Adopted Sections An agency may take final action on a section 30 days after a proposal has been published in the Texas Register. The section becomes effective 20 days after the agency files the correct document with the Texas Register, unless a later date is specified or unless a federal statute or regulation requires implementation of the action on shorter notice. If an agency adopts the section without any changes to the proposed text, only the preamble of the notice and statement of legal authority will be published. If an agency adopts the section with changes to the proposed text, the proposal will be republished with the changes. TITLE 16. ECONOMIC REGULATION Part I. Railroad Commission of Texas Chapter 5. Transportation Division Subchapter B. Operating Certificates, Permits, and Licenses 16 TAC sec.5.45 The Railroad Commission of Texas adopts new sec.5.45, concerning return shipments for specialized motor carriers, with changes to the proposed text as published in the July 20, 1993, issue of the Texas Register (18 TexReg 4726). The new section will bring the commission's regulations into conformity with Senate Bill 1313, passed by the 73rd Legislature, 1993, which amends the Texas Motor Carrier Act. Changes made to the proposed text are in subsections (a) and (b), requiring that only the same power unit, not the trailer equipment, be used both on the initial route and the return trip, and amending the term "specialized commodity". The section is also amended to eliminate the definition of the term "flatbed type equipment," to eliminate the requirement that a return trip be performed with the use of flatbed type equipment, and to expand the definition of the term "initial shipment". In addition, subsection (c) is amended to require only that waybills and freight bills of return trips cross- reference such documents of the matching initial shipment, and subsection (d) is amended to require that specialized motor carriers bill, charge, and collect the lawful rates and charges on all specialized commodities transported pursuant to this section. The new section allows specialized motor carriers to transport any specialized commodity for which they do not hold authority to transport on a return trip, as defined by the rule, using the same power unit on both the initial shipment and the return shipment, but not limited as to the trailer equipment to be used. Comments submitted were generally opposed to the limited scope of the new rule, in terms of the equipment that may be used and the commodities that may be transported on a return trip. Some of those who submitted comments were also opposed to limiting return trips that are permissible under the rule to those which follow an intrastate initial route. Those who filed comments in favor of broadening the rule take the position that doing so will promote an increased efficiency of equipment utilized by motor carriers and will reduce overall operating costs associated with intrastate for-hire transportation that is subject to the commission's jurisdiction. In response to comments requesting that the rule be broadened, the rule is amended to eliminate any restriction to flatbed type equipment and to expand the definition of the term "initial shipment" to include certain interstate shipments. The rule has also been clarified to reflect the commission's original intent that only the same power unit, rather than the same trailer equipment, be used on both the initial route and the return trip. However, the commission declines to broaden the rule to allow commodities besides specialized commodities to be transported on a return trip, because it has chosen not to exercise the full discretion granted to by the Legislature in Senate Bill 1313 at this time. Several comments addressed subsection (c) of the proposed rule, concerning the cross-referencing of the initial and return shipments on the waybills and freight bills for each of the shipments. Those who commented on this issue are opposed to the requirement that return shipments be referenced on the waybills and freight bills of their corresponding initial loads, asserting that this requirement is unnecessary and inefficient. The commission agrees with these comments, and the text of the rule has been changed accordingly. Another comment submitted concerning subsection (c) encouraged even more stringent cross-referencing requirements, requesting that the commission require carriers to cross-reference initial and return shipments not only on waybills and freight bills, but also on bills of lading and drivers' logs. The commission declines to adopt this suggested amendment, because the proposed rule adequately addresses the goal of assisting the commission in its responsibility of monitoring carrier compliance and evaluation of rates and charges, as described above; to require additional record-keeping beyond that provided for in subsection (c) would be unduly burdensome to the involved carriers. Finally, comments requested that the terms "flatbed type equipment" and "specialized commodity" be amended. The commission generally agrees with those comments as they pertain to the term "specialized commodity," and the text of the rule has been amended to incorporate those changes. However, in light of the elimination of the restriction to the use of flatbed type equipment, and thus elimination of the term "flatbed type equipment" from the rule, no such amendment is required with respect to that term. The following groups or associations commented against the proposed new section: Texas Association for Competetive Transportation, Highway Transportation Committee of Texas Mid-Continent Oil and Gas Association, Association of Texas Warehousemen, Shippers Oilfield Traffic Association, Building Materials Carriers Bureau. Texas Motor Transportation Association, Inc. commented in favor of the proposed rule's restriction to the use of flatbed equipment only on a return trip, but commented against the proposed rule's limiting the initial shipment to intrastate transportation only. The new section is adopted pursuant to Texas Civil Statutes, Article 911b, sec.4(a), which provide the commission with power and authority to prescribe all rules and regulations necessary for the regulation of motor carriers, and to supervise and regulate motor carriers in all matters affecting the relationship between such carriers and the shipping public. sec.5.45. Return Shipments for Specialized Motor Carriers. (a) The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise. (1) Initial shipment- (A) any intrastate transportation service for which a motor carrier is authorized to perform under a specialized motor carrier certificate issued by the commission; (B) any transportation service between a point in Texas and a port of entry located in Texas or a point in a state contiguous to Texas by a specialized motor carrier authorized to transport such commodity or commodities in intrastate commerce under its specialized motor carrier certificate issued by the commission. (2) Initial route-The shortest practicable route between origin and destination of an initial shipment as determined by using the most current official highway map issued by the Texas Department of Transportation. (3) Return trip-Transportation performed by a specialized motor carrier, after the delivery of an initial shipment, which returns the power unit to a point nearer the dispatch point of the initial shipment. (4) Shortest practicable route-The shortest legally traversable route required to effect the delivery of the initial shipment, which may include stops in transit to partially load or unload, or any route required by the Texas Department of Transportation for the transportation of a shipment moving under an overweight or overdimensional permit. (5) Specialized commodity-Livestock, livestock feedstuff, agricultural products in their natural state, broom corn, grain, farm machinery, timber in its natural state, milk, wool, mohair, oilfield equipment, household goods and used office furniture and equipment, pipe used in the construction and maintenance of water lines and pipelines, and any commodity which by reason of length, width, weight, height, size or other physical characteristics requires the use of special devices, facilities, or equipment for its loading, unloading, and transportation. (b) A specialized motor carrier, after making delivery of an initial shipment as defined in subsection (a)(1) of this section may, on the return trip and with the same power unit, transport a specialized commodity for which it does not hold a certificate, provided the return trip occurs on a route each point of which is within 75 miles of the initial route. In order to determine whether or not a point lies within 75 miles of the initial route, such distance shall be measured by a straight line from any point along the initial route, utilizing the mileage scale found on the most current official highway map issued by the Texas Department of Transportation. (c) Every specialized motor carrier shall maintain complete and accurate records of transportation service performed in accordance with this section. Waybills and freight bills of return trips shall cross-reference the numbers of the waybill and freight bill of the matching initial shipment. (d) Specialized motor carriers shall bill, charge, and collect the lawful rates and charges on all specialized commodities transported under the circumstances set forth in this section. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 13, 1993. TRD-9328806 Mary Ross McDonald Assistant Director, Legal Division-Gas Utilities/LP Gas Railroad Commission of Texas Effective date: October 4, 1993 Proposal publication date: July 20, 1993 For further information, please call: (512) 463-7095 Subchapter P. Commercial Zones 16 TAC sec.5.292 The Railroad Commission of Texas adopts an amendment to sec.5.292, concerning factors considered by the commission, with changes to the proposed text as published in the July 20, 1993, issue of the Texas Register (18 TexReg 4726). The amendment is adopted in order to bring commission regulations into conformity with Senate Bill 1313 of the 73rd Legislature, 1993, which amends the Texas Motor Carrier Act. This rule is intended to assist the public by clarifying the factors that the commission considers in defining commercial zones, and in determining whether a county should be included in a commercial zone. The changes will clarify sec.5.292(d), and replace the phrase "central city" with the phrase "any specified incorporated municipality" used in Senate Bill 1313. The adopted rule will inform the public of factors or evidence the commission may consider in defining and expanding commercial zones. Five comments were received regarding this rule. Two commenters urged adoption of the rule as published. One commenter favored the rule, but suggested that the phrase "central city" be changed to "commercial zone," wherever it appears in this rule. The commission disagrees with this change because Senate Bill 1313 provides for commercial zones which are adjacent to and commercially a part of any specified incorporated municipality. For purposes of clarity, the commission agrees that the phrase "central city" should be changed, but to "any specified incorporated municipality." One commenter favored the rule, but suggested a change to the language in subsection (d) of this section. Another comment favored the rule, but suggested deletion of subsection (d). The commission disagrees with the proposed deletion of subsection (d), but agrees that the subsection needs to clarify that if any portion of a county meets sec.5.292 criteria, the commission may consider a commercial zone petition sufficient for purposes of publication. In addition, a comment suggested changes considered necessary to ensure that additional counties added to existing commercial zones meet statutory requirements. The commission disagrees with these suggested changes because the changes would require inclusion of information that may not be necessary for the commission to prescribe each commercial zone. The associations that commented in favor of the rule were Texas Motor Transportation Association, Texas Association for Competitive Transportation, and Shippers Oilfield Traffic Association. The amendment is adopted pursuant to Texas Civil Statutes, Article 911b, sec.4(a), which provide the commission with power and authority to prescribe all rules and regulations necessary for the government of motor carriers, and to supervise and regulate motor carriers in all matters affecting the relationship between such carriers and the shipping public. sec.5.292. Factors Considered by the Commission. (a) (No change.) (b) In any petition seeking the addition of any county or counties to an existing commercial zone, the petitioner shall include, to the extent possible, the information set out in subsection (c) of this section. If a petition fails to include any of the information required, the commission may deny the petition, and request that any additional information necessary for consideration be included with the petition when resubmitted. It is not necessary that a particular area meet any standard within the categories of information listed. The information will be used to generate a complete depiction of the commercial, economic, and geographic relationship between the involved areas. (c) The petition should set out the following information: (1) information that may be helpful in showing that the county to be added is " adjacent to" any specified incorporated municipality: (A) the distances in miles between any specified incorporated municipality and the centers of communities within the county to be added; (B) the distance in miles from the boundary of the county to be added to the corporate limits of any specified incorporated municipality; (C) the distance in miles from the boundary of the county to be added to the boundary of the existing commercial zone; and (D) whether the county to be added is separated from the existing commercial zone and any specified incorporated municipality by significant unincorporated area; (2) information that may be helpful in showing that the county to be added is "commercially a part of" any specified incorporated municipality: (A) demographic trends relating to population movements between any specified incorporated municipality and communities within the county to be added; (B) business migration from any specified incorporated municipality to communities within the county to be added; (C) the extent and nature of business and commercial dealings between any specified incorporated municipality and communities within the county to be added; (D) two-way traffic in employees, goods, and services between any specified incorporated municipality and communities within the county to be added; (E) wholesale and retail sales areas for any specified incorporated municipality business enterprises within the existing commercial zone and in communities within the county to be added; (F) existence of branch stores in communities within the county to be added; (G) service to communities within the county to be added by communications and advertising media in any specified incorporated municipality; and (H) existence of a common transportation infrastructure, including mass transit systems between the existing commercial zone and communities within the county to be added; (3) information regarding any effect on the existing common carriers that serve communities within the county to be added. (d) If any portion of a county meets the aforementioned criteria, the commission may consider the petition sufficient for purposes of publication. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 13, 1993. TRD-9328801 Mary Ross McDonald Assistant Director, Legal Division-Gas Utilities/LP Gas Railroad Commission of Texas Effective date: October 4, 1993 Proposal publication date: July 20, 1993 For further information, please call: (512) 463-7096 16 TAC sec.5.411 The Railroad Commission of Texas adopts an amendment to sec.5.411, concerning parties in interest, with changes to the proposed text as published in the July 20, 1993, issue of the Texas Register (18 TexReg 4730). The amendment will bring the commission's regulations into conformity with Senate Bill 1313, passed by the 73rd Legislature, 1993, which amends the Texas Motor Carrier Act. The change to the proposed rule removes language in subsection (f)(1)(A) referencing other rules regarding application filing requirements. The language is removed because the time requirements previously addressed by these rules is covered in Senate Bill 1313, and because the referenced rules were previously repealed. The amendment sets forth the procedural requirements by which any interested person or other enumerated individual or entity can file a petition to suspend a rate application, thereby becoming a party in interest in such applications. The amendments also set forth standing requirements for an existing carrier to appear as a party in opposition to applications for new or amended truckload contract carrier authority. Comments received were generally opposed to the inclusion of the commission or commission staff as a party in interest in rate applications. At least one comment received, however, was in favor of such inclusion, stating that the commission's involvement in otherwise unopposed rate applications would help to prevent predatory pricing, and it would encourage continued consistency of various tariff provisions among the different tariffs authorized by the commission. Comments received also assert that the changes made by Senate Bill 1313 to the Motor Carrier Act concerning rate application proceedings indicate a legislative intent to allow the marketplace, rather than the commission, to determine the reasonableness of any proposed rate, charge, or other tariff provision. While the commission generally agrees with this proposition, it also recognizes that certain segments of the shipping public do not have as strong a "voice" as others in this regard, and, therefore, may sometimes require representation by the commission or a member of its staff, in order to ensure that the public interest is taken into consideration by the commission in such proceedings that are otherwise unopposed. Several of those who filed comments requested, as an alternative to eliminating commission participation from rate application proceedings altogether, that the rule be amended to allow such participation only in instances involving an increase in a rate, charge, or other tariff provision. The commenters assert that predatory pricing is much less likely to occur than unwarranted rate increases, due to the limited number of motor carriers with intrastate authority from the commission, and that no provision is required allowing potential commission participation in otherwise unopposed proceedings involving decreases in rates, charges, or other tariff provisions. Finally, at least one comment submitted requests that subsection (h) of the proposed rule, which is subsection (i) of the adopted rule, be amended to more specifically state that it applies only to truckload contract carriers as defined in new sec.5.46 of this title. However, the term "truckload contract carrier" is a specifically defined term in both sec.5.46 of this title and in Senate Bill 1313. Therefore, the requested amendment would be redundant of those provisions and is unnecessary. The commission disagrees with those who submitted comments against the proposed amendment because, despite the presence of a legislative intent to simplify and expedite rate application proceedings, the legislature has not taken away from the commission its duty to ensure that rates, charges, and other tariff provisions are reasonable to the shipping public. The public interest will be served by the inclusion of the commission or a member of the commission's staff as a potential party in interest in applications involving proposed increases in rates, charges, and other tariff provisions, by enabling the commission to continue to satisfy this legislatively imposed responsibility. The following association commented in favor of the proposed amendments: Building Materials Carriers Bureau. The following groups or associations commented against the proposed amendments: Texas Association for Competitive Transportation; Texas Motor Transportation Association; Shippers Oilfield Traffic Association; Highway Transportation Committee of the Texas Mid-Continent Oil and Gas Association; Association of Texas Warehousemen. The amendment is adopted pursuant to Texas Civil Statutes, Article 911b, sec.4(a), which provide the commission with power and authority to prescribe all rules and regulations necessary for the government of motor carriers and for the safety of operations of motor carriers. sec.5.411. Parties in Interest. (a)-(b) (No change.) (c) Any interested person, public official, or department of the State of Texas or any of its political subdivisions, or any civic or trade organization shall be permitted to file a petition to suspend any application to establish rates, charges, or other tariff provisions for transportation services by filing a petition to suspend not later than the tenth day after the date of the weekly publication in which the commission has provided notice to the public of the proposed rate, charge, or other tariff provision. (d) The commission or commission staff member may file a petition to suspend an application only if that application is for an increase in rates, charges, or other tariff provisions for transportation services by filing a petition to suspend not later than the tenth day after the date of the weekly publication in which the commission has provided notice to the public of the proposed increase in rates, charges, or other tariff provisions. (e) Any interested person may, subject to the provisions of subsections (f) and (g) of this section, be granted leave to intervene or protest upon a showing of a cognizable interest under the Motor Carrier Act. (f) No person shall have standing to appear as a party in opposition to an application for application for new or amended common carrier (including specialized motor carrier) authority unless such person: (1) shall have filed either: (A) a timely and valid notice of protest to the application; (B) a timely and valid petition to intervene in opposition to a protested application in compliance with this section; or (C) a late-filed protest showing good cause for having failed to protest in a timely manner; and (2) shall be: (A) the holder of common carrier or specialized motor carrier authority in good standing authorizing it to provide service within the scope of the application; and (B) willing and able to provide such service that meets the reasonable needs of the shippers involved, and have transported or actively and in good faith solicited traffic within the geographical scope of the application during the 24-month period immediately preceding filing of the application; or (3) have been granted leave to protest or intervene upon a showing of other cognizable interest under the Motor Carrier Act. (g) No person shall have standing to appear as a party in opposition to an application for new or amended contract carrier authority unless such person shall have met the requirements of subsection (f) of this section, and shall either: (1) be the holder of common carrier or specialized motor carrier authority in good standing authorizing it to provide service within the scope of the application; or (2) have been granted leave to protest or intervene upon a showing of other cognizable interests under the Motor Carrier Act. (h) Any intervention in opposition shall be recognized only so long as persons who have timely filed protests (or who have shown good cause for filing a late- filed protest) continue as active protestants in the proceeding. If all persons who have timely filed protests (or who have shown good cause for filing a late- filed protest) have withdrawn or are stricken as protestants, the case shall proceed as an unprotested matter. (i) No person shall have standing to appear as a party in opposition to an application for new or amended truckload contract carrier authority unless such person shall: (1) be the holder of authority in good standing authorizing it to provide service within the scope of the application; and (2) have generated at least $25,000 in annual intrastate revenue from the party the application proposes to serve during each of the two years preceding the filing date of the application. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 13, 1993. TRD-9328805 Mary Ross McDonald Assistant Director, Legal Division-Gas Utilities/LP Gas Railroad Commission of Texas Effective date: October 4, 1993 Proposal publication date: July 20, 1993 For further information, please call: (512) 463-7095 Subchapter U. General and Special Rules of Practice and Procedure 16 TAC sec.5.462 The Railroad Commission of Texas adopts the repeal of existing sec.5.462, and adopts new sec.5.462, concerning the certification of disadvantaged businesses for motor carrier and motor bus authority. New sec.5.462 is adopted with changes to the proposed text as published in the July 20, 1993, issue of the Texas Register (18 TexReg 4733). The repeal of sec.5.462 is adopted without changes and will not be republished. The new rule is adopted to bring the commission's regulations into conformity with Senate Bill 1313, passed by the 73rd Legislature, 1993, which amends the Texas Motor Carrier Act. The new rule sets forth the certification requirements for disadvantaged businesses seeking motor carrier or motor bus authority. Senate Bill 1313 creates a new set of certification requirements for disadvantaged businesses seeking motor carrier authority, but the requirements for such an applicant seeking motor bus authority remain substantially the same. Both sets of requirements are incorporated into new sec.5.462. The changes to the proposed rule eliminate the reference to the term "permit" in subsection (d), which addresses the burden of proof for motor carrier authority. The change is made because Senate Bill 1313 does not address the issuance of permits for motor carrier authority. All references to the term remain, however, in those subsections that pertain to motor bus authority. Subsection (g) from the proposed rule is also eliminated due to the possibility of misinterpreting the provision as enhancing the burden of proof for applicants. Also, changes have been made to subsection (h) (subsection (i) in the proposed rule), clarifying that the transfer restrictions set out in the subsection do not apply to motor bus certificates, because Senate Bill 1313 does not address such certificates. Additional changes are made to subsection (d) by eliminating the eight criteria to be considered by the commission in determining whether an applicant has made a prima facie case that it is fit, willing, and able to perform the proposed service. Instead, language is added in subsection (d) requiring a disadvantaged business applicant to demonstrate that it has adequate insurance coverage, and has satisfactory equipment, safety record, expertise, and financial status. Language is also added to subsection (d) allowing the applicant to support its application with an affidavit from a prospective or present shipper. A change is also made to subsection (i) providing for notice and hearing before the commission may revoke a certificate or permit as a result of the holder of the certificate or permit no longer qualifying as a disadvantaged business. Comments regarding the burden of proof provision set forth in subsection (d) of the proposed section stated that the burden of proof for disadvantaged business applicants, though intended to be less than the burden imposed on applicants that are not disadvantaged, have instead been increased by the requirement that a disadvantaged business applicant prove its ability to transport the involved commodities and serve the territory proposed. Commenters observed that because Senate Bill 1313 places on both disadvantaged business applicants and truckload contract carrier applicants the burden to show that they are fit, willing, and able to provide the service that they propose, their burdens of entry are substantially the same. As a result, the commenters state, the eight criteria set forth in subsection (d) of the proposed rule create an onerous burden on disadvantaged businesses that does not likewise apply to truckload contract carrier applicants. The commenters state, therefore, that the criteria set forth in subsection (d) should be deleted. Another commenter states that the criteria should remain, and should likewise apply to applicants for truckload contract carrier authority. Comments addressed the merits of the individual criteria found in subsection (d), and suggested that the term "permit" be deleted in all subsections dealing with motor carrier authority because Senate Bill 1313 does not address permits. Comments were also made that subsection (g) may be interpreted to require that disadvantaged business applicants prove a need for the transportation of the proposed commodities within the territorial scope of their applications. The comments suggested that subsection (g) is confusing, and possibly a violation of Senate Bill 1313, and should be deleted. Comments were also made suggesting that the commission require applicants for authority under this section to first be certified as disadvantaged businesses by the Texas Department of Transportation or another agency with an established certification process. One of the comments stated that the mandatory language in subsection (d) that the commission "shall" consider the eight listed criteria should be changed to "may," because there is no requirement that the commission consider such criteria. Comments proposed that a disadvantaged person seeking a certificate must not only have ownership of a corporation claiming disadvantaged business status, but also management and control of the applicant's business. The commenters also proposed language clarifying that the person seeking disadvantaged business authority must be a citizen of the United States. The commenter further proposed that, as a part of its prima facie case, the applicant should be required to prove that it qualifies as a disadvantaged business, and proposed a detailed list of factors to be considered in determining whether an applicant qualifies as a legitimate disadvantaged business. These commenters also proposed to allow protestants to a disadvantaged business application to present evidence showing that the applicant does not qualify as a disadvantaged business as defined in the commission's regulations and the Texas Motor Carrier Act. The commenters also stated that subsection (h) of the rule, relating to transfers of disadvantaged business authority, should not apply to motor bus certificates, and that the commission should be promptly notified of changes in the actual ownership, management, or control of a disadvantaged business that occur during the five year period following the certificate's issuance. Other comments addressing the proposed rule in general terms were received. The African-American Chamber of Commerce and the Fort Worth Metropolitan Black Chamber of Commerce made comments against the rule. The Texas Association for Competitive Transportation and Texas Motor Transportation Association made comments against portions of the rule. The commission disagrees that Senate Bill 1313 requires the same burdens of entry for disadvantaged businesses and truckload contract carriers. Unlike truckload contract carriers, disadvantaged business applicants would be proposing to provide service as common carriers under certificates of public convenience and necessity, placing upon them a duty to serve the transportation needs of the general public. The fitness and ability of an applicant to provide a common carrier service, therefore, is intrinsic to such service. Contract carriers, however, are not bound to serve the general public. They serve only those shippers with whom they have entered into a contract; their fitness and ability is not viewed in the context of a duty to serve the general public. The commission agrees that Senate Bill 1313 intended that the burden of entry for disadvantaged businesses be less than the burden imposed on applicants that are not disadvantaged. Accordingly, the commission is adopting changes from the rule as proposed in order to more accurately reflect the intent of Senate Bill 1313. The commission agrees with the comment proposing the deletion of subsection (g) of the rule, because the subsection may be confusing and may be misinterpreted as placing an enhanced burden of proof on the applicant. The commission agrees with the comment proposing deletion of the term "permit" in portions of the rule that address only the motor carrier authority, because Senate Bill 1313 refers only to "certificates." The commission disagrees with the comment that as a prerequisite for obtaining a certificate, an applicant should first be required to become certified as a disadvantaged business under the certification process of the Texas Department of Transportation or any other agency with a certification program. The commission would not have any control over the criteria used in certifying such applicants, and such programs might not be consistent with Senate Bill 1313. The commission disagrees that the term "shall" in subsection (d) should be changed to "may," because mandatory consideration of the criteria by the commission would promote consistent treatment of applicants. The commission disagrees with the comment that proposes a detailed list of factors to be considered in determining whether an applicant is a legitimate disadvantaged business. Even though such a list would not exclude the consideration of other characteristics of ownership, such a list might serve to limit the Commission's consideration of factors crucial to the management, control, and ownership of a disadvantaged business. The commission disagrees with the comment proposing that the definition of "disadvantaged business" and "disadvantaged business transportation contractor" be modified to require that the disadvantaged person owning and controlling a disadvantaged business be a citizen of the United States. Senate Bill 1313 does not expressly require that persons seeking authority under this rule be United States citizens. The commission agrees with the comment that parties opposing a disadvantaged business application should be allowed to present evidence showing that the applicant does not qualify as a disadvantaged business, but believes the provision in subsection (e), allowing protestants to challenge an applicant's fitness, allows such evidence. The commission agrees with the comment proposing that language be added to the rule clarifying that transfer restrictions on disadvantaged business certificates do not apply to motor bus certificates, because Senate Bill 1313 does not address motor bus authority. The commission agrees with the comment that the commission should be notified of changes in ownership, management, or control of disadvantaged businesses, but believes subsection (h) adequately addresses notification requirements. The repeal is adopted pursuant to Texas Civil Statutes, Article 911a, sec.4(a) and Article 911b, sec.4(a), which vest the commission with power and authority to prescribe all rules and regulations necessary for the government of motor bus companies and motor carriers, respectively, and to supervise and regulate such carriers in all matters affecting the relationship between carriers and the shipping public. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 13, 1993. TRD-9328804 Mary Ross McDonald Assistant Director, Legal Division-Gas Utilities/LP Gas Railroad Commission of Texas Effective date: October 4, 1993 Proposal publication date: July 20, 1993 For further information, please call: (512) 463-7094 The new section is adopted pursuant to Texas Civil Statutes, Article 911a, sec.4(a) and Article 911b, sec.4(a), which provide the commission with power and authority to prescribe all rules and regulations necessary for the government of motor bus companies and motor carriers, respectively, and to supervise and regulate such carriers in all matters affecting the relationship between carriers and the shipping public. sec.5.462. Certification of Disadvantaged Businesses for Motor Carrier and Motor Bus Authority. (a) Policy. It shall be the policy of the Railroad Commission of Texas to encourage, within the limits of its discretion and statutory authority, more equitable participation in the for-hire motor carrier and motor bus industries by disadvantaged businesses. (b) Definitions. The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise. (1) Disadvantaged business- (A) a corporation formed for the purpose of making a profit in which at least 51% of all classes of the shares of stock or other equitable securities are owned by one or more persons who are socially disadvantaged because of their identification as members of certain groups, including African Americans, Hispanic Americans, women, Asian Americans, American Indians, Alaska natives, and Pacific islanders, who have suffered the effects of discriminatory practices or similar insidious circumstances over which they have no control; (B) a sole proprietorship for the purpose of making a profit that is 100% owned, operated, and controlled by a person described by subparagraph (A) of this subsection; (C) a partnership for the purpose of making a profit in which 51% of the assets and interest in the partnership is owned by one or more persons described by subparagraph (A) of this subsection who have a proportionate interest in the control, operation, and management of the partnership's affairs; or (D) a joint venture in which each entity in the joint venture is a disadvantaged business under this subsection. (2) Disadvantaged business applicant-Any disadvantaged business applying for new or amended motor carrier or motor bus authority. (3) Disadvantaged business certificate holder-Any disadvantaged business that holds motor carrier or motor bus authority issued by the commission. (4) Disadvantaged business transportation contractor -Any owner-operator and/or a multi-truck lessor leased to a for-hire motor carrier or motor bus company, who is socially disadvantaged because of his or her identification as a member of certain groups, including African Americans, Hispanic Americans, women, Asian Americans, American Indians, Alaska natives, and Pacific islanders, who have suffered the effects of discriminatory practices or similar insidious circumstances over which they have no control. (c) Liaison officer. The director of the Transportation Division shall designate a bona fide disadvantaged business liaison officer within the Transportation Division who shall have the responsibility of advising bona fide disadvantaged business applicants as to the manner of initiating the certificate, permit, or rate processes and as to the manner of compliance by successful disadvantaged business applicants with Transportation Division rules, regulations, and procedures. The field auditors of the Transportation Division, operating under the director of the Transportation Division, shall have the responsibility of advising prospective disadvantaged business applicants of the assistance available from the Transportation Division disadvantaged business liaison officer. (d) Burden of proof for motor carrier authority. In order to obtain a for-hire motor carrier certificate, a disadvantaged business applicant shall be required to make a prima facie case that it is fit, willing, and able to perform the proposed service and to meet the requirements of the Texas Motor Carrier Act. For purposes of this rule, a disadvantaged business applicant may show that it is fit, willing, and able by demonstrating that it has insurance coverage as required by the commission, and its equipment, safety record, expertise, and financial status are satisfactory; if the applicant chooses to support its application with an affidavit from a prospective or present shipper, that shipper's satisfaction with the applicant's equipment, expertise, and financial status shall be sufficient for the commission's review of those items. In addition to making a prima facie case that it is fit, willing, and able to perform the proposed service, a disadvantaged business applicant for motor carrier authority shall make a prima facie case that it is fit, willing, and able otherwise to meet the requirements of the Act and the regulations the commission adopts under the Act relating to the disadvantaged business applicant's fitness, willingness, and ability to provide the proposed service. (e) Consideration of opposing parties. In making a determination on granting an application for motor carrier authority, the commission may not consider evidence presented by an opposing party that: (1) does not show that the applicant is not fit, willing, and able to perform the service proposed and to meet the requirements of the Act and the regulations the commission adopts under the Act; (2) shows that an opposing party or another carrier already adequately provides or could adequately provide the proposed service; or (3) shows that a complaint has been or will be filed against the disadvantaged business applicant for a violation of the Act, unless the complaint is in regard to a safety violation. (f) Burden of proof for motor bus authority. In order to obtain a motor bus certificate or permit, a disadvantaged business applicant shall be required to meet the burden of proof imposed by law on regular applicants. In multiple applicant proceedings where the demonstrated public need will support a grant of some, but not all, of the applicants, and the evidence establishes a need for the availability of disadvantaged business transportation services not being met by existing disadvantaged business certificate holders and/or by other existing carriers through the use of disadvantaged business transportation contractors, the commission may consider an applicant's status as a disadvantaged business applicant as a factor, along with all other relevant factors, in determining which of the applications should be approved. The unavailability of existing disadvantaged businesses may be considered as a factor in determining adequacy of existing bus service where a disadvantaged business applicant demonstrates, through public witness evidence, a public necessity for use of the services of a disadvantaged business certificate holder and/or disadvantaged business transportation contractor as a primary means of meeting requirements of state or federal law, and local ordinances for use of a contractor qualifying as a disadvantaged business certificate holder or disadvantaged business transportation contractor under these regulations, and where existing bus companies opposing the applicant fail to establish that they are capable of adequately meeting the demonstrated need for the availability of disadvantaged business certificate holders and/or disadvantaged business transportation contractors. (g) Determination of disadvantaged business status. In determining whether an applicant qualifies as a disadvantaged business under this subsection, the commission may consider the actual management or control of the applicant as well as incidents of ownership. If the commission determines that an applicant has used any method or device to enable a person or entity that is not a disadvantaged business to qualify for a certificate or permit under this subsection, it shall deny the applicant status as a disadvantaged business under this subsection. (h) Transfer of certificates of motor carrier authority. A certificate awarded to a motor carrier of property under this subsection may not be transferred to another person for five years after the date the certificate is awarded unless the transferee also qualifies as a disadvantaged business under this subsection. This limitation applies even if the holder of the certificate seeks to transfer the certificate because the disadvantaged business is unable to maintain financial viability. The commission shall require a disadvantaged business that is awarded a certificate under this subsection to notify the commission during the period the transfer of a certificate is restricted under this subsection of each change of ownership of the business. The commission may revoke the certificate of a disadvantaged business that fails to provide notice required under this subsection. (i) Maintenance of status. Except as provided in this subsection, the commission shall revoke a certificate or permit awarded under this subsection if the commission determines, following notice and hearing, that during the period the transfer of the certificate or permit is restricted under subsection (h) of this section, the holder of the certificate or permit no longer qualifies as a disadvantaged business. The commission may not revoke a certificate or permit awarded under this subsection if the holder of the certificate or permit no longer qualifies as a disadvantaged business because of a change in ownership of the business through devise or descent. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 13, 1993. TRD-9328803 Mary Ross McDonald Assistant Director, Legal Division-Gas Utilities/LP Gas Railroad Commission of Texas Effective date: October 4, 1993 Proposal publication date: July 20, 1993 For further information, please call: (512) 463-7095 16 TAC sec.5.463 The Railroad Commission of Texas adopts an amendment to sec.5.463, concerning administrative penalties procedures, with a change to the proposed text as published in the July 20, 1993, issue of the Texas Register (18 TexReg 4735). The proposed change to the text eliminates the word "actual" from subsection (b)(2)(A), because its inclusion in the term "actual knowledge" is unnecessary. The rule is proposed in order to conform the commission's regulations with Senate Bill 1313, enacted by the 73rd Legislature, which amends the Texas Motor Carrier Act and the Uniform Act Regulating Traffic on Highways. The amendment reflects the changes made to the authority of the Railroad Commission to assess administrative penalties for violations of the state statutes and federal regulations relating to transportation. Three comments were received regarding the proposed section. One oral comment favors the adoption of the rule. A comment partly in opposition urges the deletion of subsection (b)(3) of the section, stating that it violates the specific directive of Senate Bill 1313 because after September 1, 1993, the commission will not be authorized to assess penalties in excess of $25,000 for multiple violations committed knowingly prior to September 1, 1993. The third comment agrees that the commission is authorized to continue assessing penalties of not more than $10,000 per violation, without a cap for multiple violations, for violations that were committed prior to September 1, 1993. The Texas Association for Competitive Transportation commented in opposition to part of the proposed rule. The commission disagrees with the comment in opposition because Senate Bill 1313, sec.14, provides that a violation committed before the effective date of the Senate Bill 1313 is governed by the law in effect when the violation was committed, and the former law is continued in effect for this purpose. The new rule is adopted under Texas Civil Statutes, Article 911b, sec.4(a) and Article 6701d, sec.139(g), (j), and (k), which provide for sanctions against violators of the transportation laws and regulations. sec.5.463. Administrative Penalties Procedures. (a) (No change.) (b) Assessing administrative penalties. (1) Except as provided in subparagraph (B) and (C) of this paragraph, any person, motor carrier, motor bus company, or shipper that violates any provision of Texas Civil Statutes, Article 911a or Article 911b, respecting safety, certificates, or rates or any commission rule, regulation, or order respecting safety, certificates, or rates may be assessed a penalty of up to $10,000. (A) Any person, motor carrier, or shipper that knowingly commits multiple violations of Texas Civil Statutes, Article 911b respecting safety, certificates, or rates, or any commission rule, regulation, or order respecting safety, certificates, or rates may be assessed an aggregate penalty of up to $25,000. (B) Any person that violates sec.139 of the Uniform Act Regulating Traffic on the Highways Texas Civil Statutes, Article 6701d, or any regulation adopted under such section shall be subject to a penalty not to exceed the maximum amount that may be assessed for violation of current federal regulations and their subsequent amendments under the Hazardous Materials Regulations (49 Code of Federal Regulations, Parts 101- 199) and the Federal Motor Carrier Safety Regulations (49 Code of Federal Regulations, Parts 386 and 388-399). (2) For purposes of assessing administrative penalties, a violator is defined as a corporation, association, partnership, firm, individual, person, company, co-partnership, joint stock association, motor bus company, motor carrier, shipper owner or operator of a commercial motor vehicle, or other entity or person whomsoever and their lessees, receivers, or trustees appointed by any court who commits an act, omission, or violation of the statutes respecting safety, certificates, or rates, or any commission rule, regulation, or order respecting safety, certificates, or rates. (A) A person acts knowingly if such person has knowledge of the facts that give rise to such violation, or a reasonable person acting in the same circumstances and exercising due care would have had such knowledge. The commission may consider past violations of this Act. (B) Multiple violations are all violations respecting, safety, certificates, or rates arising during a single episode pursuant to one scheme or course of conduct. (3) Each act, omission, or violation of the statutes respecting safety, certificates, or rates or any commission rule, regulation or order respecting safety, certificates or rates that occurred prior to September 1, 1993, may subject the violator to an administrative penalty of up to $10,000 per violation. (4) (No change.) (c)-(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 September 13, 1993. TRD-9328802 Mary Ross McDonald Assistant Director, Legal Division-Gas Utilities/LP Gas Railroad Commission of Texas Effective date: October 4, 1993 Proposal publication date: July 16, 1993 For further information, please call: (512) 463-7096 Subchapter B. Operating Certificates, Permits, and Licenses 16 TAC sec.5.464 The Railroad Commission of Texas adopts new sec.5.464, concerning filing requirements for applications in authority cases, with changes to the proposed text as published in the July 20, 1993, issue of the Texas Register (18 TexReg 4736). The rule provides for certain evidence to be filed along with the application in authority cases. The rule is proposed in order to conform with the enactment of Senate Bill 1313 by the 73rd Legislature, 1993, which amends the Texas Motor Carrier Act. The changes to the proposed rule provide that an applicant for authority must file evidence with its application to sustain its prima facie burden of proof; in addition, an applicant's failure to file such evidence may result in rejection of the application. These changes eliminate the need for prefiled testimony as set out in the proposed rule. The changes will result in the deletion of subsections (a)-(f) of the proposed rule, and the change of the title of the proposed rule. Comments were made regarding potential conflicts between the rule's requirement that an applicant prefile written public witness testimony regarding protestant service failures, as this violates the burden of proof for an applicant under the Motor Carrier Act. In addition, comments suggested that the rule should clarify that pre-filing of public witness testimony will not be required in cases involving truckload contract carrier or disadvantaged business applications. Comments were also made that the rule would be an unreasonable burden on the applicant in terms of time and cost; similarly, comments were made that the time required to locate supporting public witnesses and reduce their testimony to writing for filing with the application would take so long that applications would be unduly delayed. Additional comments were made that any prefiled written testimony would shut the current system down and delay the application process in violation of the legislative intent to streamline the process. Suggestions were made that an applicant should be allowed to prefile hearsay testimony regarding the necessity for its services in the transportation of the involved commodities within the territory sought to be served, rather than having to produce public witness affidavits. Another suggestion was to amend the application form to include questions regarding public convenience and necessity and requiring an applicant to complete the application under oath. Additional comments expressed a concern that the use of written testimony would serve to eliminate multi-applicant cases, and that the rule, as proposed, would not allow for additional testimony beyond the pre-filed written testimony, including rebuttal testimony. Finally, comments suggested that, in requiring written testimony to be filed prior to the hearing of a case, examiners will attempt to decide cases prior to the hearings. The commission agrees with the comments that requiring prefiled written testimony would result in an undue burden for the parties in an authority case. The commission takes the position that the type of information that would have been obtained by prefiled written testimony can be obtained through the application process, whereby an applicant would be required to file with its application such evidence as would be necessary to establish a prima facie burden of proof. Texas Association for Competitive Transportation and Texas Motor Transportation Association commented against the proposed rule. The new rule is adopted under Texas Civil Statutes, Article 911b, sec.4(a), which vests the commission with power and authority to prescribe all rules and regulations necessary for the regulation of motor carriers, and to supervise and regulate 12>motor carriers in all matters affecting the relationship between such carriers and the shipping public. sec.5.464. Filing Requirements for Applications in Authority Cases. An applicant for authority shall file with its application such evidence as is sufficient to meet the applicant's prima facie burden of proof as may be required on the statutory issues relevant to the application. Failure to file all necessary information or failure to file written evidence in the required form shall be sufficient cause for the application to be rejected for filing. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 13, 1993. TRD-9328807 Mary Ross McDonald Assistant Director, Legal Division-Gas Utilities/LP Gas Railroad Commission of Texas Effective date: October 4, 1993 Proposal publication date: July 20, 1993 For further information, please call: (512) 463-7094 16 TAC sec.5.466 The Railroad Commission of Texas adopts new sec.5.466, concerning proposals for decision, without changes to the proposed text as published in the July 20, 1993, issue of the Texas Register (18 TexReg 4738). The rule provides that a proposal for decision must be issued no later than the 30th day following the concluding date of the hearing. The rule is proposed in order to conform with the enactment of Senate Bill 1313 by the 73rd Legislature, 1993, which amends the Texas Motor Carrier Act. The rule will establish a 30-day deadline from the concluding date of the hearing for submitting proposals for decision to the commission. No comments were received regarding adoption of the new section. The rule is adopted under Texas Civil Statutes, Article 911b, sec.4(a), which provide the commission with power and authority to prescribe all rules and regulations necessary for the regulation of motor carriers, and to supervise and regulate motor carriers in all matters affecting the relationship between such carriers and the shipping public. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 13, 1993. TRD-9328808 Mary Ross McDonald Assistant Director, Legal Division-Gas Utilities/LP Gas Railroad Commission of Texas Effective date: October 4, 1993 Proposal publication date: July 20, 1993 For further information, please call: (512) 463-7094 16 TAC sec.5.467 The Railroad Commission of Texas adopts new sec.5.467, concerning final orders and decisions, with changes to the proposed text as published in the July 20, 1993, issue of the Texas Register (18 TexReg 4738). The rule provides for the issuance of final orders by the commission. The new rule is adopted to bring the commission's regulations into compliance with Senate Bill 1313, passed by the 73rd Legislature, 1993, which amends the Texas Motor Carrier Act. The rule will establish that the commission must issue final orders within 120 days of the concluding date of the hearing, unless extended for a maximum of 60 days by written agreement of the parties. The rule is changed to provide for a 60-day extension, agreed to by the parties, unless it is otherwise disapproved or acted upon by the commission. In addition, the rule will provide that uncontested or unprotested applications must be granted within ten days from the date the time for filing protests has expired or the date the application becomes unprotested. No comments were received regarding adoption of the new section. The new rule is adopted under Texas Civil Statutes, Article 911b, sec.4(a), which provide the commission with power and authority to prescribe all rules and regulations necessary for the regulation of motor carriers, and to supervise and regulate motor carriers in all matters affecting the relationship between such carriers and the shipping public. sec.5.467. Final Decisions and Orders. (a) The final decision on applications for authority or ratemakings must be rendered within 120 days of the concluding date of the hearing. Upon the filing of a written agreement of all parties, the deadline for the commission's final decision is extended for an additional period as provided in the agreement, not to exceed 60 days, unless otherwise disapproved or acted upon by the commission. (b) With respect to an application for authority, the Director of the Transportation Division shall grant the application within ten days after the later in time of the expiration of the protest period or the withdrawal of the last protestant. The Director of the Transportation Division shall notify the applicant that the application has been granted and that a certificate will issue once the applicant has complied with all the requirements of Subchapter L of this title. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 13, 1993. TRD-9328809 Mary Ross McDonald Assistant Director, Legal Division-Gas Utilities/LP Gas Railroad Commission of Texas Effective date: October 4, 1993 Proposal publication date: July 20, 1993 For further information, please call: (512) 463-7094 Chapter 9. Liquefied Petroleum Gas Division Subchapter A. General Applicability and Requirements 16 TAC sec.sec.9.1-9.7, 9.14-9.21, 9.23-9.25, 9.28-9.30 The Railroad Commission of Texas adopts amendments to sec. sec.9.1-9.7, 9.14- 9. 21, 9.23-9.25, and 9.28-9.30, concerning application of rules; definitions; categories of licenses; requirements for testing; course of instruction; examination and notification generally; examination of representative; severability; LP-gas report forms; franchise tax certification and assumed name certificate; registration of LP-gas transport; answer requirement in commission- called hearing; changes in ownership and/or form of dealership; dealership name change; application for an exception to a safety rule; insurance endorsement requirements; insurance requirements; limitation/avoidance of licensee liability; public hearing; filings required for LP-gas installations; and submission of drawings, plans, reports, and specifications. Section 9.4 and sec.9.6 are being adopted with corrections of errors published in the August 20, 1993, issue of the Texas Register (18 TexReg 5629). Section 9.1 is being adopted with a change to the proposed text as published in the July 16, 1993, issue of the Texas Register (18 TexReg 4556). The Railroad Commission of Texas adopts the repeal of sec. sec.9.8, 9.9, 9.10, 9. 11, 9.12, and 9.13 relating to designation of operations supervisor, examination for certification, examination fees, general installers and repairman exemption, qualifications of inspectors, and containers for hot air balloons, without changes to the proposal published in the July 16, 1993, issue of the Texas Register (18 TexReg 4556). Adopted amendments to sec.9.1 move the language in existing sec.9.14 relating to Severability to sec.9.1, and change the title of the section from Application of Rules to Application of Rules and Severability. The section is also being amended in response to one commenter's objection to the commission's failure to require, in sec.9.20(a)(1), that registered professional engineers design LP-gas fueling facilities, observing that the commission necessarily recognizes that engineering tasks must be performed because it used the word "design" in sec.9.20(e)(1), and made the statement "the commission shall apply and require any reasonable sound engineering and safety provisions..." in sec.9.20(e)(2). This commenter recommended that the commission add the following statement at the end of sec.9.20(a)(1): "All plans and specifications submitted pursuant to this section shall be prepared by, and bear the seal of, a professional engineer registered in the State of Texas. The commission disagrees with the assumption implicit in the suggested requirement, which is that all LP-gas facilities must be designed by a registered professional engineer. This commission does not have the authority to enforce the Texas Engineering Practice Act or any other statute regulating professional occupations. However, the commission does agree that the rules should not be read or construed to endorse the unlicensed practice of engineering or any other occupation requiring licensure, and for that reason has added the following language to sec.9.1: "(c) Nothing in these rules shall be construed as requiring, allowing, or approving the unlicensed practice of engineering or any other professional occupation requiring licensure." The Commission adopts amendments to sec.9.2 in order to add ten new definitions of terms (aggregate water capacity, commercial installation, final approval, interim approval, mobile fuel container, motor fuel container, motor fuel system, school, special transit vehicle, tentative approval, and Railroad Commission of Texas). Existing definitions were moved from sec.sec.9.28, 9.171, 9. 