Adopted Sections An agency may take final action on a section 30 days after a proposal has been published in the Texas Register. The section becomes effective 20 days after the agency files the correct document with the Texas Register, unless a later date is specified or unless a federal statute or regulation requires implementation of the action on shorter notice. If an agency adopts the section without any changes to the proposed text, only the preamble of the notice and statement of legal authority will be published. If an agency adopts the section with changes to the proposed text, the proposal will be republished with the changes. TITLE 16. ECONOMIC REGULATION Part VIII. Texas Racing Commission Chapter 313. Officials and Rules of Horse Racing Subchapter A. Officials Duties of Stewards 16 TAC sec.313.22 The Texas Racing Commission adopts an amendment to sec.313.22, concerning general duties, without changes to the proposed text as published in the February 23, 1993, issue of the Texas Register (18 TexReg 1125). The amendment is adopted to ensure that pari-mutuel racing is conducted with utmost integrity. The amendment clarifies the authority of the stewards to deny the issuance of individual licenses. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 179e, sec.3.02, which authorize the commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act; under sec.3.07, which authorizes the commission to adopt rules relating to the powers and duties of stewards. 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 April 19, 1993. TRD-9322033 Paula Cochran Carter General Counsel Texas Racing Commission Effective date: May 13, 1993 Proposal publication date: February 23, 1993 For further information, please call: (512) 794-8461 Subchapter D. Running of the Race Jockeys 16 TAC sec.313.405 The Texas Racing Commission adopts an amendment to sec.313.405, concerning whips and other equipment, without changes to the proposed text as published in the February 23, 1993, issue of the Texas Register (18 TexReg 1125). The amendment is adopted to ensure that pari-mutuel horse racing is humane for the racehorses. The amendment outlines the correct and incorrect uses of a whip, as well as the permitted configuration for a whip. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 179e, sec.3.02, which authorize the commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act; under sec.14.03, which authorizes the commission to adopt rules prohibiting the illegal influence of a race. 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 April 19, 1993. TRD-9322034 Paula Cochran Carter General Counsel Texas Racing Commission Effective date: May 13, 1993 Proposal publication date: February 23, 1993 For further information, please call: (512) 794-8461 TITLE 31. NATURAL RESOURCES AND CONSERVATION Part I. General Land Office Chapter 19. Oil Spill Prevention and Response 31 TAC sec.19.2, sec.19.4 The General Land Office (GLO) adopts amendments to sec. sec.19.2, 19.4, 19. 11-19.15, 19.20, 19.31, 19.34, and 19.55, concerning definitions, waivers, categories of coastal facilities, facility certifications, applications for small facilities, applications for major facilities, issuance, modification and suspension of facility certificates, discharge cleanup organizations, jurisdiction, and the duties of the responsible person(s). GLO adopts sec. sec.19. 2, 19.4, 19.11, 19.15, 19.34, and 19.55, with changes to the proposed text as published in the October 23, 1992, issue of the Texas Register (17 TexReg 7515). Sections 19.12, 19.13, 19.14, 19.20, and 19.31 are adopted without changes and will not be republished. In response to comments, several clarifications and modifications were made. The amendments are adopted in order to clarify certain issues that have arisen during the process of implementing the certification of facilities and discharge cleanup organizations. Subchapter A revises the definition of coastal waters to include all waters which are tidally influenced. The definition of "environmentally sensitive areas" is changed to exclude "agricultural areas" from the definition. The Coastal Facility Designation Line is renumbered as a separate definition and its purpose is further explained. The procedures for a waiver from the requirements of OSPRA are fully described in sec.19.4. Subchapter B describes the exemption for certain exploration and production facilities from certification requirements. It also clarifies that the application fee is required only per owner or operator and not per facility. This subchapter adds a 90-day grace period for new facilities to comply with certification requirements. The subchapter also adds an explanation of current financial responsibility requirements. Finally, the requirement to submit a list of permits in the facility certification application has been modified to require listing only those permits which relate to discharges into ground or surface waters of the State. Subchapter C expands the duties of the responsible person to require the provision of a site-specific safety and health plan at spill response areas. Subchapter D adds sec.19.55, entitled Response Costs, to describe the GLO policy on recovering monies to the Coastal Protection Fund. Several comments were received regarding the Coastal Facility Designation Line (Line), sec.19.2(5)(B). Two commenters suggested modifying the rule to specifically state that facilities coastward of this Line are located where spills may pose an imminent threat to coastal waters. The description of the Line's purpose has been clarified and this particular request is no longer relevant because of the adopted rule. These commenters also recommended that the GLO define an "imminent threat" as one which exists only after the source of the spill is shut off and after secondary containment fails. However, the Oil Spill Prevention and Response Act of 1991 (OSPRA), sec.40.051, requires the commissioner of the GLO to act to assess, prevent, abate, and contain an actual or threatened unauthorized discharge of oil. Further, OSPRA, sec.sec.40. 