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 4. AGRICULTURE Part I. Texas Department of Agriculture Chapter 11. Herbicide Regulations 4 TAC sec.sec.11.1-11.9 The Texas Department of Agriculture (the department) adopts the repeal of sec.sec.11.1-11.9, concerning general requirements for application of regulated herbicides, without changes to the proposed text as published in the September 14, 1993, issue of the Texas Register (18 TexReg 6168). The department in a separate submission is adopting new sections to replace the sections repealed in this submission. The department is repealing sec.sec.11.1-11.9 in order to replace these sections with new sections which more clearly set forth the requirements for application of regulated herbicides, and requirements for inspection and licensing of application equipment used to apply regulated herbicides. The department also is repealing the sections in order to adopt new sections that include new record keeping requirements and a change in the requirements for payment of spray permit fees. No comments were received regarding adoption of the repeals. The repeals are adopted under the Texas Agriculture Code (the Code), sec.sec.75. 003, 75.005, 75.006, 75.012-75.018, 75.021, and 75.022, which provides the department with the authority to adopt rules for the implementation of Chapter 75. The code sections which will be affected by this repeal are the Code, Chapters 75 and 76. 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 November 15, 1993. TRD-9332134 Dolores Alvarado Hibbs Chief Administrative Law Judge Texas Department of Agriculture Effective date: December 6, 1993 Proposal publication date: September 14, 1993 For further information, please call: (512) 463-7583 4 TAC sec.sec.11.1-11.10 The Texas Department of Agriculture (the department) adopts new sec.sec.11. 1- 11.10, concerning general requirements for the regulation of herbicides. Section 11.6 and sec.11.7 are adopted with changes to the proposed text as published in the September 14, 1993, issue of the Texas Register (18 TexReg 6169). Sections 11.1-11.5 and 11.8-11.10 are adopted without changes and will not be republished. The department, in a separate submission, is adopting the repeal of sec.sec.11.1-11.9 and is replacing those sections with the new sections adopted in this submission. The new sections are adopted in order to make the regulations clearer and more consistent with recent changes in Chapter 75 of the Texas Agriculture Code made by the 73rd Legislature, 1993, and to clarify the rights and responsibilities of all entities affected by Chapter 75 of the Texas Agriculture Code. Section 11.6 is adopted with changes. Subsection (b)(3) has been changed to also exempt from permit requirements nurserymen licensed by the department for turf weed control for structural pest control applications. This change was made based on a comment received noting that under the proposed language, nurserymen licensed by the department would be required to obtain a permit, while applicators licensed by the Structural Pest Control Board making the same applications would be exempted from the permit requirement. The department agreed that differential in treatment would unfairly impose an additional requirement on department licensees, and changed that paragraph accordingly. Section 11.7 is adopted with changes. A new subsection (g) has been added to prohibit the use of turbine or blower-type ground application equipment to apply regulated herbicides. This change was also made as a result of comments received by the department. A comment was received requesting that this type of ground application equipment be prohibited due to the risks posed by its use and noting that the existing regulations did prohibit the use of such equipment. The department agrees that the use of turbine or blower-type ground application equipment does pose a risk to desirable vegetation through drift and uncontrolled application and has added subsection (g) to address that concern. New sec.11.1 contains the list of regulated counties. New sec.11.2 contains special provisions for regulated counties. New sec.11.3 sets forth the list of regulated herbicides. New sec.11.4 contains definitions necessary for interpreting Chapter 11. New sec.11.5 sets forth the requirements for herbicide dealers regarding multiple business locations, license requirements, fees for a dealer's license, payment of fees, expiration of dealer's license, sales records, and submission of such records to the department. New sec.11.6 pertains to the general requirements for herbicide applicators, as well as expiration of permits, exempt methods of application, high volatile herbicides, and suspension of permit requirements. New sec.11.7 addresses registration of and specifications for equipment used in making applications of regulated herbicides. New sec.11.8 gives the department the authority to investigate complaints involving regulated herbicides. New sec.11.9 deals with the requirement for special county provisions and sets forth the existing requirements for counties to follow in order for the department to adopt special county provisions. New sec.11.10 provides penalty provisions. All comments received were submitted by individuals, with no groups or associations offering comment. In addition to the comments previously noted, the department received a comment on sec.11.8, regarding complaint investigations and disposition of complaints. The commentor suggested that subsection (c) be changed to provide the department with the sole authority to determine whether investigations should be prosecuted or dismissed, and to require that the department notify the complainant of any intention to cease an investigation. The department disagrees with the commentor and believes that the section, as written, adequately incorporates the requirements of the Code, Chapters 75 and 76, and regulations adopted under those chapters regarding investigation of complaints. In addition, the department has the latitude to determine the extent of investigations and has written and published guidelines that outline the procedures to be used in determining an appropriate enforcement action for complaints filed with the department. Accordingly, sec.11.8 is adopted without changes. The new sections are adopted under the Texas Agriculture Code, sec.75.003, which authorizes the department to adopt by rule a list of regulated herbicides for the state or for one or more designated areas in the state; sec.75.021 which gives the department the authority to adopt rules concerning the use of a regulated herbicide in a county in which a commissioners court has entered an order; sec.75.005, which authorizes the department to adopt rules prescribing information to be requested of dealers and allows the department to request submission of such records by a licensee; sec.75.006, which authorizes the department to require spray permits and to allow exemptions from the permit requirements; sec.75.012, which authorizes the department to adopt rules for the application of regulated herbicides; sec.75. 013, which authorizes the department to adopt rules prescribing the information to be kept by applicators; sec.75.014, which authorizes the department to require a showing of proof of financial responsibility by commercial applicators; sec.75.015, which authorizes the department to investigate complaints involving regulated herbicides; sec.75.016, which authorizes the department to regulate application equipment; sec.75.017, which authorizes the department to hold public hearings to consider requests for a revision of a rule, and exemption from a requirement of this chapter, or a prohibition of the spraying of a regulated herbicide in an area; sec.75.018, which authorizes the department to enforce the provisions of this chapter and rules adopted thereunder; and sec.75.022 which authorizes the department to enforce the provisions of this chapter through criminal and administrative actions. sec.11.6. General Requirements for Applicators. The following requirements are applicable to all persons applying regulated herbicides. (1) Spray permits. No person shall apply regulated herbicides without first obtaining a permit for such application. A blanket permit may be issued to a licensed or certified applicator who shall submit to the department a supplemental report of each regulated herbicide application within seven days following such application. (A) Expiration of permits. All permits expire when the acreage for which the permit was granted has been sprayed, or 180 days after issuance, whichever occurs first. (B) Exempt methods of application. Applications of regulated herbicides by brush, mop, wick, basal treatment, or injection method are hereby exempt from the requirements of obtaining a permit. (C) High volatile herbicides. Spraying high volatile herbicides is prohibited when there are susceptible crops within a four mile radius from every point of the land to be sprayed. (2) Commercial applicators. (A) It shall be the joint responsibility of the person in control of the crop and, if applicable, the commercial applicator to insure that the application of regulated herbicides is made in compliance with the rules and regulations issued by the department. (B) All persons engaged in the application of regulated herbicides for hire must be licensed by the department under sec.7.13 of this title (relating to Commercial Applicator License) and meet the requirements of financial responsibility under sec.7.14 of this title (relating to Commercial Applicator Proof of Financial Responsibility) or of the Structural Pest Control Board as provided by the Structural Pest Control Act, Texas Civil Statutes, Article 135b- 6. (C) Applications by an applicator licensed by the Texas Structural Pest Control Board in turf and weed control and a nurseryman licensed by the department in turf weed control for structural pest control applications are exempt from the permit requirements of this section. (3) Persons other than commercial applicators. All persons applying regulated herbicides to lawns are exempt from the permit requirements of this section. (4) Records. The applicator shall keep the following records for a period of two years: (A) the date and time of day each application started; (B) the name of the person for whom the application was made (owner or lessee); (C) the location of the land where the application was made, stated in a manner that would permit inspection by authorized parties; (D) the regulated herbicide applied, including: (i) product name; (ii) its EPA registration number; (iii) rate of product per unit; and (iv) total volume of spray mix, dust, granules, or other materials applied per unit; (E) the name of the pest for which it was used; (F) the site treated (for example: name of crop, etc.); (G) total acres or volume of area treated; (H) wind direction, velocity, and air temperature; (I) the FAA "N" number of aerial application equipment, or identification number of other types of application equipment, or decal number affixed to the application unit; and (J) the name and department license number of the applicator. sec.11.7. Registration and specification of equipment. (a) Requirements for spray operations. All spraying of regulated herbicides must conform to these requirements in a regulated county regardless of whether or not a permit is required. (1) Maximum pressure for aerial equipment. It is unlawful for a person to spray regulated herbicides with aerial application equipment at an outlet pressure which exceeds 30 pounds per square inch. (2) Maximum pressure for ground equipment. It is unlawful for a person to spray regulated herbicides with ground equipment when the equipment outlet pressure exceeds 40 pounds. (b) Maximum velocity. No person shall spray regulated herbicides when the wind velocity exceeds ten miles per hour or as specified on the product label, if the label is more restrictive. (c) The application of regulated herbicides in dust form is prohibited unless: (1) all particles of the herbicide can pass through a United States standard 10-mesh sieve; and (2) not more than 1.0% of the particles can pass through a United States standard 60-mesh sieve. (d) Commercial applicator equipment. (1) Application equipment used by commercial applicators, except pressurized hand-sized apparatus or any equipment or device for which the person applying the pesticide is the source of power or energy used in making pesticide application, must be registered with the department. The department shall issue to the licensee a license decal to be attached to each such piece of equipment in a conspicuous place. The license decal will contain the following information: (A) an identification number; and (B) the name of the department. (2) The licensee shall notify the department of any equipment changes and remove the license decal before giving up possession of the equipment. (e) All application equipment used by commercial applicators is subject to inspection by the department at any reasonable time. Such equipment must be maintained in a condition that will provide safe and proper application of the pesticide. If the department finds that it is not, the department shall require the needed repairs or adjustments before allowing the use of such equipment. (f) Persons other than commercial applicator. Equipment used by persons other than commercial applicators may be inspected, but proof of financial responsibility is not required for the equipment or the person. (g) The use of any turbine or blower-type ground application equipment to apply regulated herbicides is prohibited. 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 November 15, 1993. TRD-9332135 Dolores Alvarado Hibbs Chief Administrative Law Judge Texas Department of Agriculture Effective date: December 6, 1993 Proposal publication date: September 14, 1993 For further information, please call: (512) 463-7583 TITLE 16. ECONOMIC REGULATION Part I. Railroad Commission of Texas Chapter 5. Transportation Division Chapter Z. Base Rates, Deviations, and Suspensions 16 TAC sec.5.582 The Railroad Commission of Texas adopts an amendment to sec.5.582, concerning deviations from commission established base rates, without changes to the proposed text as published in the October 5, 1993, issue of the Texas Register (18 TexReg 6794). The amendment will allow common carriers to deviate from commission established base rates for shipments weighing 9,999 pounds or less. Deviations are not currently allowed for shipments weighing less than 501 pounds. Adoption of the amendments will extend the deviation authority currently allowed on shipments weighing between 501 and 9,999 pounds, to any shipment weighing less than 9,999 pounds. Four public comments regarding the proposed rule were received. All four comments supported adoption of the proposed deviation authority. The Phillips 66 Company supported adoption of the proposed rule as published and noted that common carrier shipping rates have recently increased significantly for shipments in this weight range. The Association of Texas Warehousemen commented that warehouse operators in Texas support the adoption of the proposed rule. The Common Carrier Motor Freight Association supported adoption and noted that the proposed rule would allow shipments weighing 500 pounds or less to deviate on the same basis as other less-than-truckload shipments, which currently have deviation authority. The Texas Association of Business supported the proposed rule as published, however, suggested the Commission consider adopting authority to deviate by even greater percentages from commission established base rates. The amendment is adopted pursuant to Texas Civil Statutes, 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 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 November 15, 1993. TRD-9332148 Mary Ross McDonald Assistant Director, Legal Division-Gas Utilities/LP Gas Railroad Commission of Texas Effective date: December 6, 1993 Proposal publication date: October 5, 1993 For further information, please call: (512) 463-7094 Subchapter CC. Tow Trucks 16 TAC sec.sec.5.801-5.816 The Railroad Commission of Texas adopts the repeal of existing Subchapter CC, and sec.sec.5.801-5.816 adopts new Subchapter CC, sec.sec.5.801-5.816, concerning the regulation and operation of tow trucks. New sec.sec.5.802, 5.805, 5.806, 5.808, 5.810, and 5.812 are adopted with changes to the proposed text as published in the September 21, 1993, issue of the Texas Register (18 TexReg 6388). Sections 5.801, 5.803, 5.804, 5.807, 5.809, 5.811, and 5.813-5.816 are are adopted without changes and will not be republished. The new rules are adopted pursuant to Senate Bill 452 and Senate Bill 958, 73rd Legislature, 1993, which transferred jurisdiction of the regulation and operation of tow trucks from the Department of Licensing and Regulation to the Railroad Commission of Texas. New Subchapter CC contains the new rules for use by the Railroad Commission of Texas. The new rules set forth the requirements for the registration, regulation, and operation of tow trucks. The changes to the proposed rules are as follows. (1) The definition of "mechanical device" as set out in sec.5.802 is expanded, for clarification purposes, to include tow bars or other towing devices. (2) The definition of "non-tow truck or tow device" is expanded, for clarification purposes, to exclude electrical or hydraulic winches or wheel lifts. (3) The definition of "operator" as set out in sec.5.802 is changed to remove the phrase "or causing to be operated" so as to clarify and simplify the definition. (4) The requirement of workers' compensation insurance and accidental injury insurance coverage as contained in sec.5.805(e) and (f) is eliminated in its entirety, with renumbering of the remaining subparagraphs. This coverage is not required by the legislature and would be financially burdensome to the many independently owned and operated small towing companies throughout the state. (5) The first sentence of sec.5.806 is changed, for clarification purposes, to reflect that fees charged are non-refundable. (6) Paragraph (8) of sec.5.806 is removed in its entirety. Texas Civil Statutes, Article 6675a-5i, specifies that such fees will be collected by the County Tax-Assessor Collector of the county in which the tow truck is situated. (7) Paragraph (9) of sec.5.806 is deleted because an insurance filing fee of $100 is required under the Motor Carrier Act and a different insurance filing fee for tow trucks would cause confusion in the insurance and motor carrier/tow truck industries. It is anticipated that refunds would have to be made for overpayment of fees and the administrative costs of dealing with the refunds may exceed any revenue received. In order to simplify the registration process, this fee is eliminated. (8) Subsections (a) and (b) of sec.5.808 are changed to include the phrase "as necessary to enforce the requirements of this subchapter," regarding commission inspections and investigations. This change will clarify that inspections and investigations performed pursuant to sec.5.808 will be for the purpose of enforcing this Subchapter CC, relating to tow trucks. (9) Subparagraph (b) of sec.5.810 is changed to include the words "or operator" in the introductory clause regarding owners who commit violations for which the commission may impose administrative sanctions. This change will clarify that an owner is responsible for the violations of his or her operator. (10) Subsection (b)(1) of sec.5.812 is changed, for clarification purposes, to read "legal business name or legal assumed name as specified on the completed application form prescribed by the director." This change clarifies what name must be used on the tow truck for identification purposes. Comments regarding the rule centered entirely around the workers' compensation requirement. Several associations who actively pursued legislation to transfer jurisdiction of tow trucks to the commission are concerned that such a substantial requirement has been added to what they and their member organizations anticipated as being solely a transfer of jurisdiction. All of the comments pointed out that the cost of obtaining such coverage would be prohibitively expensive for the small, independent tow truck company that often operates with a very small profit margin, although one of these comments supported some form of insurance protection for employees. One comment suggested that, if the commission desires that workers' compensation or accidental injury insurance coverage be required, it postpone such a requirement until September, 1995, so as to allow the commission and the tow truck operators to plan ahead regarding the cost and availability of such coverage. One comment suggested that any inquiry into felony convictions on applications be limited to the preceding three years. The following groups and associations commented against inclusion of the workers' compensation and accidental injury insurance coverage requirements of the proposed rules: Texas Towing & Storage Association Houston Emergency Towing Association Houston Automobile Wrecker Association Houston Private Wrecker Association. The commission agrees that no legislation specifically requires that a tow truck owner carry workers' compensation or accidental injury insurance coverage. The commission agrees that any requirement for such coverage at this time might be financially burdensome to many tow truck companies and that any proposed rule by the commission to require such coverage should be delayed, pending a more thorough evaluation of the need and effect on the industry of such coverage. The commission recognizes that, under the proposed rules, many tow truck companies would have been subject to having their licenses cancelled for failing to have such insurance on record, and that any proposal to require such insurance would require further study. The commission disagrees that questions regarding felony convictions be limited to the preceding three years for the reason that any such limitation would not ensure that serious offenders have demonstrated the rehabilitation as required by Texas Civil Statutes, Article 6252-13c, pertaining to eligibility of persons with criminal backgrounds for certain occupations, professions, and licenses, and Texas Civil Statutes, Article 6252-13d, pertaining to suspension, revocation, or denial of license to persons with criminal backgrounds. 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 November 15, 1993. TRD-9332152 Mary Ross McDonald Assistant Director, Legal Division-Gas Utilities/LP Gas Railroad Commission of Texas Effective date: December 6, 1993 Proposal publication date: September 7, 1993 For further information, please call: (512) 463-7094 Existing Subchapter CC is repealed pursuant to Senate Bill 452 and Senate Bill 958, 73rd Legislature, 1993, which transferred jurisdiction of the regulation and operation of tow trucks from the Commission of Licensing and Regulation to the Railroad Commission of Texas. Subchapter CC-Texas Civil Statutes, Article 6687-9b. Emergency rules sec.sec.5.802, 5.803, 5.805, and 5.806 are repealed pursuant to the adoption of the rules and to Senate Bill 452 and Senate Bill 958, 73rd Legislature, 1993, which transferred jurisdiction of the regulation and operation of tow trucks from the Commission of Licensing and Regulation to the Railroad Commission of Texas. Subchapter CC-Texas Civil Statutes, Article 6687- 9b. sec.5.802. Definitions. The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise. Act-Texas Civil Statutes, Article 6687-9b. Original application -The required application form to obtain certificates of registration. Certificate of registration-The document issued by the commission authorizing the operation of a specific tow truck. Commercial motor vehicle or commercial carrier -Have the same meanings as ascribed to them in sec.5.501 of this title. Commission-The Railroad Commission of Texas. Consent tow-Any tow conducted with the permission of, or at the direction of, the towed vehicle's legal or registered owner, or such owner's authorized representative. Except as set forth in the definition of "nonconsent tow" below, a tow will be considered a consent tow where the owner is able to give consent. Director-The director of the Transportation/Gas Utilities Division of the commission, or a designee of the director. Mechanical device -A mechanical, electrical, or hydraulic winch, wheel lift, tow bar, or other towing device permanently attached to or used in combination with a commercial motor vehicle. Mini-wrecker or auto trailer-A vehicle without motive power used in combination with a commercial motor vehicle, and which is adapted or used to tow, winch or otherwise move another motor vehicle. Motor Carrier Act-Texas Civil Statutes, Article 911b. Motor Carrier Safety Act-Texas Civil Statutes, Article 6701d. Motor vehicle-A vehicle subject to registration under the Certificate of Title Act (Texas Civil Statutes, Article 6687-1), or any other self-propelled device permitted to travel on a public highway. Non-tow truck or tow device-A commercial motor vehicle used in combination with a mini-wrecker, auto trailer or other towing device, and which is not equipped with a mechanical, electrical, or hydraulic winch or wheel lift. Nonconsent tow -Any tow conducted without permission of, or not at the direction of, the towed vehicle's legal or register owner, or such owner's authorized representative. Regardless of this definition, certified law enforcement officials may control the scene of an accident in the manner they deem appropriate and order a nonconsent tow. Operate-Driving or causing to be driven a tow truck on a public highway. Operator-Any person operating a tow truck on a public highway of this state. Owner-A person owning, leasing or otherwise using, either directly or indirectly, a tow truck on a public highway of this state. Person-An individual or other legal entity. Registration year -The period between January 1st and December 31st of each year. Renewal application -The required application form to renew certificates of registration. Tow truck-A commercial motor vehicle equipped with, or used in combination with a mechanical device, mini-wrecker, or auto trailer, and which is adapted or used to tow, winch or otherwise move a motor vehicle. Vehicle-As defined in Texas Civil Statutes, Article 6675a-1. sec.5.805. Insurance Requirements. (a) Every owner shall file and maintain evidence of currently effective bodily injury and property damage automobile liability insurance in the following minimum amounts: (1) for a tow truck, together with the towed vehicle, having a gross vehicular weight, registered weight, or actual weight of 26,000 pounds or under, $300, 000 combined single limit for bodily injuries to or death of all persons injured or killed in any accident, and loss or damage in any one accident to the property of others; or (2) for a tow truck, together with the towed vehicle, having a gross vehicle weight, registered weight, or actual weight exceeding 26,000 pounds, $500,000 combined single limit for bodily injuries to or death of all persons injured or killed in any accident, and loss or damage in any one accident to the property of others. (b) Except as follows, every owner shall maintain and have on file with the commission evidence of cargo or on-hook insurance coverage. The intent of this subsection is to require insurance covering damage to a towed vehicle during which time the owner is the bailee of the vehicle being towed. The term "damage" shall include but is not limited to damage to the towed vehicle that is a direct or indirect result of an improper hookup or improper towing. The minimum insurance coverage required under this subsection shall be: (1) $10,000 for the loss of or damage to the vehicle towed by any one tow truck which, together with the towed vehicle, has a gross vehicular weight, registered weight, or actual weight of 26,000 pounds or less; or (2) $25,000 for the loss of or damage to the vehicle towed by any one tow truck which, together with the towed vehicle, has a gross vehicular weight, registered weight, or actual weight exceeding 26,000 pounds. (c) In lieu of cargo or on-hook insurance, an owner may secure garagekeepers legal liability insurance with direct primary coverage in an amount not less than that prescribed in subsection (b) of this section. (d) An owner who is exclusively engaged in the towing of property owned by it may, in its original application and in every renewal application, certify that all tow trucks operated by it are used exclusively to transport its own property. An owner or operator so certifying will be exempt from the requirements of subsections (b)-(c) of this section. (e) No owner shall operate a tow truck over the public highways of this state without the insurance coverage required by this section filed with the commission. (f) Evidence of insurance required in this section shall be filed on a form prescribed by the director and shall be duly completed and executed by an authorized representative of an insurance company holding a certificate of authority to transact business in the State of Texas, or by a surplus lines insurer that meets the requirements of the Insurance Code, Article 1.14-2, and rules adopted by the Texas Department of Insurance under that article. (g) Notwithstanding the provisions of subsection (a) of this section, an owner may be authorized to self-insure for bodily injury and property damage liability in lieu of filing proof of insurance. The authorization for an owner to self-insure may be granted upon the same showing required of a motor carrier under the terms of sec.5.182 of this title (relating to Qualifications as Self- Insurer). (h) If insurance coverage lapses, the owner shall immediately cease all operations of tow trucks owned by it. The director shall notify the owner of any such lapse, and that all certificates of registration held by it shall be subject to cancellation. (i) The owner who files, or causes to be filed, evidence of bodily injury or property damage insurance shall pay the appropriate fee. sec.5.806. Fees. The following non-refundable fees apply in connection with this Act. (1) For each tow truck sought to be registered with an original application postmarked before January 1, 1994, the fee shall be $50. (2) For each tow truck sought to be registered with an original application postmarked after January 1, 1994, the fee shall be $120. (3) For each tow truck sought to be registered with a renewal application postmarked before December 1st of each year, the fee shall be $60. (4) For each tow truck sought to be registered with a renewal application postmarked between December 1st and December 31st of each year, the fee shall be $85. (5) The fee for adding newly acquired tow trucks during a current year shall be $60, prorated according to paragraph (7) of this section; except, during the first registration year the original application is filed the fee shall be the same as set forth in paragraph (2) of this section and prorated as set out in paragraph (7) of this section. (6) The fee for substituting a certificate of registration from one tow truck to another or for replacing a lost or stolen certificate of registration shall be $10. (7) An owner making an original application for certificates of registration or for requesting the addition of newly acquired tow trucks during a current registration year shall pay a prorated fee based on the number of months left in the registration year. sec.5.808. Inspection and Investigation by the Commission. (a) The commission or its authorized representative shall exercise all the authority given it under the Motor Carrier Act, and may examine the books, records, accounts, letters, memoranda, documents, checks, vouchers, or telegrams of a tow truck owner, as necessary to enforce the requirements of this subchapter. (b) Any person who applies for or has received a certificate of registration shall have given its implied consent for an authorized inspector of the commission to audit, examine, or inspect any business record, document, book, account, equipment, or facility of that person, as necessary to