuel and fuel-related costs 
except for those expressly excluded should be included in the definition of 
eligible fuel; except for this amendment's inclusion of wheeling revenues in 
eligible fuel, the commission agrees with the comments that this amendment does 
not modify the existing practice. It is unnecessary for the rule to explicitly 
contain such statements. 
 Other comments on the definition of eligible fuel focused on particular 
elements of the definition. 
 TIEC commented that the definition of eligible fuel includes non-fuel costs 
because FERC accounts 503, 536, and 565 include non-fuel costs. TIEC noted that 
Account 503, Steam from Other Sources, may include non-fuel costs such as the 
utility return, non-fuel O&M, depreciation costs, and taxes when the steam is 
produced by another department of the utility or pursuant to a joint operating 
agreement. TIEC suggested that at a minimum, it is only fair to include revenue 
from steam sales. 
 The commission does not believe that Account 503 expenses should include steam 
provided by another department or by a joint operating agreement to the extent 
those expenses for steam include utility return, non-fuel O&M, depreciation 
costs, and taxes. The language of the rule has been modified to exclude these 
components from Account 503 expenses. The commission also agrees that revenue 
from steam sales should be included in eligible fuel and the proposal has been 
changed to recognize this. 
 In regard to Account 536, Water for Power, TIEC commented that the account 
includes such things as license and permit fees, and periodic payments for 
riparian rights or headwater benefits. TIEC maintains that these expenses are 
stable and should be placed in base rates. 
 As discussed above, the commission is not concerned about the volatility of the 
expense. Therefore, no change has been made to this part of the rule. 
 In regard to Account 565, Transmission of Electricity by Others, TIEC commented 
that firm wheeling costs are not subject to wide and sudden fluctuations and 
consequently, these costs should be base-rated. TIEC argued that at a minimum 
fairness required that revenues from wheeling, which are likely recorded in 
Account 456, be used as an offset. 
 As mentioned previsously, the commission is not concerned about the volatility 
of the expense. The commission does agree that revenue from wheeling should be 
included, and this change has been made. 
 OPC commented that the proposal's definition of eligible fuel is nearly 
verbatim to that offered by OPC except for three material differences. OPC 
objected to each of the three differences. OPC commented that off-site fuel 
storage should be a base-rate item and that it was inappropriate to include it 
in eligible fuel because it is not subject to rapid and wide variation in cost. 
OPC likened a natural gas storage facility to that of a warehouse. OPC commented 
that, contrary to their proposal, the commission proposal allows unloading and 
fuel handling costs at storage facilities to be included in eligible fuel 
expenses. OPC commented that such expenses should not be included for the same 
reason that the storage facility should not be included. OPC objected to the 
inclusion of wheeling costs, stating that such costs are demand related and 
should be included in base rates. OPC suggested rule language that addressed 
their concerns. 
 CU commented that there were three significant differences between the 
commission's proposal and that offered by consumer groups, those differences 
being that the commission's proposal allowed the inclusion of fuel storage 
facilities, fuel handling at fuel storage facilities, and wheeling costs. CU 
recommended that all three of the costs be excluded from eligible fuel. CU 
commented that the reason that fuel costs are treated separately is that they 
can be subject to rapid changes over short periods of time, and thus, only costs 
that are subject to such swings should be included in eligible fuel. CU stated 
that fuel storage facilities and the fuel handling expenses at the facilities 
are not subject to such swings. CU commented that wheeling costs are demand 
related and are not volatile. 
 In contrast to the position of OPC and CU, two commenters made specific 
comments supporting the inclusion of off-site storage expenses. CSW commented in 
support of the allowance of off-site storage as an eligible fuel cost and stated 
that with the changes in the natural gas industry, particularly the unbundling 
of services, a utility has even a greater incentive to invest in off-site 
storage. HL&P commented that sec.23.23(b)(2)(B)(ii) should be modified by adding 
the words "including off-site fuel storage costs" in order to eliminate any 
doubt that such costs are eligible fuel expenses. 
 The commission rejects the recommendations of OPC and CU that off-site storage 
related costs and wheeling expenses should be excluded. The basis for OPC's and 
CU's argument that these items should be excluded is a distinction between 
volatile and non-volatile costs. As discussed above, the commission does not 
believe a definition based on this distinction is appropriate. Consequently, 
OPC's and CU's recommendations in regard to these costs are not adopted. The 
commission also rejects as unnecessary HL&P's suggestion to add an explicit 
reference to off-site fuel storage. The intent to include such costs in eligible 
fuel has clearly being stated in this summary. 
 LCRA noted the contrast between the position of OPUC, which is that the 
proposal allows only variable costs to be included in the fuel factor, and that 
of the General Counsel, which is that the proposal makes no distinction between 
fixed and variable costs. LCRA suggested that sec.23.23(b)(2)(B) be amended to 
delete the reference to the "delivered cost of fuel" because the phrase creates 
the potential for disagreement over what should be included in fuel costs. 
 The commission disagrees. The commission interprets OPC's discussion of 
volatility to solely be the basis for the exclusion of the three items that OPC 
recommends be excluded and not to be a statement of overall philosophy 
concerning the intention behind the definition. Furthermore, the commission 
believes the discussion in the previous paragraphs reduces the potential for 
disagreement. 
 Brazos noted that the definition of eligible fuel expenses includes costs which 
are not fuel, to wit, hydro power, purchased power, etc.. The accounts listed in 
the definition are all fuel or fuel related accounts properly treated as fuel. 
As for purchased power, the commission recognizes it is not fuel, but under  
sec.43(g) of the Public Utility Regulatory Act, Texas Civil Statutes (Supplement 
1992) the commission is given discretion on how it allows the recovery of 
purchased power expense. Because of its inverse relationship to the fuel costs 
of the utility, the commission believes it is appropriate to include the expense 
as "eligible fuel". 
 TU Electric commented that reservation fees for purchased power should not be 
excluded. TU Electric maintained that this exclusion was the only deviation from 
current practice and that there was no logical reason to exclude them. It was 
suggested that they are similar to fees paid in regard to natural gas or coal 
contracts that are allowed to be included in the fuel factor. The commission 
desires to maintain current practice, so this change has been made. 
 EPEC commented that the commission should, in defining eligible fuel expense, 
include all subsequent amendments to the FERC chart of Accounts and not limit 
the definition to the accounts as of September 30, 1992. 
 The commission disagrees. The commission believes that the better approach is 
for this commission to first consider the amendments to the FERC Chart of 
Accounts before the changes are adopted by this commission rather than give 
blanket approval to any amendments. 
 EPEC commented that revenue related fuel taxes should be included as an 
eligible fuel cost because it is inherently a fuel related cost. EPEC further 
noted that such change should coincide with a change in base rates. Although the 
commission recognizes that revenue related taxes vary with fuel costs, the 
commission believes that they are distinct from fuel costs. Such taxes have not 
previously been considered a fuel cost by this commission. The commission 
declines at this time to include revenue related taxes related to fuel as an 
eligible fuel expense. 
 EPEC commented that economy energy sales should be considered as a fuel cost 
subject to reconciliation, but should not be considered in the setting of the 
fuel factor because they are so hard to predict. TIEC commented that the 
proposal does not address the treatment of off-system sales expenses and 
revenues. TIEC suggested that the proposal be amended to recognize such sales 
and use all margins and adders as an offset. TIEC also suggested that the 
expenses, margins and adders related to non-firm retail electric sales should be 
removed from the eligible fuel expenses that are to be recovered from the firm 
customers. 
 The commission agrees that off-system sales should be included as an eligible 
fuel expense. The commission disagrees with EPEC that they should not be 
included in setting the fuel factor. A reasonable estimation should be included 
in the setting of the factor. Of course, a reasonable estimation may be "zero" 
given the particular circumstances at hand. The proposal has been amended to 
recognize off-system sales. Because the commission has in the past split margins 
or adders between the customer and the utility, the change to the proposal has 
been drafted to recognize past rulings. 
 EPEC urged the commission to consider whether the exclusion of equity return to 
an affiliate was counter to the direction federal regulators were taking in 
separating the generation function and promoting independent generators. 
 Because a utility may request base-rate treatment of equity return to an 
affiliate, the commission does not believe that the proposal is counter to the 
direction of federal regulators. 
 EPEC commented that there is no apparent rationale for the exclusion of 
brokerage fees from fuel costs. EPEC was the only party that made this comment. 
The commission notes that brokerage fees are distinct from the underlying fuel 
costs and have not previously been included in fuel. Thus, they should be 
considered a base-rate expense. 
 EPEC commented that the exclusion of purchase power demand and capacity costs 
may act as an incentive for utilities to build to meet their capacity needs as 
opposed to purchasing power. The commission disagrees. Regulatory lag exists in 
both avenues for meeting capacity needs. 
 SPS commented that purchased power demand charges should not be excluded from 
eligible fuel expenses, because the exclusion creates a disincentive to engage 
in advantageous purchased power contracts. SPS suggested that sec.23. 
23(b)(2)(B)(iv) be amended to allow the recovery of demand or capacity costs and 
reservation fees upon a good cause showing on the basis of short-term economy 
considerations. The commission declines at this time to adopt this 
recommendation. If a utility needs more capacity, it has to either purchase it 
or build it. Given that both avenues require base rate treatment, there should 
not be a disincentive to purchasing the capacity. Therefore, it is unnecessary 
to make the change proposed by SPS. 
 LCRA noted that under Account 501 of the FERC Chart of Accounts, utilities are 
required to book revenues associated with the disposal of fuel residuals, but 
may not book expenses associated with the disposal of residuals. LCRA suggested 
that the proposal should be amended to either exclude the revenues or allow the 
costs to be recorded. The commission agrees; the proposal has been amended to 
exclude revenues from the disposal of residuals. 
 Several commenters offered comments on the "special circumstance" exception to 
the definition of eligible fuel. Some opposed the exception while others 
supported it. 
 OPC recommended deletion of the "special circumstances" exception in sec.23. 
23(b)(2)(B)(v). OPC commented that the new definition of eligible fuel will not 
reduce litigation as long as there is a "special circumstances" exception. OPC 
suggested that if the commission wanted to reduce litigation, it should not 
allow exceptions to the definition. However, OPC commented that if the 
commission desires to have an exception, the proposed language is the language 
that should be adopted. 
 NTEC expressed concern about the "special circumstances" exception to the 
proposal and posed questions regarding the meaning of the terms "costs" and 
"benefits" referenced in the rule, to be used to determine whether special 
circumstances exist. NTEC commented that the "amorphous language" of this part 
of the rule could be abused and turn into a "catch-all". 
 CU agreed with the comments of OPC and NTEC regarding the special circumstances 
clause of the proposal. 
 TIEC commented that the special circumstances exception is too lenient at best 
and is probably not needed. TIEC commented that the utility is tasked to pursue 
cost savings irrespective of whether the utility receives immediate recovery. 
TIEC commented that the exception could swallow the rule or lead to increased 
litigation. TIEC suggested that if the special circumstances exception remains 
it should be tightened by requiring the utility to demonstrate the cost is fuel 
related, is not being recovered through base rates, is beyond the utility's 
control, and that the utility's financial integrity will be threatened if it is 
not allowed to recover the otherwise ineligible expense. Further, TIEC suggested 
that the special circumstance exception apply only until the utility files its 
next rate case. 
 CSW "firmly" supported the "special circumstances" exception to the rule. CSW 
commented that the inclusion of the clause was good regulatory policy because it 
gives the commission flexibility to respond to changing circumstance and 
eliminate regulatory disincentives to economically sound decisions. CSW noted 
the drastic changes that have occurred in the natural gas market as an example 
of changing circumstances that call for flexibility in the commission's rules. 
CSW commented that the "special circumstances" provision would give utilities a 
reasonable opportunity to recover investments that are made in ventures that 
would benefit the ratepayers. CSW also noted that ratepayers will receive the 
benefits of the investment in such ventures immediately. 
 CSW opposed the additional standards proposed by TIEC for the "special 
circumstances" exemption. CSW maintained that TIEC's proposed standards would 
render the exemption meaningless because a utility would be unlikely to ever 
meet the standard. CSW commented that TIEC's proposals were motivated by a 
desire to shift costs from TIECs clients to other ratepayer classes. 
 LCRA recommended rejection of TIEC's proposal to limit the special 
circumstances exception of the rule. In particular, LCRA noted that if a utility 
had to show it would not earn its authorized rate of return without the 
exception, utilities would be forced to present a case comparable to a base rate 
filing. Instead, LCRA urged the commission to expand the special circumstances 
exception of the rule to allow the recovery of any reasonable and prudent 
expense made for the purpose of substantially lowering fuel costs. 
 The commission is persuaded that the published language should be adopted. It 
presents an appropriate balance between the need for flexibility to meet 
unexpected circumstances with the need for certainty in order to reduce disputes 
and litigation. TIEC's proposed additions largely remove the availability of the 
clause, which the commission believes should remain. 
 EPEC supported the idea of allowing utilities the opportunity to change the 
fuel factor as often as once every six months, but objected to restricting the 
opportunity to a one day window. EPEC suggested that the window should be two 
weeks long, extending from one week before to one week after the first day of 
the scheduled month. The commission agrees that the window should be larger, but 
not as large as suggested by EPEC. The language has been changed to allow filing 
within the first five business days of the designated month. 
 OPC commented that the commission should be aware that it will be several years 
before the new definition of eligible fuel is applied in a reconciliation 
proceeding. 
 OPC commented that the commission should explain that it is not changing the 
standard for the allowance of expenses in a reconciliation proceeding. CU agreed 
with OPC's comments on this matter. The commission agrees. As noted by OPC the 
new language is intended to codify the existing practice rather than be a 
lessening of the existing standard. The new language, which tracks statutory 
language in requiring an expense to be "reasonable and necessary", is not 
intended to be a substantive change from the current practice. 
 Brazos commented that the proposal will result in significant cost increases 
but that many of the more onerous provisions of previous proposals have been 
ameliorated. 
 Brazos requested clarification of what would need to be shown to make refunds 
on a basis other than lump sum payments. Brazos expressed concern over widely 
varying power costs, which presumably could be caused by lump sum refunds. The 
commission does not believe additional clarification is needed. The language 
being adopted is the same as exists in the current rule so the commission has 
had several years of experience with it. 
 GSU commented that the applicability of the definition portion of the proposal 
should be limited to cases filed after the effective date of the proposal. To 
that end, GSU recommended language changes to sec.23.23(b)(6). The commission 
agrees with this recommendation. 
 NTEC commented that the proposal does not recognize the "unique circumstances" 
faced by generation and transmission cooperatives (G&Ts) and that G&Ts that are 
non-operating minority-owners should be exempt for the requirement that a fuel 
reconciliation be performed at least as often as once every three years. The 
commission disagrees. Although, G&T's are in somewhat different circumstances, 
those circumstances should make it easier to reconcile costs. The commission 
believes that reconciliations should be performed on a regular basis, and NTEC 
has not presented a sufficient reason to deviate from that goal. 
 HL&P commented that sec.23.23(b)(2)(A)(ii)(III) should be amended to allow a 
utility to change its fuel factor in a fuel reconciliation case. The commission 
disagrees. With the opportunity to change the factor once every six months, it 
is unnecessary to make this change. In addition, the commission notes that this 
part of the proposal was the result of extensive discussions. 
 HL&P commented that the filing requirements for a reconciliation proceeding 
should be clarified by changing the requirement, found in sec.23.23(b)(3)(A), 
that utilities file "all fuel related schedules from the commission's rate 
filing package" to "all fuel reconciliation related schedules from the 
commission's rate filing package". The commission disagrees and believes all the 
fuel schedules should be submitted. 
 TU Electric commented that there was an extraneous "to" in sec.23.23(b)(2)(c) 
(ii)(III). It has been removed. 
 TU Electric commented that the words "and surcharges" should be added after the 
word "refund" in sec.23.23(b)(3)(C) because the subparagraph is applicable to 
both refunds and surcharges. The commission agrees, and the change has been 
made. 
 SPS commented that the proposal should provide for a waiver provision which 
would allow a waiver of any provision of the rule upon a showing of good cause. 
The commission disagrees. Section 23.2 already provides for a good cause 
exception to the commission rules. 
 EPEC commented that a utility should be allowed to include any over or under-
collections that were less than the materiality limit in the calculation of a 
fuel factor. The commission disagrees. The commission prefers to maintain the 
current mechanism for refunds and surcharges rather than spreading them out over 
a much longer period of time. 
 EPEC requested clarification of whether the interest rate for under or over 
collections would supersede previous commission orders that set interest rates 
such as the order that set the rate for EPEC performance standards. The 
commission believes that this will have to be determined on a case by case basis 
given the specific circumstances of each case and the language in each order. 
 HL&P commented that the proposal continues the current practice of not allowing 
investor owned, generating utilities to use a purchased cost recovery factor 
(PCRF) for inter-utility purchases and that this provides an advantage to 
cogenerators. This comment relates to a part of the commission's rule that is 
not subject to this rulemaking proceeding. 
 LCRA commented that sec.23.23(b)(2)(B) should be amended to allow river 
authorities to recover debt service coverage attributable to depreciation 
expense through the fuel factor. LCRA noted that river authorities do not 
separately identify depreciation expense for purposes of setting rates but 
instead recover the expense through debt service coverage. The commission agrees 
that LCRA should be able to recover through its fuel factor the same type 
expenses that an investor-owned utility can; however, the commission believes 
that LCRA can record operation expense into the specified FERC accounts for 
purposes of setting rates. LCRA includes a depreciation expense, with an 
offsetting adjustment being made to debt service coverage, for purposes of 
setting base-rates. There is no reason that the same could not be done for 
purposes of setting the fuel factors. 
 Finally, sec.23.23(b)(6) has been changed in recognition that these amendments 
are being made in 1993. 
 The amendments are adopted under Texas Civil Statutes, Article 1446d, 
sec.16(a), which provides the Public Utility Commission of Texas with the 
authority to make and enforce the rules reasonable required in the exercise of 
its powers and jurisdiction. 
 
 
  sec.23.23. Rate Design. 
 
