ADOPTED RULES An agency may take final action on a section 30 days after a proposal has been published in the Texas Register. The section becomes effective 20 days after the agency files the correct document with the Texas Register, unless a later date is specified or unless a federal statute or regulation requires implementation of the action on shorter notice. If an agency adopts the section without any changes to the proposed text, only the preamble of the notice and statement of legal authority will be published. If an agency adopts the section with changes to the proposed text, the proposal will be republished with the changes. TITLE 16. ECONOMIC REGULATIONS Part I. Railroad Commission of Texas Chapter 3. Oil and Gas Division Conservation Rules and Regulations 16 TAC sec.3.66 The Railroad Commission of Texas adopts an amendment to sec.3.66, concerning pipeline tariffs, without changes to the proposed text as published in the December 16, 1994, issue of the Texas Register (19 TexReg 9949). The amendment implements Texas Natural Resources Code, sec.111.139, which requires common carrier pipelines to furnish spill and leak reports filed at the commission to registered owners of property crossed by pipelines. This amendment also amends the form and time requirements of notification of spills and leaks to the commission, defines landowners and residents for the purpose of notification and creates a five year registration period at the commission. Adoption of the amendment will improve the dissemination of information to the public concerning spills or leaks from common carrier pipelines crossing private property. One comment suggested that the commission require landowners to register annually with the commission, rather than every five years. The commission disagrees because a yearly registration would be unduly onerous on the public. One comment suggested that the commission provide common carriers with the name and address of registered landowners who may be affected by leaks or spills within two weeks of filing required forms with the commission. The commission disagrees because maintaining one list at one site will eliminate confusion about whom has registered. The following groups or associations filed comments supporting adoption of the rule as proposed: Scurlock Permian Corporation, Texas Mid-Continent Oil & Gas Association, and Mobil Oil Corporation. No groups or associations commented against the rule. The Railroad Commission adopts the amendment under Texas Natural Resources Code, sec.81.052, which gives the commission the authority to adopt all necessary rules for governing and regulating persons and their operations under the jurisdiction of the commission. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on February 15, 1995. TRD-9501923 Mary Ross McDonald Assistant Director, Legal Division, Gas Utilities/LP Gas Railroad Commission Effective date: March 8, 1995 Proposal publication date: December 16, 1994 For further information, please call: (512) 463-7008 TITLE 19. EDUCATION Part II. Texas Education Agency Chapter 101. Assessment 19 TAC sec.101.1 The Texas Education Agency (TEA) adopts an amendment to sec.101.1, concerning general provisions for student assessment, without changes to the proposed text as published in the November 22, 1994, issue of the Texas Register (19 TexReg 9265). The amendment is necessary to prevent a student from being penalized by a test for which he or she has not been taught the necessary skills. The amendment would prohibit school districts from developing policies on the use of an end- of-course test that would cause a student to fail a course solely as a result of performance on the end-of-course test during either the benchmark year of the test or the subsequent school year. No comments were received regarding adoption of the amendment. The amendment is adopted under the Texas Education Code, sec.35.022, which authorizes the State Board of Education to create and implement by rule a statewide assessment program that is primarily performance-based to ensure school accountability for student achievement that achieves the goals provided under the Texas Education Code, sec.35.022. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on February 15, 1995. TRD-9501916 Criss Cloudt Executive Associate Commissioner, Policy Planning and Information Management Texas Education Agency Effective date: March 8, 1995 Proposal publication date: November 22, 1994 For further information, please call: (512) 463-9701 TITLE 31. NATURAL RESOURCES AND CONSERVATION Part I. General Land Office Chapter 19. Oil Spill Prevention and Response The General Land Office (GLO) adopts amendments to sec. sec.19.2-19.6, 19. 12- 19.20, 19.32-19.37 and 19.51-19.55, concerning oil spill prevention and response. Sections 19.2, 19.12-19.14, 19.18, 19.20, 19.34 and 19.36 are adopted with changes to the proposed text as published in the October 28, 1994, issue of the Texas Register (19 TexReg 8581). Sections 19.3-19.6, 19. 15-19.17, 19.19, 19.32, 19.33, 19.35, 19.37 and 19.51-19.55 are adopted without changes and will not be republished. This chapter is adopted pursuant to Texas Natural Resources Code, Chapter 40, Subchapter C (Oil Spill Prevention and Response) which requires the commissioner of the GLO to promulgate regulations regarding the unauthorized discharge of oil. Chapter 19 contains regulations applicable to compliance with the Oil Spill Prevention and Response Act of 1991 (OSPRA), except for natural resource damage assessment rules, codified at 31 TAC Chapter 20, and administrative hearings rules, codified at 31 TAC Chapter 21. The amendments adopted herein correct inconsistencies between the definitions in sec.19.2 and OSPRA; add citations for applicable federal safety standards relevant to inspections authorized in sec.19.3; and clarify rules for facility certification, including a change to sec.19.12 rules for recertification and acceptance of federal plans to fulfill OSPRA requirements. The amendments modify sec.19.13 and sec.19.14 requiring the submission of schedules for inspection and maintenance of facility-owned response equipment and of protection strategies for environmentally sensitive areas. Section 19.18 is amended to refer to the National Preparedness for Response Exercise Program. Section 19.19 is amended by adding the OSPRA sec.40.115 language, regarding vessel entry into a Texas port. Certification of discharge cleanup organizations is clarified by amending sec.19.20 to conform to National Contingency Plan requirements for volunteer organizations. Section 19.34 is amended to emphasize the use of applicable contingency plans and of the incident command system during response operations. Section 19.36 is amended to require information about the disposal of all types of solid waste generated by an unauthorized discharge of oil. Section 19.54 is amended because new regulations for assessing natural resource damages have been adopted. Sections 19.3-19.6, 19.15-19.17, 19.32, 19.35, 19.37, 19.51-19.53 and 19.55 are amended to reflect editorial changes only. Response to Comments. Section 19.2(a). One commenter noted that the sec.19.2(a)(11) definition of oil was different from the