enforce the requirements of this subchapter. The refusal of a person to consent to such audit, examination or inspection shall constitute a violation under this subchapter. sec.5.810. Administrative Sanctions. (a) When the term "violation" or "violate," in either singular or plural form, is used in this section it shall mean: (1) any violation of the Act, or rule or order adopted or issued related to the Act; (2) any violation of the Motor Carrier Act, or rule or order adopted or issued related to that act; (3) any violation of the Motor Carrier Safety Act, or rule or order adopted or issued related to that act; (4) any felony or misdemeanor conviction of an owner that directly relates to the duties and responsibilities involved in operating a tow truck; or (5) any revocation of an owner's felony probation, parole, or mandatory supervision. (b) If an owner or operator commits a violation the commission may: (1) deny, revoke, or suspend the owner's certificate of registration; (2) assess an administrative penalty in an amount not to exceed that permitted by Texas Civil Statutes, Article 911b, sec.4(a)(12); or, (3) place the owner on probation. (c) If a suspension is probated, the commission may require the owner to: (1) report regularly to the commission or its designee on the matter made the basis of probation; or (2) limit areas of operations to the areas prescribed by the commission. (d) If, after investigation of a possible violation by an authorized inspector of the commission, the investigator determines that a violation has occurred, the investigator shall issue a report to the director, stating the facts on which the conclusion that a violation occurred is based. Upon reviewing the report, the director shall recommend what sanctions, if any, should be imposed upon the violator. If it is recommended by the director that sanctions should be imposed, the recommendation to the commission shall be based on the following factors which the commission may consider when ordering sanctions: (1) the seriousness of the violation; (2) the history of previous violations; (3) the amount or action necessary to deter future violations; (4) the amount of monetary gain realized by the owner charged; (5) efforts made to correct the violation; (6) if the violation involves a felony conviction or probation, parole, or mandatory supervision revocation: (A) the nature and seriousness of the crime; (B) the relationship of the crime to the safe operation and insuring of a tow truck; (C) the extent to which a certificate of registration might offer an opportunity to engage in further criminal activity of the same type as that in which the owner was previously involved; (D) the relationship of the crime to the ability, capacity, or fitness to perform the responsibilities of operating a tow truck; (E) the extent and nature of the owner's past criminal activity; (F) the amount of time elapsed between the owner's last criminal activity; (G) the conduct and work activity of the owner prior to and following the criminal activity; (H) whether or not the owner was a minor at the time of the conviction of the crime; (I) evidence of the person's rehabilitation or rehabilitative effort while incarcerated or following release; (J) other evidence of the person's present fitness as deemed appropriate; and (7) any other matters that justice may require. (e) The director shall give written notice of the violation to the owner. The notice shall include: (1) a brief summary of the charges; (2) a statement of the proposed sanction, and any accompanying conditions; and (3) a statement of the right of the owner charged to a hearing on the occurrence of the violation and the sanction and any terms thereof. (f) Not later than the 20th day after the date on which the notice is received, the owner charged may accept the recommendation of the director made under this rule, including the sanction and all accompanying conditions, or make a written request for a hearing on the charges made. The director may extend the time for the owner charged to reply to the recommendation, provided that in the opinion of the director, a good-faith effort to negotiate a settlement of the violation has begun. (g) If the owner charged with the violation accepts the recommendation of the director, the commission may issue an order approving the recommendation of the director (or other sanction as may be agreed upon between the director and the owner charged) ordering the recommended sanction and accompanying conditions be imposed upon that owner. The commission may refuse to issue an order approving the recommendation of the director and enter an order approving a lesser sanction, and it may require a hearing, or direct that further negotiations be made with the owner charged. (h) If the owner charged fails to respond in a timely manner to the notice, or if the owner requests a hearing, the director shall set a hearing and the charges heard. sec.5.812. General Technical Requirements. (a) Each tow truck must display a tow truck license plate issued by the Texas Department of Transportation under Texas Civil Statutes, Article 6675a-1. The plate must be permanently attached to the rear of the vehicle and in clear visible view. (b) Each tow truck shall have the owner's: (1) legal business name or legal assumed name as specified on the completed application form prescribed by the director; (2) city, or county (if the owner's place of business is in an unincorporated area); and (3) telephone number. (c) The identification markings shall be durably inscribed or affixed on each side of the tow truck in letters of no less than two inches, in contrasting colors, and clearly visible at 50 feet for a person with a normal vision range. (d) If the owner claims an exemption to the cargo, hook-up or similar insurance requirements of this subchapter, there must be durably affixed on each side of the tow truck, in letters at least two inches high, the words "Not For Hire." (e) Every tow truck owner shall comply with the law regarding brakes contained in Texas Civil Statutes, Article 6701d, sec.132, or rules adopted by the Public Safety Commission relating to motor carrier safety. (f) No tow truck shall tow more than its actual weight unless it has a 35,000 pound winch capacity (single or dual line), a 5/8-inch cable or its equivalent, and air brakes. If a certified law enforcement officer at the scene of an accident determines that the scene must be cleared immediately, and a heavy-duty tow truck is not available, the officer may waive this requirement at the scene. (g) When a tow truck is towing two or more vehicles, it must be able to tie into and operate the service brakes on the rearmost towed vehicle. This provision does not apply if the rearmost towed vehicle has only vacuum brakes and the tow truck is not equipped with a pneumatic braking system. (h) A tow truck equipped with a mechanical device shall have, as a minimum: (1) a winch that has a winch line and boom with a lifting capacity of not less than 8,000 pounds single line capacity; or (2) a wheel lift with a lifting capacity of not less 2,500 pounds. (i) A tow truck used in combination with a mini-wrecker or auto trailer equipped with a mechanical device shall have a lifting capacity of not less than 5,000 pounds, and it shall have a towing capacity of not less than 7,000 pounds whether or not it is equipped with a mechanical device. (j) Each tow truck shall have the following standard equipment: (1) for a tow truck towing a motor vehicle that has wheels in contact with the ground a mechanical device or other equipment sufficient to prevent the swinging of the motor vehicle being transported; (2) standard J-hook-up chains and at least two 5/16-inch link steel safety chains for tow trucks with a registered weight of 10,000 pounds or less; (3) at least two 3/8-inch steel safety chains or their equivalent for tow trucks with a registered weight over 10,000 pounds; (4) rope, wire, or straps suitable for securing doors, hoods, trunks or other parts of the motor vehicle being towed for the safe tow of such motor vehicle; and (5) outside rear view mirrors on both sides of the tow truck. (k) A tow truck operator towing a vehicle that does not have functioning tail lights, or turn signals, while being towed shall supply the towed motor vehicle with functioning tail lights or turn signals. (l) A tow truck operator shall perform a safety wrap sufficient to secure the towed motor vehicle in the event of failure of the mechanical device used in towing the motor vehicle. (m) Safety chains shall be used on all tows performed by an operator. (n) Tow trucks with a slip-in bed must have the bed properly secured to the frame of the truck by a minimum of eight one-half inch diameter bolts of which at least four must be at the front of the slip-in bed. (o) A tow truck with a mechanical device shall not be used to lift or tow more than its safe lifting capacity as recommended by the manufacturer. (p) A tow truck operator must have a valid driver's license of the proper class. (q) A tow truck shall, at all times, meet the motor vehicle inspection standards required by law. (r) No tow truck operator shall tow a vehicle contrary to the recommended towed vehicle's manufacturer's safety policies and procedures regarding hook-up and towing. (s) A tow truck owner shall inform consumers or service recipients of the name, mailing address, and telephone number of the commission for purposes of directing unresolved complaints to the commission. The information pertaining to any unresolved complaints may be included on: (1) a written tow truck slip or ticket; (2) a sign prominently displayed at the place of payment; or (3) any other bill for service. (t) The term "unresolved complaint" as used in this section shall mean a good- faith effort between the tow truck owner and the consumer or service recipient, to reach an amiable solution to their to dispute, and are unable to do so. (u) At no time shall any owner tow a vehicle while there is a person in the towed vehicle. Violation of this provision shall subject the violator to the administrative penalty sanctions as set out in this subchapter. 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 November 15, 1993. TRD-9332151 Mary Ross McDonald Assistant Director, Legal Division-Gas Utilities/LP Gas Railroad Commission of Texas Effective date: December 6, 1993 Proposal publication date: September 21, 1993 For further information, please call: (512) 463-7094 Subchapter DD. Vehicle Storage Facilities 16 TAC sec.sec.5.902, 5.903, 5.905, 5.906, 5.908, 5.909, 5.913-5. 920 The Railroad Commission of Texas adopts amendments to sec. sec.5.902, 5.903, 5. 905, 5.906, 5.908, 5.909, and 5.913-5.920 of this title, concerning vehicle storage facilities. Sections 5.902, 5.905, 5.917, and 5.919 are adopted with changes to the proposed text as published in the September 7, 1993, issue of the Texas Register (18 TexReg 5957). Sections 5.903, 5.906, 5.908, 5. 909, 5.913- 5.916, 5.918, and 5.920 are adopted without changes and will not be republished. Section 5.902 is changed by adding "preservation" as a newly-defined term. The language defining the term was published in sec.5.919(b) of the proposed rules. Section 5.919(b) is changed to provide that a vehicle storage facility operator is entitled to charge $10 for preservation of a stored motor vehicle, as that term is defined in sec.5.902. The definition of "preservation" in sec.5. 902 distinguishes between efforts to preserve, protect, or service a stored vehicle and efforts to secure a stored vehicle, which include closing the vehicle's doors, windows and/or hatchback and raising or covering the vehicle's convertible top, if it has one. These changes clarify that a vehicle storage facility operator is entitled to charge the vehicle's owner a one-time fee of $10 for preservation of the stored vehicle, bringing the rules into conformity with the legislative changes made by Senate Bill 452. Section 5.905 is changed by the addition of the word "prior" in subsection (d), to clarify when written notice of any cancellation or expiration of an insurance policy must be given. Section 5.917 is changed by the addition of language to subsection (a), to make the rule consistent with Texas Civil Statutes, Article 6687-9a, sec.7, which limits the relevant time period for considering prior criminal convictions to three years preceding the date of an application for a license under that Article. The amendments bring the regulations into conformity with Senate Bill 452, by which the 73rd Legislature, 1993 transferred jurisdiction over the licensing of vehicle storage facilities from the Texas Department of Licensing and Regulation to the Railroad Commission of Texas. Three different provisions were addressed by the comments submitted during the public comment period. One comment requested that sec.5.906(b) be amended to allow a vehicle storage facility to notify the last registered owner and all recorded lienholders of its acceptance of a vehicle sooner than within 24 hours of receipt of the vehicle. Another comment requested that sec.5.918 be amended to eliminate paragraph (5), which requires that vehicle storage facilities that accept vehicles 24 hours per day must have vehicles available for release 24 hours per day within one hour's notice. The third comment requested that sec.5.919 be amended to allow a vehicle storage facility operator to charge an administrative, or "impoundment," fee of $10 for accepting a vehicle for storage at its facility. The Texas Towing & Storage Association commented only insofar as to request the amendment of sec.5.919 summarized previously. The commission disagrees with the comment requesting an amendment to sec.5. 906, because the requirement sought to be eliminated by that comment was explicitly added to the Vehicle Storage Facility Act by the Legislature in Senate Bill 452. The commission also disagrees with the comment requesting an amendment to sec.5.918, because, although legitimate safety and other concerns may exist for a vehicle storage facility operator, the commission also recognizes that a member of the public, whose vehicle may be towed to such a facility at any hour of the day, should be afforded the opportunity to arrange for the release of the vehicle at any hour of the day. Finally, the commission disagrees with the comment requesting an amendment to sec.5.919. Section 14 of the Vehicle Storage Facility Act prescribes the fees which may be charged by a vehicle storage facility operator; it provides for fees to be charged for storage, as well as for complying with the notification and preservation requirements of the Act. In addition, the Act, sec.14(d), explicitly states that a vehicle storage facility operator "may not charge any additional fees that are similar to notification, preservation, or administrative fees." Therefore, it is not within the commission's legislative authority to amend sec.5.919 as requested. The amendments are adopted under Texas Civil Statutes, Article 6687-9a, sec.4(b), which require the commission to adopt rules establishing requirements for the licensing of persons to operate vehicle storage facilities, to ensure that licensed storage facilities maintain adequate standards for the care of stored vehicles. The following article is affected by these rules: sec. sec.5.902, 5.903, 5.905, 5.906, 5.908, 5.909, and 5.913-5.920 -Texas Civil Statutes, Article 6687-9a. sec.5.902. Definitions. The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise. Commission-The Railroad Commission of Texas. Director-The director of the Transportation/Gas Utilities Division of the commission or his or her designee. Preservation-An action taken by or at the direction of the owner or operator of a vehicle storage facility that is necessary to preserve, protect, or service a vehicle stored or parked at the facility. Reasonable efforts necessary for the storage of a vehicle, such as locking doors, rolling up windows, and closing doors, hatchbacks, or convertible tops, are included in the fee for storage of a vehicle, as set forth in sec.5.919(c) of this title (relating to Technical Requirements -Storage Fees/Charges), and do not constitute "preservation." Vehicle storage facility-A garage, parking lot, or any facility owned or operated by a person other than a governmental entity, except as provided in sec.5.919(f) of this title (relating to Technical Requirements-Storage Fees/Charges), for storing or parking ten or more vehicles. Ten or more vehicles shall mean the capacity to park or store ten or more vehicles a year. sec.5.905. Insurance Requirements. (a) Each license applicant shall file with the commission a certificate of insurance evidencing the required garagekeeper's legal liability insurance for the vehicle storage facility. (b) No insurance policy or certificate of insurance will be accepted by the commission unless issued by an insurance company licensed and authorized to do business in this state in the form prescribed or approved by the State Board of Insurance and signed or countersigned by an authorized agent of the insurance company. (c) (No change.) (d) The vehicle storage facility's insurance policy shall provide that the insurance company will give the commission 30 days prior written notice of any policy cancellation or expiration. (e) (No change.) sec.5.917. Sanctions-Revocation or Suspension Because of a Criminal Conviction. (a) The commission may revoke, suspend, or deny a license issued under the Act, or place a person on probation whose license has been suspended, if the commission determines that a licensee, a partner of the licensee, a principal in the licensee's business, or an employee of the licensee has been finally convicted, in the three years immediately preceding the date of the application, of: (1)-(2) (No change.) (b) The commission may also, after hearing, suspend, revoke, or deny a certificate of registration because of a person's felony probation revocation, parole revocation, or revocation of mandatory supervision. (c) In determining whether a criminal conviction directly relates to the operation of a vehicle storage facility, the commission shall consider: (1)-(4) (No change.) (d) In determining the present fitness of a person who has been convicted of a crime, the commission shall also consider: (1) (No change.) (2) whether or not the person was a minor at the time of the commission of the crime; (3)-(6) (No change.) (e) It shall be the responsibility of the applicant, to the extent possible, to secure and provide the commission the recommendations of the prosecution, law enforcement, and correctional authorities as required. (f) The applicant shall also furnish proof, in such form as may be required by the commission, that he or she has maintained a record of steady employment, has supported his or her dependents per court order, has otherwise maintained a record of good conduct, and has paid all outstanding court costs, supervision fees, fines, and restitution as may have been ordered in all criminal cases in which he or she has been convicted. sec.5.919. Technical Requirements -Storage Fees/Charges. (a) A vehicle storage facility operator may not charge an owner more than $25 for notification under sec.5.906(b) of this title (relating to Accepting Vehicles for Storage). (b) A vehicle storage facility operator is entitled to charge an owner $10 for preservation of a stored motor vehicle, as defined in sec.5.902 of this title (relating to Definitions). (c) A vehicle storage facility operator may not charge less than $5.00 or more than $15 for each day or part of a day for storage of a vehicle. A daily storage fee may be charged for a day regardless of whether the vehicle is stored for 24 hours of the day, except that a daily storage fee may not be charged for more than one day if the vehicle remains at the vehicle storage facility less than 12 hours. For the purposes of this subsection, a day is considered to begin and end at midnight. (d)-(e) (No change.) (f) For purposes of this section, "vehicle storage facility" includes a garage, parking lot, or any type of facility owned by a governmental entity for storing or parking ten or more vehicles. 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 November 15, 1993. TRD-9332153 Mary Ross McDonald Assistant Director, Legal Division-Gas Utilities/LP Gas Railroad Commission of Texas Effective date: December 6, 1993 Proposal publication date: September 7, 1993 For further information, please call: (512) 463-7095 Part II. Public Utility Commission of Texas Chapter 23. Substantive Rules Customer Service and Protection 16 TAC sec.23.49 The Public Utility Commission of Texas adopts an amendment to sec.23.49, with changes to the proposed text as published in the August 3, 1993, issue of the Texas Register (18 TexReg 4989). The commission adopts the amendment for the purpose of providing for expedited processing of petitions for the expansion of toll-free local calling areas. Initiation of this rulemaking proceeding was required by Senate Bill 632, 73rd Legislature, 1993, which enacted Texas Civil Statutes, Article 1446c, sec.93A, hereinafter referred to as PURA, sec.93A. The procedures required in sec.23.49(c) are revised from the August publication in response to specific comments received by the commission. Nine parties submitted comments in response to the August 3, 1993, Texas Register publication: AT&T Communications of the Southwest, Inc. (AT&T); GTE Southwest Incorporated and Contel of Texas, Inc. (joint comments) (GTE/Contel); MCI Telecommunications Corporation (MCI); Office of Public Utility Counsel (OPC); City of Sour Lake (Sour Lake); Texas Association of Long Distance Telephone Companies (TEXALTEL); Texas Communities for Expanded Local Calling Areas (TCELCA); Texas Statewide Telephone Cooperative, Inc. (TSTCI); and Texas Telephone Association (TTA). In addition, the commission conducted a public hearing on October 7, 1993, at which comments were received. The commission, in its August publication in the Texas Register, asked commenters to respond to several specific questions. Commenters were asked whether a successful petition should provide for expansion of toll-free calling in both directions between the petitioning and petitioned exchange, or outbound-only from the petitioning exchange. AT&T and MCI argued that PURA, sec.93A directs the commission to provide for one-way expanded toll-free calling areas. They expressed concern about the impact of expanded toll-free local calling areas on competition for intraLATA MTS, noting that mandatory two-way expanded toll-free local calling areas effectively transform a potentially competitive market into a monopoly in which only the local exchange carrier (LEC) can carry the call. OPC and TCELCA argued for two-way expanded toll-free local calling areas, saying that two exchanges are not effectively made a toll-free local calling area if only outbound calls are toll-free. GTE/Contel said that expanded toll-free calling areas should be two-way only in instances where there is a bilateral community of interest and a need for two- way toll-free local calling is indicated. In such a case, the petitioned exchange should be made a party to the proceedings, its subscribers should be balloted along with subscribers in the petitioning exchange, and the subsection should allow for cost recovery from all participating customers in both the petitioning and petitioned exchanges. GTE/Contel noted that the cost of two-way toll-free local calling is significantly greater than the cost of one-way expanded toll-free calling. They reported that, when presented a choice between one-way and two-way calling options, only about 20% of GTE customers choose the more expensive two-way service. TTA, GTE/Contel, and Sour Lake suggested making two-way expanded toll-free calling optional and requiring customers to indicate on an expanded toll-free calling area petition whether one-way or two-way expanded toll-free calling is sought. The commission agrees with OPC and TCELCA that in order to give full effect to the language of PURA, sec.93A, two-way expanded toll-free local calling areas are required. The commission believes that the comments of AT&T, MCI, and GTE/Contel address policy concerns that were resolved by the legislature when it enacted PURA, sec.93A. PURA, sec.93A(a) describes the purpose of the statute as requiring the commission to address "the calling needs between nearby telephone exchanges" by allowing the expansion of toll-free local calling areas. The expansion of a toll-free local calling area is not the same as the provision of an alternative billing arrangement (e.g., allowing a caller to make all the calls she wants from her home exchange to a nearby exchange at a flat-rate.) If the "area" in which a caller from a petitioning exchange can make toll-free local calls is expanded to include a petitioned exchange, then the caller should be able to move to the petitioned exchange, which would now be included in an expanded geographic area, and make a toll-free local call back to the petitioning exchange. Although the statute does not specifically require either two-way or one-way calling (i.e., by use of those words), and the statute does not expressly forbid one-way calling, the commission concludes that the language that was used by the legislature in describing the purpose of the legislation (i.e., "the expanding of toll-free calling areas") in fact does require the commission to implement expanded toll-free local two-way communications between qualifying exchanges. Thus, even allowing the option of one-way calling is inappropriate under the statute. There is clearly nothing in the statute contravening this interpretation. Those who wish to pursue one-way calling may do so under the commission's extended area service requirements in subsection (b). The commission's interpretation is reflected in subsection (c)(1)(A), which now describes petitions "for expansion of two-way toll-free local calling areas." Commenters were also asked whether the local exchange carrier's costs recoverable under the subsection should include settlements to reimburse the carrier serving the petitioned exchange for its costs of providing the expanded toll-free local calling. All parties responding supported including such settlements, to the extent they are reasonable and necessary, in a LEC's recoverable costs when expanded toll- free calling is one-way. TCELCA supported their inclusion "up to the stated maximum total charges of $3.50 on residential and $7.00 on business." All but one party responding supported the inclusion of intercompany settlements in recoverable costs for two-way expanded toll-free local calling areas. GTE/Contel, dissenting from that view, recommended that the petitioning exchange be required to bear only costs and lost toll originating in that exchange. The GTE companies argued strongly that "any expansion of two-way toll- free calling should allow for cost recovery from all participating customers in both the petitioning and petitioned exchanges, so that the manner in which costs are recovered would not depend on which exchange happens to file a petition with the commission." The commission is persuaded by the comments of GTE/Contel and believes that the language of the statute does not foreclose the LEC serving a petitioned exchange (or a LEC that merely provides transport between petitioning and petitioned exchanges) from recovering its costs and lost toll revenue as a result of the expansion by the petitioning exchange. The commission believes that the statute was designed to provide rural areas with an affordable means of communication within their community but without penalty to the affected LECs. In order to adhere to the underlying legislative intent, the commission has provided a mechanism whereby a LEC serving a petitioned exchange (or serving as a transporting LEC) may be made whole without a revenue requirement showing. Therefore, there is no need for intercompany settlements as proposed by the parties commenting on this issue. In addition, the procedure provided under paragraphs (6)(B) and (12) of subsection (c) will ensure that as a result of the expansion of toll-free local calling areas the customers of the petitioning exchange do not bear additional costs in an amount beyond the fees specified by statute. Commissioner Rabago disagrees with the decision to allow a LEC to recover lost toll revenue from a petitioned exchange if that LEC does not also serve the petitioning exchange. In his view, the purpose of PURA, sec.93A was to facilitate expanded calling scopes for petitioning exchanges. Recovery of lost toll revenue was an incidental aspect of this main legislative purpose. Thus, he does not agree that the special revenue recovery provision contained in PURA, sec.93A(3)(a)(A) reaches local exchange companies other than the LEC of the petitioning exchange. Commissioner Rabago believes that, contrary to the plain meaning of the statute, the majority has created an independent right of the petitioned LEC to appear on its own behalf to recover its lost revenues without any showing that its overall revenues are inadequate. To give effect to the majority's decision, "the local exchange company" must be interpreted to mean "any" LEC rather than a particular LEC. Absent a clear statement of legislative intent to create an LEC's vested right to recover a revenue stream, Commissioner Rabago believes that the commission does not have authority to create such a right. In his opinion, nothing in PURA establishes a utility's vested right in a revenue stream absent a specific grant of authority by the legislature, and no such special right was created by Senate Bill 632. Commissioner Rabago notes that PURA, sec.93A(a)(3)(A) provides that "the local exchange company shall recover all of its costs incurred and all loss of revenue from any expansion of toll-free calling areas under this section" through a request "other than a revenue requirement showing." In his view, the plain meaning of the words in the statute does not support the majority's action. In support of his position, he notes that under the Government Code, the ordinary meaning should be given to words in a statute. Government Code sec.312.002; see also Smith v. Brooks, 825 SW 2d 208 (Tex. App. -Texarkana 1992). Further, courts have determined that it is to be presumed that the legislature intended to use and give meaning to each word in the statute. See Valley International Properties v. Los Campeones, 568 SW 2d 680 (Tex. App.