  (a) Guidelines for certifying long-term fuel contracts. The commission will 
certify long-term fuel contracts in accordance with the guidelines in this 
subsection for determining the reasonableness of the terms and conditions of 
such contracts. This subsection does not require long-term fuel contracts to be 
submitted for certification, and no adverse inference will result from a 
utility's decision not to seek certification. 
 
  (1)-(5) (No change.) 
   
  (6) Certification. After considering the factors set forth in paragraph (3) of 
this subsection, the commission shall certify a long-term fuel contract if it 
determines that the terms and conditions of the contract are reasonable as a 
whole; otherwise, the commission shall deny certification. 
   
  (7) (No change.) 
     
  (b)  Recovery of fuel and purchased-power costs. 
 
  (1) Purpose. The Commission will set an electric utility's rates at a level 
that will permit the utility a reasonable opportunity to earn a reasonable 
return on its invested capital and to recover its reasonable and necessary 
expenses, including the cost of fuel and purchased power. The Commission 
recognizes in this connection that it is in the interests of both utilities and 
their ratepayers to adjust customer charges in a timely manner to account for 
changes in certain fuel and purchased-power costs. Pursuant to the Public 
Utility Regulatory Act, (the Act) sec.43(g)(2), this subsection establishes a 
procedure for setting and revising fuel factors and purchased-power cost 
recovery factors and a procedure for regularly reviewing the reasonableness of 
the fuel expenses recovered through fuel factors. 
   
  (2) Fuel factors. 
 
  (A) Use and calculation of fuel factors. A utility's fuel costs will be 
recovered from the utility's customers by the use of a fuel factor that will be 
charged for each kwh consumed by the customer. 
 
  (i) Fuel factors are determined by dividing the utility's projected net 
eligible fuel expenses, as defined in subparagraph B of this paragraph, by the 
corresponding projected kilowatt-hour sales for the period in which the fuel 
factors are expected to be in effect. Fuel factors must account for system 
losses and for the difference in line losses corresponding to the type of 
voltage at which the electric service is provided. A utility may have different 
fuel factors for different times of the year to account for seasonal variations. 
A different method of calculation may be allowed upon a showing of good cause by 
the utility. 
   
  (ii) A utility may initiate a change to its fuel factor as follows. 
 
  (I) A utility may petition to adjust its fuel factor as often as once every 
six months according to the schedule set out in subparagraph (E) of this 
paragraph. 
   
  (II) A utility may petition to change its fuel factor at times other than 
provided in the schedule if an emergency exists as described in subparagraph (G) 
of this paragraph. 
   
  (III) A utility's fuel factor may be changed in any general rate proceeding. 
     
  (iii) Fuel factors are in the nature of temporary rates, and the utility's 
collection of revenues by fuel factors is subject to the following adjustments. 
 
  (I) The reasonableness of the fuel costs that a utility has incurred will be 
periodically reviewed in a reconciliation proceeding, as described in paragraph 
(3) of this subsection, and any unreasonable costs incurred will be refunded to 
the utility's customers. 
   
  (II) To the extent that there are variations between the fuel costs incurred 
and the revenues collected, it may be necessary or convenient to refund 
overcollections or surcharge undercollections. Refunds or surcharges may be made 
without changing a utility's fuel factor, but requests by the utility to make 
refunds or surcharges may only be made at the times allowed by this paragraph. A 
utility may petition to make refunds or surcharges at the specified times that 
these rules allow a utility to change its fuel factor irrespective of whether 
the utility actually petitions to change its fuel factor at that time. A utility 
shall petition for a surcharge at the next date allowed for setting a fuel 
factor by the schedule set out in subparagraph (E) of this paragraph when it has 
materially undercollected its fuel costs and projects that it will continue to 
be in a state of material undercollection. A utility shall petition to make a 
refund at any time that it has materially overcollected its fuel costs and 
projects that it will continue to be in a state of material overcollection. 
Materially or material as used in this paragraph shall mean that the cumulative 
amount of over- or under-recovery, including interest, is 4.0% of the annual 
estimated fuel cost figure most recently adopted by the commission, as shown by 
the utility's fuel filings with the commission. 
       
  (B) Eligible fuel expenses. Eligible fuel expenses include expenses properly 
recorded in the Federal Energy Regulatory Commission Uniform System of Accounts, 
Numbers 501, 503, 518, 536, 547, 555, and 565, as modified in this subparagraph, 
as of September 30, 1992, and the items specified in clause (vi) of this 
subparagraph. Any later amendments to the System of Accounts are not 
incorporated into this subparagraph. Subject to the Commission finding special 
circumstances under clause (v), eligible fuel expenses are limited to. 
 
  (i) For any account, the utility may not recover, as part of eligible fuel 
expense, costs incurred after fuel is delivered to the generating plant site, 
for example, but not limited to, operation and maintenance expenses at 
generating plants, costs of maintaining and storing inventories of fuel at the 
generating plant site, unloading and fuel handling costs at the generating 
plant, and expenses associated with the disposal of fuel combustion residuals. 
Further, the utility may not recover maintenance expenses and taxes on rail cars 
owned or leased by the utility, regardless of whether the expenses and taxes are 
incurred or charged before or after the fuel is delivered to the generating 
plant site. The utility may not recover an equity return or profit for an 
affiliate of the utility, regardless of whether the affiliate incurs or charges 
the equity return or profit before or after the fuel is delivered to the 
generating plant site. In addition, all affiliate payments must satisfy the Act, 
sec.41(c)(1). 
   
  (ii) For Account Numbers 501 and 547, the only eligible fuel expenses are the 
delivered cost of fuel to the generating plant site excluding fuel brokerage 
fees. For account 501 revenues associated with the disposal of fuel combustion 
residuals will also be excluded. 
   
  (iii) For Account Numbers 518 and 536, the only eligible fuel expenses are the 
expenses properly recorded in the Account excluding brokerage fees. For Account 
Number 503, the only eligible fuel expenses are the expenses properly recorded 
in the Account excluding brokerage fees, return, non-fuel operation and 
maintenance expenses, depreciation costs and taxes. 
   
  (iv) For Account 555, the utility may not recover demand or capacity costs. 
   
  (v) Upon demonstration that such treatment is justified by special 
circumstances, a utility may recover as eligible fuel expenses fuel or fuel 
related expenses otherwise excluded in clauses (i)-(iv) of this subparagraph. In 
determining whether special circumstances exists, the Commission shall consider, 
in addition to other factors developed in the record of the reconciliation 
proceeding, whether the fuel expense or transaction giving rise to the 
ineligible fuel expense resulted in, or is reasonably expected to result in, 
increased reliability of supply or lower fuel expenses than would otherwise be 
the case, and that such benefits received or expected to be received by 
ratepayers exceed the costs that ratepayers otherwise would have paid or 
otherwise would reasonably expect to pay. 
   
  (vi) In addition to the expenses designated above, unless otherwise specified 
by the commission, eligible fuel expenses shall include: 
 
  (I) revenues from steam sales included in Accounts 504 and 456 to the extent 
expenses incurred to produce that steam are included in Account 503; and 
   
  (II) revenues from wheeling transactions; and 
   
  (III) revenues from off system sales in their entirety. 
       
  (C) Petitions to revise fuel factors. On the first business day of the months 
specified in subparagraph (E) of this paragraph, each utility using one or more 
fuel factors may file a petition requesting revised fuel factors. A copy of the 
filing shall also be delivered to the General Counsel and the Office of Public 
Utility Counsel. Each petition must be accompanied by supporting testimony that 
includes the following information: 
 
  (i) for each month of the period in which the fuel-factor has been in effect 
up to the most recent month for which information is available: 
 
  (I) eligible fuel expenses incurred, listed by the types of fuel used; 
   
  (II) purchased power and energy delivered to the utility, listed by source and 
showing the demand component and energy and/or fuel-expense component associated 
with the purchases; 
   
  (III) kilowatt-hour sales to system utility customer classes; 
   
  (IV) generation by plant, and if available, by unit; 
   
  (V) off-system kilowatt-hour sales, and associated fuel costs and revenues; 
   
  (VI) the revenues collected pursuant to fuel factors by customer class; 
   
  (VII) any other items that to the knowledge of the utility have affected fuel 
factor revenues and eligible fuel expenses; and 
   
  (VIII) the difference, by customer class, between the revenues collected 
pursuant to fuel factors and the eligible fuel expenses incurred; 
     
  (ii) for each month of the period for which the revised fuel factors are 
expected to be in effect: 
 
  (I) estimated eligible fuel expenses, listed by the types of fuel expected to 
be used; 
   
  (II)  estimated purchased-power and energy deliveries, listed by source and 
showing the demand component and energy and/or fuel-expense component associated 
with the estimated purchases; 
   
  (III) estimated kilowatt-hour sales by customer class; 
   
  (IV) generation by plant, and if available, by unit; 
       
  (V) estimated off-system kilowatt-hour sales, and associated fuel costs and 
revenues; and 
 
  (VI) system energy input and sales, accompanied by the calculations underlying 
any differentiation of fuel factors to account for differences in line losses 
corresponding to the type of voltage at which the electric service is provided. 
     
  (D) Fuel factor revision proceeding. Burden of proof and scope of proceeding 
are as follows. 
 
  (i) In a proceeding to revise fuel factors, a utility has the burden of 
proving that: 
 
  (I) the expenses proposed to be recovered through the fuel factors are 
reasonable estimates of the utility's eligible fuel expenses during the period 
that the fuel factors are expected to be in effect; 
   
  (II) the utility's estimated monthly kilowatt-hour system sales and off-system 
sales are reasonable estimates for the period that the fuel factors are expected 
to be in effect; and 
   
  (III) the proposed fuel factors are reasonably differentiated to account for 
line losses corresponding to the type of voltage at which the electric service 
is provided. 
     
  (ii) The scope of a fuel factor revision proceeding is limited to the issue of 
whether the petitioning utility has appropriately calculated its estimated 
eligible fuel expenses and load. 
     
  (E) Schedule for filing petitions to revise fuel factors. A petition to revise 
fuel factors may be filed with any general rate proceeding. Otherwise, except as 
provided by subparagraph (G) of this paragraph which addresses emergencies, 
petitions by a utility to revise fuel factors may only be filed during the first 
five business days of the month in accordance with the following schedule: 
 
  (i)  January and July: El Paso Electric Company and Central Power and Light 
Company; 
   
  (ii) February and August: Texas Utilities Electric Company and Brazos Electric 
Power Cooperative, Inc.; 
   
  (iii) March and September: West Texas Utilities Company and Gulf States 
Utilities Company; 
   
  (iv) April and October: Houston Lighting & Power Company and Southwestern 
Electric Power Company; 
   
  (v) May and November: Southwestern Public Service Company and Lower Colorado 
River Authority; and 
   
  (vi) June and December: Texas-New Mexico Power Company, South Texas Electric 
Cooperative, Inc., San Miguel Electric Cooperative, Inc., and any other electric 
utility not named in this subparagraph that uses one or more fuel factors. 
     
  (F) Procedural schedule. Upon the filing of a petition to revise fuel factors 
in a separate proceeding, the presiding officer shall set a procedural schedule 
that will enable the Commission to issue a final order in the proceeding as 
follows: 
 
  (i) within 60 days after the petition was filed, if no hearing is requested 
within 30 days of the petition; and 
   
  (ii) within 90 days after the petition was filed, if a hearing is requested 
within 30 days of the petition. If a hearing is requested, the hearing will be 
held no earlier than the first business day after the 45th day after the 
application was filed. 
     
  (G) Emergency revisions to the fuel factor. If fuel curtailments, equipment 
failure, strikes, embargoes, sanctions, or other reasonably unforeseeable 
circumstances have resulted in a material under-recovery of eligible fuel costs, 
the utility may file a petition with the commission requesting an emergency 
interim fuel factor. Such emergency requests shall state the nature of the 
emergency, the magnitude of change in fuel costs resulting from the emergency 
circumstances, and other information required to support the emergency interim 
fuel factor. The commission shall issue an interim order within 30 days after 
such petition is filed to establish an interim emergency fuel factor. If within 
120 days after implementation, the emergency interim factor is found by the 
commission to have been excessive, the utility shall refund all excessive 
collections with interest calculated on the cumulative monthly ending under- or 
overrecovery balance in the manner and at the rate established by the commission 
for overbilling and underbilling in sec.23.45(g) of this title (relating to 
Billing). If, after full investigation, the commission determines that no 
emergency condition existed, a penalty of up to 10% of such over-collections may 
also be imposed on investor-owned utilities. 
     
  (3)  Reconciliation of fuel expenses. Utilities shall file petitions for 
reconciliation on a periodic basis so that any petition for reconciliation shall 
contain a maximum of three years and a minimum of one year of reconcilable data 
and will be filed no later than six months after the end of the period to be 
reconciled. However, notwithstanding the previous sentence, a reconciliation 
shall be requested in any general rate proceeding under the Act, sec.43 and may 
be performed in any general rate proceeding under the Act, sec.42. Upon motion 
and showing of good cause, a fuel reconciliation proceeding may be severed from 
or consolidated with other proceedings. 
 
  (A)  Petitions to reconcile fuel expenses. In addition to all fuel related 
schedules from the Commission's rate filing package required for general rate 
proceedings, a fuel reconciliation petition filed by a utility must be 
accompanied by supporting testimony that includes the following information: 
 
  (i) for the period being reconciled, historical data corresponding to the 
monthly data required to be included in petitions to revise fuel factors; 
   
  (ii) summaries of all contracts under which the utility or a fuel-supplying 
affiliate of the utility purchased fuel, power, and/or energy during the 
reconciliation period, the costs of which are includible in the utility's 
eligible fuel expenses. Each contract summary must include the following 
information: 
 
  (I) the name of the supplier, the contract number or other designation, and 
the type of fuel or purchased power involved; 
   
  (II) the date on which the contract was originally signed and the dates on 
which any amendments were signed; 
   
  (III) the date on which the fuel or purchased-power was first supplied 
pursuant to the contract; 
   
  (IV) the term of the contract; 
   
  (V) the pricing mechanism under the contract; 
   
  (VI) the provisions of any take-or-pay obligations under the contract; 
   
  (VII) the maximum amount of deliveries available under the contract; 
   
  (VIII) the terms of any economic-out provisions in the contract; 
   
  (IX) the delivery points under the contract; 
   
  (X) the provisions for transportation of the fuel or transmission of the 
purchased-power under the contract; and 
   
  (XI) the quality or measurement of the fuel or purchased-power under the 
contract; 
     
  (iii) the quantities purchased and the unit prices and total prices paid under 
any contract during the reconciliation period; 
   
  (iv) if the utility's eligible fuel expenses for the period included an item 
or class of items supplied by an affiliate of the utility, the prices charged by 
the supplying affiliate to the utility were reasonable and necessary and no 
higher than the prices charged by the supplying affiliate to its other 
affiliates or divisions or to unaffiliated persons or corporations for the same 
item or class of items; 
   
  (v) a summary description of all generating-unit outages and partial outages 
during the reconciliation period; the utility must make available information 
stating in detail the reason or cause for any outage, the beginning and ending 
time and date of the outage or partial outage, and the amount of capacity 
reduction during any partial outage; 
   
  (vi) a summary of significant, atypical events that occurred during the 
reconciliation period that constrained the economic dispatch of the utility's 
generating units, including but not limited to transmission line constraints, 
fuel use or deliverability constraints, unit operational constraints, and system 
reliability constraints; 
   
  (vii) a general description of typical constraints that limit the economic 
dispatch of the utility's generating units, including but not limited to 
transmission line constraints, fuel use or deliverability constraints, unit 
operational constraints, and system reliability constraints; and 
   
  (viii)  the reasonableness and necessity of the utility's eligible fuel 
expenses and its mix of fuel used during the reconciliation period. 
     
  (B)  Fuel reconciliation proceedings. Burden of proof and scope of proceeding 
are as follows. 
 
  (i) In a proceeding to reconcile fuel factor revenues and expenses, a utility 
has the burden of showing that: 
 
  (I)  its eligible fuel expenses during the reconciliation period were 
reasonable and necessary expenses incurred to provide reliable electric service; 
   
  (II) if its eligible fuel expenses for the reconciliation period included an 
item or class of items supplied by an affiliate of the utility, the prices 
charged by the supplying affiliate to the utility were reasonable and necessary 
and no higher than the prices charged by the supplying affiliate to its other 
affiliates or divisions or to unaffiliated persons or corporations for the same 
item or class of items; and 
   
  (III)  it has properly accounted for the amount of fuel-related revenues 
collected pursuant to the fuel factor during the reconciliation period. 
     
  (ii) The scope of a fuel reconciliation proceeding includes any issue related 
to determining the reasonableness of the utility's fuel expenses during the 
reconciliation period and whether the utility has over- or underrecovered its 
reasonable fuel expenses. The scope does not include those issues precluded by 
subsection (a)(7) of this section. 
     
  (C) Refunds. All refunds and surcharges shall be made using the following 
methods. 
 
  (i)  Interest will be calculated on the cumulative monthly ending under- or 
over-recovery balance in the manner and at the rate established by the 
Commission for overbilling and underbilling in sec.23.45(g) of this title. 
   
  (ii) Rate class as used in this subparagraph shall mean all customers taking 
service under the same tariffed rate schedule, or a group of seasonal 
agricultural customers as identified by the utility. 
   
  (iii)  Interclass allocations of refunds and surcharges, including associated 
interest, shall be developed on a month-by-month basis and shall be based on the 
historical kilowatt-hour usage of each rate class for each month during the 
period in which the cumulative under- or over-recovery occurred, adjusted for 
line losses using the same commission approved loss factors that were used in 
the utility's applicable fixed or interim fuel factor. 
   
  (iv)  Intraclass allocations of refunds and surcharges shall depend on the 
voltage level at which the customer receives service from the utility. Retail 
customers who receive service at transmission voltage levels, all wholesale 
customers, and any groups of seasonal agricultural customers as identified by 
the utility shall be given refunds or assessed surcharges based on their 
individual actual historical usage recorded during each month of the period in 
which the cumulative under- or over-recovery occurred, adjusted for line losses 
if necessary. All other customers shall be given refunds or assessed surcharges 
based on the historical kilowatt-hour usage of their rate class. 
   