definition in OSPRA. Section 19.2(a)(11) has been amended to conform to the statutory definition. Section 19.12(g). One commenter requested deleting the sec.19.12(g) requirement to send the GLO copies of correspondence with federal agencies regarding response plans required under federal law. The GLO requests a copy of all correspondence between the applicant and the federal government to determine the status of the facility under federal law. The GLO, by accepting the federal plan, is minimizing the paperwork burden on facilities. The request for copies of correspondence is intended to expedite the facility certification process without unduly burdening the applicant. No change was made based on this comment. One commenter suggested sec.19.12(g) be amended by adding a statutory reference to the federal statute requiring response plans. Based on this comment, sec.19.12(g) was amended to cite the section of the Federal Water Pollution Control Act, amended by the Oil Pollution Act of 1990 (OPA), which requires vessel and facility response plans. Section 19.13. One commenter requested that sec.19.13(a)(2)(H) and sec.19.14(6)(D)(viii) be amended to clarify the type of information required. The proposed changes in these sections are designed to ensure that facility-owned and facility- maintained equipment is regularly inspected and repaired. The section refers only to equipment owned or maintained by a facility and does not include any equipment owned or maintained by third parties even if readily available to a facility. Section 19.13 and sec.19.14 were amended to clarify the meaning of the sections. One commenter suggested that sec.19.13(a)(2)(C) be amended to state that protection strategies be based on the strategies already identified in either the Area Contingency Plan or the Texas Coastal Discharge Contingency Plan. All protection strategies should be consistent with the Area Contingency Plans and the state coastal discharge contingency plan. However, each facility must also adopt strategies relevant to the particular conditions at and around the facility while maintaining consistency with the applicable Area Contingency Plan or with the Texas Coastal Discharge Contingency Plan. Each facility is responsible for its own response protection strategy, which will necessarily be more specific than the broader coastal or area contingency plan. No change was made based on this comment. Section 19.18. One commenter suggested amending sec.19.18(a) to state that participation in the National Preparedness for Response Exercise Program (NPREP) is voluntary. Section 19.18(a) was amended, based on this comment, to emphasize that the NPREP program is voluntary; however, any facility may use the NPREP scheme for ensuring preparedness. One commenter commended the GLO for recognizing that the NPREP serves the same goals as OSPRA drill requirements. The GLO is committed to coordinating its programs with other similar requirements in state and federal law. The commenter's recognition is appreciated. Section 19.19. One commenter requested that sec.19.19(b) not be adopted because these items are already required by OSPRA. The commenter stated that the GLO should not deny a vessel entry into port unless it does so in conjunction with the United States Coast Guard. Pursuant to the explicit language of OSPRA sec.40.115, the commissioner is authorized to request the information cited in this section prior to granting a vessel entry into port. The GLO will not deny a vessel entry into port without coordination with the United States Coast Guard. However, since OSPRA does not require such coordination, no change was made to the proposed section. Section 19.20. One commenter recommended deleting the reference in sec.19.20(a) to June 15, 1992, since it is no longer a relevant date. This change has been made. One commenter suggested amending sec.19.20(d)(1) to emphasize the need to have both equipment and personnel necessary to perform response operations. Since no substantive change was proposed for this section, this change cannot be made. Regarding sec.19.20(f)(6), one commenter suggested adding the words "if applicable" at the start of the subsection. Since no substantive change was proposed for this section, no change can be made. One commenter requested clarification of sec.19.20(h) to require reporting only those changes in equipment and personnel which significantly reduce response capability. This commenter also suggested that temporary changes in equipment and personnel should not be reportable unless their duration exceeds 72 hours. Finally, the commenter recommended that the GLO adopt the same reporting requirements as the federal government has for oil spill response organizations. Since no substantive change was proposed for this section, no change can be made. One commenter asked that sec.19.20(i) be clarified to distinguish between certified and registered wildlife rescue and rehabilitation organizations. This commenter also noted that the role of volunteer organizations should be consistent with the National Contingency Plan. This section was amended to include a citation to the applicable sections of the National Contingency Plan. One commenter noted that sec.19.20(k) uses the word "may" while OSPRA requires the GLO to certify those organizations that have received federal classification. The commenter suggested that the word "may" be changed to "shall" to be consistent with OSPRA. This section was amended as suggested. One commenter recommended additional language in sec.19.20(k) to clarify the circumstances under which the GLO will impose requirements in addition to federal requirements. OSPRA requires the GLO to accept as a discharge cleanup organization (DCO) those entities who are accepted as oil spill response organizations (OSRO) under OPA. The fact that an OSRO is accepted by the GLO as a DCO does not change or affect the GLO's ability to impose requirements on DCOs. The GLO expects OSROs to comply with regulations applicable to DCOs. The fact that the GLO must accept an OSRO as a DCO does not mean that OSROs are exempt from GLO regulations. The GLO sees no benefit in the speculative exercise of delineating future circumstances which may prompt future action. No change was made based on this comment. Section 19.33. One commenter requested that GLO clarify which party is responsible for determining the predominant characteristics of a spill to determine whether the GLO or Texas Natural Resource Conservation Commission (TNRCC) has jurisdiction. The particular circumstances of the incident will dictate the most efficient and effective manner for determining the nature of the discharged material. The on- scene coordinator may require the responsible person to make the determination, may make the determination himself, or may use the services of a third party to make the determination. The most efficient method for making this determination is best left to the discretion of the on-scene coordinator. No change was made based on this comment. One commenter requested a clarification of sec.19.33(b)(2) for determining the quantity of oil discharged where oil may be mixed with other materials. Since there was no substantive