-Corpus Christi 1978). In Commissioner Rabago's view, a key issue in this rulemaking is the meaning of the word "the" in subsection (a)(3) (A) of PURA, sec.93A. According to Commissioner Rabago, "the" is a definite article which indicates that the following noun, or in this case, noun phrase, was specified in a previous context. In prior subsection (a)(1) of PURA, sec.93A, "the local exchange company" is the one which ballots "its subscribers within the petitioning exchange." Commissioner Rabago believes that this subsection clearly refers only to the LEC serving the petitioning exchange. In his view, both paragraphs (1) and (3)(A) of PURA, sec.93A are criteria which the commission is to consider in providing an expedited hearing to expand toll-free calling areas. Thus, Commissioner Rabago believes that, read in the context of the entire statute, paragraph (3)(A) of PURA, sec.93A has no function apart from its role in expedited expanded calling scope hearings for petitioning exchanges. Commissioner Rabago believes that PURA, sec.93A explicitly provides for recovery of the costs incurred by the LEC serving the petitioning exchange. In his view, such costs include charges for services rendered to it by a LEC serving the petitioned exchange (as well as charges for any services rendered to it by a third LEC for transporting calls between exchanges). The LEC serving the petitioned exchange should be allowed to charge the LEC serving the petitioning exchange for the cost of terminating calls in its exchange and any costs associated with the origination of calls from its exchange into the petitioning exchange. In his opinion, these charges are costs incurred by the petitioning exchange in order to implement expanded two-way local calling for its customers and would be recoverable under PURA, sec.93A. However, Commissioner Rabago specifically disagrees that lost toll revenues experienced by the LEC serving the petitioned exchange are implementation costs to the LEC serving the petitioning exchange and, therefore, would not allow a charge for recovery of such lost toll revenues. Commissioner Rabago further supports his dissent on this issue as follows. Under subsection (a)(3) of PURA, sec.93A, there are two methods for "the local exchange company" to recover lost toll revenue. Read as applying to the petitioning exchange's LEC, both special revenue recovery provisions make sense. On the other hand, it is nonsensical to interpret subsection (a)(3)(A) (i) of PURA, sec.93A as authorizing a petitioned LEC to recover $3.50 per line from petitioning exchange subscribers. Conversely, it is perfectly logical for the petitioning LEC to recover a surcharge from its state wide customers as provided in subsection (a)(3)(A)(ii) of PURA, sec.93A. Commissioner Rabago notes that if the LEC serving the petitioned exchange is different from the one serving the petitioning exchange, that LEC is not without remedy to recover costs. One option is for the LEC serving the petitioned exchange to recover costs in the context of a normal rate case as provided by PURA. Another option is to recognize that the LEC serving a petitioning exchange could be required to make some payment to the LEC serving a petitioned exchange for the termination of calls to that exchange or for providing the origination of calls to be terminated in the petitioning LEC's exchange under expanded two- way local calling. The payment to the LEC serving the petitioned exchange is a cost incurred by the LEC serving the petitioning exchange, and that cost is recoverable under PURA, sec.93A. Thus, in Commissioner Rabago's view, the LEC serving the petitioned exchange would receive compensation for the use of its facilities to enable expanded two-way local calling between the petitioning and petitioned exchanges. On the issue of lost toll revenues, Commissioner Rabago determines, again reading "the" to refer only to the petitioning LEC, recovery of lost toll revenue for that LEC is allowed. Therefore, in his view, if the LEC serving the petitioning exchange is also the LEC serving the petitioned exchange, all lost toll revenue experienced by that LEC could be recovered under PURA, sec.93A. However, the recovery of toll revenues lost by a LEC serving only the petitioned exchange must be addressed under provisions of PURA other than sec.93A. The commission also asked commenters whether, when the petition is based on a community of interest standard, the balloting should occur after the determination that a community of interest exists. Four parties (GTE/Contel, TTA, OPC, and TCELCA) recommended that balloting occur after the commission has made a community of interest determination. TTA notes that balloting prior to a determination regarding community of interest could result in unnecessary costs and in falsely raising the hopes and expectations of customers. AT&T and MCI state that PURA, sec.93A provides for balloting to occur before the commission is required to consider a petition. Nevertheless, AT&T supports whichever procedure "is more economically and judicially efficient." The commission finds that community of interest (or geographic proximity) should be determined before balloting occurs. The overriding consideration is to minimize confusion among customers who may believe that the service will be implemented after an affirmative vote of at least 70% of the subscribers in the petitioning exchange. In addition, finding a community of interest before balloting would be more cost effective for the petitioners, the LECs, and the commission. Thus, subsection (c)(5), read in conjunction with paragraph (3) of that subsection, provides that balloting will follow a determination of community of interest. In addition to responding to the commission's specific questions, parties offered general comments. OPC, TEXALTEL, and TCELCA commented that expanded toll-free calling and extended area service should be in separate sections of the substantive rules. TEXALTEL expressed concern that inclusion of expanded toll-free calling areas in sec.23.49 will limit the rights of some parties under sec.23.49(b) (relating to Extended Area Service). The commission notes that the addition of sec.23.49(c) does not limit any party's access to the procedures prescribed in other subsections of sec.23.49. Furthermore, many sections of the substantive rules contain disparate subject matter, and including the two programs in the same section does not imply a functional relationship between them. TCELCA commented that the petition need not contain a statement that rates for expanded toll-free calling areas are subject to change in a rate case because all rates are subject to change in a rate case. The commission believes that the public interest requires that voters in the petitioning exchange be informed that the monthly fee imposed upon the customers in the petitioning exchange for expanded toll-free local calling areas is temporary only until the company's next general rate case. However, in order not to discourage the petitioning process, the commission has eliminated this statement at the petition stage and has instead added clarifying language at the balloting stage in subsection (c)(5)(B)(iv). The commission believes that customers are likely to be aware that local exchange rates are subject to change in a general rate case. Therefore, the commission does not require a warning in that portion of the ballot dealing with the monthly fee to be surcharged to all customers statewide. GTE/Contel and TTA both commented that an application for expanded toll-free calling areas should include only one petitioned exchange, as the proposed subsection provided. The commission disagrees and has specifically provided for multiple exchange petitions. Nothing in the underlying statute specifically addresses whether a single petition can seek expansion into more than one area. However, the commission believes that its response to this issue is primarily driven by its finding (discussed elsewhere in this preamble) that the maximum exchange- specific fee of $3.50 or $7.00 applies to each line in the petitioning exchange, regardless of how many petitioned exchanges are added to the expanded toll-free local calling area. If the exchange-specific fee applied as to each petitioned exchange that is added to the toll-free local calling area, it would make some sense to limit a petition to a single petitioned exchange so that subscribers being asked to sign a petition could keep track of their fees. However, where that pricing aspect is eliminated, it would be overly bureaucratic, and serve no useful purpose, to require several petitions to accomplish the same result that can be achieved with one petition. The commission has included in subsection (c)(5)(B) a safeguard to prevent confusion while ensuring that each petitioned exchange receives a 70% affirmative vote of those voting in the petitioning exchange. This provision will allow for an expeditious process in addition to the reduction of paperwork involved in multiple petitions. TCELCA, GTE/Contel, and TTA all pointed out difficulties with sending petitions to the address to which payments are sent. The commission agrees that petitions will be more efficiently processed if sent by the commission directly to the affected LECs. The commission's decision is reflected at subsection (c)(1)(B), which provides for the general counsel to send petitions to each affected LEC. TCELCA requested that a petitioner be allowed to identify an exchange by a three-digit prefix, by the name of a community or municipality in the exchange, or by some other description. The commission notes that such informal and imprecise designations can create enormous difficulties for LECs and the commission staff in implementing expanded toll-free local calling, at the cost of expeditious handling of petitions. The commission has clarified subsection (c)(1)(B)(ii)(II)(-b-) and (-c-) to require a petitioner to clearly identify both the petitioning and petitioned exchanges in its petition. TCELCA requested that "petition coordinator" be substituted for "representative." The commission has clarified in subsection (c)(1)(B)(i)(I) that the letter asking the commission to accept a petition for filing must designate a contact person to respond to inquiries about the petition. The inquiries that may be made of the contact person will presumably come from the commission staff, the LECs, or intervenors as the petition is processed at the commission. This individual obviously may be a different person from the petition coordinator required in subsection (c)(1)(B)(ii)(II)(-a-), who is the person signatories to the petition may contact for further information about the petition. It is important for expeditious treatment of these petitions that the commission staff have a single point of contact, and it seems most fair that the person filing the petition with the commission be allowed to designate that contact. GTE/Contel recommended that subsection (c)(2)(A) be reworded to include review of the petition for compliance with filing requirements. The commission agrees that an initial review would prevent the LECs from commencing the process of cost studies and the like, thereby incurring possibly unnecessary costs. Furthermore, the commission staff will likewise be spared possibly unnecessary review of such studies. The commission has incorporated into subsection (c)(2) a review of the petition for compliance with the requirements of subsection (c)(2). TCELCA requested that the staff review of a petition for expansion of toll-free local calling areas be eliminated and instead that LECs be required to file annually information about all exchanges which are not ineligible for such expansion. The commission believes that staff review of expanded toll-free local calling area petitions pursuant to subsection (c)(2) is more cost effective than the detailed filings requested by TCELCA, and declines to make the requested change. GTE/Contel and TTA argued for the need for a waiting period before a petition may be filed for an expanded toll-free local calling area for which a ballot has failed. The commission agrees that such a waiting period is appropriate, and has added an 18-month waiting period at subsections (c)(1)(C)(i)(III) and (c)(2)(B) . This waiting period will apply only when a ballot has failed, not when a petition has been found insufficient. The waiting period is a reasonable means to avoid unnecessary expenditure of limited commission resources (as well as unnecessary costs for affected LECs) where there has been a recent vote indicating that a sufficient number of subscribers do not wish to expand their toll-free local calling area. The commission has created a safety valve for consideration of a new petition sooner than 18 months if the petitioners demonstrate materially changed circumstances that justify a new opportunity to vote. TCELCA requested that the 22-mile geographical proximity threshold be measured from the petitioning exchange's border to the petitioned exchange's central office. The underlying statute is silent as to how the 22-mile requirement should be measured. The commission is persuaded by TCELCA's comments. However, the commission has provided more flexibility than TCELCA suggests so that procedural expediency will not be undermined. In this regard, subsection (c)(3) (B) provides three methods whereby the 22-mile proximity test may be measured, depending upon the individual circumstances of each petition. One possible method allows proximity to be measured by using the same vertical and horizontal (V & H) coordinates for each of the exchanges that the LECs use to rate interexchange calls to and from exchanges. Another method allows measurement from the nearest points on the petitioning and petitioned exchanges' boundaries. Still another method of measurement incorporates TCELCA's method of measuring the distance between the central office of the petitioning exchange and the border of each petitioned exchange. The commission believes that allowing for several methods will retain the expediency sought by the statute while at the same providing flexibility to those exchanges which do not meet the strict vertical and horizontal (V & H) coordinate method as originally provided in the published version. TCELCA requested that the amendment establish a two-pronged test for determining a community of interest, allowing a petition to establish a community of interest automatically by meeting certain criteria spelled out in the subsection. The commission agrees that such a specification may eliminate costly hearings and is in keeping with the spirit of the statute. In addition, communities would be able to receive service without unnecessary delay while giving the statute its full effect. The commission incorporates automatic community of interest tests in subsection (c)(3)(C)(ii). The commission uses essentially the standards suggested by TCELCA, providing that one of the three criteria (common school districts, county seat, primary hospital) must be met before an automatic community of interest determination is made. The commission is persuaded that the presence of any one of these elements would demonstrate a prima facie showing that a community of interest exists. TSTCI commented that LECs should not have to apply for the exemptions permitted by PURA, sec.93A(b)(1) and requests that the commission automatically reject petitions from exchanges falling within these exemptions. The commission notes that PURA, sec.93A(b)(1) permits but does not require a LEC to take advantage of these exemptions, and declines to make the requested change in order to allow LECs to exercise their option to provide expanded toll- free local calling areas within all otherwise eligible exchanges. The procedure for requesting an exemption is defined at subsection (c)(4). AT&T and MCI commented that the PURA, sec.93A exception for expanded toll-free local calling into an exchange contiguous to a metropolitan exchange is omitted from the proposed amendment. Because subsection (c)(4)(A)(iv) only allows an exemption if "the petitioning or petitioned exchange is a metropolitan exchange," the commission does not find it necessary to incorporate the language of PURA, sec.93A(b)(2), which merely clarifies that no exemption is available regarding expansion into an exchange that is located in a local calling area that is contiguous to a metropolitan exchange. The requirements of PURA, sec.93A(b)(2) apply to both the commission and the LEC even though the commission does not find it necessary to incorporate them into the subsection. TCELCA requested that a request for exemption based on geographical or technological infeasibility should be granted only temporarily, and that the LEC be required to give the commission a timeline to cure the condition giving rise to the infeasibility. The commission acknowledges the merit of this approach, and feels that such a refinement of the section may be appropriate at a future date if technological and geographic infeasibility proves to be a significant impediment to implementation of expanded toll-free local calling areas. To address this underlying concern, the commission has added at subsection (c)(4) (C) a requirement that a LEC, in order to receive an exemption based on technological or geographic infeasibility, must make a good and sufficient showing that technology is not available in the marketplace to make the expansion of toll- free local calling areas feasible. This requirement is premised on an understanding that technology may be capable of overcoming geographic infeasibility. GTE/Contel, TCELCA, and TTA all requested that the commission establish a form ballot. In response to these requests, the commission has specified minimum requirements for the ballot at subsection (c)(5)(B). General counsel and commission staff will require the use of a standard form for ballots. TTA requested that LECs be permitted to use a company-wide surrogate cost methodology for the purpose of determining fees for inclusion on expanded toll- free calling area ballots. By providing at subsection (c)(5)(B)(iv)(I) that the ballot will state only the maximum exchange-specific fees, rather than estimated actual charges based on cost studies, the commission has obviated the need for the recommended change. OPC and TCELCA comment that the maximum exchange-specific surcharge of $3. 50 per residential line and $7.00 per business line should apply regardless of how many exchanges a petitioning exchange includes in its expanded toll-free local calling area. The commission has reviewed the statute and agrees that the interpretation suggested by OPC and TCELCA is correct. The key language in PURA, sec.93A(a)(3) (A)(i) is that the LEC (which the commission interprets in this instance as the LEC serving the petitioning exchange) may impose a monthly fee on each residential and business subscriber in the petitioning exchange of not more than $3.50 "per line" for residential customers nor more than $7.00 "per line" for business customers. This language appears to confine the exchange-specific fee to a single charge (up to these maximums) regardless of the number of exchanges added to the toll-free local calling area. Thus, if petitioning exchange A gets expanded toll-free local calling to petitioned exchange B, and the costs incurred by the LEC serving A justify an exchange-specific surcharge of only $1.75 per line for residential customers, then that surcharge may be no more than $1.75 per line. If A also gets expanded toll-free local calling to petitioned exchanges C, D, and E (either in the same petition as B or in a subsequent petition), and the costs incurred by the LEC serving A in connection with the expansion to C, D, and/or E would justify an exchange-specific surcharge of more than $3.50 per line for residential customers, the LEC may nonetheless only assess a customer-specific surcharge of $3.50 per line. Because of the absence of a contemporaneous legislative record evidencing intent, the commission has confined its interpretation to the four corners of the statute and believes its interpretation is consistent with the statute as a whole, is not inconsistent with any part of the statute, and gives meaning to all words of the statute. The commission's interpretation is reflected at subsection (c)(5)(B)(iv)(II) and subsection (c)(6)(B)(i). GTE/Contel requested that a LEC be permitted to accumulate the revenue requirements from several expanded toll-free calling area petitions before implementing a statewide monthly fee to recover costs incurred in such expansions under PURA, sec.93A(a)(3)(A)(ii). The commission believes that such an implementation of statewide fees may be cost-effective in many cases and will probably minimize customer confusion. However, the commission believes that such a practice is permitted without the need to address it specifically. Both TCELCA and Sour Lake commented that the proposed amendment contains no time limits for certain actions on the part of the petitioners, LECs, and commission staff. TCELCA proposed a specific timetable to govern the process from the filing of a petition to commission approval. In response to these concerns, the commission has included timelines for action throughout the subsection. The timelines are both expeditious and realistic, given commission resources, and should add clarity to specific steps that must be taken. All comments received, including those not specifically referenced herein, were fully considered by the commission. The amendment is adopted pursuant to Texas Civil Statutes, Article 1446c, sec.16, which provide the commission with the authority to make and enforce rules reasonably required in the exercise of its powers and jurisdiction, and sec.93A, which requires the commission to initiate a rulemaking proceeding to approve rules to provide for an expedited hearing to allow the expanding of toll-free calling areas. The statute affected by the amendment is Texas Civil Statutes, Article 1446c, sec.93A. sec.23.49. Telephone Extended Are Service (EAS) and Expanded Toll-free Local Calling Areas. (a) Purpose. This section is intended to establish consistent procedures for the processing of requests for extended area service (EAS) and to provide for an expedited hearing allowing the expansion of two-way toll-free local calling for rural areas, as enacted in Senate Bill 632 by the 73rd Legislature. (b) Extended Area Service. (1) Filing Requirements. (A) In order to be considered by the commission, a request for extended area service shall be initiated by at least one of the following actions: (i) a petition signed by the greater of 5.0% or 100 of the subscribers in the exchange from which the petition originates; (ii) a resolution adopted and filed with the commission by the governing body of a political subdivision provided that said governing body properly represents the exchange requesting EAS; (iii) a resolution adopted and filed with the commission by the board of directors or trustees of a community association representing an unincorporated community; or (iv) an application filed by one or more of the affected utility(ies). (B) A request for establishment of a particular extended area service arrangement pursuant to subsections (b)(1) (A)(i), (ii), or (iii) of this section shall not be considered sooner than three years after either a determination of the failure of any such previous request to meet eligibility requirements, or final commission action on any such previously-docketed request. An exception to this requirement may be granted to any petitioning exchange which demonstrates that a change of circumstances may have materially affected traffic levels between the petitioning exchange and the exchange to which EAS is desired. (C) All requests for EAS, regardless of how initiated, shall state the name of the exchange(s) to which the extended area service is sought. (D) The petition shall set forth the name and telephone number of each signatory and the name of the exchange from which the subscribers receive service. (E) Each signature page of a petition for EAS must contain information which clearly states that establishment of the requested EAS route may require that subscribers to the service change their telephone numbers and pay a monthly EAS rate in addition to their local exchange service rates, as well as applicable service connection charges. The requirements of this paragraph shall not apply to petitions received before the effective date of this section. (F) Petitions for extended area service into metropolitan exchanges on file with the commission on or before the effective date of this section will be grouped by relevant metropolitan exchange. For each metropolitan exchange, General Counsel will file a motion to docket a proceeding for the determination of uniform extended area service rate additives as directed by subsections (b)(3), (4), and (5) of this section for all pending EAS requests to that metropolitan exchange. Upon the docketing of such a proceeding, two weeks' notice in a newspaper of general circulation in the metropolitan area shall be published. The notice shall contain such information as deemed reasonable by the hearings examiner in the proceeding. No fewer than 60 days from the final publication of notice shall pass before the demand studies required by subsection (b)(3) of this section are initiated. New petitioners for extended area service into the metropolitan exchange may be accepted prior to the initiation of the demand studies. (2) Community of interest. (A) Upon receipt of a proper filing under the provisions set out in subsection (b)(1) of this section, the utility(ies) involved will be directed by the commission staff to initiate appropriate calling usage studies and, thereafter, within 90 days of receipt of such notification, file with the commission staff and a representative of the petitioning exchange the results of such studies. The message distribution and revenue distribution detail from the studies are to be considered proprietary unless the parties agree otherwise and may not be released for use outside the context of the commission's proceedings. The data to be filed shall be based upon a minimum 60-day study of representative calling patterns, shall be in such form, detail, and content as the commission staff may reasonably require and shall include at a minimum, the following information: (i) the number of messages and either minutes-of-use or billed toll revenues, expressed per customer account per month, in each direction over the route being studied segregated between business and residence users and combined for both; (ii) a detailed analysis of the distribution of calling usage among subscribers, in each direction over the route being studied, showing the number of subscriber accounts placing zero calls, one call, etc., through ten calls, the number of subscriber accounts placing between 11 and 20 calls, the number placing between 21 and 50 calls, and the number of subscriber accounts placing more than 50 calls, per month; (iii) data showing, by class of service, the number of subscriber accounts in service for each of the exchanges being studied; (iv) the distance between rate centers, and the average revenue per message for the calls during the study period; (v) the number of foreign exchange (FX) lines in service over each route and the estimated average calling volumes on these lines expressed as message per month; and (vi) a listing of known interexchange carriers providing service between the petitioning exchange and the exchange to which EAS is desired. (B) A showing that a reasonable degree of community of interest between exchanges will be considered to exist from one exchange to the other when: (i) there is an average (arithmetic mean) of no less than ten calls per subscriber account per month from one exchange to the other; and (ii) no less than two-thirds of the subscribers' accounts place at least five calls per month from one exchange to the other. (C) Requests for EAS not processed under subsection (b)(1)(F) of this section shall be assigned a project number to establish its place in a queue and notice shall be provided, pursuant to the provisions set out in subsection (b) (7) of this section, whenever a reasonable community of interest is found to exist as described in subparagraph (B) of this paragraph: (i) on a bilateral basis between exchanges; or (ii) on a unilateral basis from the petitioning exchange to the other exchange. (D) The project shall be established as a formal docket upon the motion of General Counsel. (E) Following the docketing of a request, a prehearing conference will be scheduled to establish the exchange to which EAS is sought, and to report any agreements reached by the parties. The utility(ies) involved shall conduct appropriate demand and costing analyses according to subsections (b)(3) and (4) of this section. (3) Demand analysis. (A) The utility(ies) involved shall conduct analyses of anticipated demand for the requested extended area service. The data to be filed shall be in such form, detail, and content as the commission staff may reasonably require and shall include, at a minimum, the following information: (i) the number of subscribers who are expected to take the requested service at the estimated rates recommended pursuant to subsection (b)(5) of this section and the associated probability of that level of subscribership; (ii) the anticipated stimulation effects which would be applied to the present traffic volumes generated by the subscribers anticipated by clause (i) of this subparagraph; and (iii) the total volume of traffic upon which to base the anticipated switching and trunking requirements resulting from clauses (i) and (ii) of this subparagraph. (B) Unless the utility(ies) demonstrate good cause to expand the time schedule, no later than 120 days after the prehearing conference, the utility(ies) shall file with the commission staff and other parties to the proceeding the summary results of these analyses, together with supporting schedules and detailed documentation as will permit the identification of study components and verification and understanding of study results. (4) Determination of costs. (A) The utility or utilities involved shall conduct studies necessary to determine the changes in costs and revenues which may reasonably be expected to result from establishment of the requested extended area service. These studies will consider and develop the long run incremental costs as follows: (i) switching and trunking costs associated with existing toll traffic which converts to extended area service traffic plus the costs of switching and trunking required to handle the additional traffic as determined in subsection (b)(3)(A)(ii) of this section; (ii) the increases and decreases in expenses resulting from the new service and the net effect on operating expenses; and (iii) direct costs incurred by the utility(ies) in conducting demand analyses in compliance with subsection (b)(3) of this section. (B) The utility(ies) may analyze the effect on toll revenues in order to present evidence on the overall revenue effects of providing the requested EAS. Revenue effects supported by such evidence, if presented, may be included in the EAS rate additives specified in subsection (b)(5)(D) of this section. (C) The utility(ies) shall file with the commission staff and other parties to the proceeding the summary results of these studies, together with such supporting schedules and detailed documentation as will permit the identification of study components and verification and understanding of study results according to the following schedule, unless the utility(ies) can demonstrate that good cause exists to expand the time schedule for a particular study: (i) incremental costs identified in paragraph (1) of this subsection shall be filed no later than 90 days from the filing of the results of the demand analysis conducted pursuant to subsection (b)(3) of this section; and (ii) toll revenue effects, if analyzed pursuant to subparagraph (B) of this paragraph, shall be filed no later than 90 days from the filing of the results of the incremental costs, pursuant to clause (i) of this subparagraph. (5) Extended area service rate additives. (A) Coincident with the filing of cost study results, or coincident with the toll revenue effect results, if filed, the utility(ies) shall submit recommendations for proposed incremental rate additives, by class of service, necessary to support the cost of the added service, as well as to support the toll revenue effect, if such effect is filed. (i) The extended area rate additives to be assessed on EAS subscribers in the petitioning exchange(s) are to recover the incremental cost of providing the service as identified according to subsection (b)(4)(A) of this section plus 10% of the incremental cost. (ii) The rate additives to be assessed on subscribers in the metropolitan exchange for which EAS has been requested are to recover revenues determined by the following formula: net lost toll multiplied by the percent outbound toll and multiplied by the estimated EAS take-rate. The terms in the formula are defined as follows: (I) net lost toll-lost toll revenue as identified according to subsection (b)(4)(B) of this section less the revenue recovered through the EAS rate additive identified in subsection (b)(5)(A)(i) of this section; (II) percent outbound toll-this factor is calculated by dividing toll minutes of use originating in the metropolitan exchange and terminating in the petitioning exchanges by the total number of toll minutes of use between the metropolitan exchange and the petitioning exchange(s); and (III) estimated EAS take-rate-the estimated number of EAS subscribers in the petitioning exchanges divided by the total number of subscribers in the petitioning exchange(s). (iii) Tel-Assistance subscribers in the metropolitan exchange will not be assessed this rate