  (v) Unless otherwise ordered by the Commission, all refunds and surcharges 
shall be made through a one-time bill credit or charge. However, refunds may be 
made by check to municipally-owned utility systems if so requested. Retail 
customers who receive service at transmission voltage levels, all wholesale 
customers, and any groups of seasonal agricultural customers as identified by 
the utility shall be given a lump sum credit or assessed a lump sum surcharge. 
All other customers shall be given a credit or assessed a surcharge based on a 
factor which will be applied to their kilowatt-hour usage over a one-month 
period. This factor will be determined by dividing the amount of refund or 
surcharge allocated to each rate class by forecasted kilowatt-hour usage for the 
class during the month in which the refund or surcharge will be made. 
     
  (D) Procedural schedule. Upon the filing of a petition to reconcile fuel 
expenses in a separate proceeding, the presiding officer shall set a procedural 
schedule that will enable the Commission to issue a final order in the 
proceeding within one year after a materially complete petition was filed. 
     
  (4) Notice of fuel proceedings. In addition to the notice required by APTRA to 
be given by the Commission, the utility is required to give notice of fuel 
proceeding at the time the petition is filed. 
 
  (A) Method of notice. Notice of fuel proceedings will be given by the utility 
as follows. 
 
  (i) Notice in all proceedings involving refunds, surcharges, or a proposal to 
change the fuel factor, shall be by one time publication in a newspaper having 
general circulation in each county of the service area of the utility or by 
individual notice to each customer; 
   
  (ii) Notice in all reconciliation proceedings shall be by publication once 
each week for two consecutive weeks in a newspaper having general circulation in 
each county of the service area of the utility and by individual notice to each 
customer. 
   
  (iii) Notice of proceedings solely involving the certification of long term 
fuel contracts is covered by subsection (a) of this section. 
     
  (B) Contents of notice. Notice whether by publication or by individual notice 
to each customer shall state the date the petition was filed and include a 
general description of the customers, customer classes, and territories affected 
by the petition; and the relief requested. Notices to revise fuel factors must 
also state the proposed fuel factors by type of voltage and the period for which 
the proposed fuel factors are expected to be in effect. Notices to revise fuel 
factors, to refund, or to surcharge must contain the statement that, "these 
changes will be subject to final review by the Commission in the utility's next 
reconciliation", unless, in the case of refunds or surcharges, the change is a 
result of a reconciliation proceeding. Notices to reconcile fuel expenses must 
also state the period for which final reconciliation is sought. In addition, all 
notices must state: "Persons who wish to intervene in the proceeding or comment 
upon the action sought should contact the Public Utility Commission of Texas, 
7800 Shoal Creek Boulevard, Austin, Texas 78757, or call the Commission's Public 
Information Office at (512) 458-0256 or (512) 458-0221 (telecommunications 
device for the deaf)". 
   
  (C) Proof of notice may be demonstrated by appropriate affidavit. In fuel 
proceedings initiated by a person other than a utility, the notice required in 
this paragraph must be provided in accordance with a schedule ordered by the 
presiding officer. 
     
  (5) Reports; confidentiality of information. Matters related to submitting 
reports and confidential information will be handled as follows. 
 
  (A) The Commission will monitor each utility's actual and projected fuel-
related costs and revenues on a monthly basis. Each utility shall maintain and 
provide to the Commission, in a format specified by the Commission, monthly 
reports containing all information required to monitor monthly fuel-related 
costs and revenues, including generation mix, fuel consumption, fuel costs, 
purchased power quantities and costs, and system and off-system sales revenues. 
   
  (B) Contracts for the purchase of fuel, fuel storage, fuel transportation, 
fuel processing, or power are discoverable in fuel proceedings, subject to 
appropriate confidentiality agreements or protective orders. 
   
  (C) The utility shall prepare a confidentiality disclosure agreement to be 
included as part of the fuel reconciliation petition. The format for the 
agreement shall be the same as that contained in the commission approved rate 
filing package. In addition to the agreement itself, Attachment 1 of the 
agreement shall present a complete listing of the information required to be 
filed which the utility alleges are confidential. Upon request and execution of 
the confidentiality agreement, the utility shall provide any information which 
it alleges is confidential. If the utility fails to file a confidentiality 
agreement, the deadline for a commission final order in the case is tolled until 
a protective order is entered or a confidentiality agreement is filed. Use of 
the confidentiality disclosure agreement does not constitute a finding that any 
information is proprietary and/or confidential under law, or alter the burden of 
proof on that issue. The form of agreement contained in the commission approved 
rate filing package does not bind the examiner or the commission to accept the 
language of the agreement in the consideration of any subsequent protective 
order that may be entered. 
   
  (D)  A party that cannot view a confidential document without receiving 
advantage as a competitor or bidder may hire outside counsel and consultants to 
view the document subject to a protective order. 
     
  (6) Effective date of the January, 1993 amendments; transition period. The 
January, 1993 amendments to this subsection are effective May 1, 1993. However, 
with respect to individual utilities, all fuel-related revenues collected 
through a fuel factor in effect before the effective date of a fuel factor 
established under the 1992 amendments shall be reconciled under Commission rules 
and orders in effect before the effective date of the 1992 amendments. 
Notwithstanding paragraph (3) of this subsection, no utility shall be required 
to file a separate fuel reconciliation petition earlier than one year after the 
effective date of this subsection, and utilities for which fuel expenses have 
been reconciled for any of the 18 months preceding the effective date of this 
subsection shall not be required to file a separate fuel reconciliation petition 
earlier than two years after the effective date of this subsection. The 
definition of eligible fuel expense in this section shall apply except to the 
extent the definition is inconsistent with a commission order signed (before or 
after promulgation of this rule) in connection with a case filed before the 
effective date of this section, in which case such order shall apply to fuel 
expenses incurred until a final order is signed in the utility's first base rate 
case after the effective date of this section. 
   
  (7)  The provisions of this paragraph apply to all investor-owned electric 
distribution utilities, river authorities and cooperative-owned electric 
utilities. 
 
  (A) An electric utility which purchases electricity at wholesale pursuant to 
rate schedules approved, promulgated, or accepted by a federal or state 
authority, or from qualifying facilities may be allowed to include within its 
tariff a purchased power cost recovery factor (PCRF) clause which authorizes the 
utility to charge or credit its customer for the cost of power and energy 
purchased to the extent that such costs varies from the purchased power cost 
utilized to fix the base rates of the utility. Purchased electricity cost 
includes all amounts chargeable for electricity under the wholesale tariffs 
pursuant to which the electricity is purchased and amounts paid to qualifying 
facilities for the purchase of capacity and/or energy. The terms and conditions 
of such PCRF clause, which may include the method in which any refund or 
surcharge from the utility's wholesale supplier will be passed on to its 
customers, shall be approved by an order of the commission. 
   
  (B) Any difference between the actual costs to be covered through the PCRF and 
the actual PCRF revenues recovered shall be credited or charged to the utility's 
ratepayers in the second succeeding billing month unless otherwise approved by 
the commission. 
   
  (C) If the utility purchases power from an unregulated entity, such as a 
political subdivision of the State of Texas, the utility shall submit the 
purchased power contract to the commission for approval of the terms, conditions 
and price. If the commission issues an order approving the purchase, a PCRF may 
be applied to such purchases. 
   
  (D) If PCRF revenue collections exceed PCRF costs by 10% in any given month 
and the total PCRF revenues have exceeded total PCRF costs by 5.0% or more for 
the most recent 12-month period: 
 
  (i)  investor-owned electric distribution utilities shall be subject to a 10% 
penalty on excess collection; 
   
  (ii) cooperative-owned electric utilities shall report to the commission the 
justification for excess collection. 
     
  (E) The utility shall maintain and provide to the commission, monthly reports 
containing all information required to monitor the costs recovered through the 
PCRF clause. This information includes, but is not limited to, the total 
estimated PCRF cost for the month, the actual PCRF cost on a cumulative basis, 
total revenues resulting from the PCRF and the calculation of the PCRF. 
     
  (8) The provisions of this paragraph apply to all investor-owned generating 
electric utilities and river authorities. 
 
  (A) An electric utility which purchases electricity from qualifying facilities 
may be allowed to include within its tariff a PCRF clause which authorizes the 
utility to charge or credit its customers for the costs of capacity purchased 
from cogenerators and small power producers. These costs shall be included in 
the PCRF only to the extent that such costs vary from the costs utilized to fix 
the base rates of the utility and to the extent that they comply with 
sec.23.66(h) of this title (relating to Arrangements between Qualifying 
Facilities and Electric Utilities). The terms and conditions of such PCRF shall 
be approved by an order of the commission. 
   
  (B)  Purchased power costs that are recovered through the PCRF shall be 
excluded in calculating the utility's fixed fuel factor as defined in paragraph 
(2)(C) of this subsection. 
   
  (C) Costs recovered through a PCRF shall be allocated to the various rate 
classes in the same manner as the embedded costs of the utility's generation 
facilities allocated in the utility's last rate case, unless otherwise ordered 
by the commission. Once allocated, these costs shall be collected from 
ratepayers through a demand or energy charge. 
   
  (D) Any difference between the actual costs to be recovered through the PCRF 
and the PCRF revenues recovered shall be credited or charged to the customers in 
the second succeeding billing month. 
   
  (E)  If PCRF revenue collections exceed PCRF costs by 10% in any given month 
and the total PCRF revenues have exceeded total PCRF costs by 5.0% or more for 
the most recent 12-month period, the electric utility shall be subject to a 10% 
penalty on excess collections. 
   
  (F) The utility shall maintain and provide to the commission, monthly reports 
containing all information required to monitor costs recovered through the PCRF. 
This information includes, but is not limited to, total estimated PCRF cost for 
the month, the actual PCRF cost, total revenue resulting from the PCRF and the 
calculation of the PCRF clause. 
       
  (c)-(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 February 1, 1993. 
 TRD-9318403 
  John R. Renfrow 
 Secretary of the Commission 
 Public Utility Commission of Texas 
    Effective date: May 1, 1993 
 Proposal publication date: October 16, 1992 
 For further information, please call: (512) 458-0100 
         
                   
  TITLE 25. HEALTH SERVICES 
 Part I. Texas Department of Health 
  Chapter 169. Veterinary Public Health 
  
  Rabies Control and Eradication 
 
  25 TAC sec.sec.169.22-169.24, 169.26-169.31, 169. 33 
 
  The Texas Department of Health (department) adopts amendments to 
sec.sec.169.22-169.24, 169.26-169.31, and 169.33, concerning rabies control and 
eradication, without changes to the proposed text as published in the October 6, 
1992, issue of the Texas Register (17 TexReg 6873). The sections cover 
definitions, pre-exposure rabies immunization, facilities for the quarantining 
of animals, quarantine method and testing, public and private entities that 
operate a quarantine facility, vaccination requirement, and disposition of 
domestic animals exposed to rabies. 
 These amendments add coyotes to the list of high risk animals, clarify that a 
10-day observation period is applicable only to biting dogs and cats, require 
preexposure immunization of personnel at high risk from rabies, prescribe 
training standards for managers of animal quarantine facilities, prohibit rabies 
vaccination of animals during quarantine, require written standard operating 
procedures for quarantine facilities, clarify rabies vaccination certificate 
requirements, and delineate proper procedures for the management of domestic 
animals exposed to rabies. In addition, the department made several editorial 
changes for purposes of clarification. 
 No comments were received regarding adoption of the amendments. 
 The amendments are adopted under the Health and Safety Code, sec.826.011, which 
provides the Texas Board of Health with the authority to adopt rules concerning 
rabies control; and  sec.12.001, which provides the Texas Board of Health with 
the authority to adopt rules for the performance of every duty imposed by law on 
the Texas Board of Health, the Texas Department of Health, 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 February 1, 1993. 
 TRD-9318426 
  Robert A. MacLean, M.D. 
 Deputy Commissioner 
 Texas Department of Health 
    Efective date: February 22, 1993 
 Proposal publication date: October 6, 1992 
 For further information, please call: (512) 458-7255 
         
           Chapter 241. Shellfish Sanitation 
  
  Texas Crab Meat 
 
  25 TAC sec.sec.241.2, 241.4, 241.8-241.10, 241.13, 241.15, 241. 16, 241.19, 
241.21, 241.23, 241.25, 241.26, 241.29 
 
  The Texas Department of Health (department) adopts amendments to 
sec.sec.241.2, 241.4, 241.8-241.10, 241.13, 241.15, 241.16, 241.19, 241.21, 
241.23, 241.25, 241.26, and 241.29. Sections 241.8, 241.9, 241.10, 241.16, and 
241.29 are adopted with changes to the proposed text as published in the October 
2, 1992, issue of the Texas Register (17 TexReg 6734). Sections 241.2, 241.4, 
241.13, 241.15, 241.19, 241.21, 241.23, 241.25, and 241.26 are adopted without 
changes and will not be republished. 
 The amendments update and clarify the existing rules. The primary areas of 
clarification concern private water supplies and allowed other seafood 
processing. The Division of Water Hygiene, which assisted in regulating private 
water supplies, has been transferred to the Texas Water Commission causing the 
department to adopt rules to regulate crab meat processors who use private water 
supplies to their operations. These sections, as amended, contain the same 
language as previously used by the Division of Water Hygiene. Other seafood 
processing will be allowed, subject to the same sanitation requirements as 
processing crab meat, with additional sanitation of the processing areas between 
different seafoods. 
 The amended sections provide for continued uniform regulation of the crab meat 
industry consistent with public health and with current industry practices. The 
amended sections establish updated standards for the cooking of crabs and the 
picking, packing, pasteurizing, and distribution of crab meat. 
 A summary of comments and the agency's response, including reasons for 
agreement or disagreement are as follows. 
 COMMENT: Concerning sec.241.8(b), during department review, it was noted that 
an indicating thermometer should not be installed more than six feet off the 
floor, so it could be easily read. 
 RESPONSE: The department has changed the language accordingly. 
 COMMENT: Concerning sec.241.9(d), one commenter wanted a clarification of the 
term "flooding" to include "under normal conditions" or similar qualifier. 
 RESPONSE: The department agrees with the commenter and has changed this section 
to add the words "under normal conditions". 
 COMMENT: Concerning sec.241.9(j), during department review, it was determined 
that obtaining a sanitary control easement for existing wells would not be 
practical and therefore should only be required for wells completed after the 
effective date of these sections. 
 RESPONSE: The department added language to reflect that determination. 
 COMMENT: Concerning sec.241.9(o), one commenter questioned the need for 
intruder proof fences around private water wells since fencing would be 
expensive, a nuisance to deal with, and vandalism is not claimed as a problem. 
 RESPONSE: The department agrees with the comment and has changed this section 
to delete the requirement. 
 COMMENT: Concerning sec.241.9(r), one commenter wanted to know why the 
department cannot pick up water samples like they used to? Dealers have to pay 
approximately nine dollars per sample now. 
 RESPONSE: The department believes the industry should consider private water 
sample collection and analysis simply a cost of doing business. 
 COMMENT: Concerning sec.241.10(a), during department review, it was determined 
that under the present plumbing code, liquid discharge from sinks or lavatories 
directly on to the floor is not allowed as this would provide potential 
contamination of the product by splash from the discharge and foot traffic 
splash. 
 RESPONSE: Accordingly, the department has changed the language to comply with 
the code. 
 COMMENT: Concerning sec.241.10(d), during department review, it was noted that 
for clarity three-compartment sinks needed to be specifically required to have 
hot water provided to them, although this has been the accepted practice for 
years. 
 RESPONSE: Accordingly, the department has added clarifying language. 
 COMMENT: Concerning sec.241.29(c), one commenter wanted the training course 
requirement to contain a "grandfather" clause for people already in the 
industry, or that an equivalency for similar courses be allowed. 
 RESPONSE: The department rejects "grandfathering" and after consultation with 
the Division of Food and Drugs has changed this section accordingly. 
 In addition, minor changes were made throughout the rules for grammar or 
clarification. 
 All commenters were individuals who attended public hearings held to receive 
comments on the amendments. They were generally in favor of the changes but 
expressed concern as previously mentioned. 
 The amendments are adopted under the Texas Health and Safety Code, sec.436. 
045, which authorizes the Texas Board of Health to adopt rules concerning the 
regulation of Texas crab meat; and the sec.12.001, which provides the Texas 
Board of Health with the authority to adopt rules for the performance of every 
duty imposed by law on the Texas Board of Health, the Texas Department of 
Health, and the Commissioner of Health. 
 
 
  sec.241.8. Heating, Cooling, and Ventilation. 
 
  (a) (No change) 
   
  (b) Processors shall have their picking and packing areas cooled with 
mechanical refrigeration adequate to maintain the internal air temperature at 72 
degrees fahrenheit or less. Each processing room or area shall be equipped with 
an indicating thermometer installed to accurately measure, within three degrees, 
the temperature in the warmest location not to be more than six feet off the 
floor. 
 
     
  sec.241.9. Water Supply. 
 
  (a) Potable water shall be from a safe source, and protected from 
contamination, and the water supply system shall be constructed, maintained, and 
operated according to applicable state laws and this undesignated head. All 
water distribution systems shall be designed and constructed so as to provide a 
minimum residual pressure of 20 pounds per square inch under peak demand 
conditions. Under normal operating conditions, minimum pressures should not be 
less than 35 pounds per square inch in the distribution system. 
   
  (b)-(c) (No change.) 
   
  (d)  Water wells shall be so located that there will be no danger of pollution 
from flooding under normal conditions or from insanitary surroundings, such as, 
privies, sewage, sewage treatment plants, livestock and animal pens, solid waste 
disposal sites, or abandoned and improperly sealed wells. 
   
  (e)  Well sites shall not be within 50 feet of a tile or concrete sanitary 
sewer, septic tank, or storm sewer, or within 150 feet of a septic tank 
perforated drainfield, absorption bed, evapotranspiration bed or underground 
fuel storage tank. 
   
  (f) No well site shall be located within 500 feet of a sewage treatment plant 
or within 300 feet of a sewage wet well, sewage pumping station or a drainage 
ditch which contains industrial waste discharges or the wastes from sewage 
treatment systems. 
   