210, and 9.401 in order to consolidate all definitions in one section for easier reference. The definitions which were moved are auxiliary engine, mass transit vehicle, public transportation vehicle, school bus, high pressure piping, low pressure piping, camping trailer, connection, gas supply; connector, gas supply; gas appliance, motor home, recreational vehicle, travel trailer, and truck camper. Six existing definitions were revised for clarity: appliance, approved, automatic dispenser, commission, mass transit vehicle, and person. Adopted amendments to sec.9.3 replace the language relating to categories of licensees with language from sec.9.15 relating to LP-gas report forms, and rename the subsection LP-Gas Report Forms. The amendments also clarify the names of certain report forms and list new forms. The Commission adopts amendments to sec.9.4 to replace existing language relating to requirements for testing with language from existing sec.9.3 relating to categories of licensees, and rename the section Categories of Licenses. Amounts of original license fees and renewal fees were added for informational purposes only. Adopted amendments to sec.9.5 replace existing language relating to course of instruction with language from existing sec.9.4 relating to requirements for testing; existing sec.9.8 relating to designation of operations supervisor, and sec.9.7 relating to examination of representative. The amendments further explain licensing requirements and allow for the submission of new LPG Form 505, Testing Procedures Certification, by Category B and O licensees in lieu of written testing procedures. Requirements regarding Category A licensees are amended to provide for an extension of time for submitting current ASME certificates in certain circumstances, and a new requirement is added for submission of ASME certificates of authorization for repair of ASME containers. New language is included regarding criteria for designation of a branch outlet. The title of the section is changed to Licensing Requirements. Amendments to sec.9.6 combine existing language relating to examination and notification generally with language from existing sec.9.5 relating to course of instruction, sec.9.6 relating to examination and notification generally, sec.9.10 relating to examination fees, and sec.9.11 relating to general installers and repairman exemption. A chart has been added to reflect examination requirements, examination fees, educational requirements, and exemptions from examination requirements. The section is renamed Examination and Course of Instruction. The Commission adopts amendments to sec.9.7 to replace existing language relating to examination of representative with new language relating to denial, suspension or revocations of licenses or certifications. The new section specifies reasons for actions relating to licensing and provides procedures for affected parties to request hearings. The title of the section is Denial, Suspension, or Revocations of Licenses or Certifications; Hearings. The Commission adopts amendments to sec.9.14 to replace language relating to severability, which was moved to sec.9.1, with language from existing sec.9.16 relating to franchise taxes, and rename the section Franchise Tax Certification and Assumed Name Certificate. Adopted amendments to sec.9.15 replace existing language relating to LP-gas report forms with language from existing sec.9.17 relating to registration requirements for LP-gas transports, and rename the section Registration of LP- Gas Transports. The Commission adopts amendments to sec.9.16 to replace existing language relating to franchise tax certification and assumed name certificate with language from existing sec.9.19 relating to changes in ownership and/or form of dealership, and rename the section Changes in Ownership and/or Form of Dealership. Adopted amendments to sec.9.17 replace existing language relating to registration of LP-gas transport with language in existing sec.9.20 relating to changes in dealership name, and rename the section Dealership Name Change. The Commission adopts amendments to sec.9.18 replace existing language relating to answer requirement in commission-called hearing with language in existing sec.9.25 relating to limitations or avoidance of licensee liability, and rename the section Limitations/Avoidance of Liability. Adopted amendments to sec.9.19 replace existing language relating to changes in owner and/or form of dealership with language in existing sec.9.23 relating to insurance endorsement requirements, and sec.9.24 relating to insurance requirements. A chart is added to reflect amounts of insurance required for the various categories of licenses, endorsements required to be attached to the insurance policy, and forms required to be filed. The section is renamed Insurance Requirements. The adopted amendments to sec.9.20 replace existing language relating to dealership name change which was moved to sec.9.17, with a new section titled Filings Required for LP-Gas Stationary Installations including portions of what was sec.9.28 relating to Public Hearing, sec.9.29 relating to Filings Required for LP-Gas Installations, and sec.9.30 relating to Submission of Drawings, Plans, Reports, and Specifications along with new language. The new section clarifies the following. An LPG Form 500 (Application for Tentative Approval) must be filed with the Commission prior to installation of any LP-gas container that would result in an aggregate water capacity of 10,000 gallons or more. In the case of replacement of a container of the same overall length and diameter in the identical location of an existing container, an LPG Form 501 shall be filed with the Commission. LPG Forms 500, 500A, and 501, along with plans and specifications, are not required in the case of installation of bulkheads, pull-away devices, emergency shutoff valves, or when maintenance and improvements are being made to the piping system of an existing installation over 10,000 gallons aggregate water capacity. Prior to the installation of a container resulting in an aggregate water capacity of 10,000 gallons or more in a densely populated or congested area, the Commission will determine any restrictions necessary by considering specific criteria such as density of population within 500 feet of the installation, type of operations on the premises, potential sources of ignition, as well as others, and that if the installation is not approved, the applicant may request a hearing. Certain fees shall be included with the LPG Form 500. Installations that result in an aggregate water capacity of 10,000 gallons or less require the filing of an LPG Form 501 within ten calendar days after the completion of the installation, that certifies the installation is in compliance with the safety rules, all licenses have been obtained, and the installation has been placed in service. The current requirement to provide plans and specifications for installations under 10,000 gallons aggregate water capacity is eliminated. If any provisions relating to installations of 10,000 gallons aggregate water capacity or less are violated, the Commission may require the licensee to submit LPG Form 500 along with plans and specifications for future installations. If the licensee disagrees, he or she may request a hearing. However, the licensee will be required to submit plans and specifications until a hearing is held. The Division will review the forms submitted and notify the applicant whether they are complete or incomplete within 21 days of receipt. After notification of an incomplete form, the applicant has 120 days to resubmit a corrected form, or request an extension of time or the application will expire. Also, if a tentatively approved installation is not completed within one year, the tentative approval will expire. An Extension of time may be requested. The adopted amendments to sec.9.21 replace existing language relating to application for an exception to a safety rule (moved to sec.9.29) with a new section titled Notice of Stationary LP-Gas Installations comprising portions of what was sec.9.28, (Public Hearing), sec.9.29 (Filings Required for LP-Gas Installations), and sec.9.30 (Submission of Drawings, Plans, Reports, and Specifications), along with new language to clarify the following. Notice of a proposed installation of 10,000 gallons or more aggregate water capacity must be sent to all real property owners situated within 500 feet of the proposed installation by means of a copy of the LPG Form 500, LPG Form 500A and a plat of the location. This must be done at the same time the LPG Form 500 is sent to the Commission. Notice must also be given if the size of an installation is increased more than once in a 12 month period. Notice to property owners is not required if the installation is an addition to an existing installation and does not more than double its size. Installations at "hot-mix" plants do not require notice if certain conditions are met. Adopted amendments to sec.9.23 replace existing language relating to insurance endorsement requirements moved to sec.9.19 with a new section titled Tentative Approval of Stationary LP-Gas Installations, including portions of what was sec.9.28 (Public Hearing), sec.9.29 (Filings Required for LP-Gas Installations), sec.9.30 (Submission of Drawings, Plans, Reports, and Specifications), along with new language to clarify the following. Tentative approval may be granted by the Commission after procedures outlined in amended sec.9.20, sec.9.21, and new sec.9.22 have been followed. If the tentative approval is granted, construction may proceed at the applicant's own risk that the tentative approval may be revoked, final approval may not be granted, and the applicant may be required to remove the installation. The construction may not proceed until tentative approval in writing has been received by the applicant. Tentative approval may be revoked and all construction must cease if it is determined the construction requires notification of additional property owners, of if the completed installation varies materially from the original submission. The Commission must be notified of any alterations or additions during construction. The Commission adopts amendments to sec.9.24 to replace existing language relating to insurance requirements moved to sec.9.19, with language including portions of what was sec.9.28 relating to Public Hearing, sec.9.29 relating to Filings Required for LP-Gas Installations, sec.9.30 relating to Submission of Drawings, Plans, Reports, and Specifications, along with new language to clarify the following. The Commission may call a hearing if the notice requirements are not met, proper objections have been filed, or it is determined a hearing is necessary to investigate the impact of the installation. Notice shall be given to affected parties 21 days prior to the hearing. The hearing will be conducted in accordance of the Administrative Procedure and Texas Register Act. Tentative approval establishes a rebuttable presumption that the applicant has complied with the safety rules. Adopted amendments to sec.9.25 replace existing language relating to limitation/avoidance of licensee liability, which is moved to sec.9.18, with new language relating to interim approval of stationary LP-gas installations, and rename the section Interim Approval of Stationary LP-Gas Installations. The new language clarifies the following. After a public hearing, if the Railroad Commission of Texas finds that the proposed installation complies with the Safety Rules, the statutes of the State of Texas, and does not constitute a danger to the public health, safety, and welfare, it shall grant interim approval to proceed with construction of the installation. Grants of interim approval shall include a provision that the interim approval may be suspended or revoked if LP-gas is introduced into the container prior to inspection by the Commission, or an inspection indicates it is not installed in compliance with the plans and specifications for the installation, the Safety Rules or the statutes of the State of Texas, or an inspection indicates the installation constitutes a danger to the public health, safety, and welfare. The Commission adopts amendments to sec.9.28 to replace language relating to public hearing, whose provisions have been rewritten in sec.sec.9.20-9.30, and indicate that the Commission may waive the requirement for final approval of an installation in case of emergency. The amendments also rename the section Emergency Use of Proposed Stationary LP-Gas Installations. Adopted amendments to sec.9.29 replace existing language relating to filings required for LP-gas installations, whose provisions have been rewritten in sec.sec.9.20-9.30, with language relating to application for an exception to a safety rule, moved from sec.9.21, and rename the section Application for an Exception to a Safety Rule. The Commission adopts amendments to sec.9.30 to replace existing language relating to submission of drawings, plans, reports, and specifications, whose provisions have been rewritten in sec.9.20-9.30, with language relating to answer requirement in commission-called hearings, moved from sec.9.18, and renames the section Answer Requirement in Commission-Called Hearings. Comments opposing portions of sec.sec.9.2, 9.28, and 9.29 which were published in the January 1, 1993, issue of the Texas Register (18 TexReg 19), and withdrawn in the June 15, 1993, issue of the Texas Register (18 TexReg 3753) were submitted by Texas Propane Gas Association (TPGA). Section 9.2 was republished in the July 16, 1993, issue of the Texas Register (18 TexReg 4556) as sec.9.2 relating to definitions. The language in sec.9.28 and sec.9.29 was republished in sec.sec.9.20-9.30 relating to filings required for stationary LP- Gas installations, notice of stationary LP-Gas installations, objections to proposed stationary LP-Gas installations, tentative approval of stationary LP- Gas installations, hearings on stationary LP-Gas installations, physical inspection of stationary installations, final approval of a stationary LP-Gas installation, emergency use of proposed stationary LP-Gas installations, application for an exception to a safety rule, and answer requirement in commission-called hearings in the July 16, 1993, issue of the Texas Register (18 TexReg 4556). With respect to sec.9.2 published on January 1, 1993, TPGA's comments suggested alternative wording for the proposed definition of "aggregate water capacity" and deleting the delegation of discretion to the division director to determine, in certain circumstances, what constitutes "aggregate water capacity." The Commission agreed that TPGA's wording was clearer, and included the suggested new wording in the definitions published on July 16, 1993. The commission disagreed with TPGA's argument for the suggested elimination of the division director's discretion, however, the commission deleted the reference to the division director's discretion, because the revised definition published on July 16, 1993, clarified the intent of the definition. TPGA also suggested, and the commission agreed with revised language for the proposed definition of "commercial installation in sec.9.2 to include "retail cylinder exchange." This language was republished on July 16, 1993, as "retail LP-gas cylinder filling/exchange operation." The commission disagreed with TPGAs suggestion to remove forklift and "forklift cylinder exchange" from this definition, because by including these terms, it is clear that they are considered commercial installations. The language was republished as "forklift refueling facility." TPGA offered a punctuation change to subsection (b) of sec.9.28 published on January 1, 1993, substituting a semi-colon for the period at the end of the fifth full sentence and making the sixth full sentence the second clause of the fifth sentence. TPGA's explanation was that it made the two sentences directly relate and thus clarified the interpretation of the second sentence. The commission disagreed and declines to adopt the suggested change because the fifth and sixth sentences, as constructed, addressed notice requirements in different circumstances, and there was no misunderstanding as to when real property owners must be given notice of an addition to an LP-gas installation. This language was republished on July 16, 1993, in sec.9.21 relating to notice of stationary LP-gas installations. TPGA suggested adding a requirement to subsection (c) of sec.9.28 published on January 2, 1993, that an objection must be "proper" to be considered; the commission agreed and made the change in proposed rule sec.9.24, relating to hearings on stationary LP-gas installations published on July 16, 1993. TPGA also proposed to add the further restriction: "Any frivolous objections or non-rule related objections as determined by the division director will not be considered, and no time extensions will be granted." The commission disagreed with this comment: First, because TPGA offered no explanation or rationale for it; and second, because the commission should retain the discretion to consider objections or time extensions as may be appropriate under unusual, extenuating, or emergency circumstances. The commission agreed with TPGA's comments suggesting a different sequence for the sentences in subsection (a) of sec.9.29 published on January 1, 1993, and the addition of the sentence "This will not be construed to apply to the storage of empty container(s) prior to installation." This was accomplished in the language in sec.9.20 published on July 16, 1993, by clarifying that the rule applies to stationary LP-gas installations only. Empty containers in storage are not considered stationary installations. TPGA suggested substituting the words "approved or rejected" for the words "accepted, rejected, or still under review in the sentence in the version of subsection (a) of sec.9.29 published on January 1, 1993, which read: "The division must mail written notification to the applicant of whether the application is accepted, rejected, or still under review within the 21 calendar day period." The commission agreed with the intent of the comment, but substituted the words "complete or incomplete" rather than the "approved or rejected" suggested by TPGA. The change was included in amendments to sec.9. 20 published on July 16, 1993. This change makes clear that the notice of whether an application is complete or incomplete is different from the notice of tentative approval. This change further makes clear that applicants will be notified of whether an application is complete or incomplete, but that completeness of an application is merely the minimum amount of information required to evaluate an application, not the minimum amount for approving an installation. An incomplete application cannot even be reviewed; a complete application may still not be approved. TPGA's comments suggested changing paragraph (10) of subsection (d) of sec.9. 29 to subsection (e) in the version published on January 1, 1993. The commission disagrees and declines to adopt the suggested change, because the language in paragraph (10) of subsection (d) pertained only to that subsection. Regarding subsection (e) of the version of sec.9.29 published on January 1, 1993, TPGA suggested, and the commission agrees, that a sentence permitting an LP-gas licensee to request a hearing on the determination of the division director that the licensee must submit plans and specifications for future LP- gas installations. In the adopted rule, proposed and published on July 16, 1993, language in sec.9.20 reads: "If the LP-gas licensee disagrees with the determination of the commission, then that licensee may request a public hearing on the matter". In this context the term "commission" refers to an operating division of the Railroad Commission of Texas, or any of the division's employees. One commenter objected to the proposal, in sec.9.20(a), that the commission review plans and specifications for only those LP-gas stationary installations of 10,000 gallons aggregate water capacity or more, and allowing those with less than 10,000 gallons aggregate water capacity to be constructed and operated without prior commission review and approval. This commenter stated that the health and safety of the public would be better protected if the commission required prior agency review and approval of all commercial and governmental LP- gas fueling facilities, but that if the commission wished to allow certain facilities to be constructed and operated prior to agency review, the exception should be limited to private fueling facilities with storage capacities of less than 5,000 gallons aggregate water capacity. The commission disagrees that the public health and safety would be better protected if the commission were to review and approve all stationary LP-gas installations prior to construction and operation because adequate measures are in place to ensure the safety of those installations under the 10,000 gallon aggregate water capacity threshold. Installations over 10,000 gallons are more complex than those under 10,000 gallons. The configuration includes intricate piping schematics and equipment such as vaporizers. The majority of installations under 10,000 gallons usually consist of a container, regulator, and tubing. When a licensee completes an installation under 10,000 gallons, they must certify to the commission that the installation complies with all applicable LP- gas safety rules. Additionally, these types of installations are inspected on a priority basis. If the installation fails to comply in any respect with the LP- gas safety rules, the licensee can be required to submit plans and specifications for all future installations, regardless of the water gallon capacity. The amendments are adopted under the Texas Resources Code, sec.113.051 (Vernon Supplement 1993), which authorizes the Railroad Commission of Texas to promulgate rules and standards related to the LP-gas industry and its operations which will protect or tend to protect the health, safety, and welfare of the general public. sec.9.1. Application of Rules and Severability. (a) The Liquefied Petroleum Gas Division (LP-Gas) Safety Rules are intended to apply to the design, construction, location, and operation of liquefied petroleum gas systems, equipment, and appliances. These standards do not apply to marine terminals, natural gasoline plants, refineries, tank farms, gas manufacturing plants, plants engaged in processing liquefied petroleum gases, or to railroad loading racks used in connection with such establishments; provided that such standards shall apply to truck loading racks. (1)-(12) (No change.) (13) Division XII. Division XII applies to LP-gas automatic dispensers. (14)-(15) (No change.) (b) Severability. If any term, clause, or provision of these rules is for any reason declared invalid, the remainder of the provisions shall remain in full force and effect and shall in no way be affected, impaired, or invalidated. (c) Nothing in these rules shall be construed as requiring, allowing, or approving the unlicensed practice of engineering or any other professional occupation requiring licensure. sec.9.4. Categories of Licenses. A prospective licensee may apply to the commission for a license to engage in one or more of the categories specified in paragraphs (1)-(15) of this section. The licensing fee and renewal fee is included in each category for informational purposes only. (1) Category A-Manufacturers and/or fabricators, which covers the manufacture, fabrication, assembly, repair, installation, subframing, testing, and sale of LP-gas containers, including LP-gas motor or mobile fuel containers and systems, and the repair and installation of transport and transfer systems. Original license fee is $500; annual renewal fee is $300. (2) Category B-Transport outfitters, which covers the subframing, testing, and sale of LP-gas transport containers, the testing of LP-gas storage containers, and the installation, testing, and sale of LP-gas motor or mobile fuel containers and systems, and the installation and repair of transport systems, and motor or mobile fuel systems. Original license fee is $200; annual renewal fee is $100. (3) Category C-Carriers, which covers the transportation of LP-gas by transport, including the loading and unloading of LP-gas, and the installation and repair of transport systems. Original license fee is $500; renewal fee is $150. (4) Category D-General installers and repairmen, which covers the sale, service, and installation of containers, excluding motor fuel containers, and the service, installation, and repair of piping, certain appliances as defined by rule, excluding recreational vehicle appliances and LP-gas systems, and motor fuel and recreational vehicle systems. The service and repair of an LP-gas appliance not required by the manufacturer to be vented to the atmosphere is exempt from Category D licensing. The installation of these unvented appliances to LP-gas systems by means of LP-gas appliance connectors is also exempt from Category D licensing. Original license fee is $50; annual renewal fee is $35. (5) Category E-Retail and wholesale dealers, which covers the storage, sale, transportation, and distribution of LP-gas at retail and wholesale, and all other activities included in this section, except the manufacture, fabrication, assembly, repair, subframing, and testing of LP-gas containers. Original license fee is $500; annual renewal fee is $150. (6) Category F-Cylinder exchangers, which covers the operation of a cylinder filling and container exchange dealership, including cylinder filling, the sale of LP-gas in cylinders, and the replacement of a cylinder valve. Original license fee is $50; annual renewal fee is $25. (7) Category G-Service station, which covers the operation of an LP-gas service station filling ASME containers designed for motor or mobile fuel. Original license fee is $50; annual renewal fee is $25. (8) Category H-Cylinder dealers, which covers the transportation and sale of LP-gas in cylinders. Original license fee is $500; annual renewal fee is $150. (9) Category I-Service Station and cylinder exchanges, which covers any service station and cylinder activity set in Category F and Category G of this section. Original license fee is $75; annual renewal fee is $35. (10) Category J-Service station and cylinder dealerships, which covers the operation of a cylinder filling and container exchange dealership, including cylinder filling and the sale, transportation, installation, and connection of LP-gas in cylinders, and the replacement of cylinder valves, and the operation of an LP-gas service station as set out in Category G. Original license fee is $500; annual renewal fee is $150. (11) Category K-Distribution system, which covers the sale and distribution of LP-gas through mains or pipes and the installation and repair of LP-gas systems. Original license fee is $500; annual renewal fee is $150. (12) Category L-Carburetion, which covers the sale and installation of LP-gas motor or mobile fuel containers, and the sale and installation of LP-gas motor fuel systems. Original license fee is $50; annual renewal fee is $25. (13) Category M-Recreational vehicle installers and repairmen, which covers the sale, service, and installation of recreational vehicle containers, and the installation, repair,and service of recreational vehicle appliances, piping, and LP-gas systems, including recreational vehicle motor or mobile fuel systems and containers. Original license fee is $50; annual renewal fee is $35. (14) Category N-Manufactured housing installers and repairmen, which covers the service and installation of containers that supply fuel to manufactured housing, and the installation, repair, and service of appliances and piping systems for manufactured housing. Original license fee is $50; annual renewal fee is $35. (15) Category O-Testing laboratories, which covers the testing of an LP-gas container for the purpose of determining the safety of the container for LP-gas service, including the necessary disconnection and reconnection of LP-gas motor fuel systems or mobile fuel systems, transfer systems, and transport systems involved in the testing of containers. Original license fee is $100; annual renewal fee is $50. sec.9.6. Examination and Course of Instruction. (a) Examination General Provisions. (1) No person may work or be employed in any capacity which requires contact with LP-gas or LP-gas systems until that person has submitted to and successfully completed a commission examination which measures the competency of that person to perform the LP-gas related activities anticipated, and tests working knowledge of the Texas Natural Resources Code and the LP-Gas Safety Rules related to the type of LP-gas work anticipated. Table 1 of this section sets forth specific requirements for examination for each category of license. This section applies to all licensees and their employees who perform LP-gas related activities, and also applies to any ultimate consumer who has purchased, leased, or obtained other rights in any vessel defined as an LP-gas transport by this chapter including any employee of such ultimate consumer if that employee drives or in any way operates such an LP-gas transport. Driving a motor vehicle powered by LP-gas or fueling of motor vehicles for an ultimate consumer by the ultimate consumer or its employees do not in themselves constitute LP-gas related work. Only paragraph (2) of this subsection applies to an employee of a state agency or institution, county, municipality, school district or other governmental subdivision. (2) Any employee of an ultimate consumer or a state agency or institution, county, municipality, school district, or other governmental subdivision not required to submit to examination under this section must be properly supervised and trained in the installation, maintenance, and storage of LP-gas, LP-gas systems, and vehicles fueled by LP-gas, and in the operation of equipment during the filling of and dispensing from storage containers. Such training shall also include the protection of containers and equipment against mechanical injury or tampering by unauthorized persons. (3) Each person wishing to submit to examination by the commission shall file an LPG Form 16 with the commission prior to examination. (4) A licensee shall notify the commission when a previously certified person is hired by immediately filing an LPG Form 16A with the commission. Notification must include the employee's name as recorded on a current driver's license or Texas Department of Public Safety identification card, employee social security number, name of previous licensee-employer, and LP-gas related work to be performed. (5) All examinations will be administered in Austin and at other selected sites, when appropriate, unless an applicant demonstrates good cause for administering the examination elsewhere. Good cause includes, but is not limited to, severe economic hardship. (6) Successful completion of any required examination shall be credited to and accrue to the individual. (7) Failure of any examination shall immediately disqualify the person from performing any LP-gas related activities covered by the examination which is failed. Any person who fails an examination administered by the commission may not re-take the same examination for a period of at least 24 hours. (8) Dates and locations of examinations shall be listed in a schedule made annually by the commission. The schedule shall be prepared no later than November 15th of each year. The commission shall post the schedule in its Austin office and make a copy of it available to any person who request it.. (b) General Installers and Repairmen Exemption. (1) Any person who is currently licensed as a master or journeyman plumber by the Texas State Board of Plumbing Examiners or who is currently licensed with a Class A or B Air Conditioning and Refrigeration Contractors License issued by the Department of Licensing and Regulation may apply for and be granted an exemption to the Category D management examination and any service and installation employee examination, excluding a carburetion examination, for those categories listed in Table 1 of this section, and applicable seminar requirements by submitting to the commission the following information: (A) LPG Form 16B; (B) a $15 original filing fee; and (C) any information the commission may reasonably require. (2) This exemption does not become effective until the examination exemption card is issued by the commission. (3) Exempted individuals as noted in paragraph (1) of this subsection cannot perform LP-gas related activities until that individual's company complies with all other applicable licensing requirements. (4) The examination exemption accrues to the applicant and is non- transferable. (5) Any person granted such exemption must maintain certified status at all times. Upon failure to maintain certified status, all affected LP-gas operations must cease immediately until proper status has been regained. (6) In order to maintain certified status, each person issued an examination exemption card shall pay a $10 fee annually to the commission on or before the 31st day of May of each year. If both of these items are not received by the deadline, that person shall cease performing all LP-gas related activities granted by this exemption and may not resume such activities until that person is in receipt of the examination exemption card. Late renewals are permitted for a period not to exceed two years by paying a late filing penalty plus the yearly renewal fee(s) as follows. (A) The applicant's exemption has been expired for not longer than 92 days, the applicant's penalty fee is $10 plus a $10 annual fee. (B) The applicant's exemption has been expired for greater than 92 days, but not longer than two years, the applicant's penalty fee is $25 plus a $10 annual fee. If an applicant's exemption has been expired for longer than two years, the applicant cannot renew the exemption and must apply for a new original exemption. (7) Each applicant for license who plans to substitute a person as noted in sec.9.5(b)(1) of this title (relating to Licensing Requirements) for its company representative may do so provided that person complies with all of the other requirements of a licensee's company representative as noted in sec.9.5 of this title (relating to Licensing Requirements) and Table 1 of this section. (8) Each applicant for license who substitutes a person as noted in sec.9.5(b)(1) of this title may do so provided the person(s) listed on LPG Form lA complies with all of the other requirements of a licensee's operations supervisor(s) as noted in sec.9.5 of this title and Table 1 of this section. (9) Any person who is issued this exemption agrees to comply with the current edition of the LP-Gas Safety Rules. In the event the exempt individual surrenders, fails to renew, or has the license revoked either by the Texas State Board of Examiners or Department of Licensing and Regulation, that person will immediately cease performing any LP-gas activity granted by this section. The examination exemption card must be returned immediately to the commission and all rights and privileges surrendered. (c) Trainees. (1) Notwithstanding the examination requirements set forth in this section, a licensee or ultimate consumer may employ an individual as a trainee for a period not to exceed 45 days, without that person having successfully completed the necessary examination, subject to the following conditions. (A) The trainee must be directly and individually supervised at all times by a person who has successfully completed the commission examination for the areas of work being performed by the trainee. Refer to Table 1 of this section for those LP-gas related activities for which a person must be certified or a trainee can perform under direct supervision. (B) The licensee or ultimate consumer shall ensure that an LPG Form 16 is on file with the commission for each employee in training, at the time that the trainee begins supervised LP-gas activities. (C) No trainee may perform any work for which he or she is not currently certified while unsupervised, if such work involves LP-gas activities. (2) A trainee who takes a commission examination, and who fails the examination, shall cease to perform any LP-gas related activities covered by the examination failed. A trainee who has been in training for a total period of 45 days, in any combination and with any number of employers, shall cease to perform any LP-gas activities for which he or she is not currently certified. (3) A trainee who continues to work in violation of this subsection may be held responsible for the violation. An