003(7), 40.003(24), and 40.101 require responsible persons to notify the commissioner when a harmful quantity of oil represents an imminent threat of pollution to coastal waters. These statutory definitions and mandates clearly require persons to give notice to the commissioner and require the commissioner to act if an imminent threat exists. Conversely, OSPRA does not authorize the commissioner to wait until the source of a spill is shut off and secondary containment fails, since under OSPRA, the activity triggering the duty to act is the spill itself. As a practical matter, shutting off the source of a spill is not always a simple or speedy matter. In the case of a ruptured pipeline, it can take many hours to shut down the pipeline. Some spills may enter coastal waters before the source is abated. Effective spill response is achieved by anticipating the possible paths of the discharged oil and immediately taking action to protect potentially threatened property and natural resources, rather than waiting for the source to be controlled or for secondary containment to fail. Because of OSPRA's requirements and the GLO's conservative approach to spill response, GLO has not made the recommended changes. These commenters further stated that GLO's authority to require facility certification is limited to waterfront or offshore facilities. However, OSPRA, sec.40.003(22) defines "facility" as "operating where a discharge of oil from the facility could threaten coastal waters" While waterfront and offshore facilities are obviously located in places where a discharge could threaten coastal waters, there are other such locales. Common rules of statutory construction provide that every word in a statute is presumed to have meaning and that words in a statute are not to be considered superfluous. OSPRA covers a broader universe than merely waterfront or offshore sites. OSPRA authorizes the registration of facilities operating any place where a spill therefrom could enter or pose an imminent threat to coastal waters. Due to confusion regarding the purpose of the Coastal Facility Designation Line, GLO has simplified the language describing the purpose of the Line. The Line is the first threshold for reviewing the applicability of OSPRA's facility certification requirements. If an oil handling facility is located coastward of the Line, then the facility should contact the GLO. GLO will then determine, based on the quantity of oil handled and the precise location of the facility, whether certification is required. One commenter suggested that "Coastal Facility Designation Line" be defined separately instead of within the definition of "facility." This change was made and "Coastal Facility Designation Line" is now defined separately in sec.19.2(20). This commenter also recommended changes to the definition of "unauthorized discharge of oil"; however, there was no proposed change to this definition in the notice published on October 23, 1993, and therefore, according to the rules of the Texas Register, such a change cannot be made now. This commenter was concerned that the definition in the rules was inconsistent with the definition in OSPRA. To the extent that inconsistency exists, the definition in OSPRA prevails. One commenter requested that the definition of "facility" be amended to clarify that all "land-based mobile or portable drilling units" need not be certified. This change was not made because the language clearly states that these units are considered "facilities" only when they are operating in coastal waters. Regarding sec.19.4(a)(1)(B), one commenter stated that the proposed rule appears to apply to only "facilities" and not "persons." Section 19.4(a)(1)(B) is related to waiver from facility certification requirements and was inadvertently placed in sec.19.4(a)(1), related to waiver of any OSPRA requirement. It now appears as sec.19.4(a)(2)(B), relating to waiver from facility certification requirements. Regarding sec.19.11(b)(2), two commenters requested that GLO clarify certification requirements for "major storage facilities." One commenter stated that this was a new and undefined term in the GLO rules. The proposed rule is modified to state that a "major storage facility" which handles in excess of 2,500 barrels, or 105,000 U.S. gallons, of oil is not exempted from certification requirements. Two commenters asked that all pipelines be exempt from facility certification requirements. The rationale offered was that pipelines are within the jurisdiction of the Railroad Commission, where they are sufficiently and appropriately regulated. The exemption from facility certification was provided to ease the regulatory burden on small oil and gas exploration and production facilities whose location did not pose a significant threat to coastal waters and is not solely related to the jurisdiction of the Railroad Commission of Texas. OSPRA, sec.40.003(22) specifically provides for the registration of pipelines, structures, equipment, and devices used for drilling and pumping. Further, the transportation of oil is specifically mentioned as an activity that creates a risk to coastal waters in OSPRA, sec.40.002. Therefore, GLO, has not amended the proposed rule to exempt all pipelines from the facility certification requirement. One commenter requested that the exemption from facility certification be expanded to include liquid recovery facilities operated in conjunction with natural gas pipeline transmission or distribution systems. However, "condensate," which is recovered in liquid recovery facilities, is specifically included in the definition of "crude oil" in OSPRA, sec.40.003(5). GLO has previously exempted natural gas pipelines from facility certification requirements because they pose a lesser threat to coastal waters. However, GLO has and continues to specifically include liquid recovery facilities that separate out condensate. One commenter requested that sec.19.12(e) be amended to state that the 90-day grace period for applying for facility certification does not begin to run until "permanent production facilities" are installed. This recommendation would have the effect of exempting drilling and workover activities from complying with facility certification. The recent blowout during a rig workover off the coast of Louisiana is a stark reminder of the need for contingency and spill response planning during these activities. GLO recognizes that drilling and workover activities are temporary in nature, and GLO will provide for a simplified certification process for these activities. However, some form of spill response capability must be provided when these activities are undertaken; therefore, the suggested change has not been made. One commenter requested that the requirement that facility site plans be certified by a professional engineer be deleted entirely. Pursuant to extensive discussions with representatives of oil pipeline transportation companies, GLO proposed eliminating the requirement for pipeline site plans. GLO is not deleting the requirement completely because the accuracy of the location of oil handling devices is important for effective spill prevention and response. Any facility owner or operator who believes this requirement will not impact spill prevention and response capability may