  (g) No water wells shall be located within 500 feet of animal feed lots, solid 
waste disposal sites or lands irrigated by sewerage plant effluent. 
   
  (h) Livestock shall not be allowed within 50 feet of water supply wells. 
   
  (i) Abandoned water wells in the area of a proposed source shall be plugged 
and sealed properly to prevent possible contamination of freshwater strata. 
   
  (j) A sanitary control easement covering that portion of the lands within 150 
feet of the well location shall be secured from all such property owners and 
recorded in the deed records at the county courthouse for all completed wells 
dug after the effective date of these sections. 
   
  (k) A concrete sealing block extending at least three feet from the well 
casing in all directions, with a minimum thickness of six inches and sloped to 
drain away at not less than 0.25 inches per foot shall be provided around the 
well head. 
   
  (l) Wellheads and pump bases shall be sealed by the use of gaskets or sealing 
compounds and, as applicable, properly vented to prevent the possibility of 
contamination of the well water. 
   
  (m) Upon completion of a new well, or after an existing well has been 
reworked, the well shall be disinfected and unused for at least six hours. After 
the water containing chlorine is completely flushed from the well, prior to 
placing the well in service, samples of water shall be collected and submitted 
for bacteriological analysis until three successive samples collected on 
separate days shall be free of coliform organisms. 
   
  (n) A suitable raw water sampling cock shall be provided on the discharge pipe 
of each well pump. 
   
  (o) Mechanical disinfection facilities capable of maintaining a free chlorine 
residual of 0.2-0.5 parts per millon shall be provided with the point of 
injection prior to the hydropneumatic pressure tank or shall be ahead of the 
water storage reservoir(s), if a storage reservoir is provided. A test kit must 
be provided and available for testing the chlorine residual of the potable 
water. 
   
  (p)  The use of disinfectants other than hypochlorination with mechanical 
injection shall be considered on a case-by-case basis. Hypochlorination solution 
containers and pumps shall be housed and locked to protect them from adverse 
weather conditions and vandalism. 
   
  (q) All hydropneumatic tanks shall be located wholly above grade and shall be 
of steel construction with welded seams. 
 
  (1) Metal thickness for hydropneumatic tanks shall be sufficient to provide at 
least a minimum of 1/8 inch corrosion allowance and to withstand the highest 
expected working pressures with a four to one factor of safety. 
   
  (2) All hydropneumatic tanks shall be provided with a pressure release device 
and an easily readable pressure gauge. 
   
  (3)  The tank size shall be large enough to maintain 35 pounds per square inch 
working pressure to the farthest end of the distribution system and large enough 
to provide adequate disinfection contact time as reflected by negative confluent 
and/or coliform monthly sample results. The tank size shall not be less than 82 
gallons. 
     
  (r) At least one sample of water taken from the distribution system shall be 
submitted to an approved laboratory each month for bacteriological analysis. Any 
coliform positive or confluent (TNTC) sample shall necessitate resampling the 
water within 24 hours of receiving the result. The Texas Department of Health's 
Division of Shellfish Sanitation Control (DSSC) shall be notified upon receipt 
of a coliform positive sample result. If the resample result is coliform 
positive, the DSSC shall be notified upon receipt of the result and the DSSC 
shall determine the appropriate steps for disinfection and/or resampling. 
 
     
  sec.241.10. Plumbing, Sewage, and Related Facilities. 
 
  (a)  Plumbing shall be installed in compliance with applicable state laws, and 
shall be of adequate size and design to: 
 
  (1)-(3) (No change.) 
   
  (4) provide adequate floor drainage in all areas; and 
   
  (5)  properly dispose of all sink and lavatory liquid by direct discharge into 
drainage outlets. Drainage outlets shall be constructed and maintained to 
prevent the possible entrance of insects and rodents. Floor drainage shall not 
be allowed to drain from the plant on top of the ground. 
     
  (b)-(c) (No change.) 
   
  (d) Hand washing lavatories and three-compartment sinks shall be provided with 
hot water of at least 100 degrees fahrenheit from either a controlled 
temperature source with a maximum temperature of 115 degrees fahrenheit, or from 
a hot and cold mixing or combination faucet. Steam water mixing valves or steam 
water combination faucets shall not be acceptable. 
   
  (e)-(h) (No change.) 
 
     
  sec.241.16. Packing of Crab Meat. 
 
  (a) The packing area shall be equipped with a counter of rigid construction, 
surfaced with corrosion resistant metal or other impervious material with no 
open seams. 
   
  (b)-(g)  (No change.) 
   
  (h) Repacking of crab meat shall not be allowed. 
   
  (i)-(j) (No change.) 
   
  (k) Pickers and other unauthorized persons shall not enter the packing area 
for any purpose. An exception may be made in a small operation where an employee 
may adequately work in both the packing and picking areas. In such cases, the 
employee shall put on a clean apron and shall wash his/her hands thoroughly, 
immediately upon entering the packing area. 
   
  (l)-(n) (No change.) 
 
     
  sec.241.29. Education and Training. 
 
  (a) (No change.) 
   
  (b)  Employees shall receive instruction and training in proper food handling 
and personal hygiene and sanitary practices from supervisory personal or from 
other sources acceptable to the Texas Department of Health's (TDH) Division of 
Shellfish Sanitation Control (DSSC). 
   
  (c) Crab meat plant owners and/or managers and supervisors shall be required 
to attend a Food Protection Management Program, obtain a certificate of 
completion, and provide a copy to the DSSC prior to obtaining a shellfish 
certificate of compliance. New supervisors shall be required to attend the 
course and obtain a certificate of completion before working as a supervisor in 
a plant and shall submit a copy of their certificate to the DSSC within two 
weeks of employment. Training shall be accomplished by means of a training 
program consisting of 15 classroom hours and said program shall be accredited by 
the TDH. Persons seeking certification may obtain said training from commercial 
or educational activities accredited by the TDH. Certification shall be 
accomplished after all course requirements have been met and the applicants have 
demonstrated by means of an examination that they possess the required essential 
knowledge as determined by the health authority. Certificates shall be valid 
only for a period of three years. Prior to expiration a person may attend a 
refresher course approved by the TDH and obtain a certificate of completion or 
obtain a passing score on a national examination for certification of food 
service managers that meets requirements of the U.S. Food and Drug 
Administration and the TDH. Copies of proof of either must be submitted to the 
DSSC prior to expiration. 
   
  (d) Unsanitary practices of employees shall be brought to the attention of the 
employees by their supervisor and the employees shall be instructed on the 
proper sanitary practice that is to be used. 
 
  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 1, 1993. 
 TRD-9318422 
  Robert A. MacLean, M.D. 
 Deputy Commissioner 
 Texas Department of Health 
    Efective date: February 22, 1993 
 Proposal publication date: October 2, 1992 
 For further information, please call: (512) 458-7510. 
               Chapter 277. Occupational Safety 
  
  Federal Laws and Regulations Covering Occupational Safety 
 
  25 TAC sec.277.1, sec.277.2 
 
  The Texas Department of Health (department) adopts the repeal of existing 
sec.277.1 and sec.277.2, concerning federal laws and regulations covering 
occupational safety, without changes to the proposed text as published in the 
October 9, 1992, issue of the Texas Register (17 TexReg 6997). 
 The programs covered by the laws and regulations have been transferred to the 
Texas Workers' Compensation Commission and are no longer being implemented by 
the department. Accordingly, the department is repealing the sections. 
 No comments were received regarding adoption of the repeals. 
 The repeals are adopted under the Health and Safety Code, sec.341.016, which 
provides the Board of Health with authority to adopt rules concerning 
occupational health; and sec.12.001, which provides the Board of Health with 
authority to adopt rules to implement 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 February 1, 1993. 
 TRD-9318421 
  Robert A. MacLean, M.D. 
 Deputy Commissioner 
 Texas Department of Health 
    Efective date: February 22, 1993 
 Proposal publication date: October 9, 1992 
 For further information, please call: (512) 834-6600 
         
           Chapter 289. Occupational Health and Radiation Control 
  
  Control of Radiation 
 
  The Texas Department of Health (department) adopts to repeal existing 
sec.sec.289.4, 289.21-289.31, 289.41-289.46, 289. 61-289.68, and 289.91-289.99, 
concerning occupational health, without changes to the proposed text as 
published in the October 9, 1992, issue of the Texas Register  (17 TexReg 6997). 
 Section 289.4 concerns threshold limit values of airborne contaminants; 
sec.sec.289.21-289.31 concern environmental standards in industrial 
establishments; sec.sec.289.41-289.46 concern industrial homework standards; 
sec.sec.289.61-289.68 concern standards for face and eye protection in public 
schools; and sec.sec.289.91-289.99 concern sanitation at temporary places of 
employment. All of the repealed sections have been transferred to Chapter 295 of 
this title as part of an overall restructuring and updating of the sections. The 
new sections in Chapter 295 replace the repealed sections being adopted in this 
issue of the Texas Register. 
 No comments were received regarding adoption of the repeals. 
   
  25 TAC sec.289.4 
 
  The repeal is being adopted under the Health and Safety Code, sec.341.016, 
which provides the Board of Health with authority to adopt rules concerning 
occupational health; and sec.12.001, which provides the Board of Health with 
authority to adopt rules to implement 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 February 1, 1993. 
 TRD-9318420 
  Robert A. MacLean, M.D. 
 Deputy Commissioner 
 Texas Department of Health 
    Efective date: February 22, 1993 
 Proposal publication date: October 9, 1992 
 For further information, please call: (512) 834-6600 
         
         
  Environmental Standards in Industrial Establishments 
 
  25 TAC sec.sec.289.21-289.31 
 
  The repeals are adopted under the Health and Safety Code, sec.341.016, which 
provides the Board of Health with authority to adopt rules concerning 
occupational health; and sec.12. 001, which provides the Board of Health with 
authority to adopt rules to implement 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 February 1, 1993. 
 TRD-9318419 
  Robert A. MacLean, M.D. 
 Deputy Commissioner 
 Texas Department of Health 
    Efective date: February 22, 1993 
 Proposal publication date: October 9, 1992 
 For further information, please call: (512) 834-6600 
         
         
  Industrial Homework Standards 
 
  25 TAC sec.sec.289.41-289.46 
 
  The repeals are being adopted under the Health and Safety Code, sec.341.016, 
which provides the Board of Health with authority to adopt rules concerning 
occupational health; and sec.12.001, which provides the Board of Health with 
authority to adopt rules to implement 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 February 1, 1993. 
 TRD-9318418 
  Robert A. MacLean, M.D. 
 Deputy Commissioner 
 Texas Department of Health 
    Efective date: February 22, 1993 
 Proposal publication date: October 9, 1992 
 For further information, please call: (512) 834-6600 
         
         
  Standards for Face and Eye Protection in Public Schools 
 
  25 TAC sec.sec.289.61-289.68 
 
  The repeals are being adopted under the Health and Safety Code, sec.341.016, 
which provides the Board of Health with authority to adopt rules concerning 
occupational health; and sec.12.001, which provides the Board of Health with 
authority to adopt rules to implement 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 February 1, 1993. 
 TRD-9318417 
  Robert A. MacLean, M.D. 
 Deputy Commissioner 
 Texas Department of Health 
    Efective date: February 22, 1993 
 Proposal publication date: October 9, 1992 
 For further information, please call: (512) 834-6600 
         
         
  Sanitation at Temporary Places of Employment 
 
  25 TAC sec.sec.289.91-289.99 
 
  The repeals are being adopted under the Health and Safety Code, sec.341.016, 
which provides the Board of Health with authority to adopt rules concerning 
occupational health; and sec.12.001, which provides the Board of Health with 
authority to adopt rules to implement 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 February 1, 1993. 
 TRD-9318416 
  Robert A. MacLean, M.D. 
 Deputy Commissioner 
 Texas Department of Health 
    Efective date: February 22, 1993 
 Proposal publication date: October 9, 1992 
 For further information, please call: (512) 834-6600 
         
           Chapter 295. Environmental Health 
  
  Occupational Health Rules and Guidelines 
 
  The Texas Department of Health (department) adopts new  sec.sec.295.101-
295.109, 295.121-295.126, 295.141-295.148, and 295.161-295. 169, concerning 
occupational health. Sections 295.101-295.105 and 195.107-295. 109 are adopted 
with changes to the proposed text as published in the October 9, 1992, issue of 
the Texas Register (17 TexReg 6997). The remaining sections are adopted without 
changes and will not be republished. 
 New sec.sec.295.101-295.109 concern occupational health rules and new 
guidelines; new sec.sec.295.121-295.126 concern industrial homework standards; 
new sec.sec.295.141-295.148 concern standards for face and eye protection in 
public schools; and new sec.sec.295.161-295.169 concern sanitation at temporary 
places of employment. The new sections replace existing sections in Chapter 289 
of this title which are being repealed in this issue of the Texas Register. 
Guidelines mean standards, limits, codes, practices, or procedures recommended 
by the Department for use by public entities; NOT enforceable by the Department 
as administrative rules. 
 The new sections, with a few exceptions, replace existing sections in Chapter 
289 which are being repealed in this issue of the Texas Register. The sections 
have been moved because the department wants to place them in a more appropriate 
chapter in the Texas Administrative Code, which is Chapter 295. The specific 
changes are as follows. 
 New sec.295.101 concerning threshold limit values of airborne contaminants is 
replacing existing sec.289.4 in Chapter 289, and new sec.295.106 concerning 
environmental standards in industrial establishments is replacing existing 
sec.sec.289.21-289.31 in Chapter 289; the new guidelines reference federal 
regulations containing the most current federal requirements in these areas. 
Guidelines mean standards, limits, codes, practices, or procedures recommended 
by the Department for use by public entities; NOT enforceable by the Department 
as administrative rules. 
 New sec.sec.295.102-295.105, and sec.sec.295.107-295.109, concerning exposure 
to toxic and hazardous substances, occupational noise exposure, respiratory 
protection, ventilation, access to employee exposure and medical records, 
medical services, and first aid do not replace any existing sections in Chapter 
289; instead, these sections are new guidelines which reference federal 
regulations containing the most current federal requirements in these areas. 
Guidelines mean standards, limits, codes, practices, or procedures recommended 
by the Department for use by public entities; NOT enforceable by the Department 
as administrative rules. 
 New sec.sec.295.121-295.126, concerning industrial homework standards replace 
existing sec.sec.289.41-289.46 of Chapter 289, and new sec.sec.295.141-295.148 
concerning standards for face and eye protection in public schools replace 
existing sec.sec.289.61-289.68 in Chapter 289. This is strictly a reorganization 
change, with the exception of new sec.295.146, in that existing sections have 
been moved to a new chapter; there is no change to the text of the other 
sections themselves. 
 New sec.sec.295.161-295.169, concerning sanitation at temporary places of 
employment replace existing sec.sec.289.91-289.99 in Chapter 289. This is a 
reorganization change and also a change in the text of the rules for updating 
and clarification purposes. 
 Comments on the proposed new sections and the department's responses are as 
follows. 
 COMMENT: Concerning sec.295.101(b), Threshold Limit Values of Airborne 
Contaminants, a commenter questioned the intent of the purpose statement which 
seems to imply that the values listed are only "recommended" values. 
 RESPONSE: The department agrees and has changed the statement to clarify the 
intent that levels adopted are exposure limits, not "recommended" values. 
 COMMENT: Concerning sec.295.101(e)(2), a commenter questioned why Appendices A 
and E are exempt from the explanation of threshold limit values. 
 RESPONSE: The concept of a threshold limit value attempts to afford workers a 
degree of protection from hazardous atmospheric concentrations by limiting the 
amount of exposure to an "at or below" concentration of the hazardous substance. 
Appendix A of sec.295.101 addresses substances that NO contact, by any route, 
should be permitted. The substances listed are considered to have a very high 
potential for carcinogenic activity. The description of what a threshold limit 
value is does not apply to this appendix. Appendix E addresses simple 
asphyxiants. The substances listed are not "toxic" to humans. The danger 
associated with these gases and vapors is that under certain circumstances, they 
may displace enough air within a given environment to cause the amount of 
available oxygen to drop below what is required to sustain life. Therefore, the 
critical concentration is oxygen, not the other gas or vapor. 
 COMMENT: A commenter questioned why no enforcement provisions are shown in any 
of the proposed rules. 
 RESPONSE: No specified enforcement provisions are necessary when proposing 
additional rules that eventually become a part of the body of existing rules; 
enforcement is under provisions of the Act, sec.sec.341.091-341.092, pertaining 
to penalties. More specifically, no provision was made in the Act, or in any of 
the proposed rules for administrative penalties. Therefore, no administrative 
penalties will be made. 
 COMMENT: A commenter suggested that certain provisions of the proposed rules 
and proposed guidelines will have no meaningful impact on occupational risks in 
public workplaces and should not be adopted for any purpose, as guidelines or 
otherwise. Provisions most strongly objected to include: recordkeeping, baseline 
determination, medical surveillance, and monitoring. 
 RESPONSE: One of the most difficult aspects of determining the status of an 
occupational environment is finding a starting point, or baseline. Whether the 
contaminant in question is noise, metal fumes, volatile organic compounds, or 
asbestos, questions of worker exposure hinge on whether the exposure occurs "on 
the job" or somewhere else. A conscientious and efficient occupational health 
program for employees establishes just what the workplace environment really is, 
tracks changes, and alerts the employer to the development of possibly hazardous 
situations. The department feels that the preceding elements of a comprehensive 
occupational health program, even modestly applied, would greatly benefit both 
the worker and the employer. Therefore, the department does feel that the 
existing occupational health rules of the State of Texas, and the proposed 
guidelines, which are current rules found in the Code of Federal Regulations, 
combine to provide both public employers and employees very useful information 
which is considered to be the best available and which is accepted as a 
"national standard." Therefore, the sections are adopted as proposed. 
 COMMENT: A commenter suggested that certain terms, such as "employee" and 
"workplace" should be defined for those federal regulations adopted as 
guidelines. 
 RESPONSE: The department agrees and has added definitions to the section 
pertaining to adoption of federal regulations as guidelines. (see sec.sec.295. 
102-295.105 and sec. sec.295.107-295.109). 
 The commenters are as follows: University of Texas System; Texas Municipal 
League; and the City of Houston. 
 The commenters were generally in favor of the proposed rules, however they 
offered comments and suggestions, and made recommendations as mentioned in the 
summary of comments. 
   