additive. (B) Service connection charges will be applicable. (C) A non-recurring charge to defray the direct incremental costs of the demand analyses identified in subsection (b)(4)(A)(iii) of this section shall be charged to subscribers who order the service within 12 months from the time it is first offered. The non-recurring charge shall not exceed $5.00 per access line. (D) The EAS rate additive to be used in the affected exchange(s) must meet the following standards. (i) No increase in rates shall be incurred by the subscribers of nonbenefitting exchanges, that is, by subscribers whose calling scopes are not affected by the requested EAS service. (ii) If the petitioning exchange has demonstrated a unilateral but not a bilateral community of interest through the requirements of subsection (b)(2)(C)(i) of this section, the EAS arrangements will be priced using those rate increments designed to recover the added costs for each route, plus the toll revenue effect, if found reasonably substantiated. The total increment chargeable to subscribers within an exchange will be the sum of the increments of all new extended area service routes established for that exchange after the effective date of this section. (iii) If the petitioning exchange demonstrated a bilateral community of interest through the requirements of subsection (b)(2)(C)(i) of this section and has requested that the costs be borne on a bilateral basis, the additional cost for the new EAS route will be divided between the two participating exchanges according to the ratio of calling volumes between the two exchanges. (iv) In establishing a flat-rate EAS increment, all classes of customer access line rates within each exchange shall be increased by equal percentages. (6) Subscription threshold. (A) A threshold demand level shall be established by the commission's order in the docketed proceeding prior to the design or construction of facilities for the service. A reasonable pre-subscription process will then be undertaken to determine the likely demand level. If the likely demand level equals or exceeds the threshold demand level, then EAS shall be provided in accordance with the commission's order. If the threshold demand level is not met, the affected utility(ies) shall be relieved of any duty or obligation to provide the EAS approved by the commission. (B) The cost of pre-subscription shall be divided between the utility and the petitioners. The petitioners shall pay for the printing of bill inserts and ballots and the utility shall insert them in bills free of charge. In the alternative, upon the agreement of the parties, the utility shall provide, free of charge, and under protective order, the mailing labels of the subscribers in the petitioning exchange, and the petitioners shall pay the cost of printing and mailing the bill inserts and ballots. (7) Notice. (A) Notice of the assignment of a project number, pursuant to subsection (b)(2)(C) of this section, must be provided to all subscribers within the petitioning exchange(s), by publication for two consecutive weeks in a newspaper of general circulation in the area. Notice must also be given to individual subscribers either through inserts in customer bills, or through a separate mailing to each subscriber. The notice must state: the project number, the nature of the request, and the commission's mailing address and telephone number to contact in the event an individual wishes to protest or intervene. The commission shall also publish notice in the Texas Register. (B) Written notice containing the information described above shall be provided to the governing official(s) of all incorporated areas within the affected exchanges and the county commission(s) or the board of directors or trustees of a community association representing any unincorporated areas within the affected exchanges. (C) The cost of notice shall be borne by the petitioners. (8) Joint filings. (A) EAS agreements. The commission may approve agreements for EAS or EAS substitute services filed jointly by the representatives of petitioning exchanges and the affected utility(ies) (joint filings) so long as the agreements are in accordance with subparagraphs (C)(i)-(ix) of this paragraph. (B) Multiple exchange common calling plans. Joint filing agreements for EAS or EAS substitute services among three or more exchanges shall be permitted pursuant to subparagraphs (C)(i)-(x) following. (C) Joint filings shall be permitted subject to the following: (i) The parties to such joint filings shall include the name of each local exchange company (LEC) which provides service in the affected exchanges and for each of the affected exchange. Each exchange representative shall be designated jointly by the governing officials of all incorporated areas within the affected exchange and the county commission(s) representing any unincorporated areas within the affected exchange. (ii) These joint filings are exempt from the traffic requirements contained in subsection (b)(2) of this section. (iii) These joint filings may include rate proposals which are flat-rate, usage-sensitive, block rates, or other pricing mechanisms. In the circumstance where usage-sensitive rates are proposed, the joint applicants shall include the commission staff in its negotiations. (iv) These joint filings may propose either one-way or two-way calling arrangements. (v) These joint filings may propose either optional or non-optional calling arrangements. (vi) These joint filings shall specify all non-recurring and recurring rate additives to be paid by the various classes and grades of service in the affected exchanges. (vii) These joint filings shall demonstrate that the proposed rate additives: (I) are in the public interest, and in the case of non-optional joint filings which include flat-rate additives, the petition shall demonstrate that more than 50% of the total subscribers who will experience a rate change are in favor of this joint filing at the proposed rates; and (II) shall recover, for the local exchange company providing the service, the appropriate cost of providing EAS including a contribution to joint costs. (viii) The notice requirements of subsection (b)(7) of this section are applicable to joint filings. In addition, the commission shall publish notice of the proposed joint filing in the Texas Register and shall provide notice to the Office of Public Utility Counsel upon receipt of the joint filing. (ix) If intervenor status is not requested within 60 days of notice, the joint filing shall be handled administratively, with the commission determining whether the service meets the criteria listed in clause (vii) of this subparagraph. If there is an intervenor, or if requested by the commission staff, the joint filing shall be docketed for hearing and final order. In any event, any of the parties to the joint filing may withdraw the joint filing without prejudice at any time prior to the rendition of the final order. Any alteration or modification of the joint filing by the commission may only be made upon the agreement of all parties to the proceeding. (x) The exchanges to be included within the proposed common calling plan area shall be contained within a continuous boundary and all exchanges within that boundary shall be included in the common calling plan. (c) Expanded toll-free local calling areas. (1) Petition for expanded toll-free local calling. (A) Filing a petition. In order to be considered by the commission a request for expansion of two-way toll-free local calling areas may be initiated by filing a petition with the commission. The petition shall be initiated by one or more of the following actions: (i) a petition signed by the greater of 5.0% or 100 subscribers in the exchange from which the petition originates; (ii) a resolution endorsing and adopting a petition described in clause (i) of this subparagraph and filed with the commission by the governing body of a political subdivision that said governing body properly represents an area within the exchange requesting expanded toll-free local calling areas; or (iii) a resolution endorsing and adopting a petition described in clause (i) of this subparagraph and filed with the commission by the board of directors or trustees of a community association representing an unincorporated community within the exchange requesting expanded toll-free local calling areas. (B) Other filing requirements. When submitted for filing, the petition shall be accompanied by a filing letter. The petition and the accompanying filing letter shall contain the information described in subparagraph (C) of this paragraph. When filed, the petition shall be assigned a project number. A presiding officer shall be assigned and the petition shall be reviewed administratively, under the provisions of Chapter 22, Subchapter C, sec.22.32 (relating to Administrative Review), unless the presiding officer, for good cause, determines at any point during the review that the petition should be docketed. Within five working days of receipt by the general counsel of a filed petition, the general counsel shall send a copy of the petition and the letter by certified mail to each local exchange company (LEC) serving either a petitioning or petitioned exchange. (C) Contents of a petition and filing letter. (i) Filing Letter. (I) Contact Person. The letter asking the commission to accept a petition for filing shall designate a contact person to respond to inquiries about the petition. The name, address, and daytime telephone number of the contact person shall be identified in the letter. (II) Community of Interest Affidavit or Statement. If the petitioning and petitioned exchanges do not meet the geographic requirement set forth in paragraph (3)(B) of this subsection, the letter requesting that the petition be filed with the commission shall also contain an affidavit or statement describing the community of interest between the petitioning and petitioned exchanges. The standards that will be used by the presiding officer in deciding whether a community of interest exists, and whether an affidavit or a statement is required in the filing letter, are stated in paragraph (3)(C) of this subsection. If the applicable standard for determining whether a community of interest exists is the standard discussed in paragraph (3)(C)(i) of this subsection, the statement by the person filing the letter must describe the existence of a community of interest with the petitioned exchange(s) in sufficient detail so as to allow for verification of the assertions made in the statement. If more than one petitioned exchange is included in the petition, the affidavit and/or statement required by this subclause shall refer with particularity to the factors describing the community of interest between the petitioning exchange and each petitioned exchange. (III) Statement of changed circumstances. If the subscribers in the petitioning exchange have denied by ballot a petition for expanded toll-free local calling to any one or more of the same petitioned exchange(s) within the previous 18 months, the filing letter shall contain a statement explaining what circumstances have changed since the time of the prior ballot that materially affect the need for expanded toll-free local calling between the petitioning and petitioned exchanges. For purposes of this subsection, a petition is denied by ballot if it fails to receive an affirmative vote of at least 70% of the voting subscribers in the petitioning exchange. If more than one petitioned exchange is included in the petition and is subject to the requirements of this subclause, the statement required by this subclause shall refer with particularity to the changed circumstances affecting the need for expanded toll-free local calling between the petitioning exchange and each such petitioned exchange. (ii) Petition. (I) General. A single petition may request expansion of toll-free local calling areas from a single petitioning exchange into multiple petitioned exchanges. (II) Signature pages. Each signature page of the petition for expanded toll- free local calling shall include: (-a-) the name and telephone number of a petition coordinator, who is the person signatories may contact for further information about the petition; (-b-) the name, or the area code and prefix, of the exchange from which the petitioners receive service (the petitioning exchange); (-c-) the name, or the area code and prefix(es), of the exchange(s) to which expanded toll-free local calling is sought (the petitioned exchange(s); (-d-) a clear statement that only subscribers in the petitioning exchange may sign the petition; (-e-) a clear statement that subscribers in the petitioning exchange will be required initially to pay a monthly expanded toll-free local calling fee of up to $3.50 per residential line and $7.00 per business line, in addition to basic local exchange service rates; (-f-) a clear statement that there must be an affirmative vote of at least 70% of those subscribers responding within the petitioning exchange as to each petitioned exchange before the expanded toll-free local calling can be implemented to that petitioned exchange; and (-g-) if more than one exchange is petitioned, a clear statement that $3.50 per residential line and $7.00 per business line is for all exchanges petitioned, not for each exchange petitioned. (III) Signature requirement. A petition must be signed by at least 100 subscribers or 5.0% of the subscribers in the petitioning exchange, whichever is less. Each signatory shall include his or her name and telephone number on the petition. (2) Initial review of a petition. (A) The presiding officer shall, by order issued within 20 days of the filing of the petition, determine if the petition and the accompanying filing letter are sufficient or if they are deficient as to any of the requirements of paragraph (1)(C) of this subsection. If the presiding officer finds that the petition or letter is deficient, the presiding officer shall notify the designated contact person so that the contact person may cure any such deficiencies. The petition or filing letter may be cured within 35 days of its initial filing, and if it is not cured by the subsequent filing of sufficient information within that time, the presiding officer shall dismiss the petition (in whole, if appropriate, or in relevant part), without prejudice to the filing of another petition involving the same petitioning and petitioned exchanges. (B) The presiding officer shall, by order issued no later than 20 days after the filing of the petition, determine whether a statement of changed circumstances required by paragraph (1)(C)(i)(III) of this subsection justifies allowing another ballot sooner than 18 months after the denial by ballot of a prior petition involving the same petitioning and petitioned exchanges. If the presiding officer finds that the statement does justify allowing another ballot sooner than 18 months, the general counsel and commission staff shall continue to review the petition administratively. If the presiding officer finds that the statement does not justify allowing another ballot sooner than 18 months, the presiding officer shall dismiss the petition (in whole, if appropriate, or in relevant part). (C) If the petitioning exchange serves more than 10,000 lines, the presiding officer shall issue an order dismissing the petition within 20 days of the filing of the petition. (D) The general counsel and commission staff shall continue to review administratively any remaining relevant parts of the petition, as ordered by the presiding officer pursuant to subparagraphs (A)-(C) of this paragraph. (3) Geographic proximity or community of interest requirement. (A) The presiding officer shall, by order issued no later than 20 days after determining that the petition and accompanying cover letter are sufficient or that any deficiencies have been cured, determine whether the petitioning exchange and each petitioned exchange satisfy either the geographic proximity requirement set forth in subparagraph (B) of this paragraph or the community of interest requirement set forth in subparagraph (C) of this paragraph. If the presiding officer determines that neither the geographic proximity nor the community of interest requirements are satisfied, the presiding officer shall dismiss the petition (in whole, if appropriate, or in relevant part). (B) The geographic proximity requirement is satisfied as to each petitioned exchange if: (i) the exchange boundaries are contiguous; or (ii) the distance between the petitioning exchange and the petitioned exchange is 22 miles or less, where the distance between the two exchanges is measured: (I) by using the same vertical and horizontal (V & H) coordinates for each of the exchanges that the LECs use to rate interexchange calls from or to such exchanges; (II) as the nearest point between the two exchange boundaries; or (III) as the distance between the central office of the petitioning exchange and the border of the petitioned exchange. (C) A community of interest between a petitioning exchange and a petitioned exchange exists, for purposes of this subsection, when the most distant central offices affected by the petition are within 50 miles of each other, and: (i) the filing includes information demonstrating that the petitioning and petitioned exchanges have a relationship because of schools, hospitals, local governments, or business centers, or that the petitioning or petitioned exchanges have other relationships that would make the unavailability of extended local service a hardship to the residents of the area; or (ii) the filing letter contains an affidavit stating that any one of the following conditions exists: (I) the petitioning exchange and the petitioned exchange have a public school district in common; (II) the county seat of the petitioning exchange is located in the petitioned exchange; or (III) the primary local hospital used by residents in the petitioning exchange is located in the petitioned exchange. (D) The general counsel and commission staff shall continue to review administratively any remaining relevant parts of the petition, as ordered by the presiding officer pursuant to subparagraph (A) of this paragraph. (4) Request for exemption. (A) A LEC serving either the petitioning or petitioned exchange may file a request for exemption from the provisions of this subsection. Such requests must be filed no later than 20 days after the filing of the petition. The request for exemption shall be accompanied by an affidavit identifying with particularity which of the conditions described in this subparagraph exist. If the petition includes more than one petitioned exchanges, the request for exemption shall clearly identify which conditions apply to which exchanges. Exemptions shall be granted and the petition shall be dismissed by the presiding officer, in the manner described in subparagraphs (B) and (C) of this paragraph, if: (i) the LEC serves fewer than 10,000 lines; (ii) the petitioning or petitioned exchange is served by a cooperative; (iii) EAS or extended metropolitan service is currently available between the petitioning exchange and the petitioned exchange; (iv) the petitioning or petitioned exchange is a metropolitan exchange; or (v) it is technologically or geographically infeasible to serve the area. (B) If the LEC's affidavit described in subparagraph (A) of this paragraph identifies one of the conditions described in subparagraph (A)(i)-(iv) of this paragraph, the presiding officer shall, by order issued no later than 40 days after the filing of the petition, grant the exemption and dismiss the petition (in whole, if appropriate, or in relevant part). (C) If the LEC has requested an exemption based on subparagraph (A)(v) of this paragraph, the presiding officer shall, by order issued no later than 40 days after the filing of the petition, determine whether the LEC has made a good and sufficient showing in its affidavit that technology is not available in the marketplace to make the expansion of toll-free local calling feasible. If the presiding officer determines that the LEC in its affidavit has failed to establish that such technology is not available in the marketplace, the exemption request shall be denied. If the presiding officer determines that the LEC in its affidavit has made a good and sufficient showing that such technology is not available in the marketplace, the exemption request shall be granted. If the exemption request is granted, the presiding officer shall dismiss the petition (in whole, if appropriate, or in relevant part). (D) The general counsel and commission staff shall continue to review administratively any relevant parts of the petition, as ordered by the presiding officer pursuant to subparagraphs (A)-(C) of this paragraph. (5) Balloting. If all applicable requirements contained in paragraphs (1)-(3) of this subsection have been met, and no exemption has been granted pursuant to paragraph (4) of this subsection, the presiding officer shall, by order issued no later than 40 days after determining that the petition and accompanying cover letter are sufficient or that any deficiencies have been cured, direct the LEC serving the petitioning exchange to begin balloting the subscribers in that exchange, and shall notify the designated contact person that balloting will take place. (A) The cost of preparing and distributing the ballots shall be borne by the LEC serving the petitioning exchange, as a regulatory case expense. (B) No later than 30 days after the presiding officer's order directing the LEC serving the petitioning exchange to begin balloting, that LEC shall distribute a ballot, in English and Spanish, to each subscriber in the petitioning exchange. The ballot shall require a separate vote for each petitioned exchange. The ballot must be in a standard form approved by general counsel and each ballot shall include: (i) a statement explaining the service; (ii) a statement that subscribers in the petitioning exchange have petitioned to expand the toll-free local calling area into the named exchange(s); (iii) a description of the proposed expanded local service calling area, including an identification of the petitioning exchange and each petitioned exchange for which toll-free local calling is sought; (iv) a statement that if at least 70% of those subscribers responding vote "yes" as to any petitioned exchange: (I) subscribers in the petitioning exchange will be temporarily required to pay a monthly fee of up to $3.50 per residential line and $7.00 per business line, in addition to the company's local exchange service rates; (II) the amount of the temporary monthly additional fee for each subscriber in the petitioning exchange will depend on the costs incurred by the company in providing the service, but cannot exceed $3.50 per residential line or $7.00 per business line; and (III) the temporary additional fee will be charged to all subscribers in the petitioning exchange until the company's next general rate case; (v) unambiguous instructions for voting; (vi) the following statement in large print: "It is important that you return this ballot. If you are in favor of obtaining Expanded Toll-Free Local Calling to a listed exchange, check the box labeled 'YES' next to that exchange. If you do not want Expanded Toll-Free Local Calling to a listed exchange, check the box labeled 'NO' next to that exchange"; (vii) a statement that a petitioned exchange will be included in the expanded toll-free local calling area only if at least 70% of the subscribers responding vote affirmatively for that exchange; (viii) the date by which the returned ballot must be postmarked, which date shall be 15 days from the date of the mailing of the ballot to the customer; (ix) the address to which the ballot should be returned upon completion of voting, identifying the commission as the recipient of the returned ballots; and (x) a unique identification number assigned by the LEC serving the petitioning exchange to each subscriber in that exchange. (C) No later than 35 days after the presiding officer's order to the LEC serving the petitioning exchange to begin balloting, that LEC shall submit to the commission staff a master list of all subscribers within the petitioning exchange in an electronic spreadsheet format prescribed by the commission staff. The LEC shall classify the master list as confidential, and the list will be treated as such by the commission under the provisions of the Government Code, Title 5, Chapter 552. The master list shall be arranged sequentially by billing number and shall include for each subscriber in the petitioning exchange: (i) the billing name; (ii) the billing number; (iii) the service address; (iv) the mailing address; (v) the class of service; and (vi) the unique identification number assigned to the subscriber by the LEC. (D) The general counsel shall, by written pleading filed no later than 15 days after the final date stated on the ballot for return of the ballot, notify the presiding officer, the contact person, and the affected LECs of the results of the ballot. The pleading shall specify the results of the ballot for each petitioned exchange. (i) If at least 70% of those subscribers responding vote affirmatively as to any petitioned exchange, the LEC serving the petitioning exchange shall file with the commission, no later than 30 days after the filing of general counsel's pleading notifying the LEC of the results of the ballot, the LEC's proposed implementation schedule and its proposed schedule of fees described in paragraph (6)(B) of this subsection. The filing shall include a study justifying all of the costs incurred by the petitioning LEC in providing the requested expansion of toll-free local service. The implementation schedule shall be expeditious, and shall explain and justify the reasons for the time required. No later than 15 days after the LEC's filing of its proposed fees and costs, the presiding officer shall issue an order granting interim approval of the LEC's proposed fees as temporary fees, which may be charged by the LEC no sooner than the first billing cycle following implementation of expanded toll-free local calling from the petitioning exchange. All fees given interim approval are subject to refund. No later than 30 days after the LEC's filing of its implementation plan, the presiding officer shall issue an order approving, modifying, or denying the LEC's implementation schedule. (ii) If at least 70% of those responding do not vote in favor of expanding toll-free local calling to a petitioned exchange, the presiding officer shall, by order issued no later than 30 days after the filing of general counsel's pleading notifying the presiding officer of the results of the ballot, deny the petition (in whole, if appropriate, or in relevant part). (6) Fees. (A) Notwithstanding the provisions of subparagraph (B) of this paragraph, a LEC may not recover regulatory case expenses under this subsection by surcharging subscribers. (B) A LEC serving either a petitioning or petitioned exchange, or serving as a transporting LEC, shall recover all of its costs incurred and all loss of revenue from any expansion of toll-free local calling areas. Clause (i) of this subparagraph applies only to the LEC serving the petitioning exchange. Clause (ii) of this subparagraph applies to LECs serving either petitioning or petitioned exchanges, and to LECs serving as transporting LECs in connection with the provision of expanded toll-free local calling service. A LEC may recover its costs and lost revenue by: (i) imposing a monthly fee for toll-free local calling service of not more than $3.50 per line for residential customers nor more than $7.00 per line for business customers, to be collected from all such residential or business customers in the petitioning exchange and only until the LEC's next general rate case. In the event a monthly fee for toll-free local calling service for all of the LEC's local exchange service customers in the state is imposed, the fee imposed under this clause (i) shall, to the extent necessary, be reduced by the amount required to ensure that in no case shall a residential line in the petitioning exchange be surcharged a total of more than $3.50 or a business line a total of more than $7.00; and/or (ii) imposing a monthly fee for toll-free local calling service upon all of its local exchange service customers in the state in addition to its current local exchange rates. (C) Applications filed pursuant to subsection (c)(6)(B)(ii) by LECs serving petitioned exchanges, or by transporting LECs, to recover their costs and loss of revenue shall not delay implementation of expanded toll-free local calling service to the petitioning exchange. Paragraph (12) of this subsection provides the applicable procedure for the recovery of costs and lost revenue by LECs serving petitioned exchanges and by transporting LECs. (7) Proceedings After Interim Approval. Within 30 days of the issuance of an order under paragraph (5)(D)(i) of this subsection granting interim approval of temporary fees to be charged by the LEC serving the petitioning exchange, any interested person, including general counsel, may request that the presiding officer docket the petition in order to allow the parties to further investigate the fees proposed by the LEC or the costs underlying such fees. Upon receipt of any such request, the presiding officer shall establish a procedural schedule that allows for the issuance of an order finally approving or modifying such fees no later than 210 days after the interim approval of the temporary fees. If no such request for further investigation is timely filed, the presiding officer shall, within 60 days after the order granting interim approval of temporary fees, issue an order finally approving or modifying the fees to be charged by the LEC serving the petitioning exchange. (8) Notice. Notice of the filing of the petition must be given to all subscribers in the petitioning exchange by publishing, one time in a newspaper of general circulation in the petitioning exchange, not less than 15 days before any ballots are mailed, all of the information to be included on the ballot, except for the information described in paragraph (5)(B)(v), (vi), and (viii)- (x) of this subsection. Notice must be given in both English and Spanish. The LEC serving the petitioning exchange shall bear the cost of notice, as a regulatory case expense. (9) Intervention. Any interested person with a justiciable interest may intervene in the project. The presiding officer shall rule within ten days on any request for intervention. Intervention by an interested person does not by itself require that the project be docketed. (10) Docketing. If at any time a party requests that a petition be docketed, the petition shall be docketed. If a petition is docketed, the presiding officer shall impose procedural timelines that will allow the presiding officer to order interim approval of temporary fees within 205 days after issuance of the order described in paragraph (2)(B) of this subsection determining that the petition and accompanying cover letter are sufficient or that any deficiencies have been cured. (11) Petitions filed prior to adoption of this subsection. A petition for expanded toll-free local calling that was filed with the commission before the effective date of this subsection, shall not be dismissed solely because it does not comply with the requirements of paragraphs (1) and (2) of this subsection. The presiding officer shall ensure compliance with all requirements of Senate Bill 632, 73rd Legislature, 1993, and may require such information from the person filing the petition as is necessary and appropriate to assure such compliance. The presiding officer assigned to such a petition shall establish a procedural schedule for such a petition that allows for interim approval within 205 days after the presiding officer obtains from the contact person all of the information necessary and appropriate to ensure the requirements of Senate Bill 632 as set forth in subsection (c)(1) and (2) of this section have been met. (12) Separate proceeding for LECs other than the LEC serving the petitioning exchange. A LEC, other than the LEC serving the petitioning exchange, that incurs costs or loses revenue from any expansion of toll-free local calling areas may request commission approval to impose the monthly fee described in subsection (c)(6)(B)(ii) of this section. Such an application shall not require a revenue requirement showing. The LEC shall file with the commission its proposed schedule of fees. The filing shall include a study justifying all of the costs incurred, and all revenue lost, by the LEC in providing the expansion(s) of toll-free local calling areas. The filing shall be assigned a project number. A presiding officer shall be assigned and the filing shall be reviewed administratively, under the provisions of Chapter 22, Subchapter C, sec.22.32 (relating to Administrative Review), unless the presiding officer, for good cause, determines at any point during the review that the petition should be docketed. No later than 45 days after the LEC's filing of its proposed fees and costs, the presiding officer shall issue an order granting interim approval of the LEC's proposed fees as temporary fees, which may be charged by the LEC no sooner than the first billing cycle following implementation of the relevant expansion(s) of toll-free local calling areas. All fees given interim approval are subject to refund. Within 30 days of the issuance of an order granting interim approval of temporary fees to be charged by the LEC, any interested person, including general counsel, may request that the presiding officer docket the filing in order to allow the parties to further investigate the fees proposed by the LEC or the underlying costs of such fees. Upon receipt of any such request, the presiding officer shall docket the filing and establish a procedural schedule that allows for the issuance of an order finally approving or modifying such fees no later than 210 days after the interim approval of the temporary fees. If no such request for further investigation is timely filed, the presiding officer shall, within 60 days after the order granting interim approval of temporary fees, issue an order finally approving or modifying the fees to be charged by the LEC serving the petitioning exchange. 