request a waiver pursuant to sec.19.4. The provision for review of facility applications is not affected by the new exemption. The Railroad Commission will review all applications for certification from exploration and production facilities. One commenter noted that sec.19.31 did not clearly define the jurisdiction of GLO and questioned its purpose. Since no specific other changes were proposed to this section in the October 23, 1992, proposed amendments, none can be made now. This section will be reviewed in the future. Several commenters noted that the reference related to site safety plans in the Code of Federal Regulations was in error. The correction has been made and the proper citation for site safety plans is 29 Code of Federal Regulations 1910.120. Another commenter suggested that the same language used in the Code of Federal Regulation be used in these rules. This change has been made and sec.19.34(e) now says "emergency response plan" instead of "site specific safety and health plan." However, the descriptive phrase "for the health and safety of employees and responders" has also been included in this section to make the purpose clear. One commenter suggested adding a statement that GLO and the Railroad Commission of Texas enter into a Memorandum Of Understanding related to the collection of response costs for oil spills when the Railroad Commission acts as the on scene coordinator. Another commenter requested that the proposed rule be clarified to say that response costs will not be assessed when the Railroad Commission is the on scene coordinator. OSPRA, sec.40.153 requires GLO to recover to the use of the Coastal Protection Fund (Fund) all sums owed or expended from the Fund. The entire spill response program at GLO is funded by the Coastal Protection Fund. GLO does not have the legal authority to recover monies not expended from the Fund. Response costs incurred by the Railroad Commission which are not expended from the Fund are not properly recoverable to the Fund. At times, the federal government will be the on-scene coordinator, but GLO will still have a significant role in response activities. Therefore, cost recovery will be initiated where GLO resources are expended even though the federal government, instead of GLO, is the on-scene coordinator. Another commenter asked that the proposed rule be clarified to state that GLO will not seek reimbursement for federal funds expended in spill response. For the same reasons set forth above, GLO is not legally authorized to collect monies expended by the federal government. The proposed rule has been amended to clarify that response costs will be recovered only when the monies have been expended from the Coastal Protection Fund. The language has been amended to state that response cost recovery will not be initiated where the either the Railroad Commission or the Texas Water Commission are the state on-scene coordinator, unless requested by them and approved by the Commissioner. One commenter suggested that the word "unauthorized" be added to this proposed section in defining oil spills. This change was made. This commenter also suggested that the words "poses an imminent threat" be used in lieu of "threaten" or "threatening." This commenter believes that only these specific words are authorized by OSPRA. Although OSPRA, sec.40.004 and sec.40.051 specifically use the phrase "threatened unauthorized discharges of oil," GLO made the suggested change. Two commenters said the proposed section should be reorganized into separate subsections which describe when response costs will and will not be assessed. The section has been so reorganized. One commenter requested a definition of "overhead". Any itemized billing will include a specific description of the costs assessed, including overhead. GLO is using this phrase as it is commonly used in accounting practices. Overhead refers to operating expenses such as rent and utilities associated with spill response activities. Further specification of these costs is not delineated in the rules, but particular billings will have such specificity. Two commenters asked that the phrase "minimal size" used in the proposed rule be defined. The words "minimal size" are no longer used; instead, the threshold measure for response cost assessment is the time spent on-scene by GLO spill responders, rather than the size of the spill. Thus, the words were not defined. One commenter asked that GLO not assess response costs unless GLO personnel take "discrete actions." The same commenter noted that responding to a spill, monitoring the response activities, and writing up a report are not significant enough activities to warrant the assessment of response costs. Responding to the spill scene, monitoring the cleanup, and making a written report are precisely the activities that GLO is required to engage in as the on-scene coordinator. It is not the role of the governmental response agency to actually conduct cleanup activities. The person responsible for the unauthorized discharge of oil is required to engage in cleanup activities. OSPRA, sec.40.003 defines "response costs" to include: "all costs incurred in an attempt to abate, contain, and remove pollution from the discharge, and costs of any reasonable measures to prevent or limit damage to the public health, safety, or welfare, public or private property, or natural resource.s" GLO response to reported spills is clearly within this definition and, therefore, the suggested change was not made. This commenter also stated that because the Coastal Protection Fund is derived from a tax on the handling of crude oil, the Fund should cover GLO response costs and that the spiller should not be charged these costs. The section was not changed in response to these comments because GLO believes that its statutory duty to recover monies expended from the Fund does not discriminate between those spill events which occur at a facility whose owner or operator has been assessed the Coastal Protection Fee (OSPRA, sec.40.154) and those whose owner or operator has not been assessed the fee. No one who commented opposed adoption of the chapter. Those who commented objected to or requested specific changes to sections or subsections. The following entities submitted comments: Exxon Gas System, Inc.; Texas Independent Producers and Royalty Owners Association; Texas Mid-Continent Oil and Gas Association; Mitchell Energy Corporation; International Association of Drilling Contractors; Pennzoil Corporation; Marine Spill Response Corporation; the Railroad Commission of Texas. Subchapter A. General Provisions The amendments are adopted under Texas Natural Resources Code, sec.40.007, which