  25 TAC sec.sec.295.101-295.109 
 
  The new sections are adopted under the Health and Safety Code, sec.341.016, 
which provides the Board of Health with authority to adopt rules concerning 
occupational health; and sec.12.001, which provides the Board of Health with 
authority to adopt rules to implement every duty imposed by law on the board, 
the department, and the commissioner of health. 
 
 
  sec.295.101. Threshold Limit Values of Airborne Contaminants. 
 
  (a)  Scope. This section applies to public places of employment in Texas. 
   
  (b) Purpose. The purpose of this section is to establish maximum average 
atmospheric concentration of contaminates to which workers may be exposed during 
an eight-hour working day in their places of employment. 
   
  (c) Pertinent references. Copies of related laws, regulations, opinions of the 
Attorney General of Texas, and Advisory Standards currently applicable will be 
provided to any citizen of Texas upon request. 
   
  (d)  Definitions. The following words and terms, when used in this section, 
shall have the following meanings, unless the context clearly indicates 
otherwise. 
 
  (1) Industrial establishment-An institution, a place, building, or location 
where one or more persons are employed. 
   
  (2)  Places of employment-Any place where persons work for city, county, or 
state agencies, or other political subdivision of the state, public schools, 
public colleges and universities, and publicly owned utilities. 
   
  (3)  American Conference of Governmental Industrial Hygienist (ACGIH)-The 
organization responsible for collecting the best available threshold limit value 
information from industrial experience, experimental human and animal studies, 
and when possible from a combination of the three. 
     
  (e)  Applicability of figures. 
 
  (1) Threshold limit values (TLV) refer to airborne concentrations of 
substances and represent conditions under which it is believed that nearly all 
workers may be repeatedly exposed day after day without adverse effect. Because 
of wide variation in individual susceptibility, however, a small percentage of 
workers may experience discomfort from some substances and concentrations at or 
below the threshold limit; and an even smaller percentage may be affected more 
seriously by aggravation of a preexisting condition or by development of an 
occupational illness. 
   
  (2)  TLVs refer to time-weighted concentrations for a seven or eight-hour 
workday and a 40-hour workweek. They should be used as guides in the control of 
health hazards and should not be used as fine lines between safe and dangerous 
concentrations. (Exceptions are the substances listed in Appendices A and E and 
those substances designated with a "C" or Ceiling value, as explained in 
Appendix C in subsection (p) of this section.) 
   
  (3) Time weighted averages permit excursions above the limit provided they are 
compensated by equivalent excursions below the limit during the workday. In some 
instances it may be permissible to calculate the average concentration for a 
workweek rather than for a workday. The degree of permissible excursion is 
related to the magnitude of the TLV of a particular substance as given in 
Appendix C in subsection (p) of this section. The relationship between threshold 
limit and permissible excursion is a rule of thumb and in certain cases may not 
apply. The amount by which threshold limits may be exceeded for short periods 
without injury to health depends upon a number of factors such as the nature of 
the contaminant, whether very high concentrations-even for short periods-produce 
acute poisoning, whether the effects are cumulative, the frequency with which 
high concentrations occur, and the duration of such periods. All factors must be 
taken into consideration in arriving at decisions as to whether a hazardous 
condition exists. 
     
  (f) Source. 
 
  (1)  Threshold limits are based on the best available information from 
industrial experience, from experimental human and animal studies, and, when 
possible, from a combination of the three. The basis on which the values are 
established may differ from substance to substance; protection against 
impairment of health may be a guiding factor for some, whereas reasonable 
freedom and irritation, narcosis, nuisance, or other forms of stress may form 
the basis of others. 
   
  (2) The Chemical Substances TLV Committee holds to the opinion that limits 
based on physical irritation should be considered no less binding than those 
based on physical impairment. There is increasing evidence that physical 
irritation may initiate, promote, or accelerate physical impairment through 
interaction with other chemical or biological agents. 
   
  (3) In spite of the fact that serious injury is not believed likely as a 
result of exposure to the threshold limit concentrations, the best practice is 
to maintain concentrations of all atmospheric contaminants as low as is 
practical. 
   
  (4) These limits are intended for use in the practice of industrial hygiene 
and should be interpreted and applied only by a person trained in this 
discipline. They are not intended for use, or for modification for use: 
 
  (A) as a relative index of hazard or toxicity; 
   
  (B) in the evaluation or control of community air pollution nuisances; 
   
  (C) in estimating the toxic potential of continuous uninterrupted exposure; 
   
  (D) as proof or disproof of an existing disease or physical condition; or 
   
  (E) for adoption by countries whose working conditions differ from those in 
the United States of America and where substances and processes differ. 
       
  (g) Documentation of threshold limit values (TLV). Documentation of Threshold 
Limit Values is a separate companion piece to the TLVs as issued by the ACGIH. 
The publication gives the pertinent scientific information and data with 
reference to literature sources, that were used to base each limit. Each 
documentation also contains a statement defining the type of response against 
which the limit is safeguarding the worker. For a better understanding of the 
TLVs it is essential that the Documentation of Threshold Limit Values be 
consulted when the TLVs are being used. 
   
  (h)  Ceiling versus time-weighted average limits. 
 
  (1) Although the time-weighted average concentration provides the most 
satisfactory, practical way of monitoring airborne agents for compliance with 
the limits, there are certain substances for which it is inappropriate. In the 
latter group are substances which are predominantly fast acting and whose 
threshold limit is more appropriately based on this particular response. 
Substances with this type of response are best controlled by a ceiling "C" limit 
that could not be exceeded. It is implicit in these definitions that the manner 
of sampling to determine compliance with the limits for each group must differ; 
a single brief sample, that is applicable to a "C" limit, is not appropriate to 
the time-weighted limit; here, a sufficient number of samples are needed to 
permit a time-weighted average concentration throughout a complete cycle of 
operations or throughout the work shift. 
   
  (2) Whereas the ceiling limit places a definite boundary which concentrations 
should not be permitted to exceed, the time weighed average limit requires an 
explicit limit to the excursions that are permissible above the listed values. 
The magnitude of these excursions may be pegged to the magnitude of the 
threshold limit by an appropriate factor shown in Appendix C in subsection (p) 
of this section. It should be noted that the same factors are used by the 
Chemical Substances TLV Committee in making a judgment whether to include or 
exclude a substance for a "C" listing. 
     
  (i) "Skin" notation. Listed substances followed by the word "Skin" refer to 
the potential contribution to the overall exposure by the cutaneous route 
including mucous membranes and eye, either by airborne, or more particularly, by 
direct contact with the substance. Vehicles can alter skin absorption. This 
attention-calling designation is intended to suggest appropriate measures for 
the prevention of cutaneous absorption so that the threshold limit is not 
invalidated. 
   
  (j) Mixtures. Special consideration should be given also to the application of 
the TLVs in assessing the health hazards which may be associated with exposure 
to mixtures of two or more substances. A brief discussion of basic 
considerations involved in developing threshold limit values for mixtures, and 
methods for their development, amplified by specific examples are given in 
Appendix B in subsection (p) of this section. 
   
  (k) Nuisance dusts. 
 
  (1) In contrast to fibrogenic dusts which cause scar tissue to be formed in 
lungs when inhaled in excessive amounts, so-called "nuisance" dusts have a long 
history of little adverse effect on lungs and do not produce significant organic 
disease or toxic effects when exposures are kept under reasonable control. The 
nuisance dusts have also been called (biologically) "inert" dusts, but the 
latter term is not appropriate to the extent that there is no dust which does 
not evoke some cellular response in the lung when inhaled in sufficient amount. 
However, the lung-tissue reaction caused by inhalation of nuisance dusts has the 
following characteristics: 
 
  (A) the architecture of the air spaces remains intact; 
   
  (B) collagen (scar tissue) is not formed to a significant extent; 
   
  (C) the tissue reaction is potentially reversible. 
     
  (2) Excessive concentrations of nuisance dusts in the workroom air may 
seriously reduce visibility (iron oxide), may cause unpleasant deposits in the 
eyes, ears, and nasal passages (Portland Cement dust), or cause injury to the 
skin or mucous membranes by chemical or mechanical action per se or by the 
rigorous skin cleansing procedures necessary for their removal. 
   
  (3) A threshold limit of 10 mg/m  [sub]3 (million particles per cubic foot), 
or 30 mppcf (million particles per cubic foot), of total dusts 1% SiO [sub]2, 
whichever is less, is recommended for substances in these categories and for 
which no specific threshold limits have been assigned. This limit, for a normal 
workday, does not apply to brief exposures at higher concentrations. Neither 
does it apply to those substances which may cause physiologic impairment at 
lower concentrations but for which a threshold limit has not yet been adopted. 
Some "inert" particulates are given in Appendix D in subsection (p) of this 
section. 
     
  (l) Simple asphyxiants-"inert" gases or vapors. A number of gases and vapors, 
when present in high concentrations in air, act primarily as simple asphyxiants 
without other significant physiological effects. A TLV may not be recommended 
for each simple asphyxiant because the limiting factor is the available oxygen. 
The minimal oxygen content should be 18% by volume under normal atmospheric 
pressure (equivalent to a partial pressure, pO [sub]2 of 135 mm Hg). Atmospheres 
deficient in O [sub]2 do not provide adequate warning and most simple 
asphyxiants are ordorless. Several simple asphyxiants present an explosion 
hazard. Account should be taken of this factor in limiting the concentration of 
the asphyxiant. Specific examples are listed in Appendix E in subsection (p) of 
this section. 
   
  (m) Physical factors. It is recognized that such physical factors as heat, 
ultraviolet and ionizing radiation, humidity, abnormal pressure (altitude), and 
the like may place added stress on the body so that the effects from exposure at 
threshold limit may be altered. Most of these stresses act adversely to increase 
the toxic response of a substance. Although most threshold limits have built-in 
safety factors to guard against adverse effects to moderate deviations from 
normal environments, the safety factors of most substances are not of such a 
magnitude as to take care of gross deviations. For example, continuous work at 
temperature above 90 degrees Fahrenheit or overtime extending the work week more 
than 25%, might be considered gross deviations. In such instances judgment must 
be exercised in the proper adjustments of the TLVs. 
   
  (n)  "Notice of intent." At the beginning of each year, proposed actions of 
the Chemical Substances TLV Committee for the forthcoming year are issued in the 
form of a "Notice of Intent." This notice provides not only an opportunity for 
comment, but solicits suggestions of substances to be added to the list. The 
suggestions should be accompanied by substantiating evidence. 
   
  (o) As legislative code. The conference recognizes that the TLVs may be 
adopted in legislative codes and regulations. If so used, the intent of the 
concepts contained in the Preface should be maintained and provisions should be 
made to keep the list current. These values are reviewed annually by the 
Chemical Substances TLV Committee for revision or additions, as further 
information becomes available. 
   
  (p) Adopted values and appendices are as follows. 
 
  (1) Adopted values. 
 
  
   
  
   
  
   
  
   
  
   
  
   
  
   
  
   
  
   
  
   
  
   
  
   
  
   
  
   
  
   
  [graphic] 
     
  (2) Appendix A. 
 
  
   
  [graphic] 
     
  (3) Appendix B. 
 
  
   
  
   
  
   
  
   
  
   
  
   
  [graphic] 
     
  (4) Appendix C. 
 
  
   
  [graphic] 
     
  (5) Appendix D. 
 
  
   
  [graphic] 
     
  (6) Appendix E. 
 
  
   
  [graphic] 
           
  
  sec.295.102. Exposure to Toxic and Hazardous Substances. 
 
  (a)  The Texas Department of Health (department) adopts by reference as 
guideline only the federal regulations in Title 29, Code of Federal Regulations, 
Subpart G, sec.1910.1000; sec.1910.1001; sec.1910.1017; sec.1910.1018; 
sec.1910.1025; sec.1910.1043; sec.1910.1047; sec.1910.1048; and sec.1910.1450 
which contains the most current and pertinent standards regarding occupational 
exposure to toxic and hazardous substances. 
 
  (1) This guideline is applicable to public places of employment in Texas, and 
is not enforceable by the Texas Department of Health as an administrative rule. 
   
  (2)  Wherever reference is made to secretary of labor, OSHA director, or 
similar words or phrases, substitute with Texas Department of Health. 
   
  (3)  Wherever reference is made, "employee" shall mean an individual who works 
for a public employer in return for financial compensation. 
   
  (4)  Wherever reference is made, "workplace" shall mean any place where 
employees work for public employers. 
     
  (b) A copy of the federal regulations is on file in the Texas Department of 
Health, Occupational Health Division, 8407 Wall Street, Austin, Texas 78756 and 
is available for public review during regular business hours. 
 
     
  sec.295.103. Occupational Noise Exposure. 
 
  (a) The Texas Department of Health (department) adopts by reference as 
guideline only the federal regulations in Title 29, Code of Federal Regulations, 
Subpart G, sec.1910.95, which contains the most current and pertinent standards 
regarding occupational noise exposure. 
 
  (1) This guideline is applicable to public places of employment in Texas, and 
is not enforceable by the Texas Department of Health as an administrative rule. 
   
  (2) Wherever reference is made to secretary of labor, OSHA director, or 
similar words or phrases, substitute with Texas Department of Health. 
   
  (3) Wherever reference is made, "employee" shall mean an individual who works 
for a public employer in return for financial compensation. 
   
  (4) Wherever reference is made, "workplace" shall mean any place where 
employees work for public employers. 
     
  (b) A copy of the federal regulations is on file in the Texas Department of 
Health, Occupational Health Division, 8407 Wall Street, Austin, Texas 78756 and 
is available for public review during regular business hours. 
 
     
  sec.295.104. Respiratory Protection. 
 
  (a) The Texas Department of Health (department) adopts by reference as 
guideline only the federal regulations in Title 29, Code of Federal Regulations, 
Subpart I, sec.1910.134, which contains the most current and pertinent standards 
regarding respiratory protection. 
 
  (1) This guideline is applicable to public places of employment in Texas, and 
is not enforceable by the Texas Department of Health as an administrative rule. 
   
  (2) Wherever reference is made to secretary of labor, OSHA director, or 
similar words or phrases, substitute with Texas Department of Health. 
   
  (3) Wherever reference is made, "employee" shall mean an individual who works 
for a public employer in return for financial compensation. 
   
  (4) Wherever reference is made, "workplace" shall mean any place where 
employees work for public employers. 
     
  (b) A copy of the federal regulations is on file in the Texas Department of 
Health, Occupational Health Division, 8407 Wall Street, Austin, Texas 78756 and 
is available for public review during regular business hours. 
 
     
  sec.295.105. Ventilation. 
 
  (a) The Texas Department of Health (department) adopts by reference as 
guideline only the federal regulations in Title 29, Code of Federal Regulations, 
Subpart G, sec.1910.94, which contains the most current and pertinent standards 
regarding ventilation. 
 
  (1)  This guideline is applicable to public places of employment in Texas, and 
is not enforceable by the Texas Department of Health as an administrative rule. 
   
  (2) Wherever reference is made to secretary of labor, OSHA director, or 
similar words or phrases, substitute with Texas Department of Health. 
   
  (3) Wherever reference is made, "employee" shall mean an individual who works 
for a public employer in return for financial compensation. 
   
  (4)  Wherever reference is made, "workplace" shall mean any place where 
employees work for public employers. 
     
  (b) A copy of the federal regulations is on file in the Texas Department of 
Health, Occupational Health Division, 8407 Wall Street, Austin, Texas 78756 and 
is available for public review during regular business hours. 
 
     
  sec.295.107. Sanitation in the Workplace. 
 
  (a) The Texas Department of Health (department) adopts by reference as 
guideline only the federal regulations in Title 29, Code of Federal Regulations, 
Subpart I, sec.1910.141, which contains the most current and pertinent standards 
regarding sanitation in the workplace. 
 
  (1) This guideline is applicable to public places of employment in Texas, and 
is not enforceable by the Texas Department of Health as an administrative rule. 
   
  (2) Wherever reference is made to secretary of labor, OSHA director, or 
similar words or phrases, substitute with Texas Department of Health. 
   
  (3) Wherever reference is made, "employee" shall mean an individual who works 
for a public employer in return for financial compensation. 
   
  (4) Wherever reference is made, "workplace" shall mean any place where 
employees work for public employers. 
     
  (b) A copy of the federal regulations is on file in the Texas Department of 
Health, Occupational Health Division, 8407 Wall Street, Austin, Texas 78756 and 
is available for public review during regular business hours. 
 
     
  sec.295.108. Access to Employee Exposure and Medical Records. 
 
  (a)  The Texas Department of Health (department) adopts by reference as 
guideline only the federal regulations in Title 29, Code of Federal Regulations, 
Subpart C, sec.1910.20, which contains the most current and pertinent standards 
regarding access to employee exposure and medical records. 
 
  (1) This guideline is applicable to public places of employment in Texas, and 
is not enforceable by the Texas Department of Health as an administrative rule. 
   
  (2) Wherever reference is made to secretary of labor, OSHA director, or 
similar words or phrases, substitute with Texas Department of Health. 
   
  (3) Wherever reference is made, "employee" shall mean an individual who works 
for a public employer in return for financial compensation. 
   
  (4) Wherever reference is made, "workplace" shall mean any place where 
employees work for public employers. 
     
  (b) A copy of the federal regulations is on file in the Texas Department of 
Health, Occupational Health Division, 8407 Wall Street, Austin, Texas 78756 and 
is available for public review during regular business hours. 
 
     
  sec.295.109. Medical Services and First Aid. 
 
  (a) The Texas Department of Health (department) adopts by reference as 
guideline only the federal regulations in Title 29, Code of Federal Regulations, 
Subpart K, sec.1910.151, which contains the most current and pertinent standards 
regarding medical service and first aid. 
 