employer who employs a person in violation of this subsection may be held responsible for the violation. Possible penalties for violation are set forth in the Texas Natural Resources Code, Chapter 113. The commission may call an administrative hearing to show cause why a license should not be subject to revocation, suspension or probation, or any combination of these penalties. (d) Examination fees. Each applicant shall pay to the commission the examination fee specified in Table 1 of this section in advance for each required examination. The fee is non-refundable, and if an applicant fails an examination, they shall pay the full examination fee for each subsequent examination. (e) Renewal of certified status. (1) In order to maintain certified status, each person who has been qualified by examination shall pay the annual fee specified in Table 1 of this section to the commission on or before the 31st day of May of each year. (2) Failure to meet the May 31st renewal deadline set forth in this section shall result in a lapse of certification. Failure to meet the August 31st of each year deadline discussed in paragraph (3) of this subsection shall result in the expiration of certification. If a person's certification has been expired for more than two years, that person must comply with the requirements of subsection (a) of this section. If a person's certification lapses or expires, that person shall immediately cease performance of any LP-gas activities that require certification. Certified status may be regained only by successfully completing the examination required for the certification, and meeting the requirements of paragraph (3) of this subsection. (3) Any lapsed or expired renewals submitted after May 31st of each year shall include a $10 late filing penalty in addition to the renewal fee, proof of successful completion of the examination required for the certification, and be received in the commission's Austin office no later than midnight of the 31st day of August of each year. Upon receipt of the renewal fee, late filing penalty, and proof of successful completion of the examination required for the certification the commission shall verify that the person's certification has not been suspended, revoked, or expired for more than two years. After verification, the commission shall renew the certification and the person may resume LP-gas activities. (f) Course of instruction. (1) Dates and locations of courses of instruction and seminars shall be listed in a schedule made annually by the commission. The schedule shall be prepared no later than November 15th of each year, shall be posted in the commission's Austin office, and shall be made available to any person who requests one. (2) The one hour course of instruction referenced in Table 1 of this section shall be held in Austin and other selected sites around the state. (3) The Category E course of instruction referenced in Table 1 of this section shall be held in Austin or any other facility of the Railroad Commission of Texas at times to be determined by the commission, and shall be a minimum of 40 hours of classroom instruction. [graphic] This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 13, 1993. TRD-9328886 Mary Ross McDonald Assistant Director, Legal Division-Gas Utilities/LP-Gas Railroad Commission of Texas Effective date: October 15, 1993 Proposal publication date: July 16, 1993 For further information, please call: (512) 463-6949 16 TAC sec.sec.9.8-9.13 The Railroad Commission of Texas adopts the repeal of sec. sec.9.8, 9.9, 9.10, 9.11, 9.12, and 9.13, concerning designation of operations supervisor, examination for certification, examination fees, general installers and repairman exemption, qualifications of inspectors, and containers for hot air balloons, without changes to the proposed text as published in the July 16, 1993, issue of the Texas Register (18 TexReg 4582). The Commission adopts the repeal of existing sec.9.8 because the language in this section has been included in the adoption of amendments to sec.9.5 relating to licensing requirements. The repeal of sec.9.9 is adopted because the language in this section has been included in the adoption of amendments to sec.9.6 relating to examination and course of instruction. The Commission adopts the repeal of existing sec.9.10 because the language in this section has been included in the adopted amendments to sec.9.6 relating to examination and course of instruction. The repeal of existing sec.9.11 is adopted because the language in this section has been included in adopted amendments to sec.9.6 relating to examination and course of instruction. The Commission adopts the repeal of existing sec.9.12 because the requirements of this section are no longer necessary. The repeal of sec.9.13 is adopted because the language in this section has been included in adopted amendments to sec.9.37 relating to requirements for construction of containers. No comments were received specific to any of the sections proposed for repeals. The repeals are adopted under the Texas Natural Resources Code, sec.113.051 (Vernon Supplement 1992), which authorizes the Railroad Commission of Texas to promulgate rules and standards related to the LP-gas industry and its operations, which will protect or tend to protect the health, safety, and welfare of the general public. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 13, 1993. TRD-9328885 Mary Ross McDonald Assistant Director, Legal Division-Gas Utilities/LP Gas Railroad Commission of Texas Effective date: October 15, 1993 Proposal publication date: July 16, 1993 For further information, please call: (512) 463-6949 16 TAC sec.sec.9.22, 9.26, 9.27 The Railroad Commission of Texas adopts new sec.sec.9.22, 9.26, and 9.27, concerning objections to proposed stationary LP-gas installations, physical inspection of stationary LP-gas installations, and final approval of stationary LP-gas installations, without changes to the proposed text as published in the July 16, 1993, issue of the Texas Register (18 TexReg 4583). The Commission adopts new sec.9.22 to clarify that owners of real property situated within 500 feet of a proposed installation who have been notified must file an objection with the commission within 18 days of receiving notice. New sec.9.26 is adopted to consolidate portions of existing rules sec.9.28, relating to public hearing, sec.9.29, relating to filings required for LP-gas installations, and sec.9.30, relating to submission of drawings, plans, reports, and specifications, along with new language to clarify the following. If the LP-Gas Division does not inspect a completed installation of 10,000 gallons aggregate water capacity or more within 30 days of receipt of written notification that it is ready for inspection, the installation may operate conditionally. If, upon inspection, a safety rule violation is detected, the installation must cease operation until the violation is corrected. An inspection of a completed installation of 10,000 gallons aggregate water capacity or less will be conducted as soon as possible after receipt of an LPG Form 501. If, upon inspection, a safety rule violation is detected, the installation may be removed from service until the violation is corrected. The Commission adopts new sec.9.27 to clarify that final approval of an installation may be granted following a physical inspection, if the installation complies with the plans and specifications granted tentative or interim approval, the safety rules, and if it does not constitute a danger to the health, safety, and welfare of the general public. No comments specific to sec.sec.9.22, 9.26, and 9.27 were received. The new sections are adopted under the Texas Natural Resource Code, sec.113. 051 (Vernon Supplement 1992), which authorizes the Railroad Commission of Texas to promulgate rules and standards related to the LP-gas industry and its operations, which will protect or tend to protect the health, safety, and welfare of the general public. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 13, 1993. TRD-9328884 Mary Ross McDonald Assistant Director, Legal Division-Gas Utilities/LP Gas Railroad Commission of Texas Effective date: October 15, 1993 Proposal publication date: July 16, 1993 For further information, please call: (512) 463-6949 Subchapter B. Basic Rules 16 TAC sec.9.33, sec.9.38 The Railroad Commission of Texas adopts the repeal of sec. sec.9.33, concerning inspection of containers, without changes to the proposed text as published in the July 16, 1993, issue of the Texas Register (18 TexReg 4583). The Commission adopts the repeal of sec.9.33 as the routine submission of manufacturer's data reports to the LP-Gas Division will no longer be required. Other provisions of the section relating to ASME containers have been moved to sec.9.37 relating to requirements for construction of containers. In the January 1, 1993, issue of the Texas Register (18 TexReg 25), the commission proposed amendments to sec.9.33 that clarified that American Society of Mechanical Engineers (ASME) containers constructed under ASME Code, Division 1, Section VIII are authorized for use in Texas. Other amendments changed the requirement that LP-gas container manufacturers submit plans and specifications for containers to a requirement that a manufacturer's data report be submitted within 24 days of the sale of an LP-gas container; there was an exception for the situation in which the manufacturer's data report was unavailable or did not meet the requirement of the rule. In the July 16, 1993, issue of the Texas Register (18 TexReg 4556), the commission proposed the repeal of sec.9.33 because the routine submission of manufacturer's data reports would no longer be required. Other provisions of the section relating to ASME containers were moved to sec.9.37 relating to requirements for construction of containers. No comments specific to sec.9.38 were received. Comments opposing all or portions of sec.9.33 as published on January 1, 1993, were submitted by Texas Propane Gas Association (TPGA), the Texas AFL-CIO, and Allied Education Workers (AEW), as well as by individuals. The Texas AFL-CIO opposed the adoption of the version of sec.9.33 published on January 1, 1993, because, when combined with adoption of other rule amendments (to sec.9.36 and sec.9.172(d)), it effectively precluded the commission from exercising its duty to safeguard the public in matters relating to installation of propane and natural gas tanks on school and mass transit buses and of large scale propane tanks located in manufacturing facilities due to the deletion from the rule of the specific standards for installation. The Texas AFL-CIO further commented that the uniform method of installation has the added benefit of ensuring that emergency personnel such as firefighters have the security of knowing exactly what to expect with regard to the location and properties of the tanks, and that varied installation practices would add considerable uncertainty to their already dangerous work. The commission disagrees with this comment because the requirements in sec.9.33 and moved to sec.9.37 relating to requirements for construction of containers in the version published on July 16, 1993, related only to authorized containers, and requires that they be manufactured to the nationally recognized ASME Code, which adheres to stringent safety requirements. Further review of plans and specifications by the LP-Gas Division would be unnecessarily redundant and cause significant time delays. The containers will be inspected after installations, under other rule provisions, by the LP-Gas Division or the licensee. Safety rules are simply minimum requirements. With respect to the safety of emergency personnel, under previous rules, installation locations were also varied. The commission believes these rules strike the appropriate balance of protecting the health, welfare, and safety of the general public without unduly burdening those subject to the rules. AEW opposed the elimination from the rules of the commission's monitoring of the actual design of LP-gas tanks. The commission disagrees with these comments because the combined effect of the adoption of these amendments allows for inspection, review, and enforcement authority by the commission. TPGA's comments suggesting adding language to subsection (a) of the version of sec.9.33 published on January 1, 1993, which qualifies the term "container"; the commission agreed and made the change in the version of sec.9.37 published on July 16, 1993, to provide that only ASME containers manufactured under the requirements of the ASME Code, Division 1, Section VIII are authorized for use in this state in accordance with the applicable rules of the commission. Two commenters recommended elimination from paragraph (1) of subsection (b) of the version of sec.9.33 published on January 1, 1993, the proposed 14-day time period for submitting an LPG Form 5, Manufacturer's Data Report, following the sale of each LP-gas container sold for use in the State of Texas. Another commenter observed that this 14-day period would streamline the process. The commission agreed with the comments that the 14-day time period be eliminated, and made the change in the version of sec.9.37 published on July 16, 1993. The commission has the authority to request the manufacturer's data report when deemed necessary. One commenter pointed out that the use of the term "illustrate" in paragraph (1) of subsection (b) of the version of sec.9.33 published on January 1, 1993, was inappropriate because it suggested that pictures or drawings must be part of the manufacturer's data report. The commission agreed and that language was deleted in the version of sec.9.37 published on July 16, 1993. Another commenter observed generally that most of these proposals, if not all of them, are completely ridiculous, and that there was not reason for the commission to adopt anything that was not in complete agreement with NFPA Pamphlets 54 and 58. The repeals are adopted under the Texas Natural Resources Code, sec.113.051 (Vernon Supplement 1992), which authorizes the Railroad Commission of Texas to promulgate rules and standards related to the LP-gas industry and its operations, which will protect or tend to protect the health, safety, and welfare of the general public. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 13, 1993. TRD-9328883 Mary Ross McDonald Assistant Director, Legal Division-Gas Utilities/LP Gas Railroad Commission of Texas Effective date: October 15, 1993 Proposal publication date: July 16, 1993 For further information, please call: (512) 463-6949 16 TAC sec.sec.9.34, 9.36, 9.37, 9.69 The Railroad Commission of Texas proposes amendments to sec.sec.9.34, 9.36, 9. 37, and 9.69, concerning examination of containers; approval of valves, fittings, and equipment; requirements for construction of containers; and grounding and electrical fields. Section 9.36 is being adopted with changes to the proposed text published in the July 16, 1993, issue of the Texas Register (18 TexReg 4584). Sections 9.34, 9.37, and 9.69, are adopted without changes to the proposed text, and will not be republished. No comments specific to sec.sec.9.34, 9.37, and 9.69 were received. The Texas AFL-CIO and Allied Education Workers opposed the repeal of sec.9.36 proposed in the January 1, 1993, issue of the Texas Register (18 TexReg 25). The commission published an amendment to sec.9.36 in the July 16 issue of the Texas Register (18 TexReg 4556), and will apply the Texas AFL-CIO and Allied Education Workers comments to that amendment. The commission adopts an amendment to sec.9.34 to allow the commission to request a manufacturer's data report if necessary to determine the safety of a container. The amendment also clarifies the type of testing that may be conducted on a container. The commission adopts an amendment to sec.9.36 clarify that equipment approved by the commission prior to October 15, 1993, does not have to comply with the requirements of the section. The amendment also deletes language that is no longer applicable. New language clarifies that all appurtenances and equipment used in LP-gas service must be listed by a nationally recognized testing laboratory, unless its use is specifically prohibited or there is not a testing specification or procedure developed. Appurtenances and equipment that cannot be tested must be able to operate at the full range of pressures and temperatures to which they will be subjected. The commission may request documentation to substantiate claims of safety. A statement is added that compliance with this section does not ensure conformity with other laws and regulations, such as those of the Texas Air Control Board. With respect to the amendment to sec.9.36, the Texas AFL-CIO commented generally that this would effectively preclude the commission from exercising its duty to safeguard the public in matters relating to installation of propane and natural gas tanks on school buses and mass transit vehicles. The Texas AFL- CIO further commented that the uniform method of installation has the added benefit of ensuring that emergency personnel such as firefighters are provided with the security of knowing exactly what to expect with regard to the location and properties of the tanks, and that varied installation practices would add considerable uncertainty to their already dangerous work. AEW opposed changing the criteria for installation of LP-gas tanks on buses, and further opposed the elimination from the rules of the commission's monitoring of the actual design of LP-gas tanks. The commission disagree with these comments because the amended sec.9.36 specifies equipment must be approved by a nationally recognized laboratory or other laboratories approved by the commission. Further, there is a provision that sufficient evidence regarding the safety of equipment shall be submitted to the commission. Safety rules are simply minimum requirements. With respect to the safety of emergency personnel, under previous rules, installation locations are also varied. The commission believes these rules strike the appropriate balance of protecting the health, welfare, and safety of the general public without unduly burdening those subject to the rules. Another commenter observed generally that most, if not all of the proposals published in the January 1, 1993, issue of the Texas Register (18 TexReg 25) are completely ridiculous, and that there was no reason for the commission to adopt anything that is not in complete agreement with NFPA Pamphlets 54 and 58. The commission adopts amendments to sec.9.37 to incorporate language in existing sec.9.33 relating to authorized containers, indicating requirements for ASME and DOT containers, and also incorporate language from existing sec.9. 13, relating to containers for hot air balloons. The commission adopts amendments to sec.9.69 to eliminate unnecessary and overly restrictive requirements. The amendments are adopted under the Texas Natural Resources Code, sec.113. 051 (Vernon Supplement 1992), which authorizes the Railroad Commission of Texas to promulgate rules and standards related to the LP-gas industry and its operations, which will protect or tend to protect the health, safety, and welfare of the general public. sec.9.36. Appurtenances and Equipment. (a) All appurtenances and equipment placed into LP-gas service shall be listed by a nationally recognized testing laboratory, i.e., Underwriter's Laboratory (UL), Factory Mutual (FM), or American Gas Association (AGA), or such other laboratories approved by the commission unless: (1) it is specifically prohibited for use by another section of the LP-Gas Safety Rules; (2) there is not test specification or procedure developed by the testing laboratory for the appurtenance or equipment. (b) Appurtenances and equipment that cannot be listed but are not prohibited for use by the LP-Gas Safety Rules shall be acceptable and safe for LP-gas service over the full range of pressures and temperatures to which they will be subjected under normal operating conditions. (c) Documentation sufficient to substantiate any claims made regarding the safety of any valves, fittings, and equipment shall be required by the commission. (d) Compliance under this section does not ensure conformity with other state and federal regulations, such as those of the Texas Air Control Board. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 13, 1993. TRD-9328882 Mary Ross McDonald Assistant Director, Legal Division-Gas Utilities/LP Gas Railroad Commission of Texas Effective date: October 15, 1993 Proposal publication date: July 16, 1993 For further information, please call: (512) 463-6949 Subchapter C. Division I 16 TAC sec.9.71 The Railroad Commission of Texas adopts the repeal of sec.9.71, concerning construction and original test of cylinders, without changes to the proposed text as published in the July 16, 1993, issue of the Texas Register (18 TexReg 4586). The Commission adopts the repeal because the provisions of this section have been incorporated in adopted amendments to sec.9.37, relating to requirements for construction of containers. No comments specific to sec.9.71 were received. The repeal is adopted under the Texas Natural Resources Code, sec.113.051 (Vernon Supplement 1992), which authorizes the Railroad Commission of Texas to promulgate rules and standards related to the LP-gas industry and its operations, which will protect or tend to protect the health, safety, and welfare of the general public. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 13, 1993. TRD-9328881 Mary Ross McDonald Assistant Director, Legal Division-Gas Utilities/LP Gas Railroad Commission of Texas Effective date: October 15, 1993 Proposal publication date: July 16, 1993 For further information, please call: (512) 463-6949 Subchapter G. Division V 16 TAC sec.9.171 The Railroad Commission of Texas adopts the repeal of sec.9.171, concerning definitions and applicability, as all definitions have been moved to sec.9.2, relating to definitions, without changes to the proposed text as published in the July 16, 1993, issue of the Texas Register (18 TexReg 4586). One commenter responded to the version of sec.9.171 proposed in the January 1, 1993, issue of the Texas Register (18 TexReg 25), suggesting a change in the wording of paragraph (4) of sec.9.171 which would narrowly restrict the definition of "mass transit vehicle" to those owned and operated by the state and its political subdivisions. The commission agrees that the definition should be so clarified, and, in amendments to sec.9.2 relating to definitions proposed in the July 16, 1993, issue of the Texas Register (18 TexReg 4556), defined "public transportation vehicle" as follows: "Includes, but is not limited to, taxis, buses (excluding school buses and mass transit or special transit vehicles), airport courtesy cars, and any other vehicle for hire to transport persons." The repeal is adopted under the Texas Natural Resources Code, sec.113.051 (Vernon Supplement 1992), which authorizes the Railroad Commission of Texas to promulgate rules and standards related to the LP-gas industry and its operations, which will protect or tend to protect the health, safety, and welfare of the general public. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 13, 1993. TRD-9328880 Mary Ross McDonald Assistant Director, Legal Division-Gas Utilities/LP Gas Railroad Commission of Texas Effective date: October 15, 1993 Proposal publication date: July 16, 1993 For further information, please call: (512) 463-7008 16 TAC sec.sec.9.172-9.175, 9.184, 9.187 The Railroad Commission of Texas adopts amendments to sec. sec.9.172-9.175, 9.184, and 9.187, concerning containers; safety relief valves; protection of valves and fittings; container appurtenances, installation of containers and container appurtenances; and school bus and mass transit vehicle installations, without changes to the proposed text as published in the July 16, 1993, issue of the Texas Register (18 TexReg 4587). The commission adopts amendments to sec.9.172 to modify the section's applicability to school buses, mass transit, and special transit vehicles. School buses, mass transit, special transit, or public transportation vehicles are allowed to carry LP-gas motor fuel or mobile fuel containers with a maximum capacity of 300 water gallons. Other passenger-carrying vehicles may carry containers that do not exceed 200 water gallons. The rule also expands the type of mounting brackets that may be used with these containers. The adopted amendments to sec.9.173 reflect minor wording changes for clarification. Adopted amendments to sec.9.174 modify the type of protection that must be provided for valves and fittings. The commission adopts amendments to sec.9.175 provide that LP-gas containers installed on school buses, mass transit, and special transit vehicles are to be equipped with an automatic means of preventing overfilling. The adopted amendment to sec.9.184 further clarifies the acceptable means of mounting containers on vehicles. The commission adopts amendments to sec.9.187 to make clear its applicability to school buses, mass transit, and special transit vehicles. It also clarifies the appropriate means of mounting containers on such vehicles. A provision is added requiring that the LP-Gas Division review all drawings, plans, reports, and specifications required to be filed by statute or rule for approval, to determine compliance with the safety rules. If the submission is not approved, it may be resubmitted, or the applicant may request a hearing. The name of the section has been amended to School Bus, Mass Transit and Special Transit Vehicle Installations. Texas Propane Gas Association (TPGA), the Texas AFL-CIO, and Allied Education Workers (AEW) opposed all or portions of the amendments to sec.sec.9. 172, 9.173, 9.175, and 9.187 published in the January 1, 1993, issue of the Texas Register (18 TexReg 25); one comment supporting sec.9.174 as published in the January 1, 1993, issue of the Texas Register (18 TexReg 4556) was filed by an individual. No comments specific to sec.9.184 were received. With respect to subsection (b) of sec.9.172, published on January 1, 1993, TPGA suggested adding language which would permit continued use of 250 p.s.i.g. tanks approved for school bus or mass transit installations by the commission before final adoption of the section. The commission agreed that some "grandfather" provision was appropriate, and added language in the version of sec.9.172 published on July 16 which permits continued use of 250 p.s.i.g. tanks approved by the LP-Gas Division which are installed on a school bus or mass before October 1, 1993. TPGA's comments recommended removing from subsection (c) of the version of sec.9.172 published on January 1, 1993, the proposal that no more than three tanks may be mounted on a passenger-carrying vehicle, reasoning that because sec.9.184 dealt specifically with container locations within the confines of vehicles, it is not necessary. The commission agreed, and removed it from the version of sec.9.172 published on July 16. TPGA also suggested removing from subsection (c) of the version of sec.9.172 published on January 1, 1993, the 300 gallon capacity limit for LP-gas motor fuel or mobile fuel containers mounted on school buses and mass transit or public transportation vehicles. TPGA argued that because sec.9.184 dealt specifically with container locations within the confines of vehicles, this limitation was not necessary. The commission disagreed with this recommendation, however, because the 300 gallon capacity limit addresses the average capacity requirements in school buses and mass transit or public transportation vehicles, therefore, did not change the language in the version of sec.9.172 published on July 16, 1993. The Texas AFL-CIO opposed adoption of the amendment to subsection (d) of the version of sec.9.172 published on January 1, 1993, because, combined with adoption of all amendments, it effectively precludes the commission from exercising its duty to safeguard the public in matters relating to installation of propane and natural gas tanks on school buses and mass transit vehicles. The Texas AFL-CIO further commented that the uniform method of installation has the added benefit of ensuring that emergency personnel such as firefighters have the security of knowing exactly what to expect with regard to the location and properties of the tanks, and that varied installation practices would add considerable uncertainty to their already dangerous work. The commission disagrees with this comment because subsection (d) of sec.9.172 provides specific criteria for container fastenings and brackets, which must be designed and constructed to withstand static loading in any direction equal to four times the weight of the container filled with fuel. The combined effect of the adoption of these rules allows for inspection, review and enforcement by the commission, and does not preclude it from exercising its duties. Safety rules are simply minimum requirements. With respect to the safety of emergency personnel, under previous rules installation locations were also varied. The commission believes these rules strike the appropriate balance between protecting the health, welfare, and safety of the general public without unduly burdening those subject to the rules. TPGA suggested that the last sentence in subsection (d) of the version of sec.9.172 published on January 1, 1993, be deleted. The subsection would allow any manufacturer to construct a bracket and would allow unmarked brackets to be used in mounting LP-gas motor fuel or mobile fuel containers. The commission agreed with the first part of the comment and disagreed with the second part. The proposed rule published on July 16, 1993, was changed to require only that mounting brackets manufactured after October 1, 1993, have the manufacturer's name or logo on it. Another commenter suggested that because the reference in subsection (e) of the version of sec.9.172 published on January 1, 1993, which stipulates filling into the vapor space only, conflicts with the requirements of NFPA Pamphlet 58, which allows filling in the liquid space of containers having a water capacity of 30 gallons or less, the commission rule should be amended to conform with the NFPA Pamphlet 58 standard. The commission agreed, and proposed sec.9.172 with a new subsection (e) that reads as follows: "(e) A container having a water capacity of 30 gallons or less may be filled into the vapor space." With respect to subsection (c) of sec.9.173, AEW opposed changing the criteria for installation of LP-gas tanks on buses, asserting its belief that it is safest and best to install the tanks away from the primary exit for riders and to vent the relief valves above the bus as is currently required. AEW further opposed the elimination from the rules of the commission's monitoring of the actual design of LP-gas tanks. The commission disagrees with these comments because subsection (c) of sec.9.173 relates only to safety relief valve discharge and not location of tanks. Under the amendment as proposed, the option still remains to vent the relief valves above the bus if deemed necessary. Two other commenters offered specific suggestions regarding subsection (c) of sec.9.173 as proposed in the January 1, 1993, issue of the Texas Register (18 TexReg 25); both suggested adding the word "directly" immediately before the word "impinge" in the rule, to make it more like NFPA Pamphlet 58. The commission agreed and made the change in the July 16, 1993, version of sec.9.173. One commenter observed that the amendment to subsection (c) of sec.9.173 removing the requirement that the safety relief valve be within 15 degrees of vertical was a major milestone because it would permit the catering truck applications to be sold in the State of Texas, and this requirement was considered inappropriate, from a safety standpoint, for this particular application. The commission agrees in general with this comment. Concerning the version of sec.9.174 published on January 1, 1993, one commenter observed that the amendment removing the minimum thickness requirements for guards and brackets is a refreshing approach. With respect to subsections (a) and (b) of the version of sec.9.187 published on January 1, 1993, one commenter suggested exempting original equipment manufacturers, which are regionally or nationally based and which market their products nationally or even internationally, from the inconvenience and burden of state application and approval processes for school bus and mass transit vehicle installations. This commenter believes that the Lp-Gas systems of such manufacturers should conform to a national standard, such as NFPA Pamphlets 54 and 58. The commission disagrees because the manufacturer must submit LPG Form 503 only for each model of vehicle to be equipped with an LP-gas system, not every vehicle. This would not create an undue burden on the manufacturer. TPGA suggested in their comments removing "for the same user" from the first full sentence of paragraph (6) of subsection (b) of the version of sec.9. 