change proposed to this subsection, no change can be made in response to this comment. One commenter requested an amendment to sec.19.33(b)(2) to clarify that the Railroad Commission acts as on-scene coordinator only where the discharge releases less than 240 barrels of oil, as opposed to 240 barrels of other substances mixed with oil. Since there was no substantive change proposed to this section, no change can be made in the final rule. One commenter suggested that a new section be added to this chapter to repeat the language in OSPRA sec.40.102(d), which states that the on-scene coordinator may authorize the decanting of recovered water during spill response. Because such a section was not proposed, it cannot be made part of a final rule. No change was made based on this comment. Section 19.34. One commenter suggested that sec.19.34(b) be amended by stating that the GLO determination that response is inadequate should be coordinated with the federal on-scene coordinator. This recommendation is already contained in these regulations at sec.19.33(b)(1). No change was made based on this comment. One commenter stated that proposed sec.19.34(f) is too restrictive because a contingency plan cannot completely or adequately account for every circumstance that may be encountered in a spill incident. Instead of requiring response to be in compliance with the National Contingency Plan, the language of this section was changed, based on this comment, to say that actions must be consistent with the National, Area and other applicable contingency plans. Section 19.35. One commenter suggested that sec.19.35(b) be reworded to simply refer to the OSPRA qualified immunity provisions. Since no substantive change was proposed to this section, the suggested change cannot be made to the final rule. Section 19.36. One commenter recommended amending sec.19.36 to require a responsible person to submit to the on-scene coordinator a comprehensive waste management/disposal plan. This change was made to more accurately reflect the various solid waste handling requirements applicable during an unauthorized discharge of oil. One commenter suggested that sec.19.36(d) be amended to include a requirement that all documentation related to waste disposal be referenced. This useful suggestion was adopted and sec.19.36(d) now requires all documents related to waste disposal to be forwarded to the on-scene coordinator. List of Commenters. Coastal Corporation opposed sec.19.12(g). The Marine Spill Response Corporation opposed sec.sec.19.2, 19.12-19.14, 19.18, 19.20, 19.33-19.35 and 19.36. The Texas Railroad Commission opposed sec.19.33(b)(2) and sec.19.36(d). West Gulf Maritime Association opposed sec.19.19. Subchapter A. General Provisions 31 TAC sec.sec.19.2-19.6 The changes to Chapter 19 are adopted pursuant to OSPRA sec.40.117, which authorizes the commissioner to adopt, amend, repeal and enforce regulations regarding the unauthorized discharge of oil. sec.19.2. Definitions. (a) The following words, terms and phrases, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise. (1) Coastal waters-All tidally influenced waters extending from the head of tide in the arms of the Gulf of Mexico seaward to the three marine league limit of Texas' jurisdiction; and non-tidally influenced waters extending from the head of tide in the arms of the Gulf of Mexico inland to the point at which navigation by regulated vessels is naturally or artificially obstructed. The term includes the entirety of the Gulf Intracoastal Waterway (GIWW) within Texas, and the following waters: starting from Echo, Texas, located in Orange County, and proceeding south on the Sabine River to the intersection with the GIWW, thence westerly along the GIWW, including Adams Bayou, to 0.7 miles upstream of IH-10, and Cow Bayou, to IH-10. This includes the Neches River in Orange County to 7. 0 miles upstream of IH-10. Then along the GIWW towards Port Arthur, including Taylors Bayou south of Highway 73. From Port Arthur along the GIWW to, and including, East Bay, Trinity Bay, Cedar Bayou to 1.4 miles upstream of IH-10 in Harris/Chambers County, Lynchburg Canal to 29 degrees 41'00"N, 94 degrees 59'00"W, San Jacinto River in Harris County to the Lake Houston Dam, and the Houston Ship Channel to the turning basin. Tidal tributaries of the Houston Ship Channel include: Buffalo Bayou to .25 miles upstream of Shepherd Drive, Brays Bayou to the Broadway Street Bridge, Sims Bayou to Highway 225, Vince Bayou to North Ritchie Street, Hunting Bayou to I-10, Greens Bayou to I-10, Boggy Bayou to Highway 225, Tucker Bayou to Old Battleground Road, Carpenter's Bayou to Sheldon Road, and Goose Creek to Highway 146. Proceed south and include Barbours Cut, Bayport Channel, Clear Lake to .063 miles upstream of FM 528 in Galveston/Harris County, Dickinson Bay, Dickinson Bayou 2.5 miles downstream of FM 517 in Galveston County, Moses Lake, Dollar Bay, Texas City Channel (including turning basin), Swan Lake, Jones Bay, and continuing at the junction of West Bay and the GIWW in Galveston County. Continue westerly along the GIWW to the Port of Freeport, including Greens Lake, Chocolate Bay, Chocolate Bayou to 2.6 miles downstream of SH 35, the Old Brazos River and the New Brazos River up to the Missouri-Pacific Railroad bridge in Brazoria County, and the Dow Barge Canal. Then southerly along the GIWW through and including Jones Lake and Creek, the San Bernard River to 2.0 miles upstream of SH 35, Cowtrap Lake, Matagorda Bay, the Colorado River to 1.3 miles downstream of the Missouri-Pacific Railroad in Matagorda County, to the Port of Bay City, Culver Cut (West Branch Colorado River to 28 degrees 42'N and the entire middle branch), Crab Lake, Oyster Lake, Tres Palacios Bay, Turtle Bay, Caranchua Bay, Keller Bay, Cox Bay, Lavaca Bay, Lavaca River to 5.3 miles downstream of U.S. 59 in Jackson County, Chocolate Bay/Bayou, Powderhorn Lake, Robinsons Lake, Blind Bayou, La Salle Bayou, Broad Bayou, and Boggy Bayou. Continuing southerly on GIWW from Port O'Connor through San Antonio Bay including: Guadalupe Bay, Mission Lake, Green Lake, Victoria Barge Canal, Guadalupe River to the Guadalupe-Blanco River Authority Salt Water Barrier 0.4 miles downstream of the confluence of the San Antonio River, Goff Bayou, Hog Bayou, Corey Bay, Buffalo Lake, Alligator Slide Lake, Twin Lake, Mustang Lake, and Jones Lake. Then continuing through Mesquite Bay including: Dunham Bay, Long Lake, Sundown Bay, and the Aransas Wildlife Refuge. Continuing southerly through St. Charles Bay including: Burgentine Bay/Burgentine Creek to 28 degrees 17'N, Salt Creek to 28 degrees 16'N, and Cavaso Creek to 97 degrees 01'W. Then through Copano Bay, including Copano Creek, Mission Bay, Mission River to 4.6 miles downstream of U.S. 77, Chiltipin Creek, Aransas River to 3. 