  (1) This guideline is applicable to public places of employment in Texas, and 
is not enforceable by the Texas Department of Health as an administrative rule. 
   
  (2) Wherever reference is made to secretary of labor, OSHA director, or 
similar words or phrases, substitute with Texas Department of Health. 
   
  (3) Wherever reference is made, "employee" shall mean an individual who works 
for a public employer in return for financial compensation. 
   
  (4) Wherever reference is made, "workplace" shall mean any place where 
employees work for public employers. 
     
  (b) A copy of the federal regulations is on file in the Texas Department of 
Health, Occupational Health Division, 8407 Wall Street, Austin, Texas 78756 and 
is available for public review during regular business 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 February 1, 1993. 
 TRD-9318415 
  Robert A. MacLean, M.D. 
 Deputy Commissioner 
 Texas Department of Health 
    Efective date: February 22, 1993 
 Proposal publication date: October 9, 1992 
 For further information, please call: (512) 834-6600 
         
             
  Industrial Homework Standards 
 
  25 TAC sec.sec.295.121-295.126 
 
  The new sections are adopted under the Health and Safety Code, sec.341.016, 
which provides the Board of Health with authority to adopt rules concerning 
occupational health; and sec.12.001, which provides the Board of Health with 
authority to adopt rules to implement 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 February 1, 1993. 
 TRD-9318414 
  Robert A. MacLean, M.D. 
 Deputy Commissioner 
 Texas Department of Health 
    Efective date: February 22, 1993 
 Proposal publication date: October 9, 1992 
 For further information, please call: (512) 834-6600 
         
         
  Standards for Face and Eye Protection in Public Schools 
 
  25 TAC sec.sec.295.141-295.148 
 
  The new sections are adopted under the Health and Safety Code, sec.341.016, 
which provides the Board of Health with authority to adopt rules concerning 
occupational health; and sec.12.001, which provides the Board of Health with 
authority to adopt rules to implement 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 February 1, 1993. 
 TRD-9318413 
  Robert A. MacLean, M.D. 
 Deputy Commissioner 
 Texas Department of Health 
    Efective date: February 22, 1993 
 Proposal publication date: October 9, 1992 
 For further information, please call: (512) 834-6600 
         
         
  Sanitation at Temporary Places of Employment 
 
  25 TAC sec.sec.295.161-295.169 
 
  The new sections are adopted under the Health and Safety Code, sec.341.016, 
which provides the Board of Health with authority to adopt rules concerning 
occupational health; and sec.12.001, which provides the Board of Health with 
authority to adopt rules to implement 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 February 1, 1993. 
 TRD-9318412 
  Robert A. MacLean, M.D. 
 Deputy Commissioner 
 Texas Department of Health 
    Efective date: February 22, 1993 
 Proposal publication date: October 9, 1992 
 For further information, please call: (512) 834-6600 
         
               
  TITLE 31. NATURAL RESOURCES AND CONSERVATION 
 Part II. Texas Parks and Wildlife Department 
  Chapter 59. Parks 
  
  Park Entrance and Park User 
 
  31 TAC sec.59.2, sec.59.3 
 
  The Texas Parks and Wildlife Commission in a regularly scheduled public 
hearing held January 21, 1993, adopts amendments to Title 31 TAC sec.59.2 and 
sec.59.3, concerning park entrance and use fees. Section 59.3 is adopted with 
changes to the proposed text as published in the December 18, 1992, issue of the  
Texas Register (17 TexReg 8876). Section 59.2 is adopted without changes and 
will not be republished. Section 59.3(19)(A)(iv) changes from a maximum of $85 
to $100 and sec.59.3(23)(B)(viii) changes from a maximum of $600 to $1,000. 
These changes are to provide flexibility in setting fees and generating revenue. 
 Fee increases are necessary to provide additional funding to maintain the 
current level of park services for the benefit of the public. 
 The rules are necessary to provide additional funding to maintain the current 
level of park services for the benefit of the public. 
 The rules will provide flexibility in setting fees. 
 No comments were received regarding adoption of the amendments. 
 The amendments are adopted under the authority of the Texas Parks and Wildlife 
Code, sec.13.015 and sec.21.111, which provides the Texas Parks and Wildlife 
Commission with the authority to set certain park fees. 
 
 
  sec.59.3. Facility Use Fees. The amount of user fees will be determined by the 
Parks and Wildlife Commission and will be based primarily on comparisons of 
current fees for facilities and services of comparable character under similar 
conditions, with due consideration for length of season, provisions for peak 
loads, average percentage of occupancy, accessibility, availability, cost of 
labor, materials and supplies, type of patronage, and other such factors deemed 
significant, except the costs of park acquisition, development, and major 
repairs. The executive director will cause to be collected a user fee at the 
time a park facility is assigned or occupied, and as new parks and facilities 
are added to the system, the approved fee schedule will be implemented when 
feasible. Where variable use fees are authorized by the Commission they may be 
set on an individual park basis or an individual facility basis by the 
department based on visitation and site desirability. Fees may also be set on a 
basis other than daily, e.g., weekly, monthly, etc. The Executive Director may 
discount or waive use fees in order to enhance utilization of existing 
facilities. The following Park use fees are effective March 1, 1993: 
 
  (1) Campsite-Primitive-$4.00-$12; 
   
  (2) Campsite-Regular-$5.00-$16; 
   
  (3) Campsite-with Electricity-$9.00-$18; 
   
  (4) Campsite-with Electricity and Sewer Connection -$10-$20; 
   
  (5) Screened Shelter-$15-$30; 
   
  (6) Recreation Hall: 
 
  (A) day use only-$50-$100; 
   
  (B) overnight use-$80-$150; (If equipped with kitchen add)-$25-$45; 
     
  (7) Group Lodge: 
 
  (A) Bastrop-Lost Pines, one-eight persons-$70-$150; 
   
  (B) Lake Brownwood-Beach, one-26 persons-$110-$180; 
   
  (C) Lake Brownwood-Fisherman's, one-10 persons -$80-$125; 
   
  (D) Daingerfield-Bass, one-20 persons-$105-$160; 
   
  (E) Special-one-eight persons-$70-$125; Each additional person-$5. 00-$15; 
     
  (8) Dining Hall-$65-$100; 
   
  (9) Tabernacle: 
 
  (A) 1-25 persons-$17-$40; 
   
  (B) 26 or more-$29-$60; 
     
  (10) Pavilion-$25-$200 according to type of facility and size of group; 
   
  (11) Auditorium-$200-$300; 
   
  (12) Gymnasium-$200-$300; (with kitchen privileges add)-$25-$45; 
   
  (13) Group Picnic Area: 
 
  (A) one-25 persons-$17-$40; 
   
  (B) 26 or more-$29-$60; 
     
  (14) Picnic Shelter with Kitchen: 
 
  (A) one-25 persons-$17-$40; 
   
  (B) 26 or more-$29-$60; 
   
  (C) (with kitchen privileges add)-$25-$45; 
     
  (15) Group Camp with Bunk-Houses and Dining Hall (Lake Brownwood State Park 
only)-$65-$100; plus $12-$30 for each bunk house used (Bunk houses not rented 
without dining hall); 
   
  (16) Group Camp with Screened Shelters and Dining Hall -$65-$100 plus $15-$30 
for each screened shelter used; 
   
  (17) Group Camp with Campsites-Fee determined according to number and type of 
campsites used; 
   
  (18) Group Camp with Barracks or Screened Shelters with Bunk Beds; Dining Hall 
and Restroom with showers available (Screened shelters with bunk beds rented to 
individuals on the 90 day reservation system after annual drawings, except at 
Garner)-$150-$250 Screened Shelter only-$17-$30; 
   
  (19) Lodge, Court, or Inn: 
 
  (A) Indian Lodge: 
 
  (i) Single-$40-$70; 
   
  (ii) Double-$45-$75; 
   
  (iii) Double with double beds-$50-$80; 
   
  (iv) Suite with double beds-$55-$100; 
   
  (v) Each additional adult -$5.00-$10; 
   
  (vi) Each additional child (six-12)-$2.00-$4.00; 
   
  (vii) Children under six -Free; 
     
  (B) Balmorhea-San Solomon Springs Court: 
 
  (i) Single-$35-$50; 
   
  (ii) Each additional adult -$5.00-$10; 
   
  (iii) Each additional child (six-12)-$2.00-$4.00; 
   
  (iv) Children under six -Free; 
   
  (v) With kitchen unit add-$5.00-$10; 
     
  (C) Landmark Inn: 
 
  (i) Single-$35-$50; 
   
  (ii) Double (two persons) -$40-$55; 
   
  (iii) Children (six-12)-$2.00-$4.00; 
   
  (iv) Children under six -Free; 
   
  (v) (Additional adult when space is available for cot)-$5.00-$10; 
       
  (20) Cabins-$35-$100; 
   
  (21) Swimming Pools: 
 
  (A) Adults-$2.00-$4.00; 
   
  (B) Child (six-12)-$1.00-$2.00; 
   
  (C) Group rate (before or after closing hours)-$35-$50; 
     
  (22) Golf Course (Staff Operated) Lockhart only-nine holes: 
 
  (A) Green Fees-Daily-$7.00-$10; 
 
  (i) Weekends and Holidays -$8.00-$11; 
   
  (ii) Annual Family-$150-$200; 
   
  (iii) Annual Individual-$100-$150; 
   
  (iv) 18 years of age and under excluding (weekends and holidays)  -$3.00-
$6.00; 
     
  (B) Trail fee for privately owned golf carts: 
 
  (i) Daily-$3.00-$6.00; 
   
  (ii) Annual-$50-$100; 
       
  (23) Texas State Railroad: 
 
  (A) Fares: 
 
  (i) Adult (one-way)-$8.00-$13; 
   
  (ii) Adult (R-T)-$13-$18; 
   
  (iii) Child (three-12) (one-way) -$4.00-$9.00; 
   
  (iv) Child (three-12) (R-T) -$7.00-$12; 
     
  (B) Train lease for filming purposes: 
 
  (i) Steam Locomotive and Tender (per day)-$1,500-$2,000; 
   
  (ii) Diesel Locomotives (per day)-$700-$1,000; 
   
  (iii) Steam Engine Firing Fuel and Lubricants (per running hour) -$100-$200; 
   
  (iv) Diesel Locomotives Fuel and Lubricants (per running hour) -$50-$100; 
   
  (v) Railroad Car per unit (any type) (per day)-$120-$200; 
   
  (vi) Rail Mounted Truck with Driver (per day)-$280-$400; 
   
  (vii) Motor Car with Driver (per day)-$240-$400; 
   
  (viii) Short Term Steam Train Use (after regular schedule run) three hour 
minimum (per hour)-$400-$1,000; 
   
  (ix) Plus Salaries for Train Crew. Surety bond of $500,000 may be required; 
Train Charter Rates: 50 Mile Round Trip-Regular Passenger Fares-Minimum-$2,500-
$3,500; 
   
  (x) 15-Mile Round Trips -Regular Passenger Fares-$1,650-2,500; 
       
  (24) Fees for filming purposes by private, profit oriented businesses (per 
day). Surety bond may be required-$250-$5,000; 
   
  (25) Excess Vehicle Parking (With overnight facility use only) Per Vehicle-
$2.00-$4.00 (Areas for parking designated by the Park Manager); 
   
  (26) Activity Use Fee Per person-$2.00-$6.00; 
   
  (27) Overnight Activity Use Fee Per person-$2.00-$6.00; 
   
  (28) Purtis Creek Lake Use Fee-$5.00-$10; 
   
  (29) Big Bend Ranch State Natural Area Bus Tour Fee -$30-$60; 
   
  (30) Matagorda Island Boat Transportation Fee: 
 
  (A) Adults (R-T)-$10-$15; 
   
  (B) Child (six-12) (R-T)-$5.00-$10; 
   
  (C) On Island Tour Fee-$3.00-$12; 
     
  (31) Beach Shuttle Fee: 
 
  (A) Adults-$2.00-$4.00; 
   
  (B) Child (six-12)-$1.00-$2.00; 
     
  (32) Historic Site Tour Fees: 
 
  (A) Adult (19 and Over)-$2.00-$6.00; 
   
  (B) Student-$1.00-$3.00; 
     
  (33) Fishing Pier Fees-Per Fishing Device-$1.00-$3.00; 
   
  (34) Recreational Vehicle-Annual Fee-$5.00-$25; 
   
  (35) Excess occupancy fee (with overnight facility use fee) per person-$1.00-
$3.00; 
   
  (36) Fees for special events, new activities, or new facilities are authorized 
by the Commission. These fee amounts shall be established by the Executive 
Director or designee. 
 
  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 1, 1993. 
 TRD-9318411 
  Paul M. Shinkawa 
 Director, Legal Services 
 Texas Parks and Wildlife Department 
    Effective date: February 22, 1993 
 Proposal publication date: December 18, 1992 
 For further information, please call: 1-(800) 792-1112, ext. 4433 or (512) 389-
4433 
         
             
  State Park Rules 
 
  31 TAC sec.59.133 
 
  The Texas Parks and Wildlife Commission in a regularly scheduled public 
hearing held January 21, 1993, adopts an amendment to sec.59.133, concerning 
Closing Hours and Overnight Use policies, without changes to the proposed text 
as published in the December 18, 1992, issue of the Texas Register  (17 TexReg 
8879). This amendment is proposed to maintain consistency with other proposed 
changes. 
 The rules are necessary to ensure consistency between park fees and services 
provided. 
 The rules authorize a new overnight activity use fee for park users who do not 
require the use of an overnight facility. 
 No comments were received regarding adoption of the amendment. 
 The amendment is adopted under the Texas Parks and Wildlife Code, sec.13.101, 
which provides the Texas Parks and Wildlife Commission with the authority to 
promulgate regulations governing parks and other recreational areas. 
 
  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 1, 1993. 
 TRD-9318410 
  Paul M. Shinkawa 
 Director, Legal Services 
 Texas Parks and Wildlife Department 
    Effective date: February 22, 1993 
 Proposal publication date: December 18, 1992 
 For further information, please call: 1-(800) 792-1112, ext. 4433 or (512) 389-
4433 
         
           Chapter 69. Resource Protection 
  
  Memorandum of Understanding 
 
  31 TAC sec.69.71 
 
  The Texas Parks and Wildlife Commission in a regularly scheduled public 
hearing held January 21, 1993, adopts new 31 TAC sec.69.71, concerning a 
Memorandum of Understanding with the Texas Department of Transportation (TxDOT) 
without changes to the proposed text as published in the December 18, 1992, 
issue of the Texas Register (17 TexReg 8880). 
 The Memorandum of Understanding was originally published as Exhibit A in the 
June 5, 1992, issue of the Texas Register (17 TexReg 4082). It provides for 
Texas Parks and Wildlife Department (TPWD) review of projects proposed by TxDOT 
which have the potential to affect natural resources within the jurisdiction of 
TPWD and concerns the development of a system by which information developed by 
TxDOT and TPWD may be exchanged to their mutual benefit. On June 25, 1992, TxDOT 
and TPWD conducted a joint public hearing to seek comments regarding the 
proposed memorandum of understanding between TxDOT and TPWD. A summary and 
discussion of these comments were published in the November 19, 1992, issue of 
the Texas Register  (17 TexReg 7911). The MOU was revised by mutual agreement by 
TxDOT and TPWD. This revised MOU was adopted by TxDOT on October 28, 1992, 
appears as Exhibit A-22 in the November 10, 1992, issue of the Texas Register 
(17 TexReg 7914). 
 The rules have been developed according to Texas Civil Statutes, Article 6673g, 
sec.3, enacted by Senate Bill 352 during the 72nd Texas Legislature in 1991, 
which required establishment of a formal mechanism for environmental review 
coordination between TxDOT and other state environmental resource agencies. 
 The rules will provide a formal process by which TPWD may review TxDOT projects 
which have the potential to affect natural resources within the jurisdiction of 
the TPWD in order to assist TxDOT in making environmentally sound decisions, and 
to develop with TxDOT a system by which information developed by the TxDOT and 
the TPWD may be exchanged to their mutual benefit. 
 No comments were received regarding adoption of the new section. 
 The new section is adopted under Texas Civil Statutes, Article 6673g, sec.3, 
enacted by Senate Bill 352 during the 72nd Texas Legislature in 1991, which 
gives the Texas Parks and Wildlife Department the authority to adopt. 
 