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 November 16, 1993. TRD-9332188 John M. Renfrow Secretary of the Commission Public Utility Commission of Texas Effective date: December 7, 1993 Proposal publication date: August 3, 1993 For further information, please call: (512) 458-0100 TITLE 30. ENVIRONMENTAL QUALITY Part I. Texas Natural Resource Conservation Commission Chapter 114. Control of Air Pollution From Motor Vehicles Motor Vehicles 30 TAC sec.114.3 The Texas Natural Resource Conservation Commission (TNRCC), formerly the Texas Air Control Board (TACB), adopts the repeal of sec.114.3 and new sec.114.3, concerning the Vehicle Emissions Inspection/Maintenance (I/M) Program. New sec.114.3 is adopted with changes to the proposed text as published in the July 27, 1993, issue of the Texas Register (18 TexReg 4938). The repeal to sec.114.3 is adopted without changes and will not be republished. (On September 1, 1993, authority for the adoption and administration of all TACB rules was transferred to TNRCC.) The existing sec.114.3 was proposed for repeal and a new sec.114.3 was proposed which contains I/M program-specific definitions; prohibitions on the operation of a motor vehicle without satisfying required inspection requirements; prohibitions on the improper issuance of a vehicle emissions certificate; a prohibition of the use or distribution of falsified inspection documents; requirements that I/M program contractors satisfy all applicable provisions of the Texas I/M State Implementation Plan (SIP); requirements that vehicles from state registration and certain fleet vehicles not registered, but primarily operated in an I/M program area comply with the emissions inspection requirements; requirements that federal agencies ensure that vehicles operated by federal employees on property under the agency's jurisdiction comply with the I/M program requirements; requirements that motorists comply with all emission- related recalls; requirements that owners of vehicles that are identified by on- road testing submit the vehicle for an out-of-cycle inspection and corrective action; provisions for receipt of minimum expenditure, hardship, and time extension waivers and other general exemptions; and specification of the model years subject to the inspection program and the applicable counties and compliance schedules. Revisions were also proposed to the SIP. TNRCC concurrently proposed a control strategy to implement vehicle emissions inspection programs in the Houston/Galveston and El Paso nonattainment areas that will meet or exceed the enhanced I/M performance standard established by the United States Environmental Protection Agency (EPA) and in the Dallas/Fort Worth and Beaumont/Port Arthur nonattainment areas that will meet or exceed the basic I/M performance standard established by EPA. This control strategy addresses specific program requirements in accordance with EPA rules promulgated on November 5, 1992. Since I/M program modifications could be necessary if EPA deter- mined that additional measures as needed to meet Federal Clean Air Act (FCAA) Amendments of 1990, the TNRCC solicited testimony relating to the proposals: consideration of a hardship waiver and other measures to mitigate the economic impact on low- income motorists; consideration of emission repair technician training and certification; and consideration of additional program measures, such as additional model years or an alternative set of model years to be included in high-tech testing, increased frequency of emissions testing, or increased waiver requirements. The FCAA Amendments required states with moderate, serious, or severe ozone nonattainment areas or carbon monoxide nonattainment areas to submit revisions to their SIPs by November 15, 1992, that identify and adopt specific vehicle I/M programs for the control of in-use vehicle emissions. However, EPA did not issue rules for basic or enhanced I/M programs until November 5, 1992. States were permitted to submit revised SIPs to address vehicle I/M programs by November 15, 1993. Public hearings were held to discuss the SIP proposal and the proposed rule revisions in Houston, Beaumont, El Paso, and Irving. Testimony was received from 23 commenters during the comment period which ended August 27, 1993. The following companies or agencies made specific comments: Specialty Equipment Market Association (SEMA); Automotive Restorative Services (ARS); Galveston- Houston Association for Smog Prevention (GHASP); Automotive Service Association (ASA), Fort Worth Chapter; Consumers Union (CU), Southwest Regional Office; EPA, Region 6; Texas Automobile Dealers Association (TADA); City of Houston (COH) Bureau of Air Quality Control; Texas Vehicle Club (TVC); and the Texas Department of Transportation (TxDOT). Sixteen written and ten oral comments were received during this comment period compared to 73 written and 36 oral comments received during the comment period for a series of public hearings, preceding the I/M Committal SIP of 1992. TNRCC believes that the small turnout to these public hearings was due to the TNRCC's extensive meetings with Metropolitan Planning Organizations and special interest groups during the preceding year in which most of the previous concerns were resolved. GHASP suggested that the enhanced I/M program should start in 1995 instead of 1997 for Chambers, Liberty, and Waller Counties because the FCAA Amendments require states to implement I/M programs "as expeditiously as practical." TNRCC is proceeding as expeditiously as practical to develop the inspection network and initiate testing within the additional counties within the urbanized area as required by the FCAA Amendments of 1990. The addition of Chambers, Liberty, and Waller Counties, which are in the Houston-Galveston Consolidated Metropolitan Statistical Area, exceeds the minimum federal requirement for an I/M program. However, these counties were added to obtain further emission reductions toward the reasonable further progress and attainment demonstration SIP revisions. An individual from the Dallas/Fort Worth area suggested the addition of Rockwall, Kaufman, Ellis, Johnson, Parker, and Wise Counties because cars from these counties are driven into the Dallas/Fort Worth area. These vehicles can be found in parking facilities in and around Dallas/Fort Worth. These nearby counties are not in the nonattainment area and are not required by the FCAA Amendments to participate in an I/M program. TNRCC cannot include counties that meet the ozone standards unless these counties elect to participate. TNRCC plans to contact large employers and ask for their assistance in identifying vehicles operating in the nonattainment area, but registered in another county and encouraging employees to participate with the I/M program. A commenter from the Beaumont/Port Arthur area believed that as much as one- third of the transportation moving through Orange, Port Arthur, and Beaumont is from out-of-state or out-of-the country. Furthermore, the commenter contended that people living in Orange, Jasper, and Newton Counties are coming into the nonattainment area because of the refineries. This commenter believed that the people living in the nonattainment area were burdened with the program when they did not cause the problem. The I/M program is federally mandated in serious ozone nonattainment areas, which includes Orange and Jefferson Counties regardless of the cause of the exceedance. Fleets primarily operating in the nonattainment area, even if not registered in the nonattainment area are also required to comply with vehicle emission inspection requirements. An Automotive Service Excellence Certified Technician questioned the economical feasibility of the Beaumont/Port Arthur I/M program regardless of the proposal. The individual was concerned with the ability of repair technicians to profitably operate a test facility. The Managing Contractor's network in Beaumont/Port Arthur is managed jointly with the Houston-Galveston area and is contractually one area, the Southeast Region Contract area. Thus, all the overhead for the program is not borne by facilities conducting few tests. The Managing Contractor provided information that demonstrated that the network is economically viable. The network was designed to meet throughput capacity for the busiest time of day, time of month, and time of year. In addition, the network was designed on a facility per-lane basis using current and adjusted future volumes. The price of the inspection is set by contract and both the operating contractor and managing contractor receive a fixed portion of the test fee. The vehicle emissions test in Beaumont/Port Arthur is a less costly test than the one performed in the Houston/Galveston area, so the fee in Beaumont/Port Arthur is 65% or less than the Houston/Galveston area fee. The biennial emissions inspection in the Beaumont/Port Arthur area should cost the consumer less than $15 dollars every two years. EPA stated that the SIP should include census data to verify geographical coverage. Since the Texas I/M program areas include the entire county, the census data is not relevant information. In addition, the submission of census data is not a requirement of EPA's Final I/M rule. After conversation with the TNRCC staff, EPA staff agreed that submittal of census data is not needed. EPA commented that the SIP should provide a plan on how the number of unregistered vehicles will be identified. TNRCC is currently developing a plan to identify vehicles that only initially register with the TxDOT and federal vehicles. This plan includes the development of a fleet data base that will track all subject fleet vehicles. These subject fleets are also required by proposed Chapter 114, to register with TNRCC by March 1, 1994. A testing cycle for unregistered fleets is being developed with the input of the Managing Contractor to ensure compliance with the I/M requirements. Most of the federally owned vehicles operating on federal facilities in the I/M program areas will be identified through the assistance of the General Service Administration Regional Office in Fort Worth and the United States Postal Service of Region 6. TNRCC will request addresses of Texas federal facilities from the United States Department of Corrections Industries Division, who supply the vehicle license plate to these facilities. TNRCC will work with fleet managers of federal facilities to identify covered vehicles owned by the federal government. TNRCC will work with Base Commanders and facility directors/managers to assure that employee-owned vehicles operating on the facilities are in compliance with the emission inspection requirements. TNRCC will provide education of law enforcement officials through local governments, targeting local law enforcement officials, county judges, and justices of the peace. Since the local law enforcement authority can keep the fines that they collect, there will be a greater incentive to identify the unregistered vehicles. To identify fleets that may be operating in the area, but not registered in the nonattainment area, TNRCC will use local directories to seek out leasing agencies to notify them of their requirement to comply with the I/M program. In addition, in cooperation with Councils of Governments, TNRCC will identify major employers that serve as attractions for vehicles registered outside the nonattainment area. Fleet managers will be encouraged to make appointments for testing with the I/M program contractor. TNRCC has adopted additional language to the SIP narrative to more fully describe the plan for identification of an unregistered vehicle. An individual expressed concern that the emissions program will not address diesel emissions before 1997. Diesel vehicles are not major contributors to higher ozone concentrations. However, the I/M SIP revision states that diesel-powered vehicles may be added to the testing program at a later date. Contractors must be provided 120 day's notice prior to initiation of diesel testing. Diesel vehicles make up a smaller percentage of the vehicle population. However, due to less standardization in diesel vehicles, technology needs more development before mass testing is initiated. In addition, EPA is working on a policy for testing diesel vehicles. TNRCC does not want to establish rules in potential conflict with EPA's policy. However, when EPA's policy is final, TNRCC expects to add diesel-powered vehicles, possibly as early as 1997. TADA expressed concern that TNRCC will not enforce the requirement of notification of a waiver to a prospective buyer, and that the dealer or an individual buyer will have no knowledge of the waiver. Therefore, the buyer would have to bring the vehicle into compliance without having the benefit of valuing the vehicle with knowledge of the waiver. TADA suggested that a nonremovable label be place on the automobile that informs the next buyer about TNRCC waiver and also recommended that TNRCC promulgate the written form to be completed by the motorist to the prospective owner. The Managing Contractor is required to maintain a data base of the vehicles receiving waivers that permits prospective buyers the option to contact the Managing Contractor to determine if a vehicle, identified by the Vehicle Identification Number (VIN), has received a waiver. TNRCC believes that with public information, this notification that stays with the vehicle is the best protection for the consumer. A nonremovable label marking waived vehicles is not practical for three reasons: TNRCC does not have statutory authority from the Legislature to affix such a label and would not be able to obtain such authority until the Legislature reconvenes in 1995 by which time the I/M program will have already commenced; waivers are only valid for a single testing cycle (two years) at which time they expire; and California tried to utilize an added sticker, but was not able to find a label that was truly nonremovable. An individual recommended specific standards for waivers instead of 25% reduction. Since the FCAA Amendments of 1990 and EPA's Final I/M Rules qualify a vehicle for an emission inspection waiver based solely on expenditures and not on any other studies, the TNRCC proposal included a 25% reduction to help ensure that the failing vehicles would be repaired and not provide incentive for false repair expenditures. The reduction provision requires a decrease in emission levels proportional to the extent of the failure. The preceding individual also suggested (if retaining the 25% reduction) that for clarity the waiver language should specifically state that "No waiver shall be granted unless a 25% reduction in the difference between emissions during the initial test and the standards in the SIP can be attained." The Time Extension Waiver outlined in the I/M SIP is not dependent upon a 25% reduction. Therefore, the addition of the proposed statement referring that "No waiver unless..." is too broad. TNRCC recognizes the merit of the commenter's suggestion of a different way to calculate the 25% reduction (so that there is a 25% decrease based on the emission standard instead of 25% decrease from the initial test). This method would provide less incentive to pre-tamper with the vehicle in order to fraudulently elevate emissions readings during the first test, thus making it easier to attain a waiver. Revising the method for the calculation for the 25% requirement could also prevent a situation where false changes and no vehicle repairs were conducted. However, the adoption of any alternative calculation for the 25% reductions, would need to be considered in future rulemaking. Two ASA representatives stated that the 25% vehicle emission reduction requirement for a waiver was left out of an August 3, 1993, draft and should be retained as it is in the July 16, 1993, document. The reduction is needed to encourage actual repair work and will assist in reducing pollution from vehicle exhaust or evaporative losses. The August 3, 1993, draft was related to a repair technician's workshop and not a different draft of the SIP. TNRCC understands that the commenter is in favor of the 25% emission reduction requirement for a waiver. One individual suggested that a statement be added that requires the minimum expenditure criteria for a waiver to be met (spent) each biennium. TNRCC reviewed the minimum expenditure criteria and believes that the I/M SIP does contain provisions which limit the validity of the minimum expenditure waiver to one emission inspection cycle (two years) and which require motorists to submit to a separate waiver application with proof of the minimum emission- related expenditures each cycle. Since a minimum expenditure waiver will not be issued unless the prior provisions are met, TNRCC will receive proof that the minimum expenditure requirement was met (spent) for each minimum expenditure waiver issued. GHASP believed that the $75-$200 minimum expenditure in basic I/M areas is too low and that inspection of all model years (even in basic areas) should be required. GHASP also expected that basic program areas be designed for maximum effectiveness in reducing vehicle emissions. TNRCC did not consider increasing the minimum expenditure waiver amount in basic I/M areas since the required test procedures in basic and enhanced nonattainment areas differ. Furthermore, basic I/M programs do not have as great an emission reduction to achieve compared to enhanced programs and basic emission test procedures have less stringent cutpoints. Since less expensive vehicle repairs are needed in basic programs, increasing the waiver amount to $450 is unnecessary. Several ASA members expressed concern that the minimum expenditure (except in hardship) should be $450 to attract quality, honest, and certified repair technicians, to go a long way toward the goal of clean air and add parity for all affected areas. EPA set the $75 and $200 minimums in basic areas because they believed that most of the respective vehicles could be repaired to meet the performance standards for those dollar amounts. TNRCC recognizes that some repairs will cost more and wish to clarify that these minimum expenditures do not limit the amount of the repair bill or charges for the repairs performed. One individual expressed concern that the $200 limit on repairs would encourage counterfeiting without affecting current (air pollution) problems. The $200 minimum expenditure limit in basic nonattainment areas is required by EPA. The $200 minimum expenditure is not a limit on repairs. However, the 25% minimum would reduce the chance that no repairs are performed and would ensure that every waiver issued would contribute toward reducing vehicle emissions. EPA expressed disapproval of the provision to allow a hardship waiver or time extension waiver more than one time per vehicle. EPA contended that TNRCC must limit the waiver to one time per vehicle as required in EPA's Final I/M Rule or exempt a group of vehicles and take a credit reduction in modeling MOBILE5a. EPA contended that the I/M SIP provision allowing a hardship waiver (allowing a $150 maximum expenditure on emission-related repairs for a motorist meeting financial hardship criteria) was in conflict with the minimum expenditure provisions of the FCAA and EPA rule. Since the FCAA requires $450 minimum expenditure on repairs in enhanced I/M areas (adjusted annually) and since the EPA rule requires a minimum of $75-$200 to be spent for repairs in basic I/M areas before being eligible for a waiver, EPA contended that the proposed hardship waiver is a serious deficiency in the I/M SIP. TNRCC believes that EPA should recognize that economically disadvantaged motorists will be disproportionately impacted by the repair bill required. For example, in El Paso County the Median Family Income is $24,057 annually. The required repair bill would represent 23% of a monthly income (gross). TNRCC has revised the SIP and the regulation to change the hardship waiver to a one-time hardship extension which would be acceptable to EPA. CU commented that the proposed plan presents disproportionately adverse effects on low-income vehicle owners and urged the TNRCC to include provisions to assist low-income citizens to mitigate the effects of the I/M program. CU urged the TNRCC to direct staff to devise effective methods and assistance plans which increase compliance with the I/M program, help retire the vehicles in the worst conditions, and which will result in cleaner air. TNRCC will continue to explore all opportunities to assist low-income vehicle owners and may implement a vehicle scrappage program that will be of assistance to low-income motorists. Through the scrappage programs anyone can sell a car to a participating stationary source industry, which can obtain emission reduction credits in the amount of emission removed when the vehicle is destroyed. One commenter contended that transferable hardship waivers would encourage fraud and recommended that hardship waivers automatically expire upon sale or transfer of title of vehicle. All waivers, not just hardship waivers, have an expiration time frame. Waivers are only valid for a single test cycle and as proposed a motorist must inform a prospective buyer that the vehicle considered for sale currently satisfies the emission inspection requirements with a waiver. One commenter explained that the hardship waiver provisions could be abused by a motorist or person whose "family" is receiving financial assistance, but individually does not meet the waiver criteria. The criteria for the hardship waiver has been based upon commonly used and readily available proof of hardship requirements. The criteria presented in the I/M SIP resulted from numerous consultations with consumer groups and, thus, the current criteria has received their support. An individual may be considered a family if no other person contributes to the income. A family utilizing the collective incomes of its members cannot be considered as an individual. The Median Family Income provides a fair indication of proof of hardship and is a better means of measurement of economic status than the Median Individual Income. An individual from the Houston/Galveston area expressed concern that while granting a hardship waiver seems a compassionate thing to do, it will exempt many or most of the most-polluting vehicles from the program. This individual presented (quoted) data from a study at the California Bureau of Automotive Repair and Harris County records that he believed demonstrated that many if not most of these vehicles are causing 50% of the total emissions. This individual proposed that the hardship waiver/exemption be deleted and that the vehicles which are causing excessive emissions be repaired or removed from service. GHASP and another individual suggested that people in need of financial assistance can be directed to government agencies whose function is to provide financial assistance or to direct affected motorists to institutions where there are training technicians to repair such vehicles. Such a program would benefit the certification program and low-income motorist as well as improve air quality while reducing the need for waivers. One commenter pointed out that instead of a broad exemption, under the proposed regulations a motorist with a hardship could apply to the Executive Director of TNRCC, who may approve an exemption of a special case. While the EPA does estimate that half of the mobile source related pollution may originate with 10% of the vehicle population, EPA does not contend that older vehicles are largely at fault. First, older vehicles are few in number and comprise a small proportion of the entire vehicle fleet. Second, older vehicles proportionately are driven far fewer miles and consume far less fuel. Third, EPA and the repair industry have frequently commented that the single greatest contribution to poor emissions from a vehicle is lack of proper and regular maintenance. Fourth, 1990 and newer model vehicles emit dramatically less than prior model year vehicles only as long as the on-board computer and its associated sensors remain functional. Finally, EPA estimates that as much as 8.0% of all one year old vehicles will fail an emission inspection due to faulty emission control devices. TNRCC has been in contact with vocational schools teaching automotive repair and find that most of these institutions are not required nor possess the resources to extend discounted or free automotive repairs. Vocational schools would also be unable to guarantee timely turnaround to people who typically depend upon a reliable means of transportation to meet their needs. Additionally, these institutions have expressed concern about potential liability issues when working on vehicles for the general public. TNRCC will continue to explore this alternative. The Executive Director of TNRCC may approve exempting vehicles from the inspection test based on certain criteria. However, TNRCC does not have the capability of determining individual financial responsibility. One individual was opposed to the requirement that repairs counting toward a waiver be performed by a certified technician and repair facility. The commenter expressed the belief that the certification requirement will increase the cost of repairs and that a person should be able to do his or her own repairs and show proof of purchase. Individual motorists are able to perform their own emission-related repairs, however, EPA's I/M rule does not allow those repairs to count toward waiver issuance. TNRCC believes that well-educated emission repair technicians will actually reduce the overall cost of emission-related repairs. All trained and TNRCC-certified repair technicians will be familiar with engine diagnostic and emission analyzer data interpretation and capable in diagnosing problems, and repairing vehicles. An individual was opposed to repairs for tampering being excluded from the minimum amount for a waiver/exemption, especially for model years 1968-1974 that were not previously checked for emission equipment. This individual argued that if these auto owners now have to purchase (emission control) equipment, this expenditure should count toward the exemption/waiver. Another individual expressed concern for hobbyists like himself who have a vehicle with missing parts and would get a part if they knew where to get one. Tampering of vehicle emission control devices in the State of Texas is illegal and does not conform to EPA's requirements. EPA's Final I/M Rule requires the cost of tampering related repairs not be calculated in the minimum expenditure waiver and would not consider the SIP approvable if the TNRCC allowed tampering related repairs to count toward waivers. If parts necessary for the repair of tampered vehicles are difficult to locate, a time extension waiver may be issued. Contractors will provide phone numbers of after-market parts companies to motorists requiring this assistance. In order to avoid an "open ended violation," GHASP recommended a specified period for obtaining a waiver, not to exceed 90 days following failure of vehicle emission inspection. Registration denial is the primary enforcement mechanism for the vehicle emission inspection program. In order for a motorist to register a vehicle, the motorist must have obtained a passing or waived vehicle emission certificate (VEC). In addition, House Bill 1969 provides a minimum fine of $100 and a maximum fine of $200 to vehicle owners with expired or improper vehicle registrations. TNRCC has adopted additional language in the I/M SIP narrative to clarify that motorists must comply with inspection requirements by obtaining a VEC through either passing the vehicle emissions inspection test or receiving a waiver, on or before the valid registration period expires. GHASP recommended a definition of uncommon parts. TNRCC agrees with GHASP and the I/M SIP and rule now provides a definition of uncommon parts. An automotive emission-related part is considered uncommon if a motorist can prove that a reasonable attempt made to locate necessary emission control parts by retail or wholesale parts suppliers will exceed the remaining time prior to expiration of the vehicle's registration. A motorist may qualify a vehicle for a time extension waiver, if this criteria is met. TNRCC has adopted additional language in the I/M SIP narrative and in new sec.114.3 to define an uncommon part. GHASP requested that motorists be required to return the vehicle to be reinspected after a 30-day time limit. The I/M SIP does require a motorist issued a time extension waiver for his or her vehicle to report to a referee facility for a reinspection at time of the completion of the required emission-related repairs or the expiration of the time extension waiver. Failure to submit to a reinspection is punishable by TNRCC Notice of Violation. TNRCC does not believe that there is a benefit to requiring a motorist to submit to a reinspection after a 30-day time limit, since the time extension may be from one to three months in duration. COH commented that the language in the sec.114.3(3)(B) should be modified to recognize that there are some instances where there will not be a receipt of purchase or payment because there are no charges involved. As COH pointed out, a repair made under warranty is an example. TNRCC recognizes that there may be some instances where purchase receipts may not be applicable. Modification to the language in sec.114.3(3)(B) has been made to provide other documentation for such occurrences. ARS requested a special class exemption under the authority of the Texas Health and Safety Code, sec.382.037(k) for all vehicles licensed by the State of Texas as "ANTIQUE VEHICLES." ARS contended that antique vehicles should be exempt from emission testing in ozone nonattainment areas and cited, among others, the following reasons. These cars are collectable automobiles which are over 25 years old and have special plates that are renewable every five years. These vehicles are allowed to be driven on public roads for club