187 published on January 1, 1993; the commission agreed and made the change in the version of sec.9.187 published on July 16, 1993. This same commenter recommended substituting the words "approved or rejected" in the sentence which read, in the version of paragraph (7) of subsection (b) of sec.9.187 published on January 1, 1993: "The division must mail written notification to the applicant of whether the application is accepted, rejected, or still under review within the 21 calendar day period." The commission agreed with the intent of the comment, but substituted the words "complete or incomplete" rather than the words "approved or rejected" suggested by TPGA in the version published on July 16, 1993. This change makes clear that the notice of whether an application is complete or incomplete is different from the notice of tentative approval and that applicants will be notified of whether an application is complete or incomplete, but that completeness of an application is merely the minimum amount of information required to evaluate an application, not the minimum amount for approving an installation. An incomplete application cannot even be reviewed; a complete application may still not be approved. AEW commented that it is unwise to change subsection (c) of the version of sec.9.187 published on January 1, 1993, based on its belief that it is safest and best to install the tanks away from the primary exit for riders. The commission declines to make the suggested change because this rule is consistent with other nationally recognized standards, which allow placement of the tank(s) in any location within the confines of the underside of the bus, provided other safety requirements are met. Further, location of tanks can be evaluated when plans and specifications for the installation are reviewed. Two commenters suggested changes to subsection (d) of the version of sec.9. 187 published on January 1, 1993, to accommodate installations in unibody type construction that does not provide a dedicated frame for mounting of hardware; as proposed, the amendment would have prohibited conversions of this type of vehicle. The commission agreed, and reworded the second full sentence in subsection (d) of the version of sec.9.187 published on July 16, 1993, to include, as an alternative to the requirement that fastenings or brackets must be secured to the frame, the requirement that fastenings or brackets must be securely mounted to a supporting structure so as not to reduce the integrity of that structure. AEW commented that it is unwise to delegate the requirements for venting relief valves (the language in existing subsection (i) of sec.9.187). AEW believes that it is best to vent the relief valves above the bus, as is currently required. The commission disagrees with this comment because under the amendment as adopted the option still remains to vent the relief valves above the bus if deemed necessary. Another commenter observed generally that most of these proposals, if not all of them, are completely ridiculous, and that there was no reason for the commission to adopt anything that is not in complete agreement with NFPA Pamphlets 54 and 58. The amendments are adopted under the Texas Natural Resources Code, 113.051 (Vernon Supplement 1993), which authorizes the Railroad Commission of Texas to promulgate rules and standards related to the LP-Gas industry and its operations which will protect or tend to protect the health, safety, and welfare of the general public. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 13, 1993. TRD-9328879 Mary Ross McDonald Assistant Director Legal Division-Gas Utilities/LP Gas Railroad Commission of Texas Effective date: October 15, 1993 Proposal publication date: July 16, 1993 For further information, please call: (512) 463-6949 Subchapter I. Division VII 16 TAC sec.9.210 The Railroad Commission of Texas adopts an amendment to sec.9.210, concerning low pressure-high pressure piping, without changes to the proposed text as published in the July 16, 1993, issue of the Texas Register (18 TexReg 4590). The Commission adopts amendments to sec.9.210 move definitions contained in the section to sec.9.2, relating to definitions. No comments specific to sec.9.210 were received. The amendment is adopted under the Texas Natural Resources Code, sec.113.051 (Vernon Supplement 1992), which authorizes the Railroad Commission of Texas to promulgate rules and standards related to the LP-gas industry and its operations, which will protect or tend to protect the health, safety, and welfare of the general public. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 13, 1993. TRD-9328878 Mary Ross McDonald Assistant Director, Legal Division-Gas Utilities/LP Gas Railroad Commission of Texas Effective date: October 15, 1993 Proposal publication date: July 16, 1993 For further information, please call: (512) 463-6949 Subchapter O. Division XIII 16 TAC sec.9.401 The Railroad Commission of Texas adopts the repeal of sec.9.401, concerning definitions, without changes to the proposed text as published in the July 16, 1993, issue of the Texas Register (18 TexReg 4590). The Commission adopts the repeal because all applicable definitions have been moved to adopted amendments to sec.9.2, relating to definitions, and unnecessary definitions have been deleted. No comments specific to sec.9.401 were received. The repeal is adopted under the Texas Natural Resources Code, sec.113.051 (Vernon Supplement 1992), which authorizes the Railroad Commission of Texas to promulgate rules and standards related to the LP-gas industry and its operations, which will protect or tend to protect the health, safety, and welfare of the general public. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 13, 1993. TRD-9328877 Mary Ross McDonald Assistant Director, Legal Division-Gas Utilities/LP Gas Railroad Commission of Texas Effective date: October 15, 1993 Proposal publication date: July 16, 1993 For further information, please call: (512) 463-6949 Chapter 13. Regulations for Compressed Natural Gas (CNG) Fuel Systems Subchapter A. Scope and Definitions 16 TAC sec.13.3, sec.13.4 The Railroad Commission of Texas adopts amendments to sec.13.3 and sec.13.4, concerning definitions and compressed natural gas forms, without changes to the proposed text as published in the July 16, 1993, issue of the Texas Register (18 TexReg 4590). The Commission adopts the amendments to sec.13.3 to add 13 new definitions of terms (automatic dispenser, auxiliary engine, commercial installation, mobile fuel container, motor fuel container, motor fuel system, public transportation vehicle, Railroad Commission of Texas, representative, school, school bus, special transit vehicle, and tentative approval). An existing definition of the term final approval was moved from sec.13.25, in order to consolidate all definitions in one section for easier reference. The definitions for the terms approved, commission, CNG system, and mass transit vehicle were revised for clarity. Amendments to sec.13.4 are adopted to reflect a revision in the title of CNG Form 1501, and to add two new forms, CNG Form 1505, Testing Procedures Certification, and CNG Form 1016B, Application for Examination Exemption by a Master Journeyman Plumber or a Class A or B Air Conditioning and Refrigeration Contractor. No comments specific to sec.13.3 and sec.13.4 were received. The amendments are adopted under the Texas Natural Resources Code, sec.116. 012 (Vernon Supplement 1992), which authorizes the commission to promulgate rules and standards related to the compressed natural gas industry and its operations which will protect or tend to protect the health, safety, and welfare of the general public. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 13, 1993. TRD-9328892 Mary Ross McDonald Assistant Director, Legal Division-Gas Utilities/LP Gas Railroad Commission of Texas Effective date: October 15, 1993 Proposal publication date: July 16, 1993 For further information, please call: (512) 463-6949 Subchapter B. General Rules for CNG Equipment Qualifications 16 TAC sec.sec.13.21, 13.24-13.27, 13.30, 13.31, 13.35 The Railroad Commission of Texas adopts amendments to sec. sec.13.21, 13. 24- 13.27, 13.30, 13.31, and 13.35 concerning applicability, school bus and mass transit installations, approval of CNG systems and equipment installation filings and inspection, design and construction of cylinders and pressure vessels, pressure relief devices, piping, valves, and application for an exception to a safety rule, without changes to the proposed text as published in the July 16, 1993, issue of the Texas Register (18 TexReg 4592). The adopted amendment to sec.13.21 moves language from existing sec.13.23 relating to severability to sec.13.21, and renames the section Application and Severability. The commission adopts an amendment to sec.13.24 to add new language similar to that proposed in amendments to the LP-Gas Safety Rules, sec.9.187 (School Bus and Mass Transit Installations) to be consistent with the LP-Gas Safety Rules. The new language clarifies the following. A CNG Form 1503 (Application to Install a CNG System on School Bus, Special Transit, and Mass Transit Vehicles) must be filed with the commission prior to the conversion of that type of vehicle. Original school bus, mass transit and special transit, vehicles would also be required to file the form covering the model(s) of vehicles they manufacture. The commission will review all drawings, plans, reports, and specifications submitted for compliance with the Regulations for Compressed Natural Gas, and threat to the health safety, and welfare of the general public. If the commission declines administratively to approve the submission, the applicant may request a hearing. After completion of the review of the application, it will be returned to the applicant indicating it either complies with the CNG rules or specifying what corrections are necessary. If a completed application varies materially from the application accepted as in compliance, correction of the variance, notification to the commission and resubmission of an application is required. Subsequent conversions will not require resubmission of CNG Form 1503 if they are made in accordance with the original application. A CNG Form 1503 (Notice of Subsequent Installation or Conversion by the same Ultimate Consumer or Applicant) must be filed. Subsequent conversions that vary materially will require resubmission of the CNG Form 1503. No comments specific to sec.sec.13.21, 13.24, 13.26-13.27, 13.30, 13.31 and 13.35 were received. One commenter objected to the proposal that the commission review plans and specifications for only those CNG facilities of 240 cubic feet capacity or more, and allowing those with less than 240 cubic feet capacity to be constructed and operated without prior commission review and approval. This commenter stated that the health and safety of the public would be better protected if the commission required prior agency review and approval of all commercial and governmental CNG installations prior to construction and operation. The commission disagrees that the public health and safety would be better protected if the commission were to review and approve all stationary CNG installations prior to construction and operation because adequate measures are in place to ensure the safety of those installations under the 240 cubic feet threshold. Installations over 240 cubic feet are more complex than those under 240 cubic feet. The configuration includes intricate piping schematics and numerous pieces of equipment. When a licensees completes an installation under 240 cubic feet, they must certify to the commission that the installation complies with all applicable regulations for compressed natural gas. Additionally, these types of installations are inspected on a priority basis. If the installation fails to comply in any respect with the regulations for compressed natural gas, the licensee can be required to submit plans and specifications for all future installations, regardless of the cubic feet capacity. Adopted amendments to sec.13.25 reflect a total revision of existing language to be consistent with language in the proposed Gas Division amendments to sec.9.20 (Filings Required for Stationary LP-Gas Installations) of the LP-Gas Safety Rules, to clarify the following. A CNG Form 1500,(Application for Construction Approval of a CNG Installation) must be filed with the commission prior to installation of any CNG container that would result in an aggregate storage capacity in excess of 240 standard cubic feet water volume. Plans and specifications filed with an application for a Category 3 or 5 license will not be granted tentative approval until all other licensing requirements are met. A CNG Form 1500 is not required when a previously approved system is repaired, renovated, extended, or modified, provided it does not increase the CNG aggregate storage capacity at the site. A nonrefundable fee of $26 shall be submitted with each CNG Form 1500, and a resubmission fee of $16 will be charged. All drawings, plans, reports, and specifications required to be submitted will be reviewed for compliance with the Regulations for Compressed Natural Gas and potential threat to the health, safety, and welfare of the general public. If an application is not approved, the applicant may request a hearing. If a proposed installation is not specifically covered by the Regulations for Compressed Natural Gas or statute, the commission shall apply and require reasonable sound engineering and safety provisions. A CNG Form 1501 is required to be filed after installation of a CNG container having an aggregate storage capacity of less than 240 standard cubic feet, indicating it complies with the statutes and Regulations for Compressed Natural Gas, all necessary licenses have been obtained, and it has been placed in CNG service. If a licensee violates the provisions of this subsection, they may be required to submit plans and specifications for future installations. If the licensee disagrees they may request a hearing. A nonrefundable fee of $6 for each ASME or DOT cylinder cascade shall be submitted with the form, and a resubmission fee of $12 will be charged. Applicants will be notified of complete or incomplete forms within 21 days. Tentative approval for CNG installations of aggregate storage capacity in excess of 240 standard cubic feet water volume may be granted if the application meets all CNG safety regulations and does not pose a threat to the health, safety and welfare of the general public. Installation may not proceed until written notification is received from the commission. The commission must be notified before any field alterations or additions during construction are implemented to determine if resubmission of plans and specifications is required. After notification of an incomplete form, the applicant has 120 days to resubmit a corrected form, or request an extension of time or the application will expire. Also, if a tentatively approved installation is not completed within one year, the tentative approval will expire. An extension of time may be requested. If the commission does not inspect a completed installation of aggregate storage capacity in excess of 240 standard cubic feet within 30 days of receipt of written notification that it is ready for inspection, the installation may operate conditionally. If, upon inspection, a safety regulation violation is detected, the installation must cease operation until the violation is corrected. An inspection of a completed installation of aggregate storage capacity of less than 240 standard cubic feet will be conducted as soon as possible after receipt of a CNG Form 1501. If upon inspection, a safety regulation violation is detected, the installation may be removed from service until the violation is corrected. If the completed installation varies materially from the application originally accepted as in compliance, correction of the variance, notification to the commission and resubmission of the application is required. Final approval of an installation may be granted following a physical inspection, if the installation complies with the plans and specifications granted tentative approval, the safety regulations, the applicable statutes, and if it does not constitute a danger to the public health, safety, and welfare. All appurtenances and equipment used in CNG service must be listed by a nationally recognized testing laboratory, unless its use is specifically prohibited or there is not a testing specification or procedure developed. Appurtenances and equipment that cannot be tested must be able to operate at the full range of pressures and temperatures to which they will be subjected. The commission may request documentation to substantiate claims of safety, and compliance with this section does not ensure conformity with other laws or regulations. Section 13.25 is also being amended in response to one commenter's objection to the commission's failure to require, in sec.13.25(a)(1), that registered professional engineers design CNG facilities, observing that the commission necessarily recognizes that engineering tasks must be performed because it used the word "design" in sec.13.25(b) and made the statement "the commission shall apply and require any reasonable sound engineering and safety provisions..." in sec.13.25(c). This commenter recommended that the commission add the following statement at the end of sec.13.25(a)(1): "All plans and specifications submitted pursuant to this section shall be prepared by, and bear the seal of, a professional engineer registered in the State of Texas." The commission disagrees with the assumption implicit in the suggested requirement, which is that all CNG facilities must be designed by a registered professional engineer. This commission does not have the authority to enforce the Texas Engineering Practice Act or any other statute regulating professional occupations. However, the commission does agree that the rules should not be read or construed to endorse the unlicensed practice of engineering or any other occupation requiring licensure, and for that reason has added the following language as subsection (c) of sec.13.21, relating to applicability and severability: "Nothing in these rules shall be construed as requiring, allowing, or approving the unlicensed practice of engineering or any other professional occupation requiring licensure." Adopted amendments to sec.13.26 establish the requirements for vapor recovery receivers, and change the title of the section to Design and Construction of Cylinders, Pressure Vessels, and Vapor Recovery Receivers. Adopted amendments to sec.13.27 reflect minor wording changes which clarify the proper means of installing pressure relief devices. One commenter stated that he found the language in sec.13.27(a)(1) unclear, but correctly interpreted it to mean that all pressure relief devices for cylinders must meet the requirements of the Compressed Gas Association (CGA) Pamphlet S-1.1, "Pressure Relief Device Standards, Part 1, Cylinders for Compressed Gases." Because the interpretation is correct, the commission disagrees that the language in the rule is confusing. This commenter also found particularly confusing language that is proposed to be deleted, so no change is necessary. The commission adopts amendments to sec.13.30 to establish requirements relating to industrial type connectors. Adopted amendments to sec.13.31 reflect language that provides a more reasonable safety factor for valves. The commission adopts amendments to sec.13.35 to provide a time period of 21 calendar days for review of requests for exceptions to safety rules. The amendments are adopted under the Texas Natural Resources Code, sec.116. 012 (Vernon Supplement 1992), which authorizes the commission to promulgate rules and standards related to the compressed natural gas industry and its operations which will protect or tend to protect the health, safety, and welfare of the general public. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 13, 1993. TRD-9328893 Mary Ross McDonald Assistant Director, Legal Division-Gas Utilities/LP Gas Railroad Commission of Texas Effective date: October 15, 1993 Proposal publication date: July 16, 1993 For further information, please call: (512) 463-6949 Subchapter B. General Rules for CNG Equipment Qualifications 16 TAC sec.13.23, sec.13.37 The Railroad Commission of Texas adopts the repeal of sec.13.23 and sec.13. 37, concerning severability and franchise tax certification and assumed name certificate, without changes to the proposed text as published in the July 16, 1993, issue of the Texas Register (18 TexReg 4597). The Commission adopts the repeal of sec.13.23 because the language contained in this section is contained in adopted amendments to sec.13.21, relating to application, and therefore is no longer necessary. The Commission adopts the repeal of sec.13.37 because this language is being adopted as new sec.13.75 under Subchapter C, Classification, Registration and Examination, as the more appropriate category. No comments specific to sec.13.23 were received. The repeals are adopted under the Texas Natural Resources Code, sec.116.012 (Vernon Supplement 1992), which authorizes the Railroad Commission of Texas to promulgate rules and standards related to the Compressed Natural Gas industry and its operations, which will protect or tend to protect the 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 September 13, 1993. TRD-9328890 Mary Ross McDonald Assistant Director, Legal Division-Gas Utilities/LP Gas Railroad Commission of Texas Effective date: October 15, 1993 Proposal publication date: July 16, 1993 For further information, please call: (512) 463-6949 Subchapter C. Classification, Registration, and Examinations 16 TAC sec.sec.13.61, 13.62, 13.70, 13.71 The Railroad Commission of Texas adopts amendments to sec. sec.13.61, 13.62, 13.70, and 13.71, concerning licensing, insurance requirements, examination and notification generally, and denial, suspension, or revocation of license or certification; hearing, without changes to the proposed text as published in the July 16, 1993, issue of the Texas Register (18 TexReg 4598). The Commission adopts the amendments to sec.13.61 to reflect added language from existing sec.13.71 relating to examination of representative and sec.13.72 relating to designation and testing of operations supervisors. The amendments also provide additional language regarding requirements for Category 4 licensees. Category 4 licensees must have a CNG Form 1505 (Testing Procedures Certification) on file certifying they will follow the testing procedures indicated. A Category 1 licensee must have a legible and current copy of the licensee's ASME certification or DOT authorization on file with the Commission at all times. Provisions are made for extensions of time to file the ASME certificate. New provisions are added regarding renewal of licenses and penalty fees for late renewals. New language is also included regarding criteria for designation of a branch outlet. No comments specific to sec.13.62 and sec.13.71 were received. One commenter, noting that pursuant to sec.13.61(e)(1) CNG licenses expire on August 31 of each year and that pursuant to sec.13.70(e)(1) persons having passed the certification examination are required to renew their certified status on or before May 31 of each year, suggested that the renewal dates for licenses and certifications be made the same in order to ease the burden on manufacturers and installers. The commission disagrees, and notes that the comment received was from an original equipment manufacturer who does not have to comply with the provisions of sec.13.61. The Commission adopts amendments to sec.13.62 to include language from existing sec.13.65 relating to statements in lieu of insurance requirements. References to the LP-Gas Division are changed to commission to conform with the amended definition of commission, which now means an operating division of the Railroad Commission of Texas or any of the division's employees. A chart is added to reflect the minimum amounts of insurance coverage required for each category of license, forms required to be filed with the Commission, and endorsements required to be attached to the insurance policy. The Commission adopts amendments to sec.13.70 to include language from existing sec.13.73 relating to examination for employees and sec.13.74 relating to examination fees. Amendments provide the Commission discretion to set the fee for all examinations administered and establish a late filing penalty for the certification fee if the fee is not received by the specified deadline. New language is added allowing a person licensed as a master or journeyman plumber or Class A or B Air Conditioning and Refrigeration Contractor to receive the same examination exemption as persons examined under the LP-Gas Safety Rules. A chart has been added to indicate examination requirements, examination fees, and exemptions from examination requirements. One commenter objected to the proposed changes to sec.13.70 regarding the exemption of journeyman plumbers and Class A or B air conditioning and refrigeration contractors from examination requirements. Because CNG systems may operate at pressures exceeding 3,000 p.s.i.g., may require special high pressure compression equipment, and may have unique electrical requirements, operating conditions not typically encountered by plumbers and air conditioning and refrigeration contractors, this commenter believes that journeyman plumbers and Class A or B air conditioning and refrigeration contractors should be required to take the examination to obtain a certification. The commission disagrees and declines to make the change because the regulations for compressed natural gas specify requirements for installations, and installers are required to comply with the established regulations. The exemption extends only to those persons making stationary installations, and not more complex installations such as for motor or mobile fuel. The person is only exempted from the Category 2 and 3 service and installation employee examination, and not the company representative examination which covers their expertise in the various aspects of CNG installations. The majority of CNG stationary installations are pre- fabricated at the factory and require little, if any, fabrication on site. The Commission adopts amendments to sec.13.71 to replace existing language relating to examination of representative with new language relating to denial, suspension or revocation of licenses or certifications. The new section specifies reasons for actions relating to licensing and provides procedures for affected parties to request hearings. The title of the section is changed to Denial, Suspension, or Revocation of License or Certification; Hearings. The amendments are adopted under the Texas Natural Resources Code, sec.116. 012 (Vernon Supplement 1992), which authorizes the Railroad Commission of Texas to promulgate rules and standards related to the compressed natural gas industry and its operations which will protect or tend to protect the health, safety, and welfare of the general public. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 13, 1993. TRD-9328889 Mary Ross McDonald Assistant Director, Legal Division-Gas Utilities/LP Gas Railroad Commission of Texas Effective date: October 15, 1993 Proposal publication date: July 16, 1993 For further information, please call: (512) 463-6949 16 TAC sec.sec.13.71-13.74 The Railroad Commission of Texas adopts the repeal of sec. sec.13.71-13.74, concerning examination of representative, designation and testing of operations supervisors, examination of employees, and examination fees, without changes to the proposed text as published in the July 16, 1993, issue of the Texas Register (18 TexReg 4608). The Commission adopts the repeals of sec.sec.13.71-13.74 because the provisions of these sections have been included in adopted amendments to sec.13.70, relating to examination and notification generally. No comments specific to sec.sec.13.71-13.74 were received. The repeals are adopted under the Texas Natural Resources Code, sec.116.012 (Vernon Supplement 1992), which authorizes the Railroad Commission of Texas to promulgate rules and standards related to the Compressed Natural Gas industry and its operations, which will protect or tend to protect the health, safety and welfare of the general public. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 13, 1993. TRD-9328888 Mary Ross McDonald Assistant Director Legal Division-Gas Utilities/Lp Gas Railroad Commission of Texas Effective date: October 15, 1993 Proposal publication date: July 16, 1993 For further information, please call: (512) 463-6949 16 TAC sec.13.75 The Railroad Commission of Texas adopts new sec.13.75, concerning franchise tax certification and assumed name certificate, without changes to the proposed text as published in the July 16, 1993, issue of the Texas Register (18 TexReg 4608). The new section contains provisions from sec.13.37. The provisions are being moved from Subchapter B, General Rules for CNG Equipment Qualification to Subchapter C, Classification, Registration and Examination, to more accurately reflect its purpose. Provisions are added to clarify that this rule applies to corporations and limited liability companies. A change in the name of the certificate provided by the Comptroller's Office has been made. No comments specific to the section were received. The new section is adopted under the Texas Natural Resources Code, sec.116. 012 (Vernon Supplement 1992), which authorizes the Railroad Commission of Texas to promulgate rules and standards related to the compressed natural gas industry and its operations, which will protect or tend to protect the health, safety and welfare of the general public. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 13, 1993. TRD-9328887 Mary Ross McDonald Assistant Director, Legal Division-Gas Utilities/LP Gas Railroad Commission of Texas Effective date: October 15, 1993 Proposal publication date: July 16, 1993 For further information, please call: (512) 463-6949 Subchapter D. CNG Compression, Storage, and Dispensing System 16 TAC sec.13.102 The Railroad Commission of Texas adopts an amendment to sec.13.102, concerning installation of electrical equipment, without changes to the proposed text as published in the July 16, 1993, issue of the Texas Register (18 TexReg 4609). The Commission adopts the amendment to sec.13.102 to clarify the rule. The amendment clarifies the distance electrical installations must be located with respect to compressors, cascades, and dispensing equipment. No comments specific to sec.13.102 were received. The amendment is adopted under the Texas Natural Resources Code, sec.116.012 (Vernon Supplement 1992), which authorizes the Railroad Commission of Texas to promulgate rules and standards related to the compressed natural gas industry and its operations which will protect or tend to protect the health, safety, and welfare of the general public. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 13, 1993. TRD-9328891 Mary Ross McDonald Assistant Director Legal Division-Gas Utilities/Lp Gas Effective date: October 15, 1993 Proposal publication date: July 16, 1993 For further information, please call: (512) 463-6949 Subchapter E. Engine Fuel System 16 TAC sec.13.133, sec.13.136 The Railroad Commission of Texas adopts amendments to sec.13.133 and sec.13. 136, concerning installation of fuel supply cylinders and installation of valves, without changes to the proposed text as published in the July 16, 1993, issue of the Texas Register (18 TexReg 4610). The Commission adopts amendments to sec.13.133 to clarify the locations where fuel supply cylinders on vehicles other than school buses, mass transit and other public transportation vehicles may be installed. It specifies that fuel supply cylinders on school buses, mass transit and other public transportation vehicles may not be located above or within the driver or passenger compartments. The containers on a special transit vehicle may be installed in the passenger compartment provided it meets certain requirements. Types of container fastenings or brackets used and the means of securing them are described. Motor fuel containers installed on school buses or mass transit vehicles shall be installed on the underside of the vehicle only. The Commission adopts amendments to sec.13.136 that clarify electronically operated cylinder service valves installed on a fuel cylinder must include a means of manually closing the valve. No comments specific to sec.13.133 and sec.13.136 were received. The amendments are adopted under the Texas Natural Resources Code, sec.116. 02 (Vernon Supplement 1992), which authorizes the Railroad Commission of Texas to promulgate rules and standards related to the compressed natural gas industry and its operations, which will protect or tend to protect the health, safety and welfare of the general public. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 13, 1993. TRD-9328894 Mary Ross McDonald Assistant Director, Legal Division-Gas Utilities/LP Gas Railroad Commission of Texas Effective date: October 15, 1993 Proposal publication date: July 16, 1993 For further information, please call: (512) 463-6949 TITLE 22. EXAMINING BOARDS Part XV. Texas State Board of Pharmacy Chapter 291. Pharmacies All Classes of Pharmacy 22 TAC sec.sec.291.5, 291.7, 291.12, 291.15-291.17 (Editor's Note: These rules were published in the September 17, 1993, Texas Register, (18 TexReg 6300). The pages were printed out of order. The pages were reprinted correctly as follows.) The Texas State Board of Pharmacy adopts amendments to sec.sec.291.5, 291. 