  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 2, 1993. 
 TRD-9318430 
  Paul M. Shinkawa 
 Director, Legal Services 
 Texas Parks and Wildlife Department 
    Effective date: February 23, 1993 
 Proposal publication date: December 18, 1992 
 For further information, please call: 1-(800) 792-1112, ext. 4433 or (512) 389-
4433 
         
             Part III. Texas Air Control Board 
  Chapter 114. Control of Air Pollution From Motor Vehicles 
  
  31 TAC sec.sec.114.1, 114.5, 114.11 
 
  The Texas Air Control Board (TACB) adopts amendments to  sec.sec.114.1, 114.5, 
and 114.11, concerning control of air pollution from motor vehicles, with 
changes to the proposed text as published in the August 4, 1992, issue of the 
Texas Register (17 TexReg 5469). Section 114.1, concerning Maintenance and 
Operation of Air Pollution Control Systems or Devices Used to Control Emissions 
From Motor Vehicles, will restrict aftermarket alternative fuel conversion 
equipment and configurations with regard to emissions and safety concerns, and 
will enhance antitampering provisions. Also, subsection (c) of sec.114.5, 
concerning Exclusions and Exceptions, is deleted to improve consistency with 
sec.114.1. Finally, sec.114.11, concerning Alternative Fuel Requirements for 
Transit Authorities, specifies ethanol and ethanol/gasoline blends of 85% or 
greater as an acceptable alternative fuel. 
 The amendments clarify the intent of existing provisions concerning acceptable 
alternative fuel technology and respond to a petition for rulemaking from the 
Texas Corn Producers Board (TCPB) which would allow specified transit 
authorities to use ethanol as an approved alternative fuel. 
 A public hearing was held in Austin on September 10, 1992, to receive testimony 
regarding this proposal. A total of 12 written statements and four oral 
presentations were entered into the hearing record during the comment period 
which closed September 25, 1992. Thirteen commenters submitted testimony: Modern 
Butane, Inc. (MBI); Global Environmental Industries (GEI); the Texas Railroad 
Commission (RRC); the United States Environmental Protection Agency (EPA); the 
Lone Star Chapter of the Sierra Club (Sierra); the Natural Gas Vehicle 
Technology Center (NGVTC); the TCPB; the Clean Fuels Development Coalition 
(CFDC); the El Paso City-County Health District (EPCCHD); the Motor Vehicle 
Manufacturers Association (MVMA); Tropicana Energy Corporation (TEC); and two 
individuals. 
 The comments have been grouped according to issue and are discussed in the 
following order: certification of aftermarket alternative fuel conversion 
systems; prohibition against improper engine configurations; and consideration 
of ethanol as an approved alternative fuel. 
 Changes to sec.114.1 will require written California Air Resources Board (CARB) 
certification or formal EPA recognition of aftermarket motor vehicle alternative 
fuel conversion systems. Aftermarket vehicle conversion systems covered include 
the hardware used to convert a gasoline or diesel vehicle to an approved 
alternative fuel. A CARB Executive Order will be considered to be proof of 
emissions certification. A letter from EPA acknowledging compliance with 
Memorandum 1A, exemption orders, or other EPA aftermarket certification will 
also be acceptable. In addition, gaseous fuel aftermarket conversion systems 
must comply with the safety regulations of the RRC and the Department of Public 
Safety (DPS). 
 The original text in sec.114.5(c), Exclusions and Exceptions, allowed dedicated 
alternative fuel vehicles to be exempted from sec.114.1. By removing this 
subsection, both dedicated and dual-fuel vehicles will be equally regulated and 
the requirements for aftermarket emissions approval will be more easily 
understood. 
 Commenters are organized into the following three categories. NGVTC, EPA, and 
EPCCHD supported the amendment as proposed. MBI, RRC, Sierra, and one individual 
supported the amendment with recommendations to change the language in the 
proposal. GEI opposed the proposal. 
 Sierra recommended further control of aftermarket installers to ensure that in-
use emissions are not increased, citing as much of a concern for the quality of 
the installation as for certification of auxiliary hardware. Another commenter 
requested that the TACB pursue the development and operation of an independent 
aftermarket certification program in Texas. The commenter suggested that a TACB 
certification program should not be delayed. 
 Finally, MBI and RRC noted that the TACB should not require written safety 
approvals for each of the thousands of conversion hardware components already 
certified by other established safety authorities, such as the Underwriters 
Laboratories and the American Gas Association. 
 GEI commented that the new TACB rule would adversely affect the aftermarket 
conversion kit industry and make vehicle conversions to gaseous fuels less 
feasible. Although GEI supported some form of regulation, the commenter stated 
that written documentation is burdensome and unnecessary and that independent 
EPA-approved laboratories should provide technical review without requiring 
special approvals by the TACB. 
 Mechanic training, alternative fuel vehicle emission inspections, and 
conversion installer certification programs may need to be proposed in the 
future. However, such action is beyond the scope of this rulemaking, which is 
intended only as a clarification of existing state and federal laws. By allowing 
CARB or EPA emissions certification documents, the TACB has provided adequate 
opportunities for conversion kit manufacturers to verify the acceptability of 
specific technologies. In recognition of the well-intended efforts to comply 
with existing alternative fuel requirements, the staff will exercise enforcement 
discretion regarding conversions performed prior to the effective date of this 
rulemaking. 
 After publishing the notice of public hearing, the staff became aware that the 
specific wording in the proposal which referenced safety considerations needed 
to be revised. Safety certifications for all the conversion kit components, as 
stated in the proposal, can not realistically be verified in writing. Many 
systems are preapproved by authorities such as Underwriter's Laboratory, Factory 
Mutual, and the American Gas Association. Accordingly, the language in sec.114.1 
has been changed to correspond more closely to RRC safety approval criteria. 
 The purpose of certifying conversion equipment is to provide documentation that 
the converted vehicle does not emit more than the original vehicle, in 
accordance with state and federal laws. In addition, this provides protection 
for consumers of such conversion equipment. 
 Technically, any change in the original equipment manufacturer (OEM) emissions 
system is considered to be tampering. In the past, tampering was mostly an issue 
of finding defeat devices, such as "test" tubes in place of catalytic 
converters. The installation of compressed natural gas (CNG), liquified natural 
gas, and liquified petroleum gas fuel delivery systems are also considered to be 
tampering. In order to comply with the Federal Clean Air Act and DPS rules, 
conversion kit manufacturers/installers must secure some form of exemption from 
potential federal tampering charges. The best verification that the vehicle 
complies with antitampering laws is to use the EPA or CARB certification 
approvals. Even if the TACB implemented an aftermarket conversion system 
certification program, the TACB would have to adopt either the EPA or CARB 
procedures for approving vehicle emission compliance. 
 The amendment to subsection (f) of sec.114.1, restricts the sale of complete or 
partial engines which do not conform to OEM configurations. The staff initiated 
this amendment in response to evidence that imported and rebuilt engines were 
being marketed in Texas without having the EPA-approved emissions systems. EPA 
supported the language as proposed. No commenters disagreed with this amendment. 
 The amendment to sec.114.11 adds ethanol to the list of approved alternative 
motor vehicle fuels. Alternative fuel conversions of specified fleet vehicles 
are required by Senate Bills 740 and 769, adopted during the Regular Session, 
71st Texas Legislature. Section 114.11 now defines an alternative fuel as one of 
the following: natural gas, liquified petroleum gas, electricity, methanol or 
methanol/gasoline blends of 85% (M85) or greater, or ethanol or ethanol/gasoline 
blends of 85% (E85) or greater. Any other candidate alternative fuel must be 
shown to be comparable to CNG in terms of emissions of volatile organic 
compounds (VOC), oxides of nitrogen, carbon monoxide, or particulate matter. 
 TCPB, EPA, CFDC, EPCCHD, MVMA, TEC, and one individual supported the inclusion 
of ethanol in the list. Sierra and another individual dissented, primarily on 
the grounds that ethanol has higher volatility, which leads to increased 
evaporative losses. In addition, Sierra maintained that ethanol has a higher VOC 
exhaust content, thus leading to higher ozone reactivity. Another concern was 
the unburned exhaust of ethanol. Ethanol is a VOC emission also regulated in the 
bakery industry because of its role in ozone formation. 
 Neat ethanol is 100% ethanol (E100). Near-neat ethanol is in gasoline/ethanol 
proportions of 85% or greater (E85). Although ethanol in 10% mixtures with 
gasoline (E10 or "gasohol") raises the volatility of gasoline, near-neat and 
neat ethanol have reduced Reid vapor pressure (RVP). The RVP of neat ethanol is 
about 2.5 pounds per square inch (psi) at 100 degrees Fahrenheit. This is about 
one-half of the vapor pressure for methanol (4.6 psi) and considerably less than 
that for gasoline (7.8-11 psi). The lower volatility of ethanol would tend to 
substantially reduce evaporative emissions relative to the use of gasoline. 
 Ethanol-fueled vehicles tend to emit higher ethanol and acetaldehyde exhaust 
emissions than gasoline-fueled vehicles. Ethanol, however, does not contain 
significant quantities of benzene and other dangerous aromatic compounds (e.g., 
1,3-butadiene). The EPA and CARB have documented that the ozone reactivity which 
measures the propensity of ethanol to form ozone is comparable to that of 
methanol. Although ethanol as a motor fuel has not been scrutinized as 
extensively as methanol, ethanol has the potential to demonstrate similar air 
quality benefits. For example, in 1992, General Motors Corporation (GMC) 
produced 50 flexible-fueled vehicles (FFVs), which used recalibrated methanol 
engines. The Federal Test Procedure results were well within the emission 
standards for 1992 light-duty vehicles. The GMC ethanol project demonstrates 
that ethanol FFVs have the potential to be comparable to CNG vehicles with 
respect to emissions. 
 Based on review of submitted and available data on emissions for ethanol 
vehicles, the staff concludes that neat ethanol-fueled vehicles and near-neat 
ethanol FFVs cause emissions that are at least as clean as some approved 
mechanically-controlled, dual-fuel CNG vehicle conversions, and thus, ethanol 
should be added as an approved alternative fuel. The testimony provides a 
reasonable basis to accept that reactive emissions from ethanol-fueled vehicles 
are comparable to those from dual-fueled CNG vehicles with aftermarket retrofit 
kits. Thus, ethanol and ethanol/gasoline blends of 85% or greater have been 
added to the list of acceptable alternative fuels. 
 In compliance with the Americans With Disabilities Act, this document may be 
requested in alternate formats by contacting Air Quality Planning Program staff 
at (512) 908-1457, (512) 908-1500 FAX of 1-800-RELAY-TX (TDD), or by writing or 
visiting at 12124 Park 35 Circle, Austin, Texas 78753. 
 The amendments are adopted under the Texas Clean Air Act (TCAA), sec.382.017, 
Texas Health and safety Code, (Vernon 1990), which provides the TACB with the 
authority to adopt rules consistent with the policy and purposes of the TCAA. 
 
 
  sec.114.1. Maintenance and Operation of Air Pollution Control Systems or 
Devices Used to Control Emissions From Motor Vehicles. 
 
  (a) (No change.) 
   
  (b) No person may remove or make inoperable any system or device used to 
control emissions from a motor vehicle or motor vehicle engine or any part 
thereof, except where the purpose of removal of the system or device, or part 
thereof, is to install another system or device, or part thereof, which is 
equally effective in reducing emissions from the vehicle. Acceptable removal 
and/or installation practices include: 
 
  (1)-(2) (No change.) 
   
  (3) installation of conversion equipment to allow the use of an approved 
alternative fuel, as defined in sec.114.11 of this title (relating to 
Alternative Fuel Requirements for Transit Authorities), if: 
 
  (A)  acceptable emissions reductions are verified by one of the following 
methods: 
 
  (i) the conversion equipment and configuration is certified by the California 
Air Resources Board; or 
   
  (ii) the conversion equipment and configuration is recognized in writing by 
the United States Environmental Protection Agency as complying with established 
federal policy memoranda; and 
     
  (B) the conversion kit components are recognized by the Texas Railroad 
Commission as complying with applicable safety requirements; 
     
  (4) replacement or installation of any other system or device if: 
 
  (A) the system or device can be demonstrated to be at least as effective in 
reducing emissions as the original equipment; and 
   
  (B) conformance with subparagraph (A) of this paragraph is documented, upon 
request. 
       
  (c)-(e) (No change.) 
   
  (f) No person may sell, offer for sale, or use any system or device which 
circumvents or alters any system, device, engine, or any part thereof, installed 
by a vehicle manufacturer to comply with the Federal Motor Vehicle Control 
Program during actual in-use operation of a motor vehicle on Texas roadways. A 
notice of the prohibitions and requirements of this subsection shall be 
displayed at all motor vehicle parts, supply, repair, alternative fuel 
conversion, or other vehicle service facilities in Texas which sell, offer for 
sale, install, or offer to install any vehicle emission control, exhaust system 
or device, aftermarket alternative fuel conversion, or engine. The notice shall 
be displayed in a prominent and conspicuous location near each consumer entrance 
way and service counter. The notice shall read: "State Law prohibits any person 
from selling, offering for sale, or using any system or device for the purpose 
of circumventing the emission control device on a vehicle or vehicle engine. 
State law also prohibits any person from removing or disconnecting any part of 
the emission control system of a motor vehicle, except to install replacement 
parts which are equally effective in reducing emissions. Violators are subject 
to penalties under the Texas Clean Air Act of up to $25,000 per violation". This 
notice shall be no smaller than 8 x 10 inches (20.32 cm by 25. 4 cm) and shall 
be clearly visible to all customers. 
 
     
  sec.114.5. Exclusions and Exceptions. 
 
  (a)-(b) (No change.) 
   
  (c) Any person owning or operating a motor vehicle or motor vehicle engine may 
apply to the Executive Director for a waiver from the provisions of 
sec.114.1(a)(b) of this title (relating to Maintenance and Operation of Air 
Pollution Control Systems or Devices Used to Control Emissions from Motor 
Vehicles). Such a waiver may be granted if the following conditions are met: 
 
  (1)-(6) (No change.) 
     
  (d) The following vehicle transactions involving "wholesale dealers" and 
"retail dealers" as defined in the Texas Dealer Law, Article 6686, Texas Civil 
Statutes, Title 43, Texas Administrative Code, are exempt from the requirements 
of sec.114.1(c) of this title (relating to Maintenance and Operation of Air 
Pollution Control Systems or Devices Used to Control Emissions From Motor 
Vehicles): 
 
  (1)-(5) (No change.) 
     
  (e) Federal, state, and local agencies or their agents which sell abandoned, 
confiscated, or seized vehicles and any commercial vehicle auction facilities 
are exempt from the provisions of sec.114.1(c) of this title (relating to 
Maintenance and Operation of Air Pollution Control Systems or Devices Used to 
Control Emissions from Motor Vehicles) if the following conditions are met: 
 
  (1)-(2) (No change.) 
     
  (f) The owner of a motor vehicle which has been totally disabled by accident, 
age, or malfunction and which will no longer be operated is exempt from the 
provisions of sec.114. 1(c) of this title (relating to Maintenance and Operation 
of Air Pollution Control Systems or Devices Used to Control Emissions from Motor 
Vehicles) if the inspection certificate is removed and destroyed before the 
vehicle is offered for sale or displayed for public examination. 
 
     
  sec.114.11. Alternative Fuel Requirements for Transit Authorities. 
 
  (a) Metropolitan rapid transit authorities created under Texas Civil Statutes, 
Article 1118x, regional transportation authorities created under Texas Civil 
Statutes, Article 1118y, and city transportation departments created under 
Article 1118z, Revised Statutes, shall ensure that fleet vehicles, including 
purchased vehicle services, are capable of being operated on alternative fuels, 
which are defined as follows: 
 
  (1) natural gas; 
   
  (2) liquified petroleum gas; 
   
  (3) electricity; 
   
  (4)  methanol or methanol/gasoline blends of 85% (M85) or greater; or 
   
  (5)  ethanol or ethanol/gasoline blends of 85% (E85) or greater. 
     
  (b)-(h)  (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 February 2, 1993. 
 TRD-9318480 
  Lane Hartsock 
 Deputy Director, Air Quality Planning 
 Texas Air Control Board 
    Effective date: February 23, 1993 
 Proposal publication date: August 4, 1992 
 For further information, please call: (512) 908-1451 
         
                 
  TITLE 37. PUBLIC SAFETY AND CORRECTIONS 
 Part III. Texas Youth Commission 
  Chapter 91. Discipline and Control 
  
  Control 
 
  37 TAC sec.91.61 
 
  The Texas Youth Commission (TYC) adopts an amendment to  sec.91.61, concerning 
the use of chemical agents, without changes to the proposed text as published in 
the November 27, 1992, issue of the Texas Register (17 TexReg 8268). 
 The amendment will bring about more restrictive use of chemical agents on 
youth. 
 The amendment is additional criteria for the use of chemical agents. It 
requires that less severe methods to gain control be exhausted, and are 
ineffective, untimely, or impractical, prior to chemical use. 
 No comments were received regarding adoption of the amendment. 
 The amendment is adopted under the Human Resources Code,  sec.61.034, which 
provides Texas Youth Commission with the authority to make rules appropriate to 
the proper accomplishment of its functions. 
 
  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, 1993. 
 TRD-9318433 
  Ron Jackson 
 Executive Director 
 Texas Youth Commission 
    Effective date: February 23, 1993 
 Proposal publication date: November 27, 1992 
 For further information, please call: (512) 483-5244 
         
               
  TITLE 40. SOCIAL SERVICES AND ASSISTANCE 
 Part I. Texas Department of Human Services 
  Chapter 15. Medicaid Eligibility 
  
  Subchapter A. General Information 
 
  The Texas Department of Human Services (DHS) adopts amendments to sec.15.100, 
sec.15.442, sec.15.455, sec.15.460,  sec.15.503, and sec.15.610, without changes 
to the proposed text as published in the December 25, 1992, issue of the  Texas 
Register (17 TexReg 9094). 
 The justification for the amendments is to clarify Medicaid eligibility rules 
about the effective dates of inheritances and disclaimers of inheritances; 
spousal impoverishment; client-purchased annuities as income and resources; 
prior Medicaid coverage for clients transferring from limited Medicaid program 
to full Medicaid benefits; and a new income exemption for payments to an ICF-MR 
client by the MR facility intended to enhance the client's social skills and 
functional abilities. 
 The amendments will function by ensuring that Medicaid policies regarding the 
subjects in the previous paragraph are applied statewide. 
 No comments were received regarding adoption of the amendments. 
   
  40 TAC sec.15.100 
 
  The amendment is adopted under the Human Resources Code, Title 2, Chapters 22 
and 32, which provides the department with the authority to administer public 
and medical assistance programs and under Texas Civil Statutes, Article 4413 
(502), sec.16, which provide the Health and Human Services Commission with the 
authority to administer federal medical assistance funds. 
 
  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 2, 1993. 
 TRD-9318481 
  Nancy Murphy 
 Agency Liaison, Policy and Document Support 
 Texas Department of Human Services 
    Effective date: March 15, 1993 
 Proposal publication date: December 25, 1992 
 For further information, please call: (512) 450-3765 
         
         
  Subchapter D. Resources 
 
  40 TAC sec.15.442 
 
  The amendment is adopted under the Human Resources Code, Title 2, Chapters 22 
and 32, which provides the department with the authority to administer public 
and medical assistance programs and under Texas Civil Statutes, Article 4413 
(502), sec.16, which provide the Health and Human Services Commission with the 
authority to administer federal medical assistance funds. 
 