authorizes the land commissioner to promulgate rules necessary and convenient to the administration of OSPRA. sec.19.2. Definitions. (a) The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise. (1) Coastal waters-All tidally influenced waters extending from the head of tide in the arms of the Gulf of Mexico seaward to the three marine league limit of Texas' jurisdiction; and non-tidally influenced waters extending from the head of tide in the arms of the Gulf of Mexico inland to the point at which navigation by regulated vessels is naturally or artificially obstructed. The term includes the entirety of the Gulf Intracoastal Waterway (GIWW) within Texas, and the following waters: starting from Echo, Texas, located in Orange County, and proceeding south on the Sabine River to the intersection with the GIWW, thence westerly along the GIWW, including Adams Bayou, to 0.7 miles upstream of IH10, and Cow Bayou, to IH10. This includes the Neches River in Orange County to 7.0 miles upstream of IH10. Then along the GIWW towards Port Arthur, including Taylors Bayou south of Highway 73. From Port Arthur along the GIWW to, and including, East Bay, Trinity Bay, Cedar Bayou to 1.4 miles upstream of IH10 in Harris/Chambers County, Lynchburg Canal to 29 degrees 41'00"N, 94 degrees 59'00"W, San Jacinto River in Harris County to the Lake Houston Dam, and the Houston Ship Channel to the turning basin. Tidal tributaries of the Houston Ship Channel include: Buffalo Bayou to .25 miles upstream of Shepherd Drive, Brays Bayou to the Broadway Street Bridge, Sims Bayou to Highway 225, Vince Bayou to North Ritchie Street, Hunting Bayou to I-10, Greens Bayou to I-10, Boggy Bayou to Highway 225, Tucker Bayou to Old Battleground Road, Carpenter's Bayou to Sheldon Road, and Goose Creek to Highway 146. Proceed south and include Barbours Cut, Bayport Channel, Clear Lake to .063 miles upstream of FM 528 in Galveston/Harris County, Dickinson Bay, Dickinson Bayou 2.5 miles downstream of FM 517 in Galveston County, Moses Lake, Dollar Bay, Texas City Channel (including turning basin), Swan Lake, Jones Bay, and continuing at the junction of West Bay and the GIWW in Galveston County. Continue westerly along the GIWW to the Port of Freeport, including Greens Lake, Chocolate Bay, Chocolate Bayou to 2.6 miles downstream of SH 35, the Old Brazos River and the New Brazos River up to the Missouri-Pacific Railroad bridge in Brazoria County, and the Dow Barge Canal. Then southerly along the GIWW through and including, Jones Lake and Creek, the San Bernard River to 2.0 miles upstream of SH 35, Cowtrap Lake, Matagorda Bay, the Colorado River to 1.3 miles downstream of the Missouri- Pacific Railroad in Matagorda County, to the Port of Bay City, Culver Cut (West Branch Colorado River to 28 degrees 42'N and the entire middle branch), Crab Lake, Oyster Lake, Tres Palacios Bay, Turtle Bay, Caranchua Bay, Keller Bay, Cox Bay, Lavaca Bay, Lavaca River to 5.3 miles downstream of US 59 in Jackson County, Chocolate Bay/Bayou, Powderhorn Lake, Robinsons Lake, Blind Bayou, La Salle Bayou, Broad Bayou, and Boggy Bayou. Continuing southerly on GIWW from Port O'Connor through San Antonio Bay including: Guadalupe Bay, Mission Lake, Green Lake, Victoria Barge Canal, Guadalupe River to the Guadalupe-Blanco River Authority Salt Water Barrier 0.4 miles downstream of the confluence of the San Antonio River, Goff Bayou, Hog Bayou, Corey Bay, Buffalo Lake, Alligator Slide Lake, Twin Lake, Mustang Lake, and Jones Lake. Then continuing through Mesquite Bay including: Dunham Bay, Long Lake, Sundown Bay, and the Aransas Wildlife Refuge. Continuing southerly through St. Charles Bay including: Burgentine Bay/Burgentine Creek to 28 degrees 17'N, Salt Creek to 28 degrees 16'N, and Cavaso Creek to 97 degrees 01'W. Then through Copano Bay, including Copano Creek, Mission Bay, Mission River to 4.6 miles downstream of US 77, Chiltipin Creek, Aransas River to 3.3 miles upstream of Chiltipin Creek in Refugio/San Patricio County, Swan Lake, Port Bay, and Salt Lake. Then southerly including: Little Bay, Aransas Bay, Conn Brown Harbor, Redfish Cove, Redfish Bay, La Quinta Channel, Nueces River to Calallen Dam 1.1 miles upstream of U.S. 77/IH 37 in Nueces/San Patricio County, Rincon Industrial Channel, Rincon Bayou, Nueces Bay, Tule Lake, Corpus Christi Inner Harbor, Oso Creek, Oso Bay, Cayo Del Oso, and Corpus Christi Bay. Continuing south, through and including, Packery Channel, Laguna Madre, Baffin Bay, Alazan Bay, Cayo del Hinoso, Petrolino Creek from the confluence of Chiltipin Creek in Kleberg County to 0.6 miles upstream of private road crossing near Laurless Ranch, Cayo Del Infiernillo, Cayo del Grullo, Laguna Salada, Laguna de los Olmos, and Comitas Lake. Continuing through the Laguna Madre to Redfish Bay, Port Mansfield Harbor, Four Mile Slough, Cayo Atascosa, Laguna Atascosa, Arroyo Colorado Cutoff, El Realito Bay, Laguna Vista Cove, Port Isabel Harbor, Brownsville Ship Channel, Bahia Grande, Vadia Ancha, San Martin Lake, South Bay, and the Arroyo Colorado River to .063 miles downstream of Cemetery Road south of Port Harlingen in Cameron County. Then southerly to the Rio Grande River to 6.7 miles downstream of the International Bridge in Cameron County. Where the coastal area is defined by a body of water such as a bay or lake, it includes any small bays or lakes encompassed therein. (2)-(3) (No change.) (4) Environmentally sensitive areas-Streams and water bodies, aquifer recharge zones, springs, wetlands, bird rookeries, endangered and threatened species (flora and fauna) habitat, wildlife preserves or conservation areas, parks, beaches, dunes, or any other area protected or managed for its natural resource value. (5) Facility-Mobile or portable units, other than vessels, generally are considered facilities only when they are fixed in location and operating in coastal waters. (A) Any pipeline, structure, equipment, or device used for handling oil, including, but not limited to, underground and aboveground tanks, impoundments, mobile or portable drilling or workover rigs and barge-mounted drilling or workover rigs operating in coastal waters, and portable fueling facilities located offshore or adjacent to coastal waters as defined in paragraph (1) of this subsection or any place where a discharge of oil from the facility could enter or pose an imminent threat to coastal waters. (B) A combination of interrelated or adjacent tanks, impoundments, pipelines, gathering lines, flow lines, separator or treatment facilities, and other structures, equipment, or devices under common ownership or operation generally will be considered a single facility under OSPRA. Interrelated means