7, 291.12, and 291.15-291.17, concerning Closed Pharmacies, Change of Pharmacist Employment, Fire or Other Disaster, Notification of Theft or Loss of a Controlled Substance, Definitions, and Controlled Substance Inventory Requirements without changes to the proposed text as published in the March 12, 1993, Texas Register (18 TexReg 1613). The agency adopts the amendments requiring more stringent recordkeeping requirements for these drugs because of continued abuse of these drugs by pharmacists, other health professionals, and the general public. This abuse is documented by a growing body of evidence including actual cases of abuse investigated by the Board, testimony from police and law enforcement personnel, and articles in professional literature. The agency believes that the stricter accountability standards imposed by the amendments will assist in determining if illegal diversion of these drugs has occurred from a pharmacy. The amendments require pharmacies to: inventory butorphanol (Stadol), nalbuphine (Nubain) and carisoprodol (Soma) annually, on closing a pharmacy, and on change of pharmacist-in-charge; make a written record of the destruction of butorphanol (Stadol), nalbuphine (Nubain) and carisoprodol (Soma); and report a theft or significant loss of dangerous drugs. A public hearing on the rules was held on April 27, 1993. At the public hearing Paul F. Davis, R.Ph., Executive Director, Texas Pharmaceutical Association, presented comments against the adoption of the rules. The agency also received three letters of comment against adoption of the rules. These letters were from Albert Lucero on behalf of the El Paso Pharmaceutical Association and from two individuals. Mr. Davis' comments of behalf of Texas Pharmaceutical Association stated the following: "At the heart of our concern is what we believe to be a very real legal question as to whether the Board of Pharmacy has the authority to place additional controls on non-controlled substances. This, we believe, establishes a third category of drugs-which only the Texas Legislature can do -without any statutory basis in either the Dangerous Drug Act or State Pharmacy Practice Act.... The requirement for inventorying is time consuming and unnecessary. It will not prevent abuse or theft of the products ..." The comments of Mr. Lucero in behalf of the El Paso Pharmaceutical Association also questioned the Board's authority and stated: "...The El Paso Pharmaceutical Association strongly objects to such an establishment of another class of pharmaceutical material, that would be extremely difficult if not impossible to comply with." The two individuals that commented noted concerns about the additional 'burden" being placed on all pharmacists. Linda Romeo, R.Ph., Irving stated: "While I admit there is possible abuse of these items and diversion, I believe it to be minimal in comparison to the burden being considered for all pharmacists. Have other avenues been explored?" Mrs. Travis H. Thrasher, R.Ph., Houston stated: "[While] this would seem to be a minor requirement, it would be added to a number of other requirements which put together are making pharmacy a very stressful occupation." The Board disagrees with the comments questioning the authority to adopt these rules. The agency has the authority to require an inventory of prescription drugs, first, under the Texas Pharmacy Act (Texas Civil Statutes, Article 4542a- 1). Section 16(b) and sec.17(b)(3) of the Texas Pharmacy Act give the Board the authority to adopt rules for the proper administration and enforcement of the Pharmacy Act and to specify the minimum standards for maintenance of prescription drug records in a pharmacy. Second, Section 483. 002 and sec.483.024 of the Texas Dangerous Drug Act (Chapter 483, Health and Safety Code) give the Board the authority to adopt rules for the proper administration and enforcement of Chapter 483 and specify that pharmacies must maintain records of acquisition and disposal of dangerous drugs. The Board adopts these amendments in order to enforce requirements that pharmacies maintain accurate records of the acquisition and disposal of these drugs, as required under the Dangerous Drug Act. These amendments are therefore necessary for the proper administration and enforcement of the Dangerous Drug Act, and to reduce the risk of abuse of the three drugs. The Board disagrees with the comments regarding the additional burden these rules place on pharmacies. The rules add three drugs to the list of drugs which must be inventoried by a pharmacy annually, at change of ownership, and on closing. Currently pharmacies are required to inventory all controlled substances maintained by the pharmacy. This list of drugs may vary depending on the volume of the pharmacy. It is estimated that the average pharmacy is now required to inventory approximately 50-100 different drugs for this controlled substance inventory. The addition of three drugs does not impose a significant burden, particularly in light of the corresponding benefits to the public welfare. The amendments are adopted under the Texas Pharmacy Act (Texas Civil Statutes, Article 4542a-1, ) sec.16(a), which provide the Texas State Board of Pharmacy the authority to adopt rules for the proper administration and enforcement of the Act, sec.17(b) which provides the Board with the authority to specify the minimum standards for maintenance of prescription drug records in a pharmacy, and under the Texas Dangerous Drug Act (the Health and Safety Code, Chapter 483) sec.483.002 which gives the Board the Authority to adopt rules for the proper administration and enforcement of this chapter. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 9, 1993. TRD-9328608 Fred S. Brinkley, Jr. Executive Director/Secretary Texas State Board of Pharmacy Effective date: September 30, 1993 Proposal publication date: March 12, 1993 For further information, please call: (512) 832-0661 22 TAC sec.291.11 The Texas State Board of Pharmacy adopts the repeal of sec.291.11, concerning Regulation. The repeal is adopted without changes to the proposed text as published in the March 12, 1993, issue of the Texas Register (18 TexReg 1616). The repeal of this adoption eliminates a section of the rules which is no longer necessary because of adoption of other rules. No comments were received on the repeal of this rule. The repeal is adopted under the Texas Pharmacy Act (Texas Civil Statutes, Article 4542a-1) sec.16(a), which provide the Texas State Board of Pharmacy the authority to adopt rules for the proper administration and enforcement of the 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 September 9, 1993. TRD-9328608 Fred S. Brinkley, Jr. Executive Director/Secretary Texas State Board of Pharmacy Effective date: September 30, 1993 Proposal publication date: March 12, 1993 For further information, please call: (512) 832-0661 Community Pharmacy (Class A) 22 TAC sec.sec.291.32, 291.34, 291.36 The Texas State Board of Pharmacy adopts amendments to sec.sec.291.32, 291.34, and 291.36, concerning Personnel, Records, and Class A Pharmacies Compounding Sterile Pharmaceuticals. The amendments are adopted without changes to the proposed text as published in the March 12, 1993, issue of the Texas Register (18 TexReg 1616). These amendments correct references to rule citations in the Class A Pharmacy rules in conjunction with amendments to the rules relating to inventory requirements. No comments were received on the adoption of these rules. The amendments are adopted under the Texas Pharmacy Act (Article 4542a-1, Texas Civil Statutes) Sections 16(a), which provides the Texas State Board of Pharmacy the authority to adopt rules for the proper administration and enforcement of the Act and Section 17(b) which provided the Board with the authority to specify the minimum standards for maintenance of prescription drug records in a pharmacy. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 9, 1993. TRD-9328607 Fred S. Brinkley, Jr. Executive Director/Secretary Texas State Board of Pharmacy Effective date: September 30, 1993 Proposal publication date: March 12, 1993 For further information, please call: (512) 832-0661 Institutional Pharmacy (Class C) 22 TAC sec.291.72-291.76 The Texas State Board of Pharmacy adopts amendments to 291.72-291.76, concerning Definitions, Personnel, Operational Standards, and Records in a Class C Pharmacy and Class C Pharmacies Located in a Free Standing Ambulatory Surgical Center. Sections 291.72-291.75 are adopted with changes to the proposed text as published in the March 9, 1993, issue of the Texas Register (18 TexReg 1485). Section 291.76 is adopted without changes and will not be republished. The amendments implement the recommendations of the Senate Interim Committee on Health and Human Services and correct certain reference citations within the sections. The Senate Interim Committee on Health and Human Services recommended that the Texas State Board of Pharmacy amend the rules to require: that pharmacists perform a more detailed recording and monitoring of drug distribution in hospitals, including drug use reviews of orders filled during the pharmacist's absence; and that a pharmacist review records in hospitals with 100 beds or less every 72 hours instead of every seven days. The amendments are consistent with the intent of the "1991-1992 Practice Standards of the American Society of Hospital Pharmacists," TSBP rules for Class A Pharmacies Compounding Sterile Pharmaceuticals, and to some extent, recently adopted federal requirements. A public hearing regarding the proposed rules was held on April 27, 1993. At that hearing, nine persons testified and 57 letters of comment were received concerning the rules. Comments in favor of the rules were received from the following organization Texas Society of Hospital Pharmacists. Comments in opposition to the rules were received from the following: Organizations: Texas Pharmaceutical Association, Texas Hospital Association, Texas Organization of Rural and Community Hospitals, Section of Consultant Pharmacists, Texas Pharmaceutical Association. Legislators: Representative John R. Cook, Breckenridge; Representative David Counts, Knox City; Representative Jerry K. Johnson, Nacogdoches; Senator Jim Turner, Crockett. Hospitals: Ballinger Memorial Hospital, Ballinger; Bethania Regional Health Care Center, Wichita Falls; Bowie Memorial Hospital, Bowie; Burleson Memorial Hospital, Caldwell; Childress Regional Medical Center, Childress; Coleman County Medical Center, Coleman; Coon Memorial Hospital, Dalhart; Culberson County Hospital District, Van Horn; Mary E. Dickerson Memorial Hospital, Jasper; Eagle Lake Community Hospital, Eagle Lake; East Texas Medical Center, Pittsburg; Faith community Hospital, Jacksboro; Frio Hospital, Pearsall; Goliad County Hospital, Goliad; Hamilton General Hospital, Hamilton; Haskell Memorial Hospital, Haskell; Hi-Plains Hospital, Hale Center; Lillian M. Hudspeth Memorial Hospital, Sonora; Knox County Hospital, Knox City; Llano Memorial Hospital, Llano; Lockney General Hospital, Lockney; McCamey Hospital and Convalescent Center, McCamey; Madison County Hospital, Madisonville; Medina Community Hospital, Hondo; Navasota Regional Hospital, Navasota; Parkview Hospital, Wheeler; Pecos County General Hospital, Iraan; Polk County Hospital, Livingston; Reagan Memorial Hospital, Big Lake; San Augustine Memorial Hospital, San Augustine; Shackelford County Hospital District, Albany; Shamrock General Hospital, Shamrock; Stephens Memorial Hospital, Breckenridge; Stonewall Memorial Hospital, Aspermont; Throkmorton County Memorial Hospital, Throckmorton; Tri-City Community Hospital, Jourdanton; Twin Oaks Medical Center, Fort Worth; Wilbarger General Hospital, Vernon; Wood County Central Hospital, Quitman. Corporations/Businesses: Hunter Pharmacy Services, Inc.; San Augustine Drug Company, Inc., San Augustine; Premier Pharmacy Management Corp., Austin; Reynolds Drug, Inc., Hamlin. Individuals: Richard R. Bixler, R. Ph, Lubbock; Doyle High, R.Ph., Roberta High, R.Ph., Consultant Pharmacist, Haskell; Chuck Lathan; Cynthia Laney-Fisher, R.Ph., Navasota; and Janis Miller, R.Ph., Brady. All of these comments were opposed to the portion of the rule which changed the requirement that a pharmacist visit a small hospital every 72 hours rather than the current every seven days. The Board agrees with these commenters and has amended the rules to maintain the current every seven-day review of records by pharmacists in hospitals with a part-time/consultant pharmacist. The other changes from the proposed language were made to bring this section into compliance with amendments to the Texas Pharmacy Act passed by the 73rd legislature. Specifically these changes involve changing the previous definition of confidential health information to confidential record and drug review to drug regimen review to match the new language in the pharmacy Act. In addition, the confidentiality section of the rules was amended to match requirements in the amended Pharmacy Act. The amendments are adopted under Texas Pharmacy Act Texas Civil Statutes, (Article 4542a-1) sec.16(a), which provides the Texas State Board of Pharmacy the authority to adopt rules for the proper administration and enforcement of the Act, and sec.17(b), which provided the Board with the authority to specify the minimum standards for drug storage, maintenance of prescription drug records, and procedures for the delivery, dispensing in a suitable container appropriately labeled, or providing of prescription drugs or devices within the practice of pharmacy. sec.291.72. Definitions. The following words and terms, when used in these sections, shall have the following meanings, unless the context clearly indicates otherwise: Confidential record-any health-related record maintained by a pharmacy or pharmacist, such as a patient medication record, prescription drug order, or medication drug order. Drug regimen review - (A) An evaluation of medication orders and patient medication records for: (i) known allergies; (ii) rational therapy-contraindications; (iii) reasonable dose and route of administration; (iv) reasonable directions for use; (v) duplication of therapy; (vi) drug-drug interactions; (vii) drug-food interactions; (viii) drug-disease interactions; (ix) adverse drug reactions; and (x) proper utilization, including overutilization or underutilization. (B) The drug regimen review may be conducted prior to administration of the first dose (prospective) or after administration of the first dose (retrospective). sec.291.73. Personnel. (a) (No change.) (b) Pharmacist-in-charge. (1) (No change.) (2) Responsibilities. The pharmacist-in-charge shall have the responsibility for, at a minimum, the following: (A)-(N) (No change.) (O) maintenance of records in a data processing system such that the data processing system is in compliance with Class C (Institutional) pharmacy requirements; (P) assuring that a reasonable effort is made to obtain, record, and maintain patient medication records; and (Q) meeting all inspection and other requirements of the Texas Pharmacy Act and these sections. (c) (No change.) (d) Pharmacists. (1) (No change.) (2) Duties. Duties of the pharmacist-in-charge and other pharmacists shall include, but need not be limited to the following: (A)-(B) (No change.) (C) interpreting patient medication records and performing drug regimen reviews. (3) (No change.) (e)-(f) (No change.) sec.291.74. Operational Standards. (a)-(d) (No change.) (e) Absence of a pharmacist. (1) Medication orders. (A) In facilities with a full-time pharmacist, if a practitioner orders a drug for administration to a bona fide patient of the facility when the pharmacy is closed, the following is applicable. (i)-(iv) (No change.) (v) The pharmacist shall verify the withdrawal and perform a drug regimen review as specified in subsection (f)(5) (B) of this section as soon as practical, but in no event more than 72 hours from the time of such withdrawal. (B) In facilities with a part-time or consultant pharmacist, if a practitioner orders a drug for administration to a bona fide patient of the facility when the pharmacist is not on duty, or when the pharmacy is closed, the following is applicable. (i)-(iii) (No change.) (iv) The pharmacist shall verify the withdrawal and perform a drug regimen review as specified in subsection (f)(5)(B) of this section after a reasonable interval, but in no event may such interval exceed seven days. (2) (No change.) (f) Drugs. (1)-(4) (No change.) (5) Distribution. (A) Medication Orders. (i)-(v) (No change.) (B) Drug Regimen Review. (i) For the purpose of promoting therapeutic appropriateness, a pharmacist shall evaluate medication orders and patient medication records for: (I) known allergies; (II) rational therapy-contraindications; (III) reasonable dose and route of administration; (IV) reasonable directions for use; (V) duplication of therapy; (VI) drug-drug interactions; (VII) drug-food interactions; (VIII) drug-disease interactions; (IX) adverse drug reactions; and (X) proper utilization, including overutilization or underutilization. (ii) The drug regimen review shall be conducted on a prospective basis when a pharmacist is on duty and on a retrospective basis as specified in subsection (e)(1) of this section when a pharmacist is not on duty. (ii) Any questions regarding the order must be resolved with the prescriber and a written notation of these discussions made in the patient's medication record or chart. (C) Procedures. (i) (No change.) (ii) The written policies and procedures for the drug distribution system shall include, but not be limited to, procedures regarding the following: (I)-(XXI) (No change). (XXII) use of automated drug dispensing systems; (XXIII) use of data processing and direct imaging systems; and (XXIV) clinical services. (g) Clinical Services. (1) A systematic ongoing process of drug regimen review shall be developed in conjunction with the medical staff to increase the probability of desired patient outcomes and decrease the probability of undesired outcomes from drug therapy. (2) There must be documentation of ongoing drug therapy monitoring and evaluation, including assessment of: (A) the therapeutic appropriateness of the patient's drug regimen; (B) therapeutic duplication in the patient's drug regimen; (C) the appropriateness of the delivery device, dose, frequency, and route of administration; (D) potential drug, food, or diagnostic test interactions or disease limitations on drug use (or any combination of these); and (E) clinical laboratory or clinical monitoring methods to monitor and evaluate drug effectiveness, side effects, toxicity, or adverse effects, and appropriateness to continued use of the drug in its current regimen. (h) Emergency rooms. (1)-(2) (No change.) (i) Radiology departments. (1)-(2) (No change.) sec.291.75. Records. (a)-(b) (No change.) (c) Inpatient records. (1) Original Medication Orders. (A) Each original medication order or set of orders issued together shall bear the following information: (i) patient name and room number or identification number; (ii) drug name, strength, and dosage form; (iii) directions for use; (iv) date; and (v) signature or electronic signature of the practitioner or that of his or her authorized agent. (B) Original medication order shall be maintained with the medication administration records of the patients. (2) Patient Medication Records (PMR). A patient medication record shall be maintained for each inpatient of the facility. The PMR shall contain at a minimum the following information. (A) Patient Information. (i) patient name and room number or identification number; (ii) gender, and date of birth or age; (iii) weight and height; (iv) known drug sensitivities and allergies to drugs and/or food; (v) primary diagnoses and chronic conditions; (vi) primary physician; and (vii) other drugs the patient is receiving. (B) Medication order information. (i) date of distribution; (ii) drug name, strength, and dosage form; and (iii) directions for use. (3)-(9) (No change.) (d) (No change.) (e) Other Records. Other records to be maintained by a pharmacy: (1)-(5) (No change.) (6) a hard copy of inventories required by sec.291.17 of this title (relating to Inventory Requirements) except that a perpetual inventory of controlled substances listed in Schedule II may be kept in a data processing system if the data processing system is capable of producing a hard-copy of the perpetual inventory on-site. (7)-(10) (No change.) (f) (No change.) (g) Confidentiality. (1) A pharmacist shall provide adequate security of prescription drug orders, medication orders, and patient medication records to prevent indiscriminate or unauthorized access to confidential (2) Confidential records are privileged and may be released only to: (A) the patient or the patient's agent; (B) practitioners and other pharmacists when, in the pharmacist's professional judgment, such release is necessary to protect the patient's health and well-being; (C) other persons, the board, or other state or federal agencies authorized by law to receive such confidential records; (D) a law enforcement agency engaged in investigation of suspected violations of the Controlled Substances Act or the Dangerous Drug Act; (E) a person employed by any state agency which licenses a practitioner as defined in this Act if such person is engaged in the performance of the person's official duties; or (F) an insurance carrier or other third party payor authorized by a patient to receive such information. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 9, 1993. TRD-9328606 Fred S. Brinkley, Jr. Executive Director/Secretary Texas State Board of Pharmacy Effective date: September 30, 1993 Proposal publication date: March 9, 1993 For further information, please call: (512) 832-0661 Chapter 303. Destruction of Dangerous Drugs and Controlled Substances. 22 TAC sec.303.1, sec.303.2. The Texas State Board of Pharmacy adopts amendments to sec.301.1, and sec.303.2, concerning Destruction of Dispensed Drugs and Disposal of Stock Prescription Drugs. The amendments are adopted without changes to the proposed text as published in the March 12, 1993, issue of the Texas Register , (18 TexReg 1616). The amendments outline procedures for the destruction of butorphanol (Stadol), nalbuphine (Nubain) and carisoprodol (Soma) and require a pharmacy to maintain a record of destruction of these drugs. The agency adopts the amendments requiring more stringent recordkeeping requirements for these drugs because of continued abuse of these drugs by pharmacists, other health professionals, and the general public. This abuse is documented by a growing body of evidence including actual cases of abuse investigated by the Board, testimony from police and law enforcement personnel, and articles in professional literature. The agency believes that the stricter accountability standards imposed by these rule amendments will assist in determining if illegal diversion of these drugs has occurred from a pharmacy. A public hearing on the rules was held on April 27, 1993. At the public hearing Paul F. Davis, R.Ph., Executive Director, Texas Pharmaceutical Association, presented comments against the adoption of the rules. The agency also received three letters of comment against adoption of the rules. These letters were from Albert Lucero on behalf of the El Paso Pharmaceutical Association and from two individuals. Mr. Davis' comments of behalf of Texas Pharmaceutical Association stated the following: "At the heart of our concern is what we believe to be a very real legal question as to whether the Board of Pharmacy has the authority to place additional controls on non-controlled substances. This, we believe, establishes a third category of drugs-which only the Texas Legislature can do -without any statutory basis in either the Dangerous Drug Act or State Pharmacy Practice Act.... The requirement for inventorying is time-consuming and unnecessary. It will not prevent abuse or theft of the products..." The comments of Mr. Lucero in behalf of the El Paso Pharmaceutical Association also questioned the Board's authority and stated: "...The El Paso Pharmaceutical Association strongly objects to such an establishment of another class of pharmaceutical material, that would be extremely difficult if not impossible to comply with." The two individuals that commented noted concerns about the additional "burden" being placed on all pharmacists. Linda Romeo, R.Ph., Irving stated: "While I admit there is possible abuse of these items and diversion, I believe it to be minimal in comparison to the burden being considered for all pharmacists. Have other avenues been explored?" Mrs. Travis H. Thrasher, R.Ph., Houston stated: "[While] this would seem to be a minor requirement, it would be added to a number of other requirements which put together are making pharmacy a very stressful occupation." The Board disagrees with the comments questioning the authority to adopt these rules. The agency has the authority to require an inventory of prescription drugs, first, under the Texas Pharmacy Act (Texas Civil Statutes, Article 4542a- 1). Section 16(b) and sec.17(b)(3) of the Texas Pharmacy Act give the Board the authority to adopt rules for the proper administration and enforcement of the Pharmacy Act and to specify the minimum standards for maintenance of prescription drug records in a pharmacy. Second, sec.483.002 and sec.483.024 of the Texas Dangerous Drug Act (Health and Safety Code, Chapter 483) give the Board the authority to adopt rules for the proper administration and enforcement of Chapter 483 and specify that pharmacies must maintain records of acquisition and disposal of dangerous drugs. The Board adopts these amendments in order to determine if pharmacies are maintaining accurate records of the acquisition and disposal of these drugs, as they are required to do under the Dangerous Drug Act. These amendments are therefore necessary for the proper administration and enforcement of the Dangerous Drug Act. The board disagrees with the comments regarding the additional burden the rules place on pharmacies. The rules add three drugs to the list of drugs which must be inventoried by a pharmacy annually, at change of ownership, and on closing. Currently pharmacies are required to keep a record of the destruction of all controlled substances, plus one dangerous drug, triplenamine (e.g., PBZ). This list of drugs may vary depending on the volume of the pharmacy. It is estimated that for the average pharmacy this would include approximately 50-100 different drugs. The addition of three drugs does not impose a significant burden, particularly in light of the corresponding benefits to the public welfare. The amendments are adopted under the Texas Pharmacy Act (Texas Civil Statutes, Article 4542a-1) sec.16(a), which provides the Texas State Board of Pharmacy the authority to adopt rules for the proper administration and enforcement of the Act; sec.17(b), which provides the Board with the authority to specify the minimum standards for maintenance of prescription drug records in a pharmacy, and under the Texas Dangerous Drug Act (Health and Safety Code, Chapter 483) sec.483.002 which gives the Board the Authority to adopt rules for the proper administration and enforcement of this chapter. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 9, 1993. TRD-9328610 Fred S. Brinkley, Jr. Executive Director/Secretary Texas State Board of Pharmacy Effective date: September 30, 1993 Proposal publication date: March 12, 1993 For further information, please call: (512) 832-0661 TITLE 30. ENVIRONMENTAL QUALITY Part I. Texas Natural Resource Conservation Commission Chapter 330. Municipal Solid Waste Subchapter Z. Waste Minimization and Recyclable Materials Used Oil Filter Collection, Management and Recycling 30 TAC sec.sec.330.1180-330.1189 The Texas Natural Resource Conservation Commission (TNRCC) adopts sec.sec.330. 1180-330.1189, concerning waste minimization and recyclable materials. Section 330.1183 was adopted with changes to the proposed text as published in the May 25, 1993, issue of the Texas Register (18 TexReg 3348). Sections 330. 