  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 2, 1993. 
 TRD-9318482 
  Nancy Murphy 
 Agency Liaison, Policy and Document Support 
 Texas Department of Human Services 
    Effective date: March 15, 1993 
 Proposal publication date: December 25, 1992 
 For further information, please call: (512) 450-3765 
         
         
  Subchapter E. Income 
 
  40 TAC sec.15.455, sec.15.460 
 
  The amendments are adopted under the Human Resources Code, Title 2, Chapters 
22 and 32, which provides the department with the authority to administer public 
and medical assistance programs and under Texas Civil Statutes, Article 4413 
(502), sec.16, which provide the Health and Human Services Commission with the 
authority to administer federal medical assistance funds. 
 
  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 2, 1993. 
 TRD-9318483 
  Nancy Murphy 
 Agency Liaison, Policy and Document Support 
 Texas Department of Human Services 
    Effective date: March 15, 1993 
 Proposal publication date: December 25, 1992 
 For further information, please call: (512) 450-3765 
         
         
  Subchapter F. Budget and Payment Plans 
 
  40 TAC sec.15.503 
 
  The amendment is adopted under the Human Resources Code, Title 2, Chapters 22 
and 32, which provides the department with the authority to administer public 
and medical assistance programs and under Texas Civil Statutes, Article 4413 
(502), sec.16, which provide the Health and Human Services Commission with the 
authority to administer federal medical assistance funds. 
 
  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 2, 1993. 
 TRD-9318484 
  Nancy Murphy 
 Agency Liaison, Policy and Document Support 
 Texas Department of Human Services 
    Effective date: March 15, 1993 
 Proposal publication date: December 25, 1992 
 For further information, please call: (512) 450-3765 
         
         
  Subchapter G. Application for Medicaid 
 
  40 TAC sec.15.610 
 
  The amendment is adopted under the Human Resources Code, Title 2, Chapters 22 
and 32, which provides the department with the authority to administer public 
and medical assistance programs and under Texas Civil Statutes, Article 4413 
(502), sec.16, which provide the Health and Human Services Commission with the 
authority to administer federal medical assistance funds. 
 
  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 2, 1993. 
 TRD-9318485 
  Nancy Murphy 
 Agency Liaison, Policy and Document Support 
 Texas Department of Human Services 
    Effective date: March 15, 1993 
 Proposal publication date: December 25, 1992 
 For further information, please call: (512) 450-3765 
         
           Chapter 19. Long Term Care Nursing Facility Requirements for 
Licensure and Medicaid Certification 
  
  Subchapter D. Admission, Transfer, and Discharge Rights 
 
  40 TAC sec.19.302 
 
  The Texas Department of Human Services (DHS) adopts an amendment to sec.19. 
302, concerning transfer and discharge, in its Long-Term Care Nursing Facility 
Requirements for Licensure and Medicaid Certification rule chapter, without 
changes to the proposed text as published in the October 23, 1992, issue of the 
Texas Register (17 TexReg 7525). 
 The justification for the amendment is to allow nursing facility residents, who 
have received a discharge notice and appealed it, to stay in the nursing 
facility until the appeal has been heard. 
 The amendment will function by protecting the right of nursing facility 
residents to remain in the facility while their appeal concerning discharge is 
being resolved. 
 During the comment period, DHS received comments from the Texas Health Care 
Association. A summary of the comments and DHS's response follows: 
 COMMENT: The commenter questioned why the rule contains no limitations on the 
continuance or scheduling of appeal hearings, as had been proposed at one point 
in the development of the rule. 
 RESPONSE: Section 79.1315 of this title (relating to Time Limits on Appeals) , 
in DHS's fair hearings rule chapter already provides for limitations on the 
continuance and scheduling of hearings; therefore, DHS is adopting the rule as 
proposed. 
 COMMENT: The commenter questioned the legality of the rule considering the 
federal regulations which only require that a facility notify a resident 30 days 
in advance of a discharge. 
 RESPONSE: DHS believes that the rule as proposed complies with the federal 
regulations because the regulations also state that discharge can occur only in 
certain circumstances. A facility's contention that a particular circumstance 
exists does not prove that the circumstance exists. If the resident challenges 
the validity of the reason for discharge, the fact that a particular 
circumstance exists is not established until the fair hearing officer issues a 
ruling. 
 The amendment is adopted under the Human Resources Code, Title 2, Chapters 22 
and 32, which provides the department with the authority to administer public 
and medical assistance programs and under Texas Civil Statutes, Article 4413 
(502), sec.16, which provide the Health and Human Services Commission with the 
authority to administer federal medical assistance funds. 
 
  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 2, 1993. 
 TRD-9318486 
  Nancy Murphy 
 Agency Liaison, Policy and Document Support 
 Texas Department of Human Services 
    Effective date: March 15, 1993 
 Proposal publication date: October 23, 1992 
 For further information, please call: (512) 450-3765 
         
           Chapter 50. Day Activity and Health Services 
  
  Provider Eligibility 
 
  40 TAC sec.50.2908 
 
  The Texas Department of Human Services (DHS) adopts an amendment to sec.50. 
2908, concerning contracts in its Day Activity and Health Services (DAHS) 
chapter, without changes to the proposed text as published in the December 18, 
1992, issue of the  Texas Register (17 TexReg 8948). 
 The justification for the amendment is to revise how the effective date of a 
provider contract is determined. The effective date of the contract will be the 
date DHS receives the license or license notice from the Texas Department of 
Health or the facility. 
 The amendment will function by assuring that a client is placed in a facility 
only after the facility is issued a license. 
 No comments were received regarding adoption of the amendment. 
 The amendment is adopted under the Human Resources Code, Title 2, Chapters 22 
and 32, which provides the department with the authority to administer public 
and medical assistance programs and under Texas Civil Statutes, Article 4413 
(502), sec.16, which provide the Health and Human Services Commission with the 
authority to administer federal medical assistance funds. 
 
  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 2, 1993. 
 TRD-9318487 
  Nancy Murphy 
 Agency Liaison, Policy and Document Support 
 Texas Department of Human Services 
    Effective date: March 1, 1993 
 Proposal publication date: December 18, 1992 
 For further information, please call: (512) 450-3765 
         
               
  TITLE 43. TRANSPORTATION 
 Part I. Texas Department of Transportation 
  Chapter 1. Administration 
  
  Public Meetings and Hearings 
 
  43 TAC sec.1.1, sec.1.2 
 
  The Texas Department of Transportation adopts the repeal of sec.1.1 and 
sec.1.2 concerning public meetings and hearings, without changes to the proposed 
text as published in the November 10, 1992, issue of the Texas Register  (17 
TexReg 7857). 
 Repeal of the sections is necessary because of the contemporaneous adoption of 
new sec.sec.1.13-1.5 concerning public meetings and hearings, which incorporate 
the provisions of the repealed sections as rewritten and expanded to further 
clarify and update policies of the Texas Transportation Commission and the 
department, and to comply with Texas Civil Statutes, Article 6665a. Article 
6665a, as added by Senate Bill 352, 72nd Legislature, requires the commission to 
develop and implement policies that provide the public with a reasonable 
opportunity to appear before the commission and to speak on any issue under the 
jurisdiction of the commission. 
 A public hearing was held on December 3, 1992, and no oral or written comments 
were received. 
 The repeals are adopted under Texas Civil Statutes, Article 6666 and 6665a, 
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, to implement policies that provide the public with 
a reasonable opportunity to appear before the commission and to speak on any 
issue under the jurisdiction of the commission. 
 
  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 2, 1993. 
 TRD-9318438 
  Diane L. Northam 
 Legal Administrative Assistant 
 Texas Department of Transportation 
    Effective date: February 23, 1993 
 Proposal publication date: November 10, 1992 
 For further information, please call: (512) 463-8630 
         
         
  Organization and Responsibilities 
 
  43 TAC sec.1.1, sec.1.2 
 
  The Texas Department of Transportation adopts new sec.1.1 and sec.1.2 
concerning organization and responsibilities, without changes to the proposed 
text as published in the November 10, 1992, issue of the Texas Register  (17 
TexReg 7858). 
 Texas Civil Statutes, Article 6665, as amended by Senate Bill 352, 72nd 
Legislature, requires the commission to develop and implement policies that 
clearly define the respective responsibilities of the commission and the staff 
of the department. The commission has determined that it is also desirable to 
clearly define the organizational structure of the commission and the 
department. 
 Section 1.1, Texas Transportation Commission, lists the respective 
responsibilities of the commission, each member, and the commissioner of 
transportation. Section 1.2, Texas Department of Transportation, prescribes: the 
qualifications and responsibilities of the executive director of the department; 
the responsibilities of the staff of the department; the structure and 
organization of the department into operating divisions and geographic 
districts; and the policy, purpose, and responsibilities of the department's 
Motor Vehicle Board. 
 A public hearing was held on December 2, 1992, and no oral or written comments 
were received. 
 The new sections are adopted under Texas Civil Statutes, Articles 6666, 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 Texas Civil Statutes, Article 6665, which require the 
commission to develop and implement policies that clearly define the respective 
responsibilities of the commission and the staff of the department. 
 
  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 2, 1993. 
 TRD-9318439 
  Diane L. Northam 
 Legal Administrative Assistant 
 Texas Department of Transportation 
    Effective date: February 23, 1993 
 Proposal publication date: November 10, 1992 
 For further information, please call: (512) 463-8630 
         
         
  Public Meetings and Hearings 
 
  43 TAC sec.sec.1.3-1.5 
 
  The Texas Department of Transportation adopts new sec. sec.1.3-1.5, concerning 
public meetings and hearings, without changes to the proposed text as published 
in the November 10, 1992, issue of the Texas Register  (17 TexReg 7861). 
 The new sections replace existing sec.1.1 and sec.1.2, concerning public 
meetings and hearings, which are simultaneously being repealed. 
 Texas Civil Statutes, Article 6665a, as added by Senate Bill 352, 72nd 
Legislature, 1991, requires the commission to develop and implement policies 
that provide the public with a reasonable opportunity to appear before the 
commission and to speak on any issue under the jurisdiction of the commission. 
 The commission has determined that it is necessary to propose the permanent 
adoption of new sec.sec.1.3-1.5, which incorporate the provisions of the 
repealed sections as rewritten and expanded to further clarify and update 
commission policies, and to comply with new Article 6665a. 
 Section 1.3, Commission Meetings, provides that the commission will: hold at 
least one regular business meeting each month; hold special or emergency 
meetings called by the commissioner of transportation; be chaired by the 
commissioner of transportation; and act only by majority vote. Section 1.4, 
Public Access to Commission Meetings, provides: for persons to speak on posted 
agenda items; for persons to request the department to add an item to the 
commission agenda; for delegations to appear before the commission on 
transportation projects; for persons to speak on any matter under the 
commission's jurisdiction during an open-comment period; that persons with 
special communication or accommodation needs may contact the department, which 
will make every reasonable effort to accommodate; for notice of commission 
meetings in accordance with the Open Meetings Act; guidelines for meeting 
attendees to assure proper decorum, opportunity to be heard, and orderly 
proceedings; and for the commissioner of transportation to waive requirements of 
this section in the public interest if necessary for the performance of the 
responsibilities of the commission or the department. Section 1.5, Public 
Hearings: lists the purposes for which public hearings are held; authorizes the 
executive director or an employee to conduct certain hearings; provides 
guidelines for hearing attendees to assure proper decorum, opportunity to be 
heard, and orderly proceedings; provides that persons with special communication 
or accommodation needs may contact the department, which will make every 
reasonable effort to accommodate; and provides that the department, in an area 
with a substantial spanish speaking population, will provide notice of hearings 
in both English and Spanish, and spanish translation upon request. 
 A public hearing was held on December 3, 1992, and no oral or written comments 
were received. 
 The new sections are adopted under Texas Civil Statutes, Articles 6666 and 
6665a, 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 to implement policies that provide the public 
with a reasonable opportunity to appear before the commission and to speak on 
any issue under the jurisdiction of the commission. 
 
  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 2, 1993. 
 TRD-9318440 
  Diane L. Northam 
 Legal Administrative Assistant 
 Texas Department of Transportation 
    Effective date: February 23, 1993 
 Proposal publication date: November 10, 1992 
 For further information, please call: (512) 463-8630 
         
         
  Complaint Resolution 
 
  43 TAC sec.sec.1.6-1.10 
 
  The Texas Department of Transportation adopts new sec. sec.1.6-1.10 concerning 
complaint resolution. Section 1.9 is adopted with changes to the proposed text 
as published in the November 10, 1992, issue of the Texas Register  (17 TexReg 
7863). Sections 1.6-1.8 and 1.10 are adopted without changes and will not be 
republished. 
 Texas Civil Statutes, Article 6665a, as added by Senate Bill 353, 72nd 
Legislature, 1991, requires the commission by rule to establish methods by which 
consumers and service recipients are notified of the name, mailing address, and 
telephone number of the department for the purpose of directing complaints to 
the department. 
 Section 1.6, Purpose, describes the purpose of the sections. Section 1.7, 
Definitions, provides definitions of terms used in the sections. Section 1.8, 
Filing a Complaint, provides that written complaints may be filed at any 
department business office and oral complaints may be filed in person, by phone, 
or by calling a toll-free number. Section 1.9, Notice to Consumers and Service 
Recipients, providers methods by which consumers and service recipients are 
notified of the name, mailing address, and telephone number of the department 
for the purpose of directing complaints to the department, such methods to 
include: publication in selected public information literature, the official 
state travel map, district road construction reports, and general circulation 
newspapers; display on department motor vehicles, for complaints about the 
operation of the vehicles; and posting at each business office, job sites of 
department contractors, and the place of business of motor vehicle dealers, 
motor vehicle salvage dealers, and motor vehicle manufacturers, distributors, 
converters, and dealers regulated by the department. Section 11. 10, Complaint 
Resolution, provides that the department will: promptly review and make every 
reasonable effort to resolve complaints; respond in writing to written 
complaints; respond in writing or orally to oral complaints; maintain a file for 
each written complaint; and provide quarterly status letters for unresolved 
complaints. 
 A public hearing was held on December 2, 1992, and no oral or written comments 
were received. However, a staff review has determined that a limited change from 
the proposed published text of sec.1.9 is appropriate, specifically, deleting 
the provision that information on filing complaints will be included in motor 
vehicle registration renewal notices. The volume of annual renewal notices 
reaches tens of millions, and the logistics of providing channels of 
communication on that scale have presented the department with unanticipated 
difficulties. Instead the department will initiate a test or pilot program for 
targeted areas to assure proper resolution prior to any statewide application. 
 The new sections are adopted under Texas Civil Statutes, Article 6666 and 
Article 6665a, 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 to adopt rules establishing 
methods by which consumers and service recipients are notified of the name, 
mailing address, and telephone number of the department for the purpose of 
directing complaints to the department. 
 
 
  sec.1.9. Notice to Consumers and Service Recipients.  The department will 
provide notice of one or more names, mailing addresses and/or telephone numbers 
as may be appropriate to geographical locations and subject matter for purposes 
of directing complaints to the department. Relevant information will at a 
minimum be: 
 
  (1) published in selected public information literature, the official state 
travel map, district road construction reports, and annual notices in general 
circulation newspapers; 
   
  (2) displayed on each department-owned motor vehicle, for complaints covering 
the operation of that vehicle; 
   
  (3) posted at each business office of the department, including construction 
field offices; and 
   
  (4) required to be displayed, in a form prescribed by the department: 
 
  (A) at each job site of a department contractor; and 
   
  (B) at the place of business of a: 
 
  (i) motor vehicle dealer regulated by the department under Texas Civil 
Statutes, Article 6686; 
   
  (ii) motor vehicle salvage dealer regulated by the department under Texas 
Civil Statutes, Article 6687-2; and 
   
  (iii) motor vehicle manufacturer, distributor, converter, or dealer licensed 
by the Motor Vehicle Board of the department under Texas Civil Statutes, Article 
4413(36). 
 
  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 2, 1993. 
 TRD-9318441 
  Diane L. Northam 
 Legal Administrative Assistant 
 Texas Department of Transportation 
    Effective date: February 23, 1993 
 Proposal publication date: November 10, 1992 
 For further information, please call: (512) 463-8630 
         
    Texas Department of Insurance Exempt Filing  
  Notification Pursuant to the Insurance Code, Chapter 5, Subchapter L 
 
  (Editor's Note: As required by the Insurance Code, Article 5.96 and 5. 97, the 
Texas Register publishes notices of actions taken by the State Board of 
Insurance pursuant to Chapter 5, Subchapter L, of the Code. Board action taken 
under these articles is not subject to the Administrative Procedure and Texas 
Register Act. 
 These actions become effective 15 days after the date of publication or on a 
later specified date. 
 The text of the material being adopted will not be published, but may be 
examined in the offices of the State Board of Insurance, 333 Guadalupe, Austin. 
) 
   
  The State Board of Insurance of the Texas Department of Insurance, at a public 
hearing held at 9 a. m. on January 28, 1993, under Docket Number 1969, in Room 
100 of the Texas Department of Insurance Building, 333 Guadalupe Street, Austin, 
Texas adopted the Texas Workers' Compensation Financial Call Plan (the Plan) as 
proposed by Staff of the Texas Department of Insurance. The Plan implements the 
Insurance Code, Article 5.58(a) which requires that the Board develop reasonable 
statistical plans to be used by each workers' compensation insurer in the 
recording and reporting of its loss experience and other data in order that the 
total loss and expense experience of all workers' compensation insurers may be 
made available annually. Staff's petition (Reference Number W-1192-68-I), was 
published in the December 22, 1992, issue of the Texas Register (17 TexReg 
9024). 
 The State Board of Insurance has jurisdiction over this matter pursuant to the 
Insurance Code, Articles 5.58 and 5.96. 
 The Plan as adopted by the State Board of Insurance is filed with the Chief 
Clerk under Reference Number W-1192-68-I and is incorporated by reference by 
Board Order Number 60155. 
 Consistent with Texas Insurance Code, Article 5.96(h), prior to the effective 
date of this action, the Board will notify all insurers writing workers' 
compensation insurance. 
 This notification is made pursuant to the Insurance Code, Article 5.96, which 
exempts it from the requirements of the Administrative Procedure and Texas 
Register Act. 
   
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on February 2, 1993. 
 TRD-9318445 
  Linda K. von Quintus-Dorn 
 Chief Clerk 
 Texas Department of Insurance 
    For further information, please call: (512) 463-6328