3 miles upstream of Chiltipin Creek in Refugio/San Patricio County, Swan Lake, Port Bay, and Salt Lake. Then southerly including: Little Bay, Aransas Bay, Conn Brown Harbor, Redfish Cove, Redfish Bay, La Quinta Channel, Nueces River to Calallen Dam 1.1 miles upstream of U.S. 77/IH 37 in Nueces/San Patricio County, Rincon Industrial Channel, Rincon Bayou, Nueces Bay, Tule Lake, Corpus Christi Inner Harbor, Oso Creek, Oso Bay, Cayo Del Oso, and Corpus Christi Bay. Continuing south, through and including Packery Channel, Laguna Madre, Baffin Bay, Alazan Bay, Cayo del Hinoso, Petrolino Creek from the confluence of Chiltipin Creek in Kleberg County to 0.6 miles upstream of private road crossing near Laurless Ranch, Cayo Del Infiernillo, Cayo del Grullo, Laguna Salada, Laguna de los Olmos, and Comitas Lake. Continuing through the Laguna Madre to Redfish Bay, Port Mansfield Harbor, Four Mile Slough, Cayo Atascosa, Laguna Atascosa, Arroyo Colorado Cutoff, El Realito Bay, Laguna Vista Cove, Port Isabel Harbor, Brownsville Ship Channel, Bahia Grande, Vadia Ancha, San Martin Lake, South Bay, and the Arroyo Colorado River to .063 miles downstream of Cemetery Road south of Port Harlingen in Cameron County. Then southerly to the Rio Grande River to 6.7 miles downstream of the International Bridge in Cameron County. Where the coastal area is defined by a body of water such as a bay or lake, it includes any small bays or lakes encompassed therein. (2) Commissioner-The commissioner of the General Land Office. (3) Discharge cleanup organization-A corporation, partnership, proprietorship, organization, or association that intends to make itself available to engage in response actions to abate, contain, or remove an unauthorized discharge or pollution or damage from an unauthorized discharge. (4) Environmentally sensitive areas-Streams and water bodies, aquifer recharge zones, springs, wetlands, bird rookeries, endangered and threatened species (flora and fauna) habitat, wildlife preserves or conservation areas, parks, beaches, dunes, or any other area protected or managed for its natural resource value. (5) Facility-Mobile or portable units, other than vessels, generally are considered facilities only when they are fixed in location and operating in coastal waters. (A) Any pipeline, structure, equipment, or device used for handling oil, including, but not limited to, underground and aboveground tanks, impoundments, mobile or portable drilling or workover rigs and barge-mounted drilling or workover rigs operating in coastal waters, and portable fueling facilities located offshore or adjacent to coastal waters as defined in paragraph (1) of this subsection or any place where a discharge of oil from the facility could enter or pose an imminent threat to coastal waters. (B) A combination of interrelated or adjacent tanks, impoundments, pipelines, gathering lines, flow lines, separator or treatment facilities, and other structures, equipment, or devices under common ownership or operation generally will be considered a single facility under OSPRA. Interrelated means that the devices are all an integral part of one commercial or industrial operation or are managed and controlled by a single entity. The term includes facilities owned by units of federal, state, or local government, as well as privately owned facilities. (6) Fund-The coastal protection fund established under OSPRA. (7) Federal fund-The oil spill liability trust fund established under OPA. (8) Handle-To transfer, transport, pump, treat, process, store, dispose of, drill for, or produce. (9) Harmful quantity of oil-The presence of oil from an unauthorized discharge in a quantity sufficient either to create a visible film or sheen upon or discoloration of the surface of the water or a shoreline, tidal flat, beach, or marsh, or to cause a sludge or emulsion to be deposited beneath the surface of the water or on a shoreline, tidal flat, beach, or marsh. (10) National contingency plan-The plan prepared under the Federal Water Pollution Control Act (33 United States Code sec.1321 et seq) and the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 United States Code sec.9601 et seq), as revised from time to time. (11) Oil-Means oil of any kind or in any form, including but not limited to crude oil, petroleum, fuel oil, sludge, oil refuse, and oil mixed with wastes other than dredged spoil, but does not include petroleum, including crude oil or any fraction thereof, which is specifically listed or designated as a hazardous substance under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), sec.101(14), Subparagraphs (A)-(F) (42 United States Code, sec.9601 et seq), and which is subject to the provisions of that Act, and which is so designated by the Texas Natural Resource Conservation Commission. (12) OPA-The Oil Pollution Act of 1990, Public Law 101-380. (13) OSPRA-The Oil Spill Prevention and Response Act of 1991, Natural Resources Code, Chapter 40. (14) Owner or operator-Any person, individual, partnership, corporation, association, governmental unit, or public or private organization of any character: (A) owning, operating or responsible for operating, or chartering by demise a vessel; (B) owning, operating, or responsible for operating a facility; or (C) operating a facility by lease, contract, or other form of agreement. The term does not include a person who owns only the land underlying a facility or a person who owns only a security interest in a vessel or facility if the person does not participate in the operation of the vessel or facility, does not own a controlling interest in the owner or operator of the vessel or facility, and is not controlled by or under common ownership with the owner or operator of the vessel or facility. (15) Regulated vessel-A vessel with a capacity to carry 10,000 U.S. gallons or more of oil as fuel or cargo. (16) Unauthorized discharge-Discharges excluding those authorized by and in compliance with a government permit, seepage from the earth solely from natural causes, and unavoidable, minute discharges of oil from a properly functioning engine, of a harmful quantity of oil from a vessel or facility either: (A) into coastal waters; or (B) on any waters or land adjacent to coastal waters where harmful quantities of oil may enter coastal waters or threaten to enter coastal waters if the discharge is not abated nor contained and the oil is not removed. (17) Underground storage tank-Any tank or container used for storing oil which is located completely under the surface of the earth. Tanks which are partially buried or which are contained in aboveground vaults or other aboveground containment structures are not considered underground tanks for the purpose of certification requirements under these sections. (18) Underwriter-An insurer, a surety company, a guarantor, or any other person, other than an owner or operator of a vessel or facility, that undertakes to pay all or part of the liability of an owner or operator. (19) Waste-Oil or contaminated soil, debris, and other substances removed from coastal waters and adjacent waters, shorelines, estuaries, tidal flats, beaches, or marshes in response to an unauthorized discharge. Waste means any solid, liquid, or other material intended to be disposed of or discarded and generated as a result of an unauthorized discharge of oil. Waste does not include substances intended to be recycled if they are in fact recycled within 90 days of their generation or if they are brought to a recycling facility within that time. (20) Worst case unauthorized discharge-The largest foreseeable