sanctioned events only, their annual mileage is expected to be less than 1,000 miles per year, and the percentage of the vehicle miles driven could be expected to be small relative to the total vehicle miles driven. ARS claims that most road mileage is outside the nonattainment area and contends that these vehicles are generally in excellent repair. Also, ARS is concerned about the possibility of damage to these vehicles during part of the test. ARS and another individual commented that antique cars, being 25 years or older, should be exempted from the proposed emission inspection program. Any tail pipe emission test would place an undue burden on a subclass of vehicles which is primarily used for recreational uses. Furthermore, such antique vehicles accumulate very low annual mileage, and are not a major contribution to urban air pollution levels. The purpose of the I/M program is not to fail vehicles under normal deterioration rates, but rather to have poorly-maintained vehicles repaired. To make allowances for the higher emission levels of older vehicles, TNRCC will develop more lenient pass/fail cutpoints for those vehicles. Therefore, older vehicles are not subjected to the same tests, emission cutpoints, or evaporative purge checks that newer vehicles will undergo. Antique vehicles that are only displayed at shows, parades, etc. may be trailered to these events and, therefore, do not need to be registered for use on public roadways. TNRCC believes that most well-maintained vehicles will meet performance standards for their class. However, the TNRCC's Executive Director may grant an exemption for a motor vehicle when a motorist can demonstrate that reasonable measures have been taken to comply with the I/M program and that the exemption would have minimal impact on the air quality. In addition, TNRCC has provided a time extension waiver, to allow vehicle owners additional time to comply with I/M vehicle emission inspection requirements when they are waiting for an emission-related uncommon part. ARS and TVC requested that a special class waiver be allowed until 1999 for the original owners of 1968-1974 imported vehicles that have a "One-time Exemption" from the EPA. ARS expressed concern that some imported vehicles may not be able to pass the emissions test because their cars were not equipped with emissions equipment required of other cars in that model year. In such cases, ARS and TVC were concerned that about $75 would be the required expenditure for waiver in Dallas/Fort Worth and $450 for enhanced areas. ARS and TVC contended that these expenditures would not make the car cleaner and are not really repairs for emission control systems because such systems for these vehicles never existed. A special class waiver or exemption until 1999 would give time for owners to modify their vehicles to meet standards or the vehicle would be old enough for a recommended Executive Director exemption as an antique vehicle. ARS estimates that less than 2,000 vehicles in Texas would be eligible for this waiver/exemption. ARS commented that the majority of these cars have low annual mileage and their owners took advantage of a very limited process to import some very unusual cars. One individual stated that there is an extensive "car culture" revolving around older cars and requested a limited recreational-only exemption for 1968-1974 model years. He was concerned that the regulations would create a new class of "outlaws" circumventing the system and suggested that an exemption be patterned after antique tags laws, restricting driving to 3,000 miles per year. The TVC representative requested consideration of a clause that would grandfather 1969- 1974 model cars for the current owner. ARS commented that a 1973 Morgan imported from England would never pass the Evaporative Function test of pressurization because the car is not equipped with the proper devices. EPA's Final I/M Rules mandate that 1968 and later model year vehicles be tested for excessive emissions. In order to meet this federal mandate and meet emission reduction requirements, TNRCC is currently proposing all 1968 and later model year gasoline-powered vehicles complete an emissions test. However, the 1968- 1974 model year vehicles complete a less stringent emission test than the high- tech test required of newer model vehicles. However, TNRCC recognizes that a small number of vehicles imported between 1968 and 1974 received a one-time exemption because they cannot be modified to conform to EPA's emission requirements. The TNRCC Executive Director may grant, on a case-by-case basis, an exemption for vehicles that have been well-maintained, but cannot pass the emission inspection test. EPA's position regarding vehicles that do not have an evaporative system, is that, these vehicles would not be subjected to an evaporative system test. ARS and another individual believed that stricter enforcement of visible polluters is needed. The proposed emissions testing program will include more stringent enforcement of visible polluters than the current program. Vehicles will be subjected to periodic out-of-cycle testing if it is determined through remote sensing that the vehicle exceeds the emission standards. However, TNRCC has determined through recent on-road remote sensing studies that the cut-off for requiring an out-of-cycle test should be changed from vehicle emission of 4.5%, the Carbon Monoxide (CO) standard to 6.0%. At 6.0% of the CO standard it is possible to declare with some certainty which vehicles should be checked for emissions. Law enforcement personnel, through legislative authority, will have the ability to impound motorist's vehicles or impose higher monetary penalties upon motorists who are visibly out of compliance. TNRCC sec.111.111 requires that motor vehicles not have visible exhaust emissions for more than ten consecutive seconds. TNRCC currently has a program called the Smoking Vehicle Hot Line that gives persons the opportunity to report vehicles with visible exhaust emissions. ARS and individuals in the Dallas/Fort Worth area believed that better monitoring of current inspection stations would be better than the proposed program. Another individual expressed concern that there is an estimated 35% noncompliance in Dallas/ Fort Worth and questioned enforcement of a more strict law if TNRCC cannot enforce the current pollution control law. TNRCC examined the possibility of trying to improve the current test-repair inspection system. However, EPA discounts the effectiveness of a test-repair program by 50% compared to the test-only program. In addition, the cost to the consumer would be much higher to oversee and enforce and likely would cost $3. 00-$5.00 per vehicle per year. The proposed test-only program oversight cost is anticipated to be $1.25-$2.00 per vehicle. Since the test-only program will be biennial, the estimated oversight cost is less $1.00 per vehicle per year. Therefore, a test-only program is far more cost-effective than a test-and-repair alternative. TNRCC proposes a more effective enforcement method than the current system. Under the program proposal, enforcement will be through the process of registration denial, which will decrease the noncompliance rate by requiring motorists to present a valid VEC before completing the annual registrations process. TNRCC will utilize computer matching which will compare emission test results with the registration records to determine if motorists have complied with the emission requirements. Law enforcement officials, under the new program will have the ability to impose higher monetary penalties and will have the ability to impound vehicles that are found to be out of compliance. EPA requested clarification of enforcement against a vehicle owner who receives a fine, but does not comply. EPA further commented that the state should explain how impoundment will be used in the I/M enforcement program for vehicle owners who receive a fine, but still do not comply. Vehicle owners who avoid the I/M program requirements by not registering their vehicles may be subject to multiple penalties by law enforcement officials until the registration requirements are met. Under Texas Civil Statutes, Articles 6675b-4(a)(b), 6675b-4A(b)(d), 6675b-4B (c)(e), and 6701d(5) (B)(D), law enforcement officials have the authority to impound vehicle owners who have received a fine, but have still not complied with the emission inspection requirements. TNRCC is developing a plan to educate local law enforcement officials on the I/M program requirements and the types of enforcement opportunities available to them. The local law enforcement agencies will be allowed to retain the fines that they collect. TNRCC will promote the enforcement requirements necessary for the program's effectiveness. EPA stated that the SIP should contain a commitment to the routine issuance of citations to motorists who fail to comply with the registration requirements and a commitment that noncompliance cases "cannot" be closed until compliance is demonstrated. Motorists will be issued routine citations by law enforcement personnel who determine that their vehicle registration sticker is out of date. These noncompliant cases will not be closed until the registration is completed or other compliance is demonstrated. Until compliance is demonstrated, a vehicle found in violation of new sec.114.3(m) will continue to be in violation of the rule, even if a fine has been paid. EPA commented that the SIP is required to estimate the current compliance rate of the vehicle inspection program and that the SIP should commit to the compliance rate assumed in the modeling or that any deficiencies would be offset in improvements in other modeling areas. EPA also stated the SIP is required to include estimates of closing loopholes and otherwise improving the enforcement mechanism. According to TxDOT studies conducted by the Texas Transportation Institute (TTI), the current registration compliance rate is between 80-98%. The TNRCC proposed enforcement process will encourage compliance and increase the effectiveness of registration enforcement. Law enforcement personnel will have the ability to impound vehicles and issue routine citations to motorists attempting to avoid the program requirements. While the I/M SIP section on Motorists Compliance Enforcement contained language regarding the noncompliance rates, TNRCC will modify the language to clarify the compliance rate. Also, TNRCC has added language in the SIP that makes a commitment to the compliance rate assumed in the modeling (96%) or to offset the deficiencies. TNRCC also revised the SIP narrative, in Motorist Compliance Enforcement, with additional description of the registration denial enforcement and a discussion of how the TNRCC intends to raise compliance levels. EPA stated that the SIP should commit to preventing fraudulent initial classification or reclassification of a vehicle by requiring certification from the test facility that a vehicle is exempt (i.e., diesel fueled). EPA clarified that this certification should be based on physical inspection, VIN decoding, or other alternative method which would ensure an accurate clarification of any vehicle not required to be tested in the program. TNRCC will periodically run VIN decoding procedures to determine if vehicles have been classified or reclassified incorrectly. In addition, the operators of diesel vehicles are required to obtain a diesel permit from TxDOT. To clarify that dual-fueled vehicles are not exempt, the TNRCC has added language to the I/M SIP narrative and new sec.114.3 stating that dual-fueled vehicles will be tested in the gasoline mode and must comply with the performance standards and I/M program requirements. One commenter questioned whether an additional sticker would be issued with this inspection. There is no additional sticker issued for the vehicle emission test unless a vehicle is not subject to registration requirements. For enforcement of the registration denial I/M program, the motorist will be issued a VEC which must be presented to complete vehicle registration requirements that are necessary to validate the state's vehicle license. EPA commented that the SIP should include a more definitive commitment that the state will compare the testing and registration data bases to determine program effectiveness, to establish compliance rates, to trigger potential rate adjustment, and to trigger potential enforcement actions against non- complying motorists. TNRCC will compare the testing and registration data bases to determine program effectiveness, establish compliance rates, and target violators. TNRCC has adopted an appropriate statement added to the SIP narrative. EPA suggested that the SIP include a more definitive commitment for the state to sample the fleet as a determination of compliance through parking lot surveys, roadside pullovers, or other in-use vehicle measurements. TNRCC will be maintaining a fleet data base to track compliance with requirements. TNRCC will also be conducting remote sensing studies that would be applicable to fleets. TNRCC has added appropriate language to the proposed I/M SIP to include the preceding commitment. TNRCC has added language to the SIP narrative stating that TNRCC will be working with major employers to survey cars parking in their lots. TNRCC will also be working with public and private parking garage owners/operators for sampling the fleets to ascertain the compliance. EPA was concerned about the TNRCC's authority to immediately suspend an inspector and requested that the SIP narrative contain a clarification. The state will have the authority to require the Managing Contractor to suspend an inspector pursuant to Section 6.8.1 of the "Request for Proposal for the Design, Construction, and Operation of a Motor Vehicle Inspection/Maintenance Program for the State of Texas" (RFP). This authority does not afford the state "immediate" suspension privileges. Based on the TNRCC's reading of the federal regulations (as well as conversation with EPA staff), the state is not required to have immediate suspension authority. It is the "Quality Assurance" officer who is required to have that authority. Under the Texas system the Managing Contractor is the Quality Assurance Officer. He will have the authority to immediately suspend an employee of the Operating Contractor. If an agent of the Managing Contractor finds that an inspector is intentionally improperly passing a vehicle, the agent can immediately remove that inspector from duty. This authority will be expressed in the operating contract that exists between the Managing Contractor and the Operating Contractor. TNRCC will require such provisions in those contracts pursuant to its authority under Section 7.1 of the contract between TNRCC and the Managing Contractor. Section 7.1 gives to the TNRCC approval authority over all leases and contracts between the Managing Contractor and the Operating Contractor. Language similar to that in the preceding paragraph will be added to the SIP to clarify the authority that the Managing Contractor has to suspend an inspector. EPA acknowledged the TNRCC's general enforcement approach which was described in the SIP and the RFP Section 6.8.1, but stated that the SIP should contain language that commits to the "specific enforcement actions and the exact wording required by the (EPA) rule." EPA identified two enforcement issues of concern as examples. The EPA specified that an offense directly affecting emissions reduction benefits should result in the immediate removal of an inspector who intentionally passed a vehicle having emissions above the cutpoints. The EPA requested that the SIP narrative contain a commitment that an inspector be removed from duty for six months or that a retainage penalty equal to the inspector's salary for six months be imposed. The EPA stated that the SIP should commit to a minimum penalty of $100 or five times the inspection fee (whichever is greater) in the case of gross neglect on the first offense. As stated in the SIP submittal, the Compliance Division of TNRCC is responsible for calculating the appropriate penalty amount for violations of the Texas Clean Air Act and/or TNRCC Rules. The Compliance Division implements enforcement action that meets or exceeds the requirements of state and federal statutes and rules. The specific enforcement actions and minimum penalty amounts required by the EPA's Final I/M Rule will, therefore, be incorporated into the Compliance Division's penalty calculation as a minimum threshold. As stated in the SIP, the TNRCC believes that this system provides necessary flexibility to impose different penalty amounts based on the severity of a violation while maintaining the minimum enforcement actions required by the EPA's Final I/M Rule. TNRCC has added language to the SIP to clarify that the State commits to perform, at the least, the minimum enforcement action required by the EPA's Final I/M rules. The language includes a commitment to impose the minimum penalties cited in the two examples in the previous comment as well as the other specific enforcement actions stated in the EPA's rules. EPA commented that the SIP should address the enforcement the managing contractor will take against the operating contractor and stated that the penalties for violation of program requirements must be as stringent as required by the EPA rule regarding stations and inspectors. TNRCC does not interpret the EPA's Final I/M Rule to require the I/M SIP to address the enforcement the Managing Contractor will take against the Operating Contractor. The rules only require the I/M SIP to set forth the enforcement that the State will take against the relevant entity. The state has committed to enforce all of the appropriate program rules against the Managing Contractor as well as the Operating Contractor and the employees of the Operating Contractor through its regulatory enforcement program. A violation of a program rule by the Operating Contractor will be a violation of the TNRCC rules and will subject the Operating Contractor to the TNRCC enforcement action (see previous discussion regarding the TNRCC compliance with minimum enforcement actions). The enforcement relationship between the Managing Contractor and the Operating Contractor is a relationship distinct from the TNRCC regulatory enforcement. The Managing Contractor will enforce against the Operating Contractor pursuant to contract provisions. Although TNRCC has oversight authority of the Managing Contractor's enforcement against Operating Contractors, the state intends that compliance with the issue contained in this comment will be through the TNRCC's direct regulatory enforcement against Operating Contractors. TNRCC has added language to the I/M SIP to clarify the enforcement relationship that the state will have with the Operating Contractor and its employees. It will also more adequately address the enforcement procedure that the Managing Contractor will use against the Operating Contractor. SEMA contended that visual inspection of emission control devices and related equipment could be disruptive and a hardship on the automotive aftermarket industry and Texas citizens since the SIP explicitly does not limit tampering to fuel inlet restrictor and catalysts. SEMA was concerned that a vehicle would be failed because of the presence of aftermarket parts. SEMA emphasized the following sentence from sec.114.3(k)(6): "Tampering includes, but is not limited to, engine modifications, emission system modifications, or fuel type modifications not approved by the TNRCC or EPA." SEMA and several individuals recommended that vehicle inspection only be used to verify the presence of the applicable emission inspection controls and that the emission testing with the IM240 could verify the proper functioning of the equipment. An older car owner stated that there should not be a concern about all proper equipment installed, just whether the car passes the test or not. SEMA expressed concern that without the proper guidance an inspector may fail a vehicle on the visual inspection for the mere presence of aftermarket parts, including add-on and modified parts, engine changes, or engine swaps which would preclude aftermarket parts. Since TNRCC will only visually inspect the fuel inlet restrictor and the catalytic converter, aftermarket configurations are not examined. Pass/fail determination is based solely on the presence of the aforementioned emission control devices, a sampling of the vehicle's emissions, and the results of the evaporative purge and/or pressure tests. Aftermarket parts or configuration of parts that meet EPA or California Air Resource Board (CARB) requirements would not be considered tampering. SEMA proposed that their document "Visual Emissions Equipment Inspection Procedures" be included in the curriculum for training inspectors and technicians. SEMA also expressed concern that TNRCC's provision for visual inspections of emission control devices did not follow procedures established by EPA. TNRCC has limited the vehicle emission control check to two parameters, the fuel inlet restrictor and the catalytic converter. All inspection procedures and equipment utilized will comply with all aspects of sec.51.357 and sec.51.358 of EPA's Final I/M Rule, as well as EPA's final High-Tech I/M Test Procedures, Emission Standards, Quality Control Requirements, and Equipment Specifications. EPA stated that the SIP should include a provision that allows the motorist access to the test area to observe the entire inspection. This provision is included in sec.51.357 of EPA's Final I/M Rule. TNRCC requires its I/M contractor to abide by all provisions of sec.51.357. The contractor proposals for test facilities that were accepted by TNRCC provide for waiting areas that comply with sec.51.357. In addition, the TNRCC staff have final approval authority of the test facility design. TNRCC has adopted this clarification in the SIP narrative. EPA requested a clarification of the procedures for a retest after the vehicle has failed. TNRCC is currently developing the retest specifications with each of its I/M contractors. However, at a minimum, the retest procedures shall conform to EPA Final I/M Rule sec.51.369(b)(3) and the general test procedures given in sec.51.357 and in EPA's final High-tech I/M Test Procedures, Emission Standards, Quality Control Requirements, and Equipment Specifications. EPA stated that the SIP should address how the program will test engine switched vehicles and vehicles that have converted to a different fuel type. EPA suggested referencing the Federal sec.51.357(d). TNRCC requires the I/M contractors to abide by all provisions of sec.51.357. In general, a vehicle will receive an emission inspection according to the model year indicated upon the vehicle registration record as provided to TNRCC from TxDOT. TNRCC believes that no additional language needs to be added to the SIP since the entire section is referenced. EPA requested that the SIP include a commitment that the equipment will be updated from time to time to accommodate new technology vehicles as well as changes to the program. TNRCC believes that the SIP contains the commitment described in the preceding paragraph. The RFP, Appendix F of the I/M SIP revision, explicitly requires the I/M contractors to adopt the test procedures and equipment specifications given in sec.51.357 and sec.51.358 of the I/M rule as well as EPA's final High-Tech I/M Test Procedures, Emission Standards, Quality Control Requirements, and Equipment Specifications . In addition, the contract between TNRCC and the I/M contractors requires the contractors to abide by the current I/M rule, as well as subsequent amendments to the regulations and policy regarding test equipment and test procedures. EPA commented that the SIP should include a more definitive commitment under the Records Audits section that a records review will include visits to inspection stations to review records not already covered in the electronic analysis. TNRCC believes that record audits section of the I/M SIP adequately addresses all aspects and requirements for quality assurance in sec.51.363 of EPA's I/M Rule. TNRCC has changed the word "may" to "shall if appropriate" to provide a stronger commitment for EPA. GHASP expressed concern with audits and remarked that managing contractors, operating contractors, and repair stations needed to be audited by the TNRCC staff to assure honesty. The SIP commits TNRCC to numerous quality assurance measures, including both overt and covert performance audits, record audits, and equipment audits. In an overt audit, the audited party is aware of the audit occurring; while in a covert audit the audited party does not know the audit is occurring. For example, in a covert audit a vehicle is set to fail and is tested by an undercover auditor. In addition, TNRCC will employ another audit system to ascertain how auditors are performing their job duties. SEMA requested that the curriculum outlined in "Visual Emissions Equipment Inspection Procedures" be included in the TNRCC curriculum for training inspectors and technicians. The curriculum outlined in the SEMA document does not follow the requirements established by EPA. TNRCC required its I/M contractors to adhere to emission inspection procedures and equipment specifications provided by EPA. GHASP requested a mandatory certification of all repair technicians because a voluntary program is not as effective. TNRCC does not have the legislative authority to require that all emission inspection repair technicians receive training, testing, and certification in the I/M SIP. House Bill 1969 of the 73rd Legislature empowers TNRCC to establish a voluntary training and certification program for automotive emission repair technicians. Several members of ASA expressed concern for the effect of a few dishonest persons on the repair program and recommended that only professional quality repair technicians be allowed to participate or be issued certification. TNRCC believes that in practice only qualified automotive emission repair technicians will be able to pass the voluntary certification program requirements established by TNRCC as permitted by House Bill 1969. An ASA member expressed concern that comments from Referee Facility personnel could adversely affect some certified emissions repair technicians and facilities. The commenter emphasized the need for confidentiality and impartiality on behalf of these Referee Facility personnel during the waiver process. The commenter pointed out that motorists will be able to draw their own conclusions about the repair effectiveness of certified emissions repair facilities from the performance monitoring statistics. TNRCC agrees that Managing Contractor impartiality is a very serious concern and has addressed it in the RFP, which was included in Appendix F of the SIP. Section 8.5 entitled, "Conflicts of Interest", included in the contracts that have been signed with the Managing Contractors for each region states: "Operating and Managing Contractors are barred from referring vehicle owners to specific providers of vehicle repair services." This requirement applies to all Managing and Operating Contractor personnel, not just those that will work in the Referee Facility. TNRCC will insure compliance with this requirement through regular auditing of all Managing Contractor operations. TNRCC agrees that motorists will be able to satisfactorily draw their own conclusions about acceptable certified emissions repair facilities from the performance monitoring statistics. EPA commented that the SIP should include a commitment that the repair technician training will include provisions in the area of the utilization of diagnostic information on systematic or repeated failures observed in the transient test and the evaporative system functional test. TNRCC believes that the SIP does include such a provision. The I/M SIP, Section 20) b), contains a technical assistance plan which will require the TNRCC and its contractors to inform the automotive repair industry about the I/M program, training and certification schedules, common problems, and potential solutions for particular engine families, diagnostic tips, repairs, other technical assistance issues. A commenter from El Paso believed that there should be fewer facilities that conduct the emissions test than the current program because he had seen use of different standards and test procedures. The individual suggested that standard test procedures and standardized locations result in much better emission standard control. The commenter believed that, in some instances, people are paying for repair work on vehicles that is not necessary. This commenter attributed some of the unnecessary repairs to people who are not operating the emission inspection machines properly and who are not properly trained. Another commenter recommended tightening the standards on the current inspections. TNRCC recognizes that the potential conflict of interest and the problems for companies that result from emission tests and repairs being performed at the same facility are common problems with decentralized emissions inspection programs. The new vehicle emissions inspection will be conducted at test-only facilities. These high-volume, test-only facilities will employ personnel trained to perform emissions inspections only. The emission testing equipment, procedures, and standards shall be uniform throughout the network for consistent and accurate emission testing. TNRCC will be regularly auditing the operations of emissions inspection personnel and equipment to insure testing fairness and consistency. This will be a manageable task since a much smaller number of both personnel and facilities will require review by auditing than in a decentralized program. One individual, from the Dallas/Fort Worth area, stated that while the documents promised an average 30-minute wait for the emission test, it took 25 minutes to inspect his truck. He claimed that a 30-minute wait was only valid when inspection starts immediately after you roll up into a stall. The number and location of inspection lanes are contractually obligated to be such that the daily average waiting time for vehicles in line for inspection shall not exceed 15 minutes for more than three days in any calendar month at any one facility. In addition, the "assembly line" type inspection allows for three cars to be involved in the inspection process at the same time. This results in vehicles being tested in five-eight minutes each. All facilities will display the current estimated wait time on a sign near the entrance. This will give the motorist the option of waiting, or returning at another time, prior to entering a facility. If TNRCC determines that the wait times at any inspection station are causing excessive motorist inconvenience, it can require the changes in the facility's operating procedures or the building of additional lanes. If the problem is not solved within a designated time, TNRCC can assess penalties. A comment was made that inspection stations need to be open very late on weekdays and especially on Saturday and Sunday since 90% of the people required to get the vehicle emissions tests will have to do so on a week-end or a weekday after 6:00 p.m. Although studies in private industry, including Systems Control's experience in other states, show that the public does not fully take advantage of additional hours, all inspection facilities are contractually required to be open for a minimum of 48 hours per week, including not less than five hours on Saturdays. TNRCC believes that this schedule of extended hours addresses the needs of all citizens and is still economically sound. TADA commented that the amendment to the Texas Health and Safety Code, sec.382.038, as passed by the 73rd Legislature under House Bill 1969 did not appear to be incorporated in the proposal published in the Texas Register or the SIP dated July 16, 1993. TADA requested that the statutory provision be incorporated into the SIP and the TNRCC propose rules for the implementation of this amendment to the Code. The legislation is incorporated in the SIP in its entirety since it is an appendix to the SIP. In addition, the language regarding convenience for fleets and dealerships is on page 30 of the proposed SIP Section 6) e) Fleet Testing. The action is referenced as the Texas Health and Safety Code, sec.382. 038, because House Bill 1969 amended this section of the Texas Health and Safety Code. GHASP was opposed to a biennial cycle and wanted an annual test to ensure that the requirements of the FCAA Amendments be met "as soon as practicable," to achieve more reductions, and to reduce the potential of allowing up to 719 days (two years) of non-compliance. ASA also suggested annual inspection as an alternative to the proposed SIP. EPA promotes biennial testing because it reduces consumer costs and inconvenience while maintaining overall effectiveness. The remote sensing program will identify off-cycle high emitter vehicles. Annual inspection frequencies only generate an additional 1.0-3.0% Volatile Organic Compound (VOC) reduction compared to an estimated 28% reduction for a program with IM240 biennial testing. One individual commented that with the biennial cost, estimated to be $54 million in Harris County, the public is entitled to have an effective program reasonably free of loopholes. TNRCC agrees and has adopted registration denial, cross-checking TxDOT's registration data base with the emission inspection testing data base, extensive audit provisions, and strict waiver provisions. One individual stated that the testing cycle is ambiguous and asked for clarification on the following comments and questions. If a 1994 model vehicle is bought in 1993 can I assume that when it comes up for inspection in 1995, that emission inspection will not be required, but it will be required in 1996? However, if a 1994 model vehicle is not bought until early 1995, can I assume it will not need inspection until 1997, and will escape emission inspection until 1998? The emissions testing cycle is based on the registration cycle, such that the registration renewal of a new car is one year after it is registered. In the commenter's example, if a motorist purchased a 1994 vehicle in September of 1993, it will need it's first emission inspection test prior to registration in September 1994 and again in 1996. If a new 1994 vehicle is purchased new in early 1995, it will need an emission inspection test in 1996. EPA commented that the El Paso Area SIP should include a statement that at least 30% of the vehicles required to be tested will be tested in 1995. In 1995, the I/M program in the El Paso nonattainment area will conduct emission inspections on at least 30% of the applicable vehicle population. TNRCC has added the requested statement to the SIP revision. EPA contended that the Texas Health and Safety Code, sec.382.037(d) and (e) were in conflict and stated that the SIP must address the legal discrepancy of whether it is discretionary or mandatory for the TxDOT to require a VEC before a vehicle can be registered. The Texas Health and Safety Code, sec.382.037, was amended by House Bill 1969, adopted by the 73rd Texas Legislature, effective August 30, 1993. House Bill 1969 repealed subsection (d), thereby resolving any conflict that may have existed between it and subsection (e) (redesignated as subsection (d) pursuant to House Bill 1969). House Bill 1969 was attached to the SIP as Appendix C. Regarding other agencies involved in the I/M program, EPA commented that the statutes, rules, and hearing records addressing the authority of the Public Safety Commission and the TxDOT (formerly, the State Department of Highways and Public Transportation) must be submitted as part of the SIP. TNRCC and TxDOT fully commit to include all relevant TxDOT documentation in the November 15 SIP submission, including the statutes and rules addressing TxDOT authority. The Department of Public Safety (DPS) is involved in the current emission inspection that is tied to the vehicle safety inspection. However, DPS will not be involved in the proposed I/M vehicle emission inspection program. Enforcement of the proposed program has been more fully explained in the Motorist Compliance Enforcement section of the SIP. TxDOT pointed out that while the SIP states that "TxDOT may revoke registration" if it is determined that some form of counterfeiting was used to obtain a VEC, there is no statutory authority for TxDOT to revoke a registration on this basis. TNRCC agrees with TxDOT's comment that TxDOT does not currently have statutory authority to revoke motor vehicle registration on the basis of a fraudulently obtained or submitted emissions inspection certificate. TNRCC has adopted a revision to the I/M SIP narrative to clarify that the authority for TxDOT to revoke registration does not currently exist, but may be given to TxDOT in the future. For clarification on the enforcement penalties for counterfeiting: "Counterfeiting VECs, repair statements, or other documents used to obtain a VEC is a violation of TNRCC Rules and an infraction of the rule carries administrative penalties up to $10,000 per day per violation of (TNRCC) Rules or judicial penalties of up to $25,000 per day per violation, as well as possible criminal sanctions." TxDOT commented that while the tax assessor-collectors are the agents of TxDOT for the purpose of collecting registration fees, they are not subject to discipline by TxDOT. TNRCC agrees with the TxDOT's comment that TxDOT does not currently have the authority to discipline tax assessor-collectors or their deputies. The SIP narrative will be amended to clarify TxDOT's discipline authority over tax assessor-collectors and their deputies. TNRCC has been and will continue to work with the tax assessor-collectors to provide a quality and high compliance program. The tax assessor-collectors are elected officials and are disciplined through the court system. TNRCC will work with the tax assessor-collectors who do have the authority to revoke registration privileges of their deputies who have been found to knowingly participate in fraudulent registration. In addition, TNRCC will be training the tax assessor-collectors and their deputies on validating the VEC as a condition of registration. TNRCC has added language to the I/M SIP to clarify the enforcement authority. EPA questioned whether TNRCC sec.114.4 would continue to be pertinent and whether this rule should be repealed. Section 114.4 will continue to be required in the phased-in portion of the enhanced program in El Paso, even after the test-only start date, for a portion of the El Paso fleet. Therefore, the rule should not be repealed until the enhanced El Paso program is 100% in effect (January 1, 1996). In reference to an August 5, 1993, letter addressed to the TNRCC from the Office of Mobile Source, EPA stated that additional IM240 model year coverage, or a tighter than recommended HC cutpoint would be needed for El Paso and Houston to meet the enhanced performance standard. TNRCC has revised the I/M contracts to include high-tech emission testing for additional model years in the Houston/ Galveston and El Paso nonattainment areas. The contracts state that "High-tech testing in Houston-Galveston will include 1984 and newer model year light-duty gasoline vehicles and light-duty gasoline trucks. In El Paso, high-tech testing will include 1988 and newer model year light-duty gasoline vehicles and light-duty gasoline trucks." However, the TNRCC staff does recommend public notification and hearing before revising the proposed I/M SIP to include these changes required by EPA. TNRCC has agreed to adopt the I/M SIP without these changes so that the SIP can be submitted in time to meet the submission deadline on November 15, 1993. TNRCC also agreed to revise the SIP to include these additional model years as soon as practical to conform with the appropriate procedures. The SIP will be revised and submitted to EPA no later than March 15, 1994, so that EPA can consider the I/M SIP approvable. In the Houston/Galveston program area the additional model years covered by high tech testing would be 1984-1989 and in El Paso the 1988 and 1989 model years would be added to a more stringent testing method. EPA asked that the MOBILE5a input and output reports be included in the SIP revision document. TNRCC has agreed that the MOBILE5a input and output reports for Dallas/Fort Worth and the Beaumont/Port Arthur areas be included with the I/M SIP to be submitted by November 15, 1993. However, TNRCC also agreed that the revised MOBILE5a input/output reports be submitted with the I/M SIP that proposes to include EPA's required additional model years for Houston/Galveston and El Paso. Without the added vehicle model years, the MOBILE5a modeling would not indicate that the I/M program would meet EPA's performance standards, and would not be appropriate information to submit. Several individuals commented that the modeling of urban air quality is not an exact science and that former predictions about air quality and mobile source pollution contributions were incorrect. One individual used an example of air quality monitoring along a specific highway (I-H 635) in the Dallas area. These commenters explicitly or implicitly suggested better monitoring techniques with regard to air monitoring. In point of clarification, there are several models used to predict urban air quality. All of them have limitations, but their use is required by the EPA. Analysis used in this SIP revision uses the MOBILE5a emission factor model. This model uses composite emission factors to prove compliance with federal performance standards for I/M programs. Another monitoring system used is called HPMS. This monitoring system is used to predict highway traffic levels. The model used to prove attainment of national air quality standards is known as the Urban Airshed Model (UAM). It is true that a previous model used in the 1980s, called the empirical kinetic modeling approach (EKMA), did not have the ability to interactively evaluate mobile, biogenic, point, and area sources. Based on these lackings, TNRCC adopted use of an improved chemical reactivity model, UAM. More information about the UAM methodology is available from the TNRCC's Office of Air Quality Planning Modeling Section. The main reason for mandating the revised I/M programs in areas such as Dallas/Fort Worth is because of federal requirements to achieve a 15% reduction of VOCs net of growth 1990-1996. While implementation of a test-only and high- tech I/M program may appear to be extreme, some nonattainment areas will have difficulty attaining the 15% reduction even with the revised I/M programs. EPA commented that the SIP should provide more information about the amount of the test fee available for State resources when the full SIP is submitted and whether this fee (or a portion) will be dedicated specifically to the I/M program. SIP Appendix E, which is the Texas Natural Resource Conservation Commission Chapter of the 1992 Appropriation Bill contains the following language on page E-12, Section 23: "Automobile Inspection Fee Appropriated. In addition to the amounts appropriated above, the Commission is hereby appropriated from the Clean Air Fund all fees collected from contractors performing automobile emission inspections pursuant to Section 382.037 (f), Health and Safety Code, for the purpose of developing, administering, evaluating, overseeing, and enforcing the vehicle emissions inspection an maintenance program, including federally required measures to support the availability of effective emissions repairs." At the time of program start-up, TNRCC anticipates that the portion of the fee collected by contractors that would be available to TNRCC will be no less than $1.25 per paid vehicle inspection. TNRCC has added appropriate language to the I/M SIP revision to satisfy EPA's question regarding fees and changed the language to clarify that the fees are to be used by the I/M program. A commenter stated the new sec.114.3 is burdensome for existing vehicles subject to recall notices prior to the effective date of the rule. Compliance with recalls only applies to vehicle recalls that are made after EPA sets policy on recall required by sec.51.370 of the EPA rule. EPA's policy determination for recall is expected in 1994. One individual suggested that the new sec.114.3 have a separate requirement that the vehicle owner must maintain evidence of compliance with a recall notice. The recall compliance information will be entered in the computer data by the VIN. TADA commented that is was not clear on what kind of written statement is acceptable for the motorist to furnish as proof of compliance with the recall notice and which indicates that emission repairs have been completed. TADA suggested that a copy of a repair notice should be adequate to satisfy compliance so that no additional paper work is required of a dealership. The TNRCC staff believes that repair notices that are not standardized will decrease the efficiency at the testing facility and could also cause a motorist to return to the dealership for additional information. TNRCC knows that some type of form that will provide uniform information is needed, but since EPA has not finalized its policy on recall, it is not known if EPA will require a "standard form." TNRCC recommends complying with the EPA policy when it is final. TNRCC will include warranty recall repair on the standard form for certifying repairs for waivers. Accepting a copy of a repair notice/bill would not be appropriate because it could set up potential abuse or counterfeiting. ARS suggested using hard to counterfeit VECs that are tied to registration. The VEC will be tied to registration. As required by the RFP, the VEC will utilize at least a minimum of seven security features designed to hinder or detect counterfeiting. ARS recommended extensive random emissions testing using Dr. Stedman's "Remote Monitoring of Vehicle Emissions." Remote monitoring only addresses tail pipe emissions while half of the emissions are evaporative losses that remote sensing does not detect. In addition, remote sensing has problems with consistency of testing. The I/M program does propose on-the-road testing to identify vehicles for an out-of- cycle I/M vehicle emissions test. However, to rely on remote monitoring alone would not satisfy EPA's I/M program requirements. ARS stated that more extensive public information should be provided on improving air quality through changes to driving habits. As required in the RFP, an extensive public information program is being provided. The program includes improving air quality through changes to driving habits, refueling habits, vehicle maintenance, and other behavior affecting vehicle emissions. Firestone expressed concern for the people who are in the business of repairing cars who have spent over $5,000 to $6,000 per facility on I/M test equipment which would not be fully depreciated. They indicated that the proposed program was not fully understood. The commenter was also concerned how the program would affect the stores and employees. The equipment used in the present emissions inspection can continue to be used to perform vehicle diagnostics and check vehicle repairs. People in the business of repairing cars can benefit from additional repair business related to improving emissions. In addition, businesses that are currently doing safety inspections can continue to do so. ARS believed that the rules and SIP were extreme in relation to the overall problem in Dallas/Fort Worth area. The Dallas/Fort Worth area is designated as a moderate nonattainment area for ozone and must implement a basic I/M program. The area is also required to achieve a 15% reduction in VOCs from the 1990 level by 1996. Since automotive related pollution constitutes 36% of all the pollution emitted in the Dallas/Fort Worth nonattainment area, enhancing the I/M program was the only cost effective means of achieving the 15% reduction target. GHASP recommended that the definition of motorists should include the word "person" in addition to entity. TNRCC agrees with GHASP and added the word "person" to the definition of motorist. Several individuals made comments about subjects, such as transportation plans, that were not related to the public hearing topics. These comments are beyond the scope of this rulemaking. One individual complained that he did not receive a copy of the proposed SIP when a copy of the TNRCC new sec.114.3 was requested from staff. The hearings examiner questioned the commenter and found that this individual did receive notice of the subjects of the hearing. The hearing record shows that the Texas Register publication properly stated that the proposed control strategy hearing would cover the whole I/M program. One commenter remarked that while we cannot measure the value of clean air, that the health effects of pollution from automobile emissions are measurably deleterious. Several other comments were made regarding the positive health effects and benefits of clean air as a result of the I/M program. The I/M SIP section entitled "Vehicle Inspection/Maintenance Program" describes the possible health effects related to vehicle emission including VOCs, hydrocarbons, CO, and Nitrogen Oxides (NO [sub]x). The benefits of clean air is the motivation of the I/M program. Staff has considered these health issues in the SIP proposal. Another commenter expressed the belief that regardless of EPA rules, TNRCC has no right to set mandatory rules for testing and certification of privately owned vehicles. This individual stated that all testing of private vehicles should be dropped and the effort be spent on the testing of government owned vehicles. He further stated, that since the government agencies set specification for the automobiles that the purchase, they are responsible for the design, performance, and pollution. This commenter recommended that the test be performed on government controlled vehicles (ICC and FAA) and recall those that fail. It was claimed that in this commenter's experience government controlled vehicles are not tested and are more likely to fail. This individual stated that after 10 years less than 1.0% of the automobiles are still being driven, the state discards automobiles after three years, and that it doesn't make sense to penalize the 15 million automobile owners registered in Texas to find a few of the 50,000 older cars that are driven less than 10, 000 miles per year. Congress mandated I/M programs in moderate, serious, severe, and extreme nonattainment areas and required federal fleets to comply with vehicle emission inspection requirements. The TNRCC rule reflects federal requirements for the testing of government vehicles, including federal and state fleets. The average age of a car in Texas in 7.5 years. It is not possible to determine from the age alone if a vehicle is a high pollution emitter. Even 8. 0% of one year old cars fail the IM240 test. The repeal is adopted under the Texas Health and Safety Code (Vernon 1990), the Texas Clean Air Act (TCAA), sec.382.017, which provides TNRCC with the authority to adopt rules consistent with the policy and purposes of the TCAA. 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 November 15, 1993. TRD-9332203 Mary Ruth Holder Director, Legal Division Texas Natural Resource Conservation Commission Effective date: December 8, 1993 Proposal publication date: July 27, 1993 For further information, please call: (512) 463-8159 30 TAC sec.114.3 The new rule is adopted under the Texas Health and Safety Code (Vernon 1990), the Texas Clean Air Act (TCAA), sec.382.017, which provides TNRCC with the authority to adopt rules consistent with the policy and purposes of the TCAA. sec.114.3. Vehicle Emissions Inspection and Maintenance Program. (a) Unless specifically defined in the Texas Clean Air Act (TCAA) or in the rules of the Texas Natural Resource Conservation Commission (TNRCC), the terms used by the TNRCC have the meanings commonly ascribed to them in the field of air pollution control. In addition to the terms which are defined by TCAA, the following words and terms, when used in this rule, shall have the following meanings, unless the context clearly indicates otherwise. (1) Adjusted annually-Percentage, if any, by which the Consumer Price Index (CPI) for the preceding calendar year differs from the CPI for 1989; adjustments shall be effective on January 1 of each year. (2) Emissions tune-up-A basic tune-up along with functional checks and any necessary replacement or repair of emission control components. (3) Fleet vehicle-Any motor vehicle operated as a member of a group of more than ten motor vehicles belonging to a single non-household entity; any state or local government motor vehicle, including a motor vehicle exempted from the payment of a registration fee and issued a specially designated license plate; or any federal government motor vehicle, except for a tactical military vehicle. (4) Managing contractor-Firm contracted by TNRCC to design, build, equip, maintain, and oversee operation of vehicle emission inspection facilities, operate referee inspection facilities, and provide other administrative functions for the vehicle emissions inspection and maintenance program contained in the revised Texas Inspection/Maintenance (I/M) State Implementation Plan (SIP). (5) Motorist-A person or other entity responsible for the repair and maintenance of a motor vehicle, which may include, but is not limited to, owners and lessees. (6) Primarily operated-Use of a motor vehicle greater than 50% of total use as measured in vehicle miles traveled. (7) Program area-County or counties in which TNRCC, in coordination with the Texas Department of Transportation (TxDot), administers the vehicle emissions inspection and maintenance program contained in the revised Texas I/M SIP. The program shall be implemented in two models, basic and enhanced. (8) Referee inspection facility-Station administered by a Managing Contractor for challenge and waiver testing purposes and determination of reciprocal compliance. (9) Retest-Successive vehicle emissions inspections following the failing of an initial test by a vehicle during a single testing cycle. (10) Revised Texas I/M SIP-The Texas SIP as revised in accordance with the United States Environmental Protection Agency (EPA) 40 Code of Federal Regulations Part 51, Subpart S, issued November 5, 1992, including the procedures and requirements of the vehicle emissions inspection and maintenance program. (11) Testing cycle-Biennial cycle commencing with the first registration expiration date for which a motor vehicle is subject to a vehicle emissions inspection, required for a motor vehicle of an even-numbered model year during an even-numbered year and for a motor vehicle of an odd-numbered model year during an odd-numbered year. (b) No person may operate any motor vehicle which does not comply with: (1) air pollution emission control related requirements included in the annual vehicle safety inspection requirements administered by the Texas Department of Public Safety (DPS), as evidenced by a currently valid inspection certificate affixed to the vehicle windshield until such requirements are superseded by the vehicle emissions inspection and maintenance requirements contained in the revised Texas I/M SIP; or (2) the vehicle emissions inspection and maintenance requirements contained in the revised Texas I/M SIP. (c) No person may issue or allow the issuance of: (1) a vehicle inspection certification, as authorized by DPS, unless all air pollution emission control related requirements of the annual vehicle safety inspection are completely and properly performed in accordance with the rules and regulations adopted by DPS. Prior to taking any enforcement action regarding this provision, TNRCC shall consult with DPS. The requirements in this paragraph shall apply until superseded by the vehicle emissions inspection and maintenance requirements and procedures contained in the revised Texas I/M SIP; or (2) a Vehicle Emissions Certificate (VEC), as authorized by TNRCC, unless: (A) all vehicle emissions I/M requirements and procedures required by the revised Texas I/M SIP are completely and properly performed; or (B) reciprocal compliance is established in accordance with all vehicle emissions I/M requirements and procedures contained in the revised Texas I/M SIP. A motorist shall submit an original vehicle emissions inspection document to a referee inspection facility. If the inspector determines that the document fulfills the requirements of the program area in which the motorist intends to register a motor vehicle, the motorist shall receive a VEC upon remittance of any applicable fees. (d) No person may allow or participate in the preparation, duplication, sale, distribution, or use of false, counterfeit, or stolen VECs, vehicle emissions repair documentation, or other documents which may be used to circumvent the vehicle emissions I/M requirements and procedures contained in the revised Texas I/M SIP. (e) No person may own, operate, or allow the operation of a fleet vehicle primarily operated in a program area, unless the fleet vehicle has complied with all vehicle emissions I/M requirements contained in the revised Texas I/M SIP. An owner or operator of a fleet vehicle exempted from the payment of a registration fee and issued a specially designated license plate or otherwise not required to be registered in a program area by TxDOT shall comply with the following requirements specific to such fleets: (1) present the fleet vehicle for inspection in accordance with the fleet vehicle inspection schedule developed by TNRCC; (2) register with TNRCC by March 1, 1994, and shall provide by that date information on each vehicle including, but not limited to, all data required for the registration of the fleet vehicle by TxDOT and other information specified on forms provided by TNRCC; and (3) maintain the following vehicle information and shall provide that information to TNRCC, EPA, or local air pollution control agency upon request: (A) the number and types of vehicles operated and maintained by the fleet; (B) vehicle identification number of any vehicle currently operated and notating changes such as purchased, leased, sold, or retired; (C) changes to the fuel type that would affect the applicability of program requirements; (D) number of miles traveled and percentage of miles traveled by each vehicle in a program area; and (E) other data as required by TNRCC. (f) All federal government agencies shall require a motor vehicle operated by any federal government agency employee on any property or facility under the jurisdiction of the agency and located in a program area to comply with all vehicle emissions I/M requirements contained in the revised Texas I/M SIP. (g) A Managing Contractor shall design, build, and oversee operation of inspection facilities in accordance with the performance and operating reliability standards and other requirements and procedures contained in the revised Texas I/M SIP. (h) No organization, business, person, or other entity may represent itself as an inspector certified by a Managing Contractor, as a repair technician certified by TNRCC, or as a repair facility certified by TNRCC, unless such certification has been issued pursuant to the certification requirements and procedures contained in the revised Texas I/M SIP. (i) Any motorist in an enhanced program area whose motor vehicle has been issued an emissions-related recall notice, after the program start date and earlier than six months before the motor vehicle is presented for a vehicle emissions inspection, shall furnish proof of compliance with the recall notice in order for the inspection to commence, provided that compliance with the recall has not been proven during a previous vehicle emissions inspection. The motorist may present a written statement from the dealership or leasing agency indicating that emissions repairs have been completed as proof of compliance. (j) A motorist whose motor vehicle has failed an on-road test administered by TNRCC shall: (1) submit the motor vehicle for an out-of-cycle vehicle emissions inspection within 30 days of written notice by TNRCC; and (2) satisfy all inspection or waiver requirements of the vehicle emissions I/M program contained in the revised Texas I/M SIP within 60 days of written notice by TNRCC. (k) A motorist may apply to the Managing Contractor for waivers which defer the need for full compliance with vehicle emissions standards for a specified period of time after failing a vehicle emissions inspection. For the minimum expenditure and time extension waiver, the motorist may apply only once for each type of waiver for each testing cycle and shall pay any applicable processing fee. For the one-time hardship extension waiver, the motorist may apply once for the lifetime of the vehicle and shall pay any applicable processing fee. (1) A Minimum Expenditure Waiver may be granted in accordance with the following conditions. (A) The motor vehicle must have failed a retest after repairs satisfying the following conditions have been performed: (i) in enhanced program areas, repairs shall require a minimum expenditure of at least $450, adjusted annually; (ii) in basic program areas, repairs shall require a minimum expenditure of at least $75 for pre-1981 model year vehicles and at least $200 for 1981 and later model year vehicles; (iii) repairs shall be performed by a TNRCC voluntarily certified repair technician; (iv) repairs shall be directly applicable to the cause for the test failure; and (v) repairs shall have directly reduced emissions by 25% of the difference between emissions during the initial test and the emissions standards contained in the revised Texas I/M SIP. (B) A Minimum Expenditure Waiver shall be valid for the remaining portion of the testing cycle. (2) A one-time hardship extension waiver may be granted once in the life of the vehicle in accordance with the following conditions. (A) A motorist must have a valid VEC indicating that the subject vehicle failed the initial emission inspection test. (B) A motorist shall provide proof in writing of at least one of the following criteria to establish financial hardship: (i) the motorist's family income is below the poverty level as defined by the Office of Management and Budget Poverty Index; (ii) the motorist's family receives financial assistance pursuant to the Texas Human Resources Code, Chapter 31, Financial Assistance Programs; Code; (iii) the motorist's family receives food stamp assistance as determined by the Texas Department of Human Services in accordance with the Food Stamp Act Amendments of 1977; or (iv) the motorist's family earns not more than 40% of the area median income as defined in the Comprehensive Housing Affordability Strategy of the Texas Department of Housing and Community Development. (3) A Time Extension Waiver may be granted in accordance with the following conditions. (A) The motorist can document that emissions-related repairs cannot be completed before the expiration of current registration or before the 30-day period following an out-of-cycle inspection because the repairs require an uncommon part. An uncommon part is defined as one that takes more than 30 days for expected delivery and installation and a motorist can prove that a reasonable attempt made to locate necessary emission control parts by retail or wholesale part suppliers, will exceed the remaining time prior to expiration of the vehicle registration. (B) The motorist shall provide an original VEC and an original itemized documentation indicating prepayment, if applicable, and expected delivery and installation dates of uncommon parts before a Time Extension Waiver can be issued. (C) The motorist shall return the motor vehicle to the referee inspection facility for a retest and verification of repairs upon completion of the repairs. (D) The motorist shall provide to TNRCC, prior to expiration of a Time Extension Waiver, adequate documentation that one of the following conditions exists: (i) the motor vehicle passed a retest; (ii) the motorist qualifies for a Minimum Expenditure Waiver or Hardship Waiver; or (iii) the motor vehicle shall no longer be operated in the program area. (E) The length of a Time Extension Waiver shall depend upon expected delivery and installation dates of uncommon parts as determined by the Managing Contractor, but shall not exceed three months. (4) If a motorist leases or offers for lease, sells or offers for sale, trades or offers for trade, or otherwise transfers the title of a motor vehicle during the time any waiver is in effect, the motorist shall notify the prospective owner or operator in writing of the waiver. (5) A motorist shall use any available warranty coverage to obtain needed repairs before expenditures shall be used in calculating the minimum repair expenditures to qualify for a Minimum Expenditure or a Hardship Waiver, unless the warranty remedy has been denied in writing from the manufacturer or authorized dealer. (6) A motorist may not use or attempt to use expenditures for tampering- related repairs in calculating the minimum repair expenditures to qualify for a Minimum Expenditure or a Hardship Waiver. Tampering includes, but is not limited to, engine modifications, emission system modifications, or fuel-type modifications not approved by TNRCC or EPA. (7) A motorist shall provide to the Managing Contractor at the referee inspection facility an original retest VEC and an original itemized receipt indicating the emissions-related repairs performed for the issuance of a Minimum Expenditure or a Hardship Waiver. A motorist shall provide to the Managing Contractor at the referee inspection facility an original retest VEC and an original itemized receipt indicating the purchase, payment, and expected delivery and installation dates of uncommon parts for the issuance of a Time Extension Waiver. (l) A motorist may petition the Executive Director of the TNRCC for the exemption of a motor vehicle from the requirements of the vehicle emissions I/M program contained in the revised Texas I/M SIP, upon demonstration that the motorist has taken reasonable measures to comply with such requirements and that such exemption shall have minimal impact on air quality. If the Executive Director approves the petition, the motorist may receive an exemption upon remittance of any applicable fees. (m) The requirements of the vehicle emissions I/M program contained in the revised Texas I/M SIP shall be applied to all 1968 and newer model year gasoline-powered motor vehicles, excluding motorcycles. Alternatively fueled or dual-fueled vehicles will be tested in the gasoline mode, if the vehicle can be operated on gasoline. (n) The requirements of the vehicle emissions I/M program contained in the revised Texas I/M SIP shall be applied in the program areas in accordance with the following schedule: (1) the basic program in Collin, Dallas, Denton, Jefferson, Orange, and Tarrant Counties beginning on July 1, 1994; (2) the enhanced program in Brazoria, El Paso, Fort Bend, Galveston, Harris, and Montgomery Counties beginning on January 1, 1995; and (3) the enhanced program in Chambers, Liberty, and Waller Counties beginning on January 1, 1997. 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 November 15, 1993. TRD-9332204 Mary Ruth Holder Director, Legal Division Texas Natural Resource Conservation Commission Effective date: December 8, 1993 Proposal publication date: July 27, 1993 For further information, please call: (512) 463-8159 30 TAC sec.114.23 The Texas Natural Resource Conservation Commission (TNRCC), a new agency combining the Texas Air Control Board and the Texas Water Commission, adopts new sec.114.23, Control of Air Pollution from Motor Vehicles, concerning enforceability of transportation control measures (TCMs), with changes to the proposed text as published in the September 21, 1993, issue of the Texas Register (18 TexReg 6424). The new rule is a revision to the State Implementation Plan (SIP) for ozone nonattainment areas. There was extensive coordination in the development of this rule through teleconferences and meetings which involved the United States Environmental Protection Agency (EPA) Region 6, Office of Mobile Sources, TNRCC, the Texas Department of Transportation (TxDOT), the nonattainment area Metropolitan Planning Organizations (MPO), and other affected entities. Public hearings were held in Houston on September 20, 1993, in El Paso on September 22, 1993, and in Irving on September 23, 1993, to receive testimony regarding these proposed revisions. Written testimony was received from seven commenters during the comment period which ended September 24, 1993, including: EPA Region 6, the City of Dallas, the Houston Metropolitan Transit Authority (MTA), the Houston-Galveston Area Council (H-GAC), the Transportation Policy Council (TPC) of the H-GAC, the Regional Transportation Council (RTC) of the North Central Texas Council of Governments (NCTCOG), and the Galveston-Houston Association for Smog Prevention (GHASP). The EPA expressed agreement with the requirement for TCM specificity and their projected emission reductions. The EPA also stated that a technical support document containing all of the modeling, input parameters, computations, and other rationale should be provided to EPA so that it may judge the approach and analyses on which emission credits are being determined. The EPA was largely supportive of the TCM rule; however, it commented that no guidance was provided in the proposed rule on when the 12-month clock will start for submission of revised TCMs or correction of deficiencies. The TNRCC's intention was that the one year allowed to make corrections to TCM commitments start with approval of the Transportation Improvement Program (TIP). The TIP approval is the date when congestion management and air quality funding of TCMs is finalized. While this is implied under subsection (b)(2), (3), and (4) where firm commitments and obligation of funding of projects are discussed, subsection (e) has been revised to read "... the responsible MPO shall within the next 12 months after TIP approval by the MPO or regional transportation policy body..." The EPA also mentioned that subsection (e) does not clearly make reference to situations which may warrant a SIP revision if significant changes occur. Based on discussions with EPA, it is TNRCC's understanding that SIP revisions will be necessary only when modifications substantially change TCM reductions or utilize alternative TCMs. A new subsection (e)(4) is adopted stating "revise the SIP if the alternative TCMs are not within the same category, or if required emission reductions cannot be met with the planned alternative TCMs." The RTC, which is the regional transportation policy body of NCTCOG, strongly opposed the proposed rule. It noted that, as far as can be determined, in no other state in the nation are EPA and the lead state air control agency proposing a state regulation to enforce the implementation and monitoring of TCMs in the SIP. In discussions with the TNRCC, the EPA staff stated that in the past, EPA has had considerable difficulty getting some states to enforce TCMs. The EPA noted that the Federal Clean Air Act (FCAA) Amendments of 1990 requires TCMs to be specific and enforceable. Although specific rules were not required, the TNRCC legal staff indicated a rule was the only truly enforceable means of ensuring compliance. In order to produce a rule that most agencies would find reasonable and acceptable, several meetings and teleconferences were held. The NCTCOG staff were included in these meetings, expressed their concerns, and assisted in drafting the proposed TCM rule. The RTC suggested that the proposed rule was an unfair hardship and an example of over-regulation, especially when the RTC has aggressively supported these controls through the long-range planning process and the TIP. Furthermore, the RTC has these legal responsibilities under the Intermodal Surface Transportation Efficiency Act (ISTEA) and the FCAA, therefore, duplicative state regulations are not needed. If TCMs are implemented as required, the proposed rule should create no problems or hardship for the MPOs. According to subsection (g), the punitive portion of this regulation, a financial penalty against the MPO or an implementing agency only applies to egregious or knowing violations of the provisions of this rule. The RTC added that in the event the TNRCC proceeds with this proposed rule, they will be forced to adopt a conservative policy regarding TCM commitments to the SIP in order to minimize the risk and burden associated with the proposed rule. The rule basically formalizes guidance from EPA to assure that TCMs are specific and enforceable. If the MPOs propose TCMs for the SIP which follow this guidance, and then fail to produce the required emissions reduction, there are specific alternative measures which need to be applied. If these procedures are carefully followed, it is highly unlikely that enforcement action will be taken against the MPO or implementing agency, unless it is an egregious or knowing violation. Whenever TCMs are submitted, there should be definite commitments, obligation of a funding source, a schedule to plan, implement, and enforce the TCM, and a monitoring program to assess the TCM's effectiveness and to allow for corrections or alterations. The RTC should carefully weigh any reluctance to commit TCMs to the SIP against the possible failure to achieve attainment of the National Ambient Air Quality Standards (NAAQS) and a possible bump up to a worse category, or the imposition of sanctions by EPA under the provisions of the FCAA. Air pollution remains largely a mobile source problem in the Dallas/Fort Worth nonattainment area, and the improvement of air quality there rests largely on reduction of mobile source emissions. TCMs can be an important tool in this regard. The City of Dallas expressed concern about the rule affecting financing of local governments when the local government might be an implementing agency. It suggested changing "non-TCM" to "TCM" in that same paragraph. This paragraph states that the MPO shall withhold all or part of the funds for non-TCM projects from the applicable implementing agency. Since the MPO would be the funding agency, it seems unlikely that the City of Dallas would be in danger of losing any funds for approved TCMs. In any event, funding will not be deleted from valid proposed or ongoing TCMs because of the failure to implement some other TCM. Failure to fund TCM projects would not lead to cleaner air; however, the potential loss of non-TCM funding is sufficient incentive to ensure TCM implementation. The GHASP recommended a strong audit program to measure and verify emissions reductions. The MPO and implementing agency will be estimating the effectiveness of TCMs and will report on the results periodically. Annual TIPs must demonstrate conformity with the SIP, including satisfaction of all TCM commitments and associated emission reductions. TNRCC will evaluate and verify the conformity of the TIP with the SIP. The GHASP recommended real life monitoring near heavily traveled and congested areas. A number of air monitoring studies have been done in Houston and other places to verify the transportation and air quality models. Some of these data could be updated for Houston if sufficient resources can be identified. The GHASP expressed disappointment that there are no real, detailed TCMs that are measurable and enforceable in this proposal. This proposal was not designed to develop TCMs or to cover the individual TCMs, but to issue a rule to ensure that TCMs are enforceable. The TIP, the long-range plan, and the conformity analysis will present specific information on TCMs. The MPOs develop commitments for TCMs with implementing agencies and analyze emission reductions. The GHASP asked the meaning of the word "egregious." This term is defined in Webster's Dictionary as conspicuously bad or flagrant. The GHASP representative mentioned that the public should also be allowed access to records on TCM activities. This statement, in subsection (d), was intended to identify the governmental agencies that had a need for the data. This information is also available to the public. The GHASP asked what the word "expeditious" means in the context in which it is used in subsection (f)(1). It means contingency measures will be implemented such that the planned emissions reduction will occur in the same time frame as previously programmed. The GHASP complained that an afternoon meeting was inconvenient and requested that evening meetings be held in the future so people who work can attend. TNRCC attempts to schedule hearings in the evening whenever appropriate and possible. The H-GAC supported the use of categories of TCMs rather than project-specific commitments because of the flexibility it provides to implementing agencies in fulfilling their commitments. The H-GAC supported the stipulation that financial penalties will not be used, except in the case of egregious failures to comply with commitments because threats of fines on MPOs and implementing agencies are substantial disincentives for commitments by implementing agencies. It also supported the use of one aggregate emission target rather than project-specific or category-specific targets, because the aggregate target more fully reflects the interactions of TCMs. These features of the rule were worked out through extensive coordination with concerned parties, including EPA Region 6, EPA Office of Mobile Sources, the MPOs, MTA in Houston, TxDOT, and TNRCC. The H-GAC supported the development of a SIP with emphasis on demand reduction, the use of commitments to categories of TCMs to make it easier to make changes, and the use of one aggregate emission target. The H-GAC also supported the statement that financial penalties will not be imposed, except for egregious failure to comply. It expressed a need for TNRCC to work with the implementing agencies and MPOs to develop monitoring and enforcement procedures for TCM commitments. The TPC of H-GAC agreed to support expeditious implementation of TCMs, as required in ISTEA, through federal funding assistance. The TPC also supported implementation of alternative TCMs as needed to achieve emission reduction targets. It will enforce commitments by withholding funding approvals from implementing agencies which fail to make good faith efforts to achieve their commitments. Both H-GAC and MTA questioned what "enforce the TCM" meant from the perspective of an implementing agency, as expressed in subsection (b)(5) of the rule. The MTA suggested deleting the word "enforce" before TCM in subsection (b)(5). The current statement reads "evidence that a complete schedule to plan, implement, and enforce the TCM has been adopted by the implementing agencies; and, ..." The MTA stated that it is assumed that implementing agencies will not enforce, but will accept or approve enforcement programs. The EPA is intent on enforcing TCMs. In its guidance and in the FCAA, there is continuing emphasis on keeping TCMs specific and enforceable. The action taken to enforce TCMs has to begin at the local level with implementing agencies. The MPO, on the other hand, may revise the TIP, withhold funding, or seek financial penalties. The TNRCC staff looks at enforcement in a broad sense as the whole process of implementing TCMs from identification of the TCM to full implementation. In this sense, the implementing agency plays the key role in enforcing a TCM with the assistance of the MPO and others in the transportation planning community. Enforcement is achieved through careful planning, coordination, and scheduling. It includes the establishment of firm commitments, provision of an assured source of funding or other needed resources, calculation of emission benefits, monitoring of progress, prediction of future progress, and, in the event of failure to achieve the emission reduction goals, planning and implementation of sufficiently effective alternative measures to achieve the planned emission reductions. In short, enforcement of TCMs is the assured implementation of TCMs through careful planning and the carrying out of those plans in order to achieve established emission reduction goals. TNRCC recognizes that implementing agencies do not "enforce" measures by imposition of fines or penalties. Only as a last resort for an egregious or knowing violation of the provisions of this rule to implement TCMs, would TNRCC impose financial penalties. In an effort to further clarify this issue and to be responsive to public comments, this portion of the rule in subsection (b)(5) has been changed to delete the word "enforce" and to read "evidence that a complete schedule to plan, adopt, fund, implement, monitor, and ensure compliance with the TCM has been adopted by the implementing agencies; and, ..." Both H-GAC and MTA asked what "contingency measures" means in subsection (f) (1). Contingency measures, as used here, mean alternative transportation control measures. The contingency anticipated is the failure to completely implement a planned TCM and to achieve the emission reductions expected, for whatever reason. Contingency measures are to be identified and evaluated by the MPO based on effectiveness in reducing emissions at minimum economic cost and without seriously interfering with personal life style. They should be approved by TNRCC during the planning phase and planned in advance of need. The H-GAC suggested that "non-TCM projects" be replaced with the phrase "projects with no air quality benefit" since denial of funding for non-TCM projects may not achieve the desired air quality goals. TNRCC believes that a change in this wording is not necessary since the provision is to "withhold all or part" of the funding for non-TCM projects. This allows the MPO to make a judgment call on which projects, for any other reason, do not need to be funded and which projects do the most to improve air quality. The presumption is that, of those projects that are non-TCM, those most beneficial in improving air quality will be given first priority for funding. The present wording gives the MPO the needed flexibility in withholding funding. Under the definition of implementing agency in subsection (a)(3), MTA suggested adding "procurement of funds" and also "monitoring of" and the deletion of "compliance with." This suggestion further describes the activities performed by implementing agencies and seeks to make the MPOs alone responsible for ensuring compliance with TCMs. The suggestions to add "procurement of funds" and "monitoring" to the description of duties of an implementing agency is accepted. The request to delete the word "compliance" is rejected because compliance is a key issue. If the implementing agency and the MPO are not both working to ensure compliance, the implementation of the TCM may be unsuccessful. Therefore, the adjusted phrasing is "(3) Implementing agency-An entity, transportation provider, organization, agency, or individual responsible for the design, procurement of funds, construction, operation, maintenance, management, monitoring, and, in conjunction with the MPO, compliance with TCMs." In subsection (b), MTA suggested the removal of the words "development of" before "the long-range transportation plan", the deletion of "implementing agency" after "such", and the insertion of "by the MPO" after "commitments." This language would make the MPO, and not the implementing agency, responsible for providing most of the information on TCMs. The deletion of "development of" is accepted since it is repetitive. However, changing "implementing agency" to "by the MPO" is inappropriate since, in most cases, commitments to adopt or fund a TCM will be made by the implementing agencies. The MTA suggested substitution of the word "by" for "from" with reference to funding approvals in subsection (b)(4). This is in reference to evidence of funding commitment approvals, which may be obtained either "by" or "from" implementing agencies. It is true, that in some cases, commitments for funding might be obtained from other agencies, so the change of "from" to "by" is accepted. The MTA commented that the term "parties" in subsection (b)(4) is too vague or should be defined. Parties is a commonly used legal term that is appropriate for this purpose. No change has been made. The MTA objected to the statement in subsection (b)(4) that "programming within the TIP will serve as sufficient evidence of commitment." It states that a conforming TIP will usually not occur until after the SIP is approved. The TNRCC staff believes that approval by the governing transportation planning body is evidence of commitment and should be timely enough. SIP approval by EPA is, therefore, not necessary and no change has been made. The MTA commented that in subsection (b)(6) "monitoring program" needs further definition. It also asked if this program will monitor for air quality, traffic, fuel, or maintenance. Monitoring must demonstrate the reduction of mobile source emissions. The study of the feasibility of implementing a TCM should take into account the ease of documentation of progress and effectiveness. If the emission reductions are too difficult to assess, it may be advisable to plan to develop a different TCM. The MTA asked what type of "measurable criteria" would be used to quantify progress. The implementing agency must decide what criteria can best demonstrate effectiveness in reducing emissions. For example, it could be reduction of vehicle miles traveled (VMT) or number of trips, or a decrease in congestion or delays due to accidents. The key requirement is the quantification of the effect on mobile source emissions by the use of reasonable rationale and assumptions. The new rule is adopted under the Texas Health and Safety Code (Vernon 1990) , the Texas Clean Air Act (TCAA), sec.382.017, which provides TNRCC with the authority to adopt rules consistent with the policy and purposes of the TCAA. sec.114.23. Transportation Control Measures. (a) Unless specifically defined in the Texas Clean Air Act (TCAA) or in the rules of the Texas Natural Resource Conservation Commission (TNRCC), the terms used by TNRCC have the meanings commonly ascribed to them in the field of air pollution control. In addition to the terms defined by the TCAA, the following words and terms, when used in this rule, shall have the following meanings, unless the context clearly indicates otherwise. (1) Transportation control measure (TCM)-Any category or group of actions, programs, or transportation services or facilities which reduces vehicle emissions. (2) Metropolitan Planning Organization (MPO)-As defined under the Intermodal Surface Transportation Efficiency Act, Title 23, sec.134. (3) Implementing agency-An entity, transportation provider, organization, agency, or individual responsible for the design, procurement of funds, construction, operation, maintenance, management, monitoring, and, in conjunction with the MPO, compliance with TCMs. (b) The MPO for any designated nonattainment area shall be responsible for the identification, evaluation, coordination, tracking, and periodic revision, as necessary, of TCMs required for inclusion in the Texas State Implementation Plan (SIP) adopted by TNRCC. The MPO shall obtain and submit to TNRCC the necessary commitments from applicable implementing agencies and shall ensure adequate, timely funding of such projects through the development, management, and annual revision of the Transportation Improvement Program (TIP) and, through the long- range transportation plan, ensuring conformity of the regional transportation network with the SIP. Such implementing agency commitments shall include, but not be limited to, the following information: (1) a complete description of the program of measures and estimated emission reduction benefits from the program of measures adopted; (2) evidence that the measure was properly adopted by a jurisdiction with legal authority to commit to and execute the program of measures; (3) evidence that funding has been or will be obligated to implement the measure; (4) evidence that all necessary funding approvals have been obtained by all appropriate implementing agencies, including the Texas Department of Transportation (TxDot), if applicable; and all parties intend to implement specific control measures upon final environmental clearance. Programming within the TIP will serve as sufficient evidence of commitment; (5) evidence that a complete schedule to plan, adopt, fund, implement, monitor, and ensure compliance with the TCM has been adopted by the implementing agencies; and (6) a description of the monitoring program to assess the measure's effectiveness and to allow for necessary in-place corrections or alterations. (c) MPOs required to comply with the provisions of this rule include the: (1) El Paso MPO for the El Paso Urban Transportation Study-responsible for the El Paso nonattainment area; (2) Houston-Galveston Area Council-responsible for the Houston/Galveston nonattainment area; (3) North Central Texas Council of Governments-responsible for the Dallas/Fort Worth nonattainment area; and (4) Southeast Texas Regional Planning Commission-responsible for the Beaumont/Port Arthur nonattainment area. (d) The responsible MPO shall obtain information from implementing agencies responsible for TCMs included in the SIP; shall maintain complete and accurate records for at least five years; and shall make such records available to representatives of TNRCC, the United States Environmental Protection Agency, the Federal Highway Administration, the Federal Transit Administration, the TxDot, and local air pollution agencies having jurisdiction in the area, upon request. The information in the records shall be sufficient to accurately reflect the effectiveness of the TCM program and shall include, but shall not be limited to, the following: (1) the annual status of the implementation of the program of TCMs and the categories of TCMs, including quantifying progress based on the measurable criteria established in implementing agency commitments; (2) an annual estimate of the funding and other resources expended toward implementing the program of TCMs and a comparison of the actual and projected expenditures; (3) an annual estimate of the emission reductions achieved from implementation of the program of TCMs and a comparison of actual and projected reductions; and (4) any modifications to the program of TCMs since the last annual report and/or projected in the next reporting period to compensate for a shortfall in the implementation of the program of TCMs or in the associated emission reductions. (e) If information regarding the status of the program of TCMs in the SIP indicates that any TCM included in the SIP has not been adequately implemented in accordance with the projected schedule, the responsible MPO shall within the next 12 months after TIP approval by the MPO or regional transportation policy body: (1) ensure that the responsible implementing agencies have instituted supplemental efforts as necessary to demonstrate compliance with commitments, future TCM milestones, or goals; (2) develop, submit, and initiate an alternative TCM in coordination with the same or other responsible implementing agencies, which, as part of the program of TCMS in the SIP, demonstrates at least an equivalent emission reduction in the same time frame to the existing program; (3) initiate a revision to the TIP as necessary, but no more frequently than annually, to ensure that sufficient funding and authorization has been provided to correct the deficiency; and (4) submit to TNRCC new or modified TCMs as proposed SIP revisions if the alternative TCMs are not within the same category, or if required emission reductions cannot be met with the planned alternative TCMs. 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 November 10, 1993. TRD-9332205 Mary Ruth Holder Director, Legal Division Texas Natural Resource Conservation Commission Effective date: December 8, 1993 Proposal publication date: September 21, 1993 For further information, please call: (512) 463-8159 TITLE 37. PUBLIC SAFETY AND CORRECTIONS Part III. Texas Youth Commission Chapter 85. Admission and Placement Placement Planning 37 TAC sec.85.31, sec.85.43 The Texas Youth Commission (TYC) adopts amendments to sec.85.31 and sec.85. 43, concerning home placement and interstate compact for TYC youth, without changes to the proposed text as published in the October 5, 1993, issue of the Texas Register, (18 TexReg 6803). The amendments will result in a more efficient system of providing services through the Texas Interstate Compact on Juveniles Office (IJC) for youth who are sent between states. The amendments to sec.85.31 add that the home evaluation process be applied to all youth properly referred to parole officers through the IJC, and the amendments to sec.85.43 clarify how the IJC office provides services for youth sent between states. No comments were received regarding adoption of the amendments. The amendments are adopted under the Human Resources Code, sec.61.034, which provides the Texas Youth Commission with the authority to make rules appropriate to the proper accomplishment of its functions. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on November 12, 1993. TRD-9332137 Ron Jackson Executive Director Texas Youth Commission Effective date: December 6, 1993 Proposal publication date: October 5, 1993 For further information, please call: (512) 483-5244 TITLE 40. SOCIAL SERVICES AND ASSISTANCE Part I. Texas Department of Human Services Chapter 72. Memorandum of Understanding with Other State Agencies Memorandum of Understanding Concerning Coordination of Services to Persons with Disabilities 40 TAC sec.sec.72.210 The Texas Department of Human Services (DHS) adopts an amendment to sec.72. 210 without changes to the proposed text published in the October 15, 1993, issue of the Texas Register(18 TexReg 7136). The amendment is justified to clarify the responsibilities of the Texas Interagency Council on Early Childhood Intervention (ECI) in relation to persons with disabilities. The amendment will function by making policy clearer regarding the ECI's responsibilities to persons with disabilities. The department received no comments regarding adoption of the amendment. The amendment is adopted under the Human Resources Code, Title 2, Chapter 22, which provides the department with the authority to administer public assistance programs. The amendment implements sec.22.001 of the Human Resources Code. sec.72.210. The Texas Interagency Council on Early Childhood Intervention (ECI). (a) Financial and service responsibilities to persons with disabili- ties. (1) ECI was established by the Texas State Legislature to provide services to infants and toddlers with developmental delays and their families. ECI contracts with 75 local community organizations and agencies. The ECI programs are affiliates of local school districts, educational service centers, state centers, state schools, Texas Department of Mental Health and Mental Retardation (TXMHMR) community centers, private rehabilitation centers, and universities. Children under age three with a significant delay in one or more areas of development, or with established medical conditions known to lead to developmental delays (such as Down syndrome), and children diagnosed as having atypical behaviors are eligible for services. The contact for program information is Executive Director, Texas Early Childhood Intervention Program, (512) 502-4900. (2) Agreements with state agencies. The Texas ECI Program represents an inter- agency effort of the Texas Department of Health, Texas Department of Mental Health and Mental Retardation, Texas Department of Human Services, Texas Commission on Alcohol and Drug Abuse, Texas Department of Protective and Regulatory Services, and the Texas Education Agency. The Texas ECI Program is governed by an inter-agency council with a representative from each of the departments listed in this paragraph, plus three public representatives appointed by the Office of the Governor. (b) (No Change). This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on November 17, 1993. TRD-9332207 Nancy Murphy Section Manager, Policy and Document Support Texas Department of Human Services Effective date: December 1, 1993 Proposal publication date: October 15, 1993 For further information, please call: (512) 450-3765