1180- 330.1182 and sec.sec.330.1184-330.1189 were adopted without changes and will not be republished. The TNRCC proposes the following standards for the proper management of used oil filters. The rules address the generation, collection, transportation, storage, processing, and final disposition of used oil filters. The primary purpose of the rules is to protect the environment of Texas from harm due to the improper handling of used oil filters. Approximately 50 million oil filters are generated each year from internal combustion engines alone and they could, if improperly handled, potentially release more than three million gallons of oil into the environment. A secondary purpose of the rules is to protect generators of used oil filters, who are responsible for the ultimate disposition of their filters, from liability for environmental damage that may result from downstream handling of filters. The TNRCC recognizes the potential for environmental damage from oil releases at each stage of the handling of filters. The agency has attempted to weigh all the requirements in the rules against the potential risk to the environment from oil contamination. As a result of these concerns, the following provisions are included in the rules. The rules require generators to remove all free-flowing oil from filters, to arrange for proper transport and processing of their filters, and to retain paperwork documenting the disposition of their filters for three years. The rules require transporters to register with and report annually to the TNRCC, use the prescribed shipping documentation, verify that containers of filters are properly labeled and sealed, be prepared to remediate any spills that may occur during transport, and deliver filters to a TNRCC-registered entity within ten days. The rules require storage facilities to store filters in covered containers or under a covered enclosure and to provide secondary containment for spills. As an alternative to meeting the prescribed minimum standards, a storage facility may submit for TNRCC approval a Filter Management Plan that provides equivalent environmental protection. All storage facilities must register with and report annually to the TNRCC, must provide evidence of financial responsibility, must ship filters within 90 days, and must document the proper disposition of filters. Under the rules, processors of used oil filters must register with and report annually to the TNRCC, must process filters to certain standards within 30 days, must show evidence of financial responsibility, and must document proper disposition of the filters. To protect against illegal dumping the rules create a tracking mechanism for used oil filters, employing a bill of lading that follows filters from the generator through to the end user. The rules also require handlers to document to the generator, on request, where the generator's used oil filters went. The TNRCC believes the environmental risk associated with small amounts of used oil filters is minimal. The rules therefore allow parties to store up to three 55-gallon drums of filters without registering as a storage facility. This provision allows generators to have two full drums and a "working drum" on site at any given time. The rules also allow parties to transport up to two 55-gallon drums without registering as a transporter. Recognizing that the oil in used oil filters represents an environmental risk, the TNRCC enacts these rules to ensure the protection of public health and the environment from the mishandling of used oil filters. The magnitude of that risk and the exact conditions under which the risk is created are not known with certainty at this time. The TNRCC plans to commission an independent study to assess and quantify this risk. If the study finds that the risk is minimal, or that it can be minimized or eliminated under certain circumstances, the TNRCC may at a future date revise the rules to reflect those findings. The TNRCC also recognizes that illegal dumping of undrained and unprocessed filters represents a significant threat to the environment, and that such dumping, by commercial generators or by a do-it-yourselfer, may result if efficient and economical avenues for collection and processing are not available. Accordingly, these rules are designed to minimize the factors which encourage illegal dumping and to ensure that a framework for an efficient and economical alternative to illegal dumping is in place. If the TNRCC determines that the system of collection, processing and recycling that develops in response to these rules is inadequate to capture the majority of DIY and commercially generated filters, the agency may at a future date seek to amend the rules to minimize illegal dumping. The Texas Natural Resource Conservation Commission received written comments from the following: A-1 Rental, City of Amarillo; Arent Fox (on behalf of the Filter Manufacturers Council (FMC)); Commercial Metals Company; Duininck Bros., Inc.; H.B. Zachry Company; Helfman Ford; Industrial Service Corporation; J & J Exxon; Liquid Energy Corporation; Lone Star Lubrication, Inc.; Lube 'n Go, Inc.; North American Coal Corporation; Pennzoil Company; ProCycle Oil, Inc.; ProCycle Metals; Quaker State Minit-Lube Inc.; Richard Carr Construction Company; Southwestern Public Service Company; StarEnterprise; University of Texas Health Science Center at San Antonio; and Valvoline. A public meeting was held on June 3, 1993, in Austin at which the agency received oral comments from the public. One commenter requests a definition of a DIY. The TNRCC provided a definition of a DIY used oil filter as "A used oil filter that is generated by an individual who changes his or her own oil filter." Other commenters suggested adding language which would limit applicability of the definition, such as,"...an individual who changes his/her own filter in an automotive or other vehicle owned or operated by such individual and used for personal use only." The TNRCC feels the definition of a DIY used oil filter as proposed will effectively specify the type of used oil filter affected by the rules. The TNRCC finds no benefit in specifying the different classes of filters including those which may be designated as DIY used oil filters; rather, the Commission wishes to encourage the proper recycling of any type of DIY, or other used oil filter. Several commenters believe that the definition of "end user" contained in sec.330.1181 is not clear. For example, some commenters ask whether specific uses qualify as legitimate "end uses" or "recycling." As the recycling of UOFs is an emerging industrial activity, the TNRCC finds no benefit in attempting to identify and list each possible end use; rather, the TNRCC wishes to encourage the development of legitimate recycling activities utilizing the UOF or its components. One commenter asks whether the definition of "generator" includes collection centers for DIY used oil filters, and suggests that collection centers which only accept UOFs generated by DIYers should be excluded from the definition of a generator. The TNRCC agrees with the commenter that a collection center that only collects UOFs from DIYs is not a generator. However, many generators of UOFs may act as a collection center. The agency does not wish to exclude all DIY used oil filter collection centers since this exclusion would also include generators accepting DIY UOFs and believes the limited exemption suggested by this commenter, with the restrictions discussed previously, would accomplish little to encourage recycling, but would be confusing to the regulated community. This commenter also recommends that the TNRCC use a definition for the term "hot drained" that is identical to the federal definition. The TNRCC has amended the proposed definition to be consistent with the federal definition. One commenter believes that the use of the term "noticeable" in the definition of "free-flowing oil" is vague, and suggests replacing "noticeable" with the term "visible." The Commission believes that the use of the term noticeable is clear and that no benefit will be gained by changing the definition as published in the proposed rules. Another commenter asks where the term "oil weight" is used in the regulations. The term is not used in the proposed rules, but has been incorporated into the processing standards set forth in sec.330.1185(b)(1) in the final rules. With regard to the definition of "public used-oil-filter collection center" (Collection Center), this commenter questions the need to limit the volume (to small quantities) of used oil filter collection by collection centers identified in subparagraphs (B)(C) of the definition. This commenter also feels that because "automotive service facility" and "small quantity" are not defined, certain collection centers would not be able to determine whether they were in compliance with the regulation. It was not the intent of the TNRCC to limit the number of UOFs that may be accepted by a public used-oil-collection center (other than automotive service facilities); therefore, the Commission has amended the definition of public used-oil-collection center to delete the term "small quantities." With regard to the language "automotive service facility," the TNRCC intends that this language apply to facilities that service or repair vehicles. Several commenters requested that the TNRCC amend the definition of "recycling." One commenter would like the Commission to adopt the definition of "recycling" as set forth in the Texas Health and Safety Code, sec.361.421(8). The Commission believes the definition found in the Health and Safety Code, sec.361.003, which was the basis for the definition set out in these rules is preferable to the suggested definition found in sec.361.421(8), or to the changes suggested by these commenters. However, the Commission agrees that the definition used herein should be consistent with the existing definition found in sec.361.003, and will amend the definition in sec.330.1181 so that the two definitions are identical. Another commenter believes the word "legitimately" found in the definition of "recycling" is neither necessary nor useful to include in this definition,". ..because every regulation, and particularly those involving recycling, carries with it the inherent notion of 'sham compliance'...." Recognizing the debate surrounding the use of the term "recycling" and whether or not a particular process constitutes legitimate recycling, the Commission believes the term "legitimately" allows the agency the flexibility to determine if a recycling activity is consistent with the goals of the Commission and constitutes true recycling. The agency wishes to note that any pollution event resulting from the recycling of used oil filters or their components will give rise to the question: Is this legitimate recycling? Another commenter recommends that the TNRCC modify the definition of "processing" to limit the reference to only the processing standards set out in sec.330.1185(b). The TNRCC believes this suggested change will more clearly identify the processing standards and has changed the definition accordingly. With regard to the definition of "used oil," this commenter also notes that the definition as set forth in the proposed rules appears to be different from the federal definition. The TNRCC has amended the definition to be consistent with the federal definition of "used oil" at 40 Code of Federal Regulations, sec.260.10. Another commenter requested a clarification of the definition of an "end user", and asks whether an "end user" must register as a processor or a disposer of UOFs. Under sec.330.1182(b), an "end user" does not require registration as either a processor or a disposer of UOFs. Several commenters questioned whether "administrative requirements" must be adhered to by facilities storing less than three drums of UOFs, or the volumetric equivalent, or by transporters that carry two 55-gallon drums, or the volumetric equivalent, at any one time. The rules provide for an exemption from the storage or transporter registration requirement. A storage facility is defined as a facility used to store more than three 55-gallon drums or the volumetric equivalent. This definition relieves any facility storing less than three 55-gallon drums or the volumetric equivalent, from the registration requirement, reporting requirement, the record-retention requirement and the technical standards associated with a registered storage facility. A transporter however is a person engaged in the off-site transportation of UOFs. The rules do exempt transporters of two 55-gallon drums or less from the registration requirement in sec.330.1184(b) and related financial assurance requirement in sec.330.1184(a)(1). However, the exemption does not extend to other transporter requirements such as shipping documentation, records retention and reporting. One commenter is concerned that the term "remediate" as used in sec.330. 1182(a) (relating to General Requirements) may be a term of art that denotes an extremely high level of clean-up, even to background levels. Although the Commission will direct clean-up to a level which is wholly protective of human health and the environment, the term "remediate" denotes no particular standard with regard the level of cleanup. Accordingly, the TNRCC feels the use of the term is appropriate in this instance. Several commenters felt the reference in sec.330.1182 relating to General Requirements to the stored amounts of used oil should specify the amounts allowed. The TNRCC agrees with this position, and has amended sec.330.1182 to specify the amounts of used oil per container identified in sec.330.1183(e)(3). One commenter questioned whether a generator is required under sec.330.1182 to have a Spill Prevention Control and Countermeasure Plan (SPCC Plan). Under this section, generators are not required to have a Spill Prevention Control and Countermeasure Plan; however, a generator is required to have the capability to effectively respond to any spill or release of used oil. The TNRCC agrees, however, that this section should be clarified. Accordingly, the Commission has added language which makes clear that the submittal of a SPCC Plan is optional for any person who generates, stores, transports, processes, or handles UOFs. With regard to sec.330.1182 relating to General Requirements, another commenter believes that the paragraph should reference the appropriate section of the Clean Water Act, 42 United States Code, sec.112, or allow other plans to satisfy the requirements of this paragraph. For example, the commenter suggests an Oil Discharge Prevention and Response Plan required by the Oil Spill Prevention and Response Act of 1991 in the Texas Natural Resources Code, Chapter 40. Given that there are various federal spill response plans whose purpose is compatible with the intent of these requirements, the TNRCC has amended the language to allow the submittal of a spill response plan which satisfies the requirements of any federally authorized spill response plan. The commenter also recommends that the requirement for facility owners or operators to have their SPCC Plan, "on file with the Local Emergency Planning Commission (LEPC)" be deleted. The Commission has amended proposed sec.330. 1182(1) to make clear that any such spill response plan need not be on file with the Local Emergency Planning Commission. Further, one commenter proposed suggested language changes to proposed paragraph (5) of sec.330.1182 (relating to General Requirements) which requires facilities to ensure that containers storing used oil filters are not leaking. The commenter believes this section requires clarification because the only necessary condition for container storage should be that the container not be leaking; and, if it is leaking, it must either be repaired or replaced. The TNRCC intends that the language "remove from service" includes replacement. This commenter also believes that the language at the end of the paragraph which states "ensuring that only serviceable containers are provided for UOF storage" is unnecessarily limiting in that the container need not be "serviceable" or "repairable" as long as it can be replaced. The TNRCC has replaced the term "serviceable" with the term "non-leaking." This commenter also recommends that in sec.330.1182 (relating to General Requirements), the Commission delete the reference to sec.330.1183(e)(3); and, instead, specify that response equipment is required to respond to an amount of spilled oil equal to ten gallons for every 55-gallon drum or volumetric equivalent contained or stored on site. The TNRCC has made the change as suggested. One commenter believes that sec.330.1183(g) (relating to Storage Facilities) places a barrier to self-processing of UOFs. The TNRCC disagrees with this position and believes that this rule provides the flexibility for self- processing. The requirement under this section to deliver UOFs only to a registered UOF processor, an end user, or a permitted disposal facility does not place a barrier to self-processing. Another commenter, a state institution, questioned whether it should be defined as a processor, given the fact that it is a state institution. Specifically, the commenter asks whether the "other" in the definition exempts a state institution from being a processor. Assuming it is a self-processor (processing only UOFs generated on-site), the facility would not be required to register as a processor since a processor, by definition, is an entity that processes UOFs generated by "others" for the purpose of preparing such filters for recycling. The term "others" refers to a facility which is owned or operated by an entity other than the entity processing the UOFs. As noted earlier, however, the self-processor must meet the shipping, reporting, and record retention requirements of a processor. One commenter is unsure of the reasoning behind the DIY exclusion in sec.330. 1183(g) (relating to Storage Facilities). This section requires that, "...all storage facilities receiving UOFs generated off-site, other than UOFs accepted from a DIY generator, must ship only to a registered UOF processor, an end user or a permitted disposal facility." The intent of the exclusion for DIY filters is to allow generators accepting DIY UOFs to ship the DIY filters (generated off-site) to a registered storage facility. Without this exemption, a generator storing more than three 55-gallon drums, or the volumetric equivalent, which accepts DIY UOFs would be required to ship to a registered UOF processor, an end user or permitted disposal facility. The commenter also asks whether the DIY used oil filters referenced in sec.330.1183(g) (relating to Storage Facilities) must be shipped to a registered processor. As discussed previously, the exception allows shipments of UOFs accepted from DIYs (generated off-site) to be shipped to a registered storage facility, in addition to a registered processor, end user, or permitted disposal facility. Another commenter felt that the TNRCC should clarify sec.330.1183(a), by indicating that "containers" refers to containers of UOFs. The TNRCC has incorporated this additional language. Several commenters felt that the rule requiring four-inch-high letters was unreasonable and impractical. The TNRCC recognizes the practical problems presented by this requirement and has amended sec.330.1183(e)(2) to require three-inch-high lettering. Another commenter suggests that the requirement that labels be at least four inches high be modified to require that all such containers be labelled with the phrase "Used Oil Filters" in a manner that is "conspicuous and easily visible," without a specific lettering-height requirement. The TNRCC feels that this language would require the development of a definition of what is "conspicuous and easily visible." On the other hand, a standard letter height provides the generator and storage facility a definitive criterion with which to comply. One commenter felt "timely monitoring" was an adequate substitute for physical storage standards. By timely monitoring the TNRCC believes the commenter is referring to a periodic and regular visual inspection of the storage area. The TNRCC feels the standards set for storage are designed to be protective of human health and the environment, and has maintained them as proposed. One commenter felt that the phrase "Persons storing UOFs may store..., without registering as a storage facility," found in the proposed rules in sec.330.1183(e)(2), should be a separate subsection. Another commenter suggested that this language be incorporated into sec.330.1183(a). The TNRCC has incorporated this language into sec.330.1183(a). This commenter also requests that sec.330.1183(c) relating to required financial responsibility of storage facilities specify the amount of financial responsibility necessary to meet the requirements of the rule. The TNRCC believes that, due to variations in environmental and health risks, this rule must allow the Commission a level of flexibility in order to determine the amount of financial assurance required on a case-by-case basis. The commenter also recommends that the TNRCC modify subsection (d)(2) to allow the required report to be submitted to the TNRCC in letter format, provided that the submission contains all required information. The TNRCC believes it is necessary to have the information provided on standard TNRCC forms in order to facilitate the efficient processing of the information submitted. This commenter also recommends a revision to sec.330.1183(d)(3) to allow registered processors to also register as storage facilities and to allow a storage facility to ship to a storage facility operated by a registered processor. The TNRCC does not preclude a registered processor from also being a registered storage facility if the site complies with sec.330.1183 (relating to Storage Facilities). The commenter "... understands that if storage facilities are allowed to ship used oil filters to other storage facilities, the filters may ultimately be stored for long periods of time without processing." The TNRCC recognizes that the longer the time period between generation and processing, the greater the environmental risk due to accumulation of free oil in the container. For this reason, the TNRCC believes it is necessary for the protection of human health and the environment to maintain the present restriction preventing a storage facility from shipping to another storage facility. Also, the commenter recommends that the TNRCC expand the time limitation allowed for storage facilities that are required to have secondary containment. To expand the time limitation for storage facilities is to allow an increased environmental risk which is unacceptable to the Commission. This commenter also requests that the comma in proposed sec.330.1184(c) in the fifth line following the word transporter, be deleted so that it is clear that the phrase" or received by the transporter from a DIY generator" will be interpreted as part of the "other than" information for which the requirements of the paragraph do not apply. The TNRCC has instead added language to clarify this requirement. Another commenter seeks clarification of the applicable time period to be used in determining whether a transporter meets the criteria for the exemption from the transporter registration requirements. In developing the transporter limitations, the TNRCC took into account the acceptable environmental risk associated with the transportation of small quantities of UOFs; the agency determined that a two-drum transport limit would provide ample environmental protection. The environmental risk assigned to the two-drum limit is not dependent upon how often a shipper transports two drums, rather the environmental risk is based solely upon the risk assigned to the two drums being transported. The TNRCC believes it is unlikely that a large generator of filters would find an economic benefit in frequent two-drum shipments; but the TNRCC recognizes that under the present rules, this practice is allowed. One commenter suggests that sec.330.1184(b) (relating to Transporters) be amended to allow the transport of up to three 55-gallon drums so as to conform with sec.330.1183(e)(3) (relating to Storage). The environmental risk associated with transporting of UOFs is greater than the risk associated with storage of UOFs. Therefore, the TNRCC has maintained the separate requirements, which recognize the different environmental risks and set forth applicable requirements accordingly. According to one commenter, sec.330.1184(c)(2) (relating to Transportation of UOFs), which requires a transporter to notify a generator and collection center of any changes to the shipping documentation, is unduly burdensome. The commenter believes further that providing this information to the generator could give an unfair business advantage to competitors. The TNRCC believes it is important for shippers (generators or collection centers) to know the destination of waste shipped from their facility due to the environmental liabilities associated with the disposition of such waste. Several commenters also ask whether "on-site" as used in proposed sec.330. 1184(a)(6) references the transporter's office. The TNRCC recognizes that all transporters must have a location at which they conduct business; therefore, for the purposes of these rules, "on-site" means at the facility out of which a transporter conducts business; and, if a structure that is capable of properly storing records does not exist at that location, the transporter may utilize a local office. With regard to sec.330.1184 (relating to Transportation of UOFs), one commenter recommended that multiple transporter locations, particularly operations that have a main office in another state, be allowed record-retention requirements similar to those of multiple operations for generators. The requirements of this section provide for centralized record retention for two of the past three years, with the current year's records being retained at the physical location of the facility. Additionally, the remaining two years' records which are stored at the central office must be made available to the TNRCC within five working days after being requested by the TNRCC. The TNRCC recognizes the similarities and problems of record retention shared by transporters who operate multiple locations and generators who operate multiple locations. Each may have space problems, or may lack adequate storage to protect the stored documents. Accordingly, the TNRCC has amended the storage requirements for transporters to allow storage of retained documents at a centralized storage area. This commenter also believes that sec.330.1184 should be amended so that the financial responsibility for transporters of UOFs mirror the requirements sec.330.1183(c) (relating to Storage Facilities) and sec.330.1185(a)(3) (relating to Processors). Further, the commenter believes that the financial responsibility requirements should be set forth in a separate section. The TNRCC believes that, due to variations in environmental and health risks, this rule must allow the Commission a level of flexibility in order to determine the amount of financial assurance required on a case-by-case basis. And, as the rules applicable to transporters are simple and few in number, the TNRCC believes it is unnecessary to identify a separate subsection within sec.330. 1184 relating to financial responsibility. This commenter also questions the inclusion of an end user in proposed sec.330.1185(e)(2) (relating to Processors). The intent of including the end user in sec.330.1185(e)(2) was to ensure that material contaminated by used oil was properly handled. The TNRCC agrees that including the end user in the section is unnecessary. Accordingly, the Commission has changed sec.330.1185(e) (2) by deleting the reference to an end user. Further, a commenter sought clarification of the term "residual oil" as it is used in sec.330.1185(e)(1) (relating to Processors). The commenter believes that the Commission should clarify the fact that a de minimis amount of used oil may be found on UOFs, and that in order for the one-year storage period provided in proposed sec.330. 1185(e)(1) to be effective, the rules should provide a de minimis exception. The TNRCC believes that the goals of the rule requirements are best served if the processor is designated to determine whether an environmental risk exists. If used oil contamination has occurred in the storage area, then an environmental risk is evident; if used oil contamination has not occurred in the storage area, then an environmental risk is not present, and, under the final rule, the processor may store that material indefinitely. The TNRCC recognizes benefits in allowing such flexibility, and has determined that there is no need to set a de minimis amount. Several commenters believe that requiring a facility to register as a storage facility upon the accumulation of three 55-gallon drums is too restrictive. One commenter supports the three-drum limitation, but suggests a mechanism for granting a temporary exemption to accumulate more than three containers of UOFs when circumstances beyond the company's control require additional containers. The TNRCC gave due consideration to the drum-storage limits and feels that the existing limits are necessary to ensure environmental and human health protection. The limits were established based on a judgement about environmental risk associated with the storage of UOFs; a temporary exemption would increase the risk of environmental impact. One commenter suggested that the TNRCC establish two storage standards-one for whole or uncrushed UOFs, and another less stringent standard for crushed UOFs. The TNRCC believes that this distinction would not afford proper protection of the environment in that there still exists a significant environmental risk associated with the storage and transportation of crushed UOFs. Another commenter, a large quantity generator of UOFs, suggested that the rules allow storage of up to fifteen drums for 90 days because it believes that the three-drum storage limit is too restrictive in its application to generators of a large quantity of filters. The commenter feels the three-drum limit creates added operating problems for "private non-commercial" filter generators such as equipment and fleet operators. The TNRCC believes that the environmental risk of storing more than three 55-gallon drums, or the volumetric equivalent, or with transporting more than two 55-gallon drums, or the volumetric equivalent, is the same for both "private non-commercial" (fleet and equipment) generators and commercial generators of UOFs and has therefore not changed the limit. One commenter felt that the provisions of sec.330.1185(e)(2)(A) (relating to Processors) which require a hazardous-waste determination on materials resulting from the processing of UOFs did not "contemplate the fact that such materials can be managed as 'used oil' under 40 Code of Federal Regulations, Part 266, Subpart E." The TNRCC is concerned with the environmental risk associated with materials which are, or may potentially be, harmful to the environment and human health. The agency believes that an increased environmental risk exists with the storage of these materials, and therefore feels this requirement is necessary to protect human health and the environment regardless of the final use of the material. One commenter believes that sec.330.1185(e)(2) is burdensome in that it requires the processors to make a hazardous-waste determination on the material resulting from the processing of UOFs. As these materials are being stored, TNRCC believes it is important to identify and address the environmental risk associated with the storage and handling of these materials, and has retained this requirement in the final rules. Another commenter feels that the requirement that such materials be shipped within 30-days of generation is too restrictive, particularly in light of the fact that the hazardous-waste regulations allow for a 90-day storage time for hazardous waste. It should be noted that the hazardous-waste regulations for 90- day storage include conditional management standards not required under sec.330.1185(e)(2). Accordingly, the TNRCC has retained the 30-day requirement. Several commenters encouraged the TNRCC to recognize the difference between various levels of processing and to rate each process in degrees. Another commenter suggested the TNRCC recognize such a difference and denote a higher level of processing by establishing a recycler category. The TNRCC is aware of the various levels of processing; however, the agency does not wish to attempt to rate the various levels of processing as this may unintentionally impact natural commercial market forces. The TNRCC is primarily concerned with the environmental risk associated with the materials which may result from a process. As a result, processing which fails to remove the used oil continues to be regulated under sec.330.1185(e). One commenter believes the term "reclaimed materials" which is used in sec.330.1185(c)(2) should be changed to "recycled material," as defined in the Texas Health and Safety Code, sec.361.421(6). The Commission believes that the term as used in sec.330.1185(c)(2) is appropriate and that further definition or clarification is unnecessary. One commenter asked how the 80% is calculated in sec.330.1185(b)(1). The use of the term "oil weight" has been incorporated in this section to address this calculation concern. This commenter also believes that the 90-day storage limit requirement is not justified because under the recently promulgated federal regulations (40 Code of Federal Regulations, Part 279) no specified time limits are imposed on generators and processors for the storage of used oil. The commenter, therefore, believes that any rule governing used oil filters should not be more stringent than the federal regulations governing used oil. The TNRCC notes that UOFs have a negative market value, as opposed to used oil, which has a positive market value. The TNRCC has determined that due to the cost (the negative market value) associated with the proper handling of UOFs, it is necessary to regulate the length of time a facility may store UOFs. Absent this time restriction, it is probable that large quantities of UOFs may be accumulated and abandoned, resulting in a significant threat to public health and the environment. This commenter asserts that circumstances may exist in which a processing facility may need to accumulate UOFs for a length of time longer than 90-days to acquire a "batch" quantity of UOFs in order to economically process them. As a result, the commenter suggests that the TNRCC extend the time for storage of UOFs to a minimum of 180 days. The rules allow for a 30-day storage period (sec.330.1185(d)) by a processor for unprocessed UOFs. The TNRCC feels that this 30-day storage period is an adequate length of time to accumulate sufficient quantities of UOFs so that the filters may be economically processed as a "batch." Further, the company believes circumstances may occur in which sufficient processing capability is not available. As a result, a storage facility will need to have the filters stored for a period of time longer than 90 days, until such time as processing becomes available. The TNRCC has recognized that the longer a UOF is in storage, the greater the probability that it will leak used oil. As an alternative to proposing oil-recovery mechanisms to remove the accumulated used oil from the UOF storage containers, the TNRCC has determined that a 90-day storage limit will provide sufficient protection to the environment from used-oil contamination, as long as the storage facility meets the requirements of sec.330.1183 (relating to Storage Facilities). The commenter suggests that sec.330.1185(a)(3) (relating to Processors) be changed. Specifically, the commenter believes that the financial responsibility section should specify an amount of financial assurance that is required of processors in order to comply with the rule, and that the financial responsibility requirements should be identified separately. The TNRCC believes that, due to variations in environmental and health risks, this rule must allow the Commission a level of flexibility in order to determine the amount of financial assurance required on a case-by-case basis. And, as the rules applicable to processors are simple and few in number, the TNRCC believes it is unnecessary to identify a separate subsection within sec.330. 