that the devices are all an integral part of one commercial or industrial operation or are managed and controlled by a single entity. The term includes facilities owned by units of federal, state, or local government, as well as privately owned facilities. (6)-(19) (No change.) (20) Coastal Facility Designation Line. The Coastal Facility Designation Line delineates the area within which a facility may be subject to the certification requirements of sec.19.12 of this title (relating to Facility Certification). The Line does not delineate OSPRA's response or notification requirements; rather, it gives notice to facilities located coastward of the Line that they may be subject to facility certification requirements. These facilities should contact the GLO. GLO will then, based on the precise location of the facility and based on the quantity of oil handled, determine whether facility certification is required. A map showing the coastal facility designation line is attached as Appendix 1. APPENDIX 1-COASTAL FACILITY DESIGNATION LINE All areas east and south of the following boundary are considered areas in which spills may pose an imminent threat to coastal waters: beginning at the International Toll Bridge in Brownsville, thence northward along U.S. Highway 77 to the junction of Paredes Lines Road (FM Road 1847) in Brownsville, thence northward along FM Road 1847 to the junction of FM Road 106 east of Rio Hondo, thence westward along FM Road 106 to the junction of FM Road 508 in Rio Hondo, thence northward along FM Road 508 to the junction of FM Road 1420, thence northward along FM Road 1420 to the junction of State Highway 186 east of Raymondville, thence westward along State Highway 186 to the junction of U.S. Highway 77 near Raymondville, thence northward along U.S. Highway 77 to the junction of FM Road 774 in Refugio, thence eastward along FM Road 774 to the junction of State Highway 35 south of Tivoli, thence northward along State Highway 35 to the junction of State Highway 185 between Bloomington and Seadrift, thence northwestward along State Highway 185 to the junction of FM Road 616 in Bloomington, thence northeastward along FM Road 616 to the junction of State Highway 35 east of Blessing, thence southward along State Highway 35 to the junction of FM Road 521 north of Palacios, thence northeastward along FM Road 521 to the junction of State Highway 36 south of Brazoria, thence northward along State Highway 36 to the junction of State Highway 332 in Brazoria, thence eastward along State Highway 332 to the junction of FM Road 2004 in Lake Jackson, thence northeastward along FM Road 2004 to the junction of Interstate Highway 45 between Dickinson and La Marque, thence northwestward along Interstate Highway 45 to the junction of Interstate Highway 610 in Houston, thence east and northward along Interstate Highway 610 to the junction of Interstate Highway 10 in Houston, thence eastward along Interstate Highway 10 to the Louisiana State Line. Please note that facilities north and west of the boundary are not subject to certification pursuant to OSPRA. AREAS OF EXTENDED TIDAL INFLUENCE/IMPACT POTENTIAL (1) ARROYA COLORADO FROM SOUTH OF HWY 106 TO THE PORT OF HARLINGEN. (2) NUECES RIVER AT THE HWY 666 CROSSING OF THE NUECES RIVER. (3) GUADALUPE RIVER AND ASSOCIATED RIVERINE ENVIRONMENT INCLUDING THE VICTORIA BARGE CANAL TO THE HWY 175 RIVER CROSSING. (4) PALMETTO BEND DAM ON THE LAVACA RIVER. (5) TRES PALACIOS RIVER 4.0 MILES ABOVE THE HWY 521 CROSSING. (6) COLORADO ABOVE THE PORT OF BAY CITY 1.3 MILES SOUTH OF THE MISSOURI- PACIFIC RAILROAD. (7) SAN BERNARD TO TIDAL 2 MILES UPSTREAM OF HWY 35 CROSSING. (8) CHOCOLATE BAYOU TO TIDAL 2.6 MILES DOWNSTREAM OF HWY 35. (9) BUFFALO BAYOU 6.5 MILES WEST OF THE TURNING BASIN. (10) SAN JACINTO RIVER TO THE LAKE HOUSTON DAM. (11) TRINITY RIVER TO 1.9 MILES SOUTH OF HWY 90 IN LIBERTY COUNTY. (12) NECHES RIVER 7 MILES UPSTREAM OF IH-10. (13) SABINE RIVER TO MORGAN BLUFF. NOTE: AREAS OF EXTENDED TIDAL INCLUDE WATERWAYS AND FACILITIES 100 YARDS LANDWARD FROM CUT BANK. [graphic] (b) (No change.) sec.19.4. Waiver. (a) Upon written request, the Commissioner may waive a provision of this chapter if the Commissioner determines that the application of the provision would be inconsistent with the fundamental intent and purpose of the Oil Spill Prevention and Response Act of 1991 (OSPRA). The Commissioner may also waive any requirement of this chapter if the Commissioner determines that other existing federal or state statutory or regulatory provisions provide requirements necessary to implement OSPRA. (1) Waiver from requirements of this chapter. Any person may request a waiver from a requirement of this chapter by submitting the following information to the Commissioner: (A) the name, address, and telephone number of the person submitting the requested waiver, and if that person is the agent of the person requesting the waiver, then the agent must also state the name, address and telephone number of the person for whom the waiver is requested; (B) a specific reference to the requirement from which the person is requesting a waiver; (C) a detailed statement of the reasons which warrant a waiver; (D) an analysis of the waiver's impact on the person's ability to prevent, abate, cleanup and remove an unauthorized discharge of oil. (2) Waiver from Facility Certification Requirements. Any person may request a waiver from the facility certification requirement of this chapter by submitting the following information to the Commissioner: (A) the name, address, and telephone number of the person submitting the requested waiver, and if that person is the agent of the person requesting the waiver, then the agent must also state the name, address and telephone number of the person for whom the waiver is requested; (B) the address and location, including directions from the nearest highway, of the facility subject to the requirements of this chapter; (C) vicinity map and USGS Quad map (1:24,000) showing the location of the facility for which waiver is requested; (D) a brief description of the business conducted at the facility, including the quantity and types of oil handled; (E) a summary of the prevention and response practices utilized at the facility supporting the contention that an unauthorized discharge of oil therefrom will not pose an imminent threat to coastal waters; (F) a summary of any other reasons that this chapter should not apply to the facility. (3) Receipt of a request for waiver from any facility subject to certification requirements will be deemed to constitute compliance with all timelines for facility certification. Any person whose request for waiver is denied