unauthorized discharge under adverse weather conditions. For facilities located above the high water line of coastal waters, a worst case discharge includes those occurring in weather conditions most likely to cause oil discharged from the facility to enter coastal waters. (21) Coastal Facility Designation Line-The Coastal Facility Designation Line delineates the area within which a facility may be subject to the certification requirements of sec.19.12 of this title (relating to Facility Certification). The line does not delineate OSPRA's response or notification requirements; rather, it gives notice to facilities located coastward of the line that they may be subject to facility certification requirements. These facilities should contact the General Land Office (GLO). The GLO will then, based on the precise location of the facility and based on the quantity of oil handled, determine whether facility certification is required. A description of the coastal facility designation line and a map can be found in Appendix 1. Figure 1: 31 TAC sec.19.2(a)(21). (b) All other terms used in this chapter and defined in OSPRA have the meaning assigned to them by OSPRA. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on February 7, 1995. TRD-9501849 Garry Mauro Commissioner, General Land Office General Land Office Effective date: March 6, 1995 Proposal publication date: October 28, 1994 For further information, please call: (512) 305-9129 Subchapter B. Spill Prevention and Preparedness 31 TAC sec.sec.19.12-19.20 The changes to Chapter 19 are adopted pursuant to OSPRA sec.40.117, which authorizes the commissioner to adopt, amend, repeal and enforce regulations regarding the unauthorized discharge of oil. sec.19.12. Facility Certification. (a) The owner of a regulated facility must apply to the General Land Office (GLO) for a discharge prevention and response certificate. No facility may commence or continue operations after January 1, 1993, without a discharge prevention and response certificate issued by GLO. However, any person who has requested a waiver from facility certification requirements, pursuant to sec.19. 4 of this title (relating to Waiver), is deemed to be in compliance with all time limits set forth herein. Application forms are available from the General Land Office, Oil Spill Response Prevention and Response Division, 1700 North Congress Avenue, Austin, Texas 78701-1495. (b) In the case of a facility whose owner is a different person or entity than its operator, the commissioner may require both the owner and operator to file an application for certification. The commissioner may also require only one of the parties to file an application. Generally, the lease operator must file the application for certification of exploration and production activities on an oil and gas lease. (c) For corporate applicants, the application must be signed by an officer of at least the rank of vice-president. For partnerships, the application must be signed by a partner. All applications must also be signed by the person responsible for operation of the facility; this includes, for example, the facility manager, or an area manager if the facility does not have management on site. (d) An applicant for a discharge prevention and response certificate must pay an application fee when the application is filed. An owner or operator who is submitting applications for more than one facility is required to pay only one application fee based on the largest size facility for which an application is submitted. The amount of the fee is determined by the type of regulated facility as follows: (1) $100 for small facilities that have a storage or daily transfer capacity or actual usage not exceeding 10,000 U.S. gallons; (2) $1, 000 for major facilities that have a storage or daily transfer capacity or actual usage not exceeding 250,000 U.S. gallons; (3) $2,500 for all other major facilities; (4) small commercial facilities and underground storage facilities are not required to pay an application fee. (e) A regulated facility may not handle oil after January 1, 1993, without a discharge prevention and response certificate issued by GLO. Facilities which commence operation after January 1, 1993, shall be granted a 90-day period from the commencement of operations or production to apply for facility certification. Facilities must notify GLO when oil is first handled at the site by calling the Oil Spill Prevention and Response Division at (512) 475-1575. Facilities must recertify their discharge prevention and response certificates at the expiration of five years from the date the original discharge and response certificate was issued by the GLO. The fee for recertification will be 10% of the cost of the original application fee. (f) Proof of financial responsibility as required by OSPRA and by this chapter means any proof of financial responsibility already required by any other federal or state law. Requirements under this chapter will be based on regulations yet to be promulgated by the federal government. The commissioner will not deny certification to any facility because of failure to meet any specific amount or form of financial responsibility until specific rules under this chapter are adopted. Pending promulgation of rules under this chapter, the request for proof of financial responsibility in the application for facility certification is for informational purposes only. Facilities are requested to inform the commissioner of the amount and type of financial responsibility currently in place for the particular facility. (g) In lieu of the separate applications required in sec.19.13 and sec.19.14 of this title (relating to Applications for Small Commercial Facilities, Underground Storage Facilities, and Small Facilities; and Applications for Major Facilities, respectively), applicants may submit to the GLO two copies of their Federal Response Plan(s) prepared under OPA if that plan(s) is complete, but undergoing approval as required by the United States Coast Guard, the Environmental Protection Agency, the Mineral Management Service, or the Research and Special Programs Administration. Federal response plans means any plan submitted to a federal agency pursuant to the Federal Water Pollution Control Act, 33 United States Code, sec.1321(j). Applicants are required to forward to the GLO copies of all correspondence among the applicant and any or all of the following agencies: the United States Coast Guard, the Environmental Protection Agency, the Minerals Management Service, or the Research and Special Programs Administration relating to the receipt, acceptance, deficiencies and notification of changes in the Federal Response Plan(s) submitted for approval. The applicant should submit the plan(s) and correspondence by mail to: Texas General Land Office, Oil Spill Prevention and Response Division, 1700 North Congress Avenue, Austin, Texas 78701-1495. (h) A guidance document outlining the procedures for application for facility certification can be obtained by submitting a request to the Texas General Land Office, Oil Spill Prevention and Response Division, 1700 North Congress Avenue, Austin, Texas 78701-1495, (512) 475-1575. sec.19.13. Applications