1185 relating to financial responsibility. Further, the commenter believes that the report which a processor must submit pursuant to sec.330.1185(a)(2) (relating to Processors) should satisfy the requirements if the information is submitted in letter form, rather than on the agency's form. As explained in reference to reports required of storage facilities, the TNRCC believes it is necessary to have the information provided on standard TNRCC forms in order to facilitate the efficient processing of the information submitted. This commenter recommends that the TNRCC modify sec.330.1185(b)(3) by replacing the phrase "so long as the industry standards meet or exceed the standards contained herein" with the phrase "so long as the industry standard requires the removal of free-flowing oil from the filter and prepares the filter for reuse by an end-user." The rules establish minimal standards to gauge the removal of free-flowing oil and methods to accomplish the removal of the free-flowing oil. Since it is the objective of the rules to remove the free-flowing oil, the agency has added the language suggested by the commenter. One commenter expressed concern over the agency's handling of the issue of environmental risk associated with materials resulting from the processing of UOFs as stated in sec.330.1185(e) (relating to Processors). The rules require a processor to make a determination of the environmental risk associated with the storage of the materials resulting from the processing of the UOFs, and provide for the handling of these materials based upon whether the material is free of "residual oil" or "contaminated by used oil." The commenter notes that for resulting materials which are contaminated by used oil and are destined for disposal or incineration, the regulations require the processor to make a hazardous waste determination (in accordance with 40 Code of Federal Regulations, Part 261), but no provision is made for the resulting materials which are contaminated by used oil and are not destined for disposal or incineration. The regulations do require all resulting materials that are contaminated by used oil to be shipped within 30 days of generation. The TNRCC contemplates that the alternative to disposal or incineration would be a reuse of the resulting material. Recognizing that commercial market considerations will control the quality of the resulting materials through the reuse alternative and in order to encourage the reuse option, the TNRCC has not required a hazardous waste determination on the resulting material which is destined to be reused. For resulting materials free of residual oil, the commenter was concerned about the TNRCC imposing a time limitation on the storage of what is now a "raw material." The commenter believes there is no need to impose a time limitation on the storage of materials free of residual oil. The TNRCC agrees that storage of materials that are free of residual oil does not present an environmental risk and has amended sec.330.1185(e)(1) to remove the one-year storage-time limitation. The commenter asserts that, "Processing facilities may have a difficult time finding end users who are willing to buy the processed used oil filters, and may have to wait until a demand for the product arises." The TNRCC takes the position that in order for a process to constitute legitimate recycling, a market for the "product" which the processor produces must exist. If a processor is producing a "product" which is below market acceptance standards, even if the product exceeds the minimal standards set forth in sec.330.1185(b), and no market exists for the product, the agency would question whether the processor is engaged in legitimate recycling. This commenter also felt that removal of free-flowing oil eliminates the environmental risk associated with the used oil filters. Although the TNRCC acknowledges that removal of free-flowing oil will reduce the environmental risk associated with the storage of the resulting materials, the agency disagrees that the removal of free-flowing used oil would completely eliminate the environmental risk if residual oil is present. Several commenters were concerned about the requirement of sec.330.1186 (relating to Public UOF Collection) for the generator to remove the free-flowing oil from the DIY used oil filters, especially DIY UOFs gathered at an unmanned site. The Commission agrees that it would be difficult for public used-oil- filter collection centers to remove all of the free-flowing oil from these DIY filters by the methods described within this rule, particularly if the collection center is unmanned. Accordingly, the TNRCC has added language to sec.330.1186 relating to Public Used Oil Filter Collection Centers and Used Oil Filter Generators in order to add flexibility to the application of the rule. This flexibility is granted to collection centers for their handling of UOFs in the interest of promoting collection of DIY used oil filters. The purpose of this language is to recognize that there are differences in the characteristics of a UOF generated on-site and a UOF accepted from a DIY. A UOF generated by a DIY may not be taken to a collection center for an extended period of time, perhaps weeks or months after generation. It would be impossible for a collection center to hot-drain such a UOF. Since draining will likely be the most prevalent method of removing the free-flowing oil at collection centers, the requirement to remove all free-flowing oil from the DIY UOFs would be unachievable. This flexibility is granted to collection centers for their handling of UOFs in the interest of promoting collection of DIY filters. This commenter was also concerned with how a quantity of UOFs was to be determined. The rule does not contemplate that a generator must count each individual filter; rather, the rule envisions that the generator may utilize either the weight or the volume measurement in determining the quantity of UOFs handled. This commenter and several others were also concerned about record storage for unmanned collection sites and multiple-location collection sites. The TNRCC agrees that record retention at an unmanned site would be impractical; therefore, the TNRCC has amended proposed sec.330.1186(b) and (c) in this final rule to allow record retention at the operator's central business location within the State of Texas. For multi-store chains, the Commission believes it is necessary to maintain at least the present 12-month record-retention requirement at each site to facilitate local and state compliance inspections. This commenter also believes that a cap should be placed on the amount which a collection center may charge to manage UOFs, and cautions that fees may actually discourage recycling by do-it-yourselfers. The commission prefers to allow commercial market forces to establish the amount of a reasonable fee which is sufficient to cover the cost of properly managing UOFs collected from do-it- yourselfers. While the TNRCC agrees that the imposition of a fee may discourage recycling by the DIY's, it believes that participation by collection centers is essential to the effective management of UOFs, and that participation would be inhibited if the cost of disposal were placed solely on the collection center, without the center's having the ability to recover costs. One commenter believes the language of proposed sec.330.1186(g) and (h) in this final rule restricts the marketplace and should be changed to "The collection center can charge a fee." The TNRCC recognizes that a fee may be necessary to offset the disposal costs incurred by the collection center. However, the commission does not want to discourage DIY's from taking their filters to a collection center due to an unreasonable fee; thus, the agency believes it is important to specify that any fee charged must be reasonable. One commenter asks whether a private, non-commercial generator who is classified as a Storage Facility and who transports his own filters from other "off-site" locations to a central collection location would be allowed under this section to disassemble his own filters and deliver metal scrap to a "steel smelter" without being registered as a processor? The answer to this question is yes, registration requirements do not apply in such circumstances. One commenter was concerned about the storage time limit applying to generators of UOFs. The proposed rules only place a limitation on the quantity of UOFs a generator may accumulate and not a time limitation; thus, the proposal to extend the time limit for small generators is not necessary. One commenter asks if compliance with these management standards would relieve the company from liability for environmental damage that may result from downstream handling of filters. Compliance with these management standards does not relieve the generator from liability for environmental impact; however, the management standards do establish performance standards for storage facilities, transporters and processors, standards against which a generator may judge the persons utilized to recycle his UOFs. Another purpose of the management standards is to provide the generator the opportunity to monitor the movement of the generator's UOFs through the recycling system and to a final disposition, providing some assurance that the generator's UOFs were properly handled. Another commenter suggests that the TNRCC amend proposed sec.330.1186(e) and (f) in this final rule so that the labels for drums storing DIY used oil filters are specifically labelled as "DIY Used Oil Filters." Since these management standards delineate proper handling of all UOFs, the TNRCC finds no benefit in distinguishing DIY used oil filters from other used oil filters on required labels. However, a generator that accepts DIY used oil filters may wish to store these filters in a separate container. One commenter also recommends that provisions be included to provide an alternative registration and approval mechanism for one-day promotional events where filters are collected from the community. Desiring to encourage such events, the TNRCC has added a provision which allows temporary registration through a written request to the District Office at least 30 days in advance. This commenter believes it is inappropriate to assign the responsibility for accurate transporter logs to the shipping facility, as required by proposed sec.330.1187(b). The company asserts that since transporters prepare the logs, they should be responsible for ensuring the log's legibility, completeness, and accuracy. Section 330.1187(b) was not intended to assign responsibility to the shippers for the accuracy and legibility of the transporter's daily log; rather, the section was intended to require a shipping facility to ensure that the specific information relative to their facility and entered onto the transporter's daily log was accurate and legible. In the final rules, the TNRCC has deleted the requirement pertaining to a transporter daily log. However, sec.330.1187(b) still requires a shipper to verify that information on the bill of lading is accurate and complete. The TNRCC has amended this section to clarify the responsibility of the shipper. This commenter recommends that the TNRCC clarify in sec.330.1188 (relating Penalties) that the requirement for registration is,"...a precondition to continued operation in whatever capacity required the registration (e.g., storage, transportation, processor)." The TNRCC finds no benefit in reiterating the registration requirements set forth within the text of these rules in this section. Another commenter requests that the agency clarify the rules to make clear that a facility can be both a processor and an end user/recycler of UOFs. The TNRCC feels that this is clear in that the regulations allow processors to become an end user by utilizing the reclaimed material in a manner set forth in these regulations. One commenter asks if an entity performing more than one of the reportable functions could submit a composite annual report, rather than multiple reports. The TNRCC believes that since this is an emerging industry, it is important for the TNRCC in developing its base data to have individual reports submitted. Many commenters had concerns regarding the tracking mechanism required in the proposed rules. Some of these commenters supported the use of a bill of lading (BOL)/transporter daily log system as proposed. Others felt the BOL by itself was sufficient without the use of a transporter daily log, while others supported the use of a modified BOL system which granted the transporters some flexibility in the development of the shipping document which fit their particular system. These commenters suggested that the TNRCC specify the information it requires on the shipping document and allow the transporters to put such information in whatever format is most convenient for them. The use of the BOL system, in any form, was opposed by a number of commenters, who preferred a "cradle-to-grave" tracking system so a generator could know what happened to filters after they leave that generator's control. One commenter said, "The only method that will accomplish this is a tracking document that includes a come-back copy to the generator." A come-back copy is the original, or top, copy of the multi-part shipping/tracking document. The come-back copy has original signatures of the persons handling the UOFs from the time they leave the generator or used oil filter collection center to the time they reach the ultimate, designated receiving facility, usually a processing/treatment, storage, or disposal facility. The receiving facility is required to return the original copy to the shipping facility to demonstrate receipt of the UOFs. For these final rules TNRCC has utilized a bill-of-lading system for the tracking mechanism. However, the agency recognizes the merits and disadvantages of each system, and has evaluated various tracking mechanisms through an ongoing dialogue with the regulated community and TNRCC staff. Recent events have led the agency to question the ability of the BOL/log system contained in the proposed rules to provide the environmental protection necessary to prevent pollution episodes. Accordingly, the TNRCC plans to repropose sec.330.1187 in the near future in order to utilize a come-back copy tracking system. TNRCC believes such a system would better protect human health and the environment from pollution events resulting from improper handling of UOFs. The new sections are proposed under the authority of the Texas Water Code (Vernon 1993), sec.5.103, which provides the Texas Natural Resource Commission with the authority to adopt any rules necessary to carry out the powers and duties under the provisions of the Texas Water Code and other laws of this state. Additionally, the sections are proposed under sec.361.011 and sec.361.024 of the Texas Solid Waste Disposal Act, (the Act), Texas Health and Safety Code (Vernon 1993), which provides the Texas Natural Resource Conservation Commission with the authority to regulate municipal solid waste and adopt rules necessary to regulate the operation, management, and control of solid waste under its jurisdiction. sec.330.1183. Storage Facilities. (a) Any person storing more than three 55-gallon containers of UOFs, or the volumetric equivalent, must register with the TNRCC as a UOF storage facility using TNRCC form TWC-0906. Persons storing UOFs may store up to three 55-gallon containers, or the volumetric equivalent, of UOFs without registering as a storage facility. (b) No storage facility may cause, suffer, allow, or permit the discharge from a point source of any waste or of any pollutant, or the performance or failure or any activity other than a discharge, in violation of the Texas Water Code, Chapter 26. (c) The storage facility shall be required to provide evidence of financial responsibility as the commission deems necessary to assure the commission that the storage facility has sufficient assets to provide for the proper closure. Financial assurance for closure may be demonstrated by using one or more of the following mechanisms: trust funds, surety bonds guaranteeing payment or performance, letters of credit, insurance, or financial test and corporate guarantee. These mechanisms shall be prepared on forms approved by the executive director. Proof of compliance shall be submitted to the TNRCC with a completed UOF-storage-facility registration form. (d) A person who owns or operates a storage facility: (1) shall register by January 25th of each year with the Automotive Waste Recycling Program of the TNRCC as a UOF storage facility, utilizing registration forms prescribed by the TNRCC; (2) shall report by January 25th of each year the amount of UOFs received, sources of UOFs, and name and location of destinations and amounts shipped to those destinations during the previous calendar year; (3) may not store a UOF for more than 90 days. At the end of such time, the stored UOFs must be either processed, shipped to a registered processor for processing or disposed. The executive director may, at his or her discretion, extend the 90-day time period upon a written request by the registered storage facility indicating just cause beyond the storage facility's control. (e) Storage facilities must comply with the following standards. (1) UOFs must be stored in a covered enclosure or in covered rainproof containers. All storage containers must be capable of containing any used oil that may be separate from the filters placed inside. (2) UOFs must be stored in containers clearly labeled with the phrase "Used Oil Filters" in letters at least three inches high. The name of the owner of the container and the owner's phone number shall be imprinted on the container and clearly legible. (3) Storage facilities must have a secondary containment system capable of containing an amount of oil equal to ten gallons for every 55-gallon drum or volumetric equivalent. The containment system must be sufficiently impervious to prevent any used oil released into the system from migrating out of the system to the soil, groundwater or surface water, and must consist of, at a minimum: (A) a dike, berm, or retaining wall; and (B) a floor which must cover the entire area within the dike, berm, or retaining wall. (f) A storage facility may, as an alternative to meeting the standards delineated in subsection (e) of this section, submit to the executive director for approval a Used Oil Filter Management Plan (management plan) demonstrating to the satisfaction of the executive director the equivalency of an alternative method of storing UOFs. To be considered, the alternate method must meet the objective of protecting the environmental quality of the State of Texas at least as effectively as the management standards contained herein. An approved copy of the management plan must be retained on-site and must be available for inspection by the TNRCC or its representative upon request. (g) In addition to complying with all the requirements delineated in this section, all storage facilities receiving UOFs generated off-site must ship only to a processor registered as a UOF processor with the TNRCC, an end user or a permitted disposal facility. This subsection does not apply to generators and/or public UOF collection centers that only accept UOFs from a DIYer. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 15, 1993. TRD-9328912 Mary Ruth Holder Director, Legal Division Texas Natural Resource Conservation Commission Effective date: October 6, 1993 Proposal publication date: May 25, 1993 For further information, please call: (512) 908-6767 TITLE 31. NATURAL RESOURCE AND CONSERVATION Part II. Parks and Wildlife Department Chapter 65. Wildlife Subchapter O. Late Season Migratory Game Bird Proclamation 31 TAC sec.sec.65.331, 65.333-65.335 The Texas Parks and Wildlife Commission in a regularly scheduled public hearing held August 26, 1993, adopted amendments to sec.sec.65.331 and 65.333- 65. 335, concerning the Late Season Migratory Game Bird Proclamation, with changes to the proposed text as published in the July 23, 1993, issue of the Texas Register (18 TexReg 457). Section 65.331 was adopted with a change to permit zinc-coated steel shot to be used to take waterfowl. Section 65.333 was changed to lengthen the snow and Ross' goose season by seven days. Section 65. 334 was changed to conform with the federal frameworks that retains the closed season on canvasback ducks. Section 65.335 was adopted without changes and will not be republished. The adopted amendments are based upon studies which track trends in relative abundance of the various migratory game bird species. The adopted amendments regulate the taking of migratory game birds consistent with their populations, so as to maintain viable populations for future seasons. The adopted rules are needed to comply with federal frameworks adopted for the Central Flyway by the U. S. Fish and Wildlife Service. The rules provide optimum hunter opportunities without adverse hunting pressure being applied to the resource. A total of five letters, 20 phone calls, and four comments through regulatory public hearings were received concerning the late season migratory rules. In general the public favored the rules as proposed. However, eight persons favored an extension of the light goose season in east Texas. No groups or organizations made comments concerning the proposed rules at the public hearing. The Texas Parks and Wildlife Commission disagreed with several comments received because they were judged not to be appropriate for resource management. Other comments concerned rules that were not proposed for amending. The Commission did lengthen the light goose season to reflect the public's desire. The amendments are adopted under the Texas Parks and Wildlife Code, Chapter 64, Subchapter C, which provides the Texas Parks and Wildlife Commission with the authority to regulate seasons, means, methods, and devices for taking and possessing migratory game bird wildlife resources. sec.65.331. Definitions. The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise: Baiting-The placing, exposing, depositing, distributing, or scattering of shelled, shucked, or unshucked corn, wheat, or other grain, salt, or other feed so as to constitute for migratory game birds a lure, attraction, or enticement to, on, or over areas when hunters are attempting to take such birds. Baited area-Any area where shelled, shucked, or unshucked corn, wheat, or other grain, salt, or other feed capable of luring, attracting, or enticing migratory game birds is directly or indirectly placed, exposed, deposited, distributed, or scattered; and the area shall remain a baited area for ten days following complete removal of all such corn, wheat, or other grain, salt or other feed. Nontoxic shot-Any shot-type that does not cause sickness and death when ingested by migratory birds as determined by criteria established under Code of Federal Regulations, Title 50, Chapter 1, sec.20.134. The only nontoxic shot currently approved by the director, U. S. Fish and Wildlife Service, is steel shot, including copper, nickel, zinc chromate, and zinc chloride coated steel shot. sec.65.332. Means, Methods, and Special Requirements. (a)-(b) (No change.) (c) No person may possess shotgun shells containing any shot material, or loose shot for muzzleloading shotguns, other than nontoxic shot as defined in sec.65.331 of this title (relating to Definitions) while taking or killing or attempting to take or kill waterfowl (ducks, geese, brant, and coots) anywhere in Texas, including the shooting of privately owned pen-reared and banded mallards on licensed private bird hunting areas. (d)-(g) (No change.) sec.65.333. Open Seasons. (a)-(b) (No change.) (c) Statewide hunting hours, including falconry, for all migratory game birds listed herein are one-half hour before sunrise to sunset. (1) Ducks, coots, and mergansers. (A) High Plains Mallard Management Unit: November 20,;1993 -January 9, 1994, in that portion of Texas lying west of a line from the international toll bridge at Del Rio, thence northward following U.S. Highway 277 through San Angelo to Abilene, thence along State Highway 351 from Abilene to Albany and U.S. Highway 283 from Albany to Vernon, thence easterly along U.S. Highway 183 to the point of intersection with the Texas-Oklahoma state line in Wilbarger County. (B) Remainder of the state: November 20-November 28, 1993, and December 18, 1993-January 16, 1994. (C) (No change.) (2) Geese. (A) West of U.S. Highway 81: October 16, 1993-January 30, 1994. (B) East of U.S. Highway 81: Light goose species snow, blue, and Ross'), October 30, 1993-February 13, 1994. Dark goose species (Canada, black brant, and white-fronted) November 6, 1993-January 16, 1994. Canada Geese only, January 17- 23, 1994. (C) The season is closed on Canada geese in Anderson and Henderson Counties. (3) Sandhill cranes. (A) Zone A: November 13, 1993-February 13, 1994, in that portion of Texas lying west of a line beginning at the international toll bridge at Laredo, thence northeast along U.S. Highway 81 to its junction with Interstate Highway 35 in Laredo, thence north along Interstate Highway 35 to its junction with Interstate Highway 10 in San Antonio, thence northwest along Interstate Hlghway 10 to its junction with U.S. Highway 83 at Junction, thence north along U.S. Highway 83 to its junction with U.S. Highway 62, 16 miles north of Childress, thence east along U.S. Highway 62 to the Texas-Oklahoma state line. (B) Zone B: December 4, 1993-February 13, 1994, in that portion of Texas lying within boundaries beginning at the junction of Interstate Highway 35 and the Texas-Oklahoma N71 0046 3.P-S-09/07/93 Texas Parks and Wildlife Department Page 6 of 9 Fisheries and Wildlife state line, thence south along Interstate Highway 35 (following Interstate Highway 35 West through Fort Worth) to its junction with Interstate Highway 10 in San Antonio thence northwest along Interstate Highway 10 to its junction with U.S. Highway 83 in Junction, thence north along U.S. Highway 83 to its junction with U.S. Highway 62, 16 miles north of Childress, thence east along U.S. Highway 62 to the Texas-Oklahoma state line, thence eastward along the Texas-Oklahoma state line to Interstate Highway 35. (C) Zone C: January 8, 1994-February 13, 1994 in that portion of Texas lying within boundaries beginning at the international toll bridge at Brownsville, thence north and east along U.S. Highway 77 to its junction with U.S. Highway 87 at Victoria, thence eastward along U.S. Highway 87 to its junction with Farm Road 616 at Placedo, thence north and east along Farm Road 616 to its junction with State Highway 35, thence north and east along State Highway 35 to its junction with State Highway 6 at Alvin, thence west and north along State Highway 6 to its junction with U.S. Highway 290, thence westward along U.S. Highway 290 to its junction with Interstate Highway 35 at Austin, thence south along Interstate Highway 35 to its junction with U. S. Highway 81 in Laredo, thence southwest along U.S. Highway 81 to the international toll bridge in Laredo, thence south,and east along the U.S. -Mexico international boundary to its junction with the U.S. Highway 77 international toll bridge at Brownsville. (D) (No change.) (4) Common snipe (Wilson's snipe or jacksnipe). October 23, 1993-February 6, 1994. (5) Woodcock. November 27, 1993-January 30, 1994. sec.65.334. Bag and Possession Limits. (a) (No change.) (b) Except where specified otherwise, the possession limit for all species in these rules shall be twice the daily bag limit. (c) The daily bag limits, except falconry, are as follows: (1) Ducks, coots, and mergansers. (A) Ducks: Except as specifically provided for Mallards in the High Plains Mallard Management Unit, the daily bag limit is the aggregate of three ducks, which may include no more than two mallards (no more than one of which may be a female mallard), one mottled duck, one pintail, one redhead, and,two wood ducks. In the High Plains Mallard Management Unit, the daily bag limit is the aggregate of three ducks as provided in this section, except that it may include three mallards not to include more than one female mallard. (B) Coots: the daily bag limit is 15. (C) Mergansers: the daily bag limit is five, which may include no more than one hooded merganser. (2) Geese. (A) West of U.S. Highway 81: the daily bag limit is eight, not to include more than five light geese (snow, blue, and Ross') and three dark geese (Canada, black brant, and white-fronted) . (B) East of U.S. Highway 81: the daily bag limit for light geese (snow, blue, and Ross') is ten, and the daily bag limit for dark geese is one Canada goose or black brant, and one white-fronted goose. During the period January 17-23, 1994, the daily bag limit for Canada geese is two. (3) Sandhill cranes. The daily bag limit is three. (4) Common snipe (Wilson's snipe or jacksnipe). The daily bag limit is eight. (5) Woodcock. The daily bag limit is five. (d) No person may possess migratory game birds on the opening day of the season in excess of the lawful daily bag limit. (e) No person may possess freshly killed migratory game birds during the closed season. (f) No person shall kill or wound a migratory game bird without making a reasonable effort to retrieve it. (g) Every migratory game bird wounded by hunting and retrieved by the hunter shall be immediately killed and become a part of the bag limit. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 13, 1993. TRD-9328771 Paul M. Shinkawa Director, Legal Services Texas Parks and Wildlife Department Effective date: October 4, 1993 Proposal publication date: July 23, 1993 For further information, please call: 1 (800) 792-1112, Ext. 4433 or (512) 389- 4433 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 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 under Docket Number 1983 held at 1:30 p.m. April 29, 1993, continued at 9:00 a.m. on May 27, 1993, and continued at 9:00 a.m. June 11, 1993, in Room 100 of the Texas Department of Insurance Building, 333 Guadalupe Street, Austin, adopted a proposal filed by the staff of the Workers' Compensation Division of the Texas Department of Insurance. The staff's recommendations to the workers' compensation classification system are a result of a study performed by Dr. Mark Crawshaw, Consulting Actuary for the firm of Wakely and Associates, Atlanta, Georgia and were proposed in a petition filed in the Chief Clerk's Office on March 3, 1993. A summary of the staff's petition (Reference Number W-0393-05) was published in the March 16, 1993, issue of the Texas Register (18 TexReg 1751). According to the staff's petition, the following recommendations were presented to the State Board of Insurance for possible adoption: 1. The number of workers' compensation classifications should be substantially reduced by consolidating into single classifications the multiple classifications that describe similar businesses and for purposes of determining classification relativities and experience rating values, by grouping classifications with similar claims experience and hazard. 2. The classification phraseology used in the Workers' Compensation Manual should be updated, modernized, and simplified wherever appropriate. In addition, definitions should be expanded to include a listing of as many specific types of businesses included within a classification as possible. 3. The classification system should not at this time be territorially based or allow for differences in wage levels by employers. 4. The classifications for eight of the 22 classifications that currently include clerical workers should be revised to exclude clerical workers from the basic classification wording. 5. The classification definitions should be revised so that within a single class, drivers are treated uniformly, either as a standard exception or not. 6. The three current classifications related to mining should be consolidated into a single "a"-rated classification. 7. The 11 current classifications related to explosive manufacturing should be consolidated into two "a"- rated classifications. 8. The 26 current classifications related to chemical manufacturing should be consolidated into nine "a"-rated classifications. 9. The four current classifications for domestic workers should be consolidated into a single "a"-rated classification. 10. The following five classifications should no longer be "a"-rated: Code 1748-Abrasive Wheel Manufacturing; Code 2030-Beet Sugar Manufacturing; Code 3022-Pipe or Tube Manufacturing NOC; Code 5705-Salvage Operations; Code 7425 - Aircraft or Helicopter NOC Flying Crew. 11. The disease designator "d" should be dropped from all classifications, except supplemental disease classifications which should be "a" rated. Consideration should be given to establishing additional supplemental disease classifications for statistical reporting purposes. Based on the experience of the individual classifications, some consolidations recommended by staff had to be deferred. As experience develops according to the groupings adopted by the Board, the staff will review to determine if additional consolidation of classifications is appropriate and to determine the effectiveness of the classification consolidations adopted. In addition to the recommendations set forth in the original petition, the staff made several recommendations to the Board during the hearings, mainly in response to public comment or testimony. These additional recommendations are as follows: 1. Delete drivers under Code 0401-Cotton Gin. 2. Combine Codes 7997-Automotive Parts Store-Wholesale or Combined Wholesale and Retail, 8391-Automobile Repair Shop and 8046-Automobile Accessory Store into Code 8391. 3. Combine Code 9505-Automobile Painting into Code 8393-Automobile Body Repair. 4. The eleven current classifications related to explosive manufacturing should be consolidated into three "a"-rated classifications rather than two classifications as originally recommended. The State Board of Insurance has jurisdiction over this matter pursuant to the Insurance Code, Articles 5.60(d) and 5.96. The full text of the classifications listed both alphabetically and numerically as adopted by the State Board of Insurance is filed with the Chief Clerk under Reference Number W-0393-05 and is incorporated by reference by Board Order Number 60491. This notification is made pursuant to the Insurance Code, Article 5.96, which exempts it from the requirements of the Administrative Act. This agency hereby certifies that the adopted changes have been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on September 15, 1993. TRD-9328909 Linda K. von Quintus-Dorn Chief Clerk Texas Department of Insurance Effective date: January 1, 1994 For further information, please call: (512) 463-6327