will be given a reasonable time to comply with all the requirements for certification. (4) Requests for waivers from facility certification requirements will be evaluated by considering the following factors: (A) the physical location of the facility, including: (i) proximity to coastal waters; (ii) proximity to environmentally sensitive areas; (iii) topography; (iv) site drainage; (v) flood tide impacts; (vi) the condition of oil storage areas, including age and condition of oil storage containers, evidence of past spills, leak detection abilities, and secondary or passive containment systems; (B) The type and quantity of oil handled. (C) The factors listed in this paragraph will be weighted so that subparagraph of this paragraph (A)(vi) will be considered only in the event that a determination cannot be made based solely on the other listed factors. (D) The commissioner will conduct a field investigation, if necessary, to determine whether to grant the request for waiver. (b) (No change.) This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on April 23, 1993. TRD-9322073 Garry Mauro Commissioner General Land Office Effective date: May 14, 1993 Proposal publication date: October 23, 1992 For further information, please call: (512) 463-5725 Subchapter B. Spill Prevention and Preparedness 31 TAC sec.sec.19.11-19.15, 19.20 The amendments are adopted under Texas Natural Resources Code, sec.40.007, which authorizes the land commissioner to promulgate rules necessary and convenient to the administration of OSPRA. sec.19.11. Categories of Coastal Facilities. (a) There are five types of coastal facilities: exempt, small commercial, underground storage, small, and major. For the purpose of determining the size of the facility, oil stored in underground tanks, as defined in sec.19.2(16) of this title (relating to Definitions), need not be included in the total. Coastal facilities are classified according to oil storage and transfer capacity. Oil that is integral to equipment, such as oil in transformers or oil that is part of operating machinery, is not included in determining facility capacity or usage. Where a facility has storage capacity that is in excess of its actual usage, then the facility may base its certification on the actual usage. An explanation for the basis of the actual usage quantity rather than storage capacity quantity must be provided. (b) Exempt facilities are: (1) farm or residential tanks with a capacity of 1,320 United States gallons or less that are used for storing oil for farm or residential purposes only. (2) exploration and production structures and devices that handle oil and that are not waterfront or offshore. For the purpose of facility certification requirements, waterfront means located within 100 yards of coastal waters and offshore means located in coastal waters of the State of Texas. Exploration and production facilities, for the purposes of this exemption are the following facilities associated with the production of oil: all wells, separators, treaters, dehydrators, flow tanks, frac tanks, gun barrels, stock tanks, sediment oil tanks, storage tanks, tank batteries, and flow lines, gathering lines, lead lines, and feeder lines. It does not include main pipelines, independent pipelines, trunk lines, transmission lines, distribution lines, any pipeline considered a common carrier, or major storage facilities. For the purposes of this exemption, a major storage facility is a facility which stores in excess of 2,500 barrels of oil. Storage means the actual quantity of oil stored at the facility and not the storage capacity of the facility. An owner or operator of an exempt facility is not required to obtain a discharge prevention or response certificate or to have a discharge prevention and response plan or proof of financial responsibility. (c) Small commercial facilities are facilities that have an oil storage or transfer capacity of 1,320 United States gallons or less and that are used for any commercial or industrial purpose. (d) (No change.) sec.19.15. Issuance; Modification and Suspension of Facility Certificates. (a)-(c) (No change.) (d) At least 30 days prior to issuance or renewal of a certificate for an oil or gas pipeline or facility used in the exploration, development, or production of oil or gas, GLO will send the Railroad Commission of Texas a copy of the application for review and comment. (e)-(f) (No change.) (g) Registrants must report changes in discharge prevention response capability. No application fee or other charge is assessed for the submission of new or changed information under this subsection. 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 April 21, 1993. TRD-9322074 Garry Mauro Commissioner General Land Office Effective date: May 14, 1993 Proposal publication date: October 23, 1992 For further information, please call: (512) 463-5725 Subchapter C. Spill Response 31 TAC sec.19.31, sec.19.34 The amendments are adopted under Texas Natural Resources Code, sec.40.007, which authorizes the land commissioner to promulgate rules necessary and convenient to the administration of OSPRA. sec.19.34. Duties of Responsible Person. (a) In the event of an actual or threatened unauthorized discharge, it is the duty of the responsible person to immediately initiate response action, or to ensure that the person in charge will initiate response action. The responsible person is the owner or operator of a vessel or facility from which an unauthorized discharge of oil emanates or threatens to emanate. The person in charge is the person at the vessel or facility who is empowered by the responsible person to initiate response actions and to perform all actions necessary to prevent, abate, contain, and remove all pollution. The responsible person or the person in charge must inform the General Land Office (GLO) of the person's strategy for responding to the unauthorized discharge, including whether the facility's or vessel's discharge prevention and response plan will be adequate for abating, containing, and removing pollution or whether it appears that an adequate response to the discharge will require deviation from the plan. The response strategy and proposed deviations from the plan must be reported to the on-scene coordinator on a regular basis throughout response operations. (b)-(d) (No change.) (e) The responsible person is required to provide an emergency response plan consistent with 29 CFR 1910.120 for the health and safety of spill response personnel at the spill response scene. In order to comply with the National Contingency Plan, responsible persons must ensure that contractors and others under their employ have an emergency response plan program for the health and safety of personnel responding during the spill response. Failure to provide an emergency response plan for the health and safety of responders will be considered a failure to adequately respond to a spill event. 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 April 21, 1993. TRD-9322075 Garry Mauro Commissioner General Land Office Effective date: May 14, 1993 Proposal publication date: October 23, 1992 For further information, please call: (512) 463-5725 Subchapter D. Compensation and Liability 31 TAC sec.19.55 The amendment is adopted under Texas Natural Resources Code, sec.40.007, which authorizes the land commissioner to promulgate rules necessary and convenient to the administration of OSPRA. sec.19.55. Response Costs. (a) The General Land Office (GLO) is required to recover expenditures from the Coastal Protection Fund pursuant to OSPRA, sec.40.153 and sec.40.161(a), and therefore GLO will assess response costs as delineated in this subsection. (b) Whenever GLO is unable to identify the person responsible for an unauthorized discharge of oil into or posing an imminent threat to coastal waters, GLO will respond to the unauthorized discharge by initiating cleanup and other necessary response actions. Upon identification of the responsible person, GLO will seek reimbursement for all monies expended from the Coastal Protection Fund including, but not limited to, the following: (1) actual costs of engaging a contractor to conduct cleanup; (2) actual expenses of GLO personnel including time, transportation, lodging, and overhead; (3) administrative and investigative expenses incurred in identifying the responsible person, including, but not limited to: (A) sampling and analysis of the discharged oil and comparison samples; and (B) field investigative costs; and (C) accounting and legal costs. (c) Whenever GLO personnel respond to the scene of an unauthorized discharge of oil that actually enters or poses an imminent threat to coastal waters, the following response costs shall be assessed against the responsible person: (1) actual expenses of GLO personnel including time, transportation, lodging, and overhead; and all administrative costs of preparing the assessment; or (2) a minimum response cost of $250. (d) GLO will assess response costs when: (1) oil enters coastal waters and a cleanup response is required; (2) oil does not enter coastal waters but poses an imminent threat to coastal waters and a response is required to prevent the oil from entering coastal waters. (e) GLO will not assess response costs when: (1) oil enters coastal waters but GLO personnel do not spend more than two hours, excluding travel time, at the scene of the spill; (2) oil is spilled but does not enter or pose an imminent threat to coastal waters. (f) The minimum response cost of $250 will be billed whenever GLO personnel are required to monitor prevention or response activities and the time spent at the spill scene, excluding travel time, is less than eight hours. In the event that more than eight hours of GLO response personnel time is required at the scene of the spill, the responsible party will be assessed the actual costs of response incurred by GLO. Response costs will not be assessed where either the Railroad Commission of Texas or the Texas Water Commission is the state on-scene coordinator, unless requested by the Railroad Commission of Texas or the Texas Water Commission and approved by the commissioner. 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 April 21, 1993. TRD-9322076 Garry Mauro Commissioner General Land Office Effective date: May 14, 1993 Proposal publication date: October 23, 1992 For further information, please call: (512) 463-5725 TITLE 37. PUBLIC SAFETY AND CORRECTIONS Part II. Texas Youth Commission Chapter 85. Admission and Placement Placement Planning 37 TAC sec.85.31 The Texas Youth Commission (TYC) adopts an amendment to sec.85.31, concerning evaluation of a youth's home to determine whether the home is approved or disapproved for placement, without changes to the proposed text as published in the March 23, 1993, issue of the Texas Register (18 TexReg 1845). The amendment will bring about efficient procedures for home placement. The amendment describe criteria for reintegration of documented sex offenders returning home when the offender's victim or a potential victim lives in the home. No comments were received regarding adoption of the amendment. The amendment is adopted is adopted under the Human Resources Code, sec.61. 034, which provides the 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 April 23, 1993. TRD-9322118 Ron Jackson Executive Director Texas Youth Commission Effective date: May 17, 1993 Proposal publication date: March 23, 1993 For further information, please call: (512) 483-5244 Chapter 87. Treatment Program Planning 37 TAC sec.sec.87.27, 87.29, 87.30 The Texas Youth Commission (TYC) adopts new sec.87.27, concerning family reintegration of sex offenders; sec.87.29, concerning independent living preparation; and sec.87.30, concerning subsidized independent living, without changes to the proposed text as published in the March 23, 1993, issue of the Texas Register (18 TexReg 1846). The new sections will bring about a more effective transition to self- sufficiency programs. Section 87.27 will describe criteria for reintegration of documented sex offenders returning home when the offender's victim or a potential victim lives in the home. Section 87.29 and sec.87.30 allow for the experience and financial subsidies necessary to promote a successful transition to self-sufficiency. The new sections are adopted under the Human Resources Code, sec.61.076, which provides the Texas Youth Commission with the authority to place youth in programs it deems appropriate. 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 April 23, 1993. TRD-9322117 Ron Jackson Executive Director Texas Youth Commission Effective date: May 17, 1993 Proposal publication date: March 23, 1993 For further information, please call: (512) 483-5244 Part XI. Texas Juvenile Probation Commission Chapter 345. Community Corrections Assistance Program 37 TAC sec.345.1, sec.345.2 The Texas Juvenile Probation Commission adopts amendments to sec.345.1 and sec.345.2, concerning Community Corrections Assistance Program, without changes to the proposed text as published in the February 26, 1993, issue of the Texas Register (18 TexReg 1237). The amendments will enable successful juvenile probation completions, successful intensive supervision juvenile probation completions, successful completions of direct diversion placements, and diversion from the Texas Youth Commission. The amendments will improve the effectiveness of juvenile probation services and provide alternatives to commitment of juveniles by providing financial aid to juvenile boards to establish and improve probation services and to adopt rules for these purposes. The 327th Judicial District Judge in El Paso, requested that the Community Corrections Assistance Program funding formula be modified to reflect border county juvenile populations. Tom Green County Chief Juvenile Probation Officer, objected to sec.345.2(3) which allows the board to reserve funds for innovative and Creative juvenile justice projects. He felt that the interests of the state could best be served by placing all available community corrections funds into the basic funding formula. A Dallas County Chief Juvenile Probation Officer, suggested that the language in sec.345.2(4) be expanded to include consideration of disproportionate increases in felony referrals, and any increases in TYC capacity in determining a department's commitment performance target. The following commented against the amendments: 327th Judicial District, El Paso, Dallas County Juvenile Probation Department, and Tom Green County Juvenile Probation Department. The amendments are adopted under the Texas Human Resource Code, sec.sec.141.001, 141.041, and 141.042, which provides the Texas Juvenile Probation Commission with the authority to improve the effectiveness of juvenile services and provide alternatives to commitment of juveniles by providing financial aid to juvenile boards to establish and improve probation services and to adopt rules for these purposes. 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 April 23, 1993. TRD-9322088 Bernard Licarione, Ph.D. Executive Director Texas Juvenile Probation Commission Effective date: May 14, 1993 Proposal publication date: February 26, 1993 For further information, please call: (512) 443-2001 TITLE 40. SOCIAL SERVICES AND ASSISTANCE Part I. Texas Department of Human Services Chapter 48. Community Care for Aged and Disabled In-Home and Family Support Program 40 TAC sec.48.2707 The Texas Department of Human Services (DHS) adopts an amendment to sec.48. 2707, concerning program restrictions without changes to the proposed text as published in the March 5, 1993, issue of the Texas Register (18 TexReg 1402). The justification for the amendment is to prevent individuals from receiving Community Living Assistance and Support Services (CLASS) and In-Home and Family Support (IH/FSP) services at the same time. The amendment will function by providing IH/FSP services to individuals on the IH/FSP waiting list, instead of individuals who are receiving CLASS services. No comments were received regarding adoption of the amendment. The amendment is adopted under the Human Resources Code, Title 2, Chapters 22 and 35, which provides the department with the authority to administer public assistance and support services for persons with disabilities programs. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on April 26, 1993. TRD-9322107 Nancy Murphy Section Manager, Policy and Document Support Texas Department of Human Services Effective date: June 1, 1993 Proposal publication date: March 5, 1993 For further information, please call: (512) 450-3765 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 meeting held at 9:00 a.m. April 15, 1993, in Room 100 of the Texas Department of Insurance Building, 333 Guadalupe Street, Austin, adopted the rule on procedures for redistribution of assessments made on insurance carriers that are in liquidation as proposed by the Texas Workers' Compensation Insurance Facility (Facility) in a petition filed in the Chief Clerk's Office on February 1, 1993. The petition recommends a rule that would allow for an equitable redistribution of the assessment among all members of the Facility on the same basis as their individual member assessments for such year. The rule further provides that, in the event the company whose assessments were redistributed is later able to pay all or a portion of the redistributed assessment to the Facility, then the Facility shall give appropriate credits for such payments to all members who participated in the initial redistribution. The Facility's petition (Reference Number W-0293-73) was published in the March 5, 1993, issue of the Texas Register (18 TexReg 1407). The State Board has jurisdiction over this matter pursuant to the Insurance Code, Articles 5.76-2 and 5.96. The full text of the rule on procedures for redistribution of assessments made on insurance carriers that are in liquidation as adopted by the State Board of Insurance is filed with the Chief Clerk under Reference Number W-0293-73, and is incorporated by reference by Board Order Number 60287. This notification is made pursuant to the Texas Insurance Code, Article 5. 96, which exempts it from the requirements of the Administrative Procedure and Texas Register Act. 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 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 April 23, 1993. TRD-9322085 Linda K. von Quintus-Dorn Chief Clerk Texas Department of Insurance Effective date: May 15, 1993 Proposal publication date: March 5, 1993 For further information, please call: (512) 463-6327 The State Board of Insurance, of the Texas Department of Insurance, at a meeting on April 15, 1993, at 9:00 a.m. adopted the changes and additions to the Texas Workers' Compensation Unit Statistical Plan. Changes promulgated through Board Orders, Senate Bill 1 and 28 TAC sec.1.411 in the areas of Workers' Compensation Deductible, Small Employer Discount/Surcharge, Small Premium Penalty and Maintenance Tax Surcharge have required changes to the Texas Workers' Compensation Unit Statistical Plan. These changes were necessary to allow Workers' Compensation insurers to document implementation and to provide statistical data to evaluate effects. These changes will be implemented through Article 5.96 the Insurance Code, The amendments to the Texas Workers' Compensation Statistical Plan (Reference Number W-0193-74-I) was published in the March 5, 1993, issue of the Texas Register (18 TexReg 1408). The amendments, as adopted by the State Board of Insurance, are shown in the exhibits which were filed with the Chief Clerk under Reference Number W-0193-74- I, and are incorporated by reference by Board Order Number 60288. 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 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 April 23, 1993. TRD-9322086 Linda K. von Quintus-Dorn Chief Clerk Texas Department of Insurance Effective date: May 15, 1993 Proposal publication date: March 5, 1993 For further information, please call: (512) 463-6327