for Small Commercial Facilities, Underground Storage Facilities, and Small Facilities. (a) All applicants for certification as small commercial facilities and/or as underground storage facilities must submit the following information: (1) the name and address of the facility including street address and directions from the nearest highway, the name and address of the owners and operators of the facility, the person or persons in charge of the facility, as that term is defined in sec.19.16 of this title (relating to Person in Charge), and the registered agent for service as required by OSPRA; (2) a description of the facility, including: (A) the primary business activity of the facility; (B) the maximum quantity of oil stored or handled at the facility, a list of all the types of oil handled and or stored and the location of and contact person for the material safety data sheets for all the types of oil handled; (C) the uses or purposes for which oil is handled or stored; (D) the types of containers in which oil is handled or stored and whether such containers are exposed to the elements and whether any containment structures or devices are provided; (E) a list of any spill containment, abatement, and cleanup equipment located at the facility; (F) a description of the facility's plan for responding to an unauthorized discharge of oil; (G) the Texas Natural Resource Conservation Commission petroleum storage tank facility identification number (i.e., PST ID number, facility registration number); and (H) schedules, methods and procedures at the facility for maintaining and evaluating the readiness of facility-owned and facility-maintained response equipment and supplies. This subsection applies only to equipment owned or maintained by a facility. (b) All applicants for certification as small facilities must submit the following information: (1) the names and addresses of the facility (including street address and directions from the nearest highway of the facility), the owner of the facility, the operator of the facility, the person or persons in charge required by sec.19.16 of this title (relating to Person in Charge), and the registered agent for service as required by OSPRA; (2) a description of the facility, including: (A) the date the facility began operations under the current owner or operator, whichever is earlier, the types of oil handled, the material safety data sheets for all the types of oil handled, the oil storage and transfer capacity, the throughput capacity, and the average daily throughput; (B) the location of the facility by latitude and longitude, N.A.D. 27 or N.A.D. 83, or by state plane coordinates indicating zone or by Universal Transverse Mercator coordinates indicating zone and all environmentally sensitive areas that would be affected by a worst case discharge from the facility; and (C) a map showing the protection strategies for environmentally sensitive areas at the facility; (3) proof of financial responsibility as required by regulations either adopted or continued in effect under OPA, sec.1016 (33 United States Code sec.2716), if applicable to the facility; (4) a copy of the applicant's current discharge prevention and response plan required by the Federal Water Pollution Control Act, sec.311(j) (33 United States Code sec.1321), including the spill prevention containment and countermeasure plan required by 40 Code of Federal Regulations sec.112.3, if applicable to the facility; (5) either a discharge response contract or a basic ordering agreement with a discharge cleanup organization or other person or the terms of any such contract or agreement showing capability to respond to a worst case discharge at the facility, or proof that the applicant can independently so respond; (6) an estimate of a worst case discharge for the facility, including the rationale used to establish the estimate; (7) a list of both oil and hazardous substance discharges at the facility within the previous year; and (8) a list of environmental permits and registration or identification numbers that have been obtained for the facility, including those for wastewater discharges, injection wells, and underground or aboveground storage tanks. Any other permit or license related to discharges into ground or surface waters of the State of Texas must be included. sec.19.14. Applications for Major Facilities. All major facility applications must contain the following information: (1) the names and addresses, including street address and directions from the nearest highway, of the facility, the owner of the facility, the operator of the facility, the person or persons in charge required by sec.19.16 of this title (relating to Person in Charge), and the registered agent for service as required by OSPRA; (2) a description of the facility, including: (A) the date the facility began operations under the current owner or operator, whichever is earlier, a list of all of the types of oil handled, the location of and the contact person for obtaining the material safety data sheets for all the types of oil handled, the oil storage and transfer capacity, the throughput capacity, and the average daily throughput; and (B) the location of the facility by latitude and longitude, N.A.D. 27 or N.A.D. 83, or by state plane coordinates indicating zone or by Universal Transverse Mercator coordinates indicating zone and all environmentally sensitive areas that would be affected by a worst case discharge from the facility; (C) the dimensions and oil capacity of the largest vessel docking or providing service at the facility and a description of the vessels under the operational control of the facility; (D) a site plan of the facility certified (except that pipeline site plans need not be certified) by a registered professional engineer or registered public land surveyor showing: (i) the location of all structures in which oil is handled and vessel and tank car or truck transfer areas; (ii) vicinity maps showing vehicular access to the facility, pipelines to and from the facility, nearby environmentally sensitive areas, and nearby residential or other populous areas; and (iii) drainage and diversion plans of the facility, such as sewers, outfalls, catchment or containment systems or basins, diversion systems, and all watercourses into which surface runoff from the facility drains (all of which may be shown on the site plan or maps); and (E) the most recent available aerial photographs; (3) proof of financial responsibility as required by regulations either adopted or continued in effect under OPA, sec.1016 (33 United States Code sec.2716), if applicable to the facility; (4) the number and qualifications of personnel employed at the facility with discharge prevention and response duties; (5) current discharge prevention or response training programs and requirements for the facility's personnel and for outside contractors working at the facility; (6) a statement of the applicant's discharge prevention and response capability, including: (A) a statement of whether the applicant's response capability will primarily be based on contracts or agreements with third parties or on the applicant's own personnel and equipment; (B) a copy of the applicant's current discharge prevention and response plan required by the Federal Water Pollution Control Act, sec.311(j) (33 United States Code sec.1321), including the spill prevention containment and countermeasure plan required by 40 Code of Federal Regulations sec.112.3, if applicable to the facility; (C) a description of the facility's preventive measures, including: (i) leak detection and discharge prevention safety systems, devices, equipment, or procedures; (ii) schedules, methods, and procedures for testing, maintaining, and inspecting storage tanks, pipelines, and other structures within or appurtenant to the facility that contain or handle oil; (iii) schedules, methods, and procedures for conducting discharge response drills; (D) a description of the facility's response plan, including: (i) planned response actions, the chain of command, lines of communication, and procedure for notifying the General Land Office in the event of an unauthorized discharge; (ii) response equipment and supplies available to respond to an unauthorized discharge at the facility, its ownership and location, and the time required to deploy it at the facility; (iii) plans for sampling, testing, and measuring the volume of substances discharged; (iv) plans for the recovery, storage, separation, transportation, and disposal of waste from an unauthorized discharge; (v) the probable direction and rate of flow for unauthorized discharges at the facility; (vi) plans and maps showing the strategy for protection of environmentally sensitive areas in the event of an unauthorized discharge; (vii) plans for providing emergency medical treatment, site safety and security, fire prevention in the event of an unauthorized discharge and a site- specific safety plan (29 Code of Federal Regulations sec.1910.120); and (viii) schedules, methods and procedures at the facility for maintaining and evaluating the readiness of facility-owned and facility-maintained response equipment and supplies. This subsection applies only to equipment owned or maintained by a facility. (7) any discharge response or cleanup contracts or basic ordering agreements, or the terms of either, the applicant has with a discharge cleanup organization or other person; (8) an estimate of a worst case discharge for the facility, including the rationale used to establish the estimate; (9) a list of both oil and hazardous substance discharges at the facility within the previous year; (10) a list of environmental permits and registration or identification numbers that have been obtained for the facility, including those for wastewater discharge, injection wells, and underground or aboveground storage tanks. Any other permit or license related to discharges into ground or surface waters of the State of Texas must be included; (11) if applicable, a statement describing the applicant's participation in the National Preparedness for Response Exercise Program (PREP). sec.19.18. Audits, Drills, and Inspections To Determine Prevention and Response Capability. (a) An audit is a full review of a facility's or vessel's compliance with the requirements of OSPRA and regulations adopted pursuant thereto. An audit may be announced or unannounced. Audits will be commenced between the hours of 7:00 a.m. and 6:00 p.m. The owner and/or operator of the facility or vessel subject to audit must produce records related to unauthorized discharges of oil into coastal waters, discharge prevention and response plans, equipment inventory, maintenance and repair, material safety data sheets for oil handled, oil storage and throughput, financial responsibility, personnel certification and training, and daily records and other documents and records containing information relevant to compliance with OSPRA and, if applicable, in the voluntary National Preparedness for Response Exercise Program. The representative of the General Land Office (GLO) is authorized to view all equipment at the facility that is available for responding to unauthorized discharges of oil. The GLO representative is authorized to enter any portion of the facility and vessel where oil is handled, where discharge prevention and response equipment and supplies are stored and maintained or where oil transfer operations are being performed. Although the audit may be unannounced, prior to entering the facility, the GLO representative will make a reasonable effort, as defined in 19.3(a) of this title (relating to Inspections and Access to Property), to obtain the consent of the owner or operator or his representative. (b) An inspection is a review of a specified area or areas of a facility or vessel for a specified purpose. An inspection may be announced or unannounced. Inspections between the hours of 7:00 a.m. and 6:00 p.m. may be unannounced. Inspections after 6:00 p.m. and before 7:00 a.m. will be announced. The GLO will make a reasonable effort to obtain the consent of the owner or operator or a representative of either prior to entering property to conduct the inspection. At the commencement of the inspection, the GLO representative will inform the owner or operator of the area or areas to be inspected and the purpose of the inspection. The areas and purposes of an inspection are limited to those set forth in subsection (a) of this section. (c) A drill is a test of equipment and personnel in operation. A drill is in response to a mock discharge which is conducted by GLO representatives who determine the extent and parameters of the exercise. A drill may be announced or unannounced. Prior to entering property in order to conduct the drill, the GLO will make a reasonable effort to obtain consent of the owner or operator or representative of either to enter the property. Drills will be commenced between the hours of 7:00 a.m. and 6:00 p.m. and all drills involving vessels will be conducted in cooperation with the United States Coast Guard. A drill involving a facility will be conducted in cooperation with any other governmental agencies whom the GLO intends to involve in the mock operation. (d) A vessel or facility will not be subjected to more than a total of two audits and/or drills in one 12-month period. A vessel or facility that is participating in the National Preparedness for Response Exercise Program will not be drilled separately under OSPRA or these rules. These limitations will not apply to any vessel or facility that has violated OSPRA, any regulation promulgated thereunder, or any order of the commissioner. (e) The owner or operator of the vessel or facility must bear its own costs of the audit, drill, or inspection and may not be reimbursed its costs from the fund. (f) Performance of an audit, drill, or inspection does not estop the state in an action brought under OSPRA or any other law from alleging a violation of OSPRA or any such law. sec.19.20. Certification of Discharge Cleanup Organizations. (a) Persons or organizations desiring certification as discharge cleanup organizations must apply to the General Land Office (GLO). Application forms are available from the GLO. (b) A discharge cleanup organization must be certified by the GLO to be listed by an owner or operator as a source of adequate response equipment and/or personnel in a facility or vessel discharge prevention and response plan. (c) An owner or operator of the facility or vessel will not be required to comply with this section if its response activities are limited to its own unauthorized discharges or to assistance rendered to others in emergency situations. The requirements of this section apply to those organizations who engage in the business of emergency spill response and cleanup operations. (d) Discharge cleanup organizations will be categorized as either industry or volunteer. (1) Industry organizations are those entities capable of containing, abating, removing and disposing of, or arranging for the disposal of oil and waste from an unauthorized discharge. Industry organizations have personnel trained pursuant to 29 Code of Federal Regulations sec.1910.120 and subsequent revisions and have equipment or access to equipment sufficient to perform response operations pursuant to national and state contingency plans. (2) Volunteer organizations are those entities whose primary purpose is protecting, rescuing, or rehabilitating wildlife and natural resources injured or damaged by an unauthorized discharge. Volunteer organizations must only be permitted by the Texas Parks and Wildlife Department or have certification from an organization with equivalent standards for the purposes of wildlife rehabilitation and other response activities concerning rescuing of any animal affected by a discharge. A separate GLO certificate is not required of the above-described wildlife and natural resource volunteer organizations. Volunteer organizations are also those entities who assist in other response activities approved by the on-scene coordinator but who do not receive compensation for their efforts. (e) Industry organizations must be certified by the GLO in order to be listed on a vessel or facility discharge response plan, and in order to be employed by the GLO when it expends fund monies in response to a discharge. Organizations exempt from the certification requirement are those whose primary business activity is vacuum trucks, earth moving, or oil field equipment maintenance. Any other business enterprise which does not represent itself as a spill response entity is not required to be certified under this subsection. Certificates will be issued for a three-year term with annual review. Certificates may be suspended if the discharge cleanup organization fails to maintain adequate response capability. Pursuant to Chapter 21 of this title (relating to Oil Spill Prevention and Response Hearing Procedures) the notice of suspension can be challenged. (f) Applicants for certification as an industry organization must submit the following information: (1) the applicant's name and address, its legal form or status, the names and addresses of the persons owning or operating the organization, and its membership if applicable; (2) the geographic area the applicant will serve; (3) the equipment and supplies owned by the applicant and available for abatement, containment, and removal of pollution from an unauthorized discharge of oil; if the applicant intends to rely in whole or in part on equipment and supplies owned by a separate entity then the applicant must submit the name of the owner and the location of the equipment and supplies, and the procedure for accessing such equipment and supplies; (4) a certified statement of the applicant's general liability insurance coverage, and workmen's compensation and automobile liability insurance coverage; (5) the number of employees and whether they are employed on a full or part- time basis and the number of employees which the applicant can command in the event of a major spill event; the training of such personnel including whether they have received training pursuant to 29 Code of Federal Regulations sec.1910.120; the experience and other relevant qualifications of all personnel; (6) the applicant's standard operating plan for containment, recovery, storage, separation, transportation, disposal or arrangements for disposal or recycling of oil or waste, and minimization of waste generated from an unauthorized discharge; (7) the applicant's health and safety plan. (g) In certifying industry organizations, the GLO will consider factors including: (1) the applicant's size, membership, and quality of response capability (which includes among other things the experience of the applicant's owners, operators, and personnel, the applicant's ability to properly dispose of waste or to arrange for the proper disposal of waste and recycling of materials generated by the discharge, the plan for waste minimization from discharges, the quantity and quality of equipment or supplies owned or available to the applicant, and the proximity of such equipment and supplies to the area the applicant intends to serve); and (2) the geographic distribution of discharge cleanup organizations in the coastal area for the purpose of insuring sufficient response capability. (h) Industry organizations must report material changes in response capability to the GLO within 30 days of the change. Material changes in response capability include among other things: (1) a change in the location or a significant change in the quantity of the organization's response equipment or supplies; or (2) a change in the organization's ownership or full-time personnel to the extent that such change affects discharge response capability; such change shall be reported within 72 hours. (i) Volunteer organizations who register with the GLO are considered certified. Registration forms are available from the GLO. The registration must include the organization's size, experience in discharge response, ability to properly dispose of or arrange for the disposal of waste from discharges, the qualifications of persons who will lead or coordinate response activities for the organization, and the quantity and quality of equipment and supplies owned or available to the organization. Volunteer organizations engaged in wildlife rescue or rehabilitation will be certified only if they comply with requirements of the Texas Parks and Wildlife Department's regulations related to such organizations or with equivalent regulations. A volunteer organization shall ensure its actions are consistent with the National Contingency Plan, sec.300.185 and sec.300.700. The GLO may suspend a certificate if the organization's response activities are inconsistent with state or federal requirements. (j) Volunteer discharge cleanup organizations or any discharge cleanup organization that is a not-for-profit entity must appoint a minimum of two ex officio representatives from local governments to its governing body to advise it on discharge response matters. The representatives from local government may be from any level or agency of local government but must be from the geographic area to be served by the organization. The Marine Spill Response Corporation and for-profit entities are exempt from this requirement pursuant to OSPRA, sec.40.117(b). (k) Those entities having federal Oil Spill Response Organization classification shall, on proper proof of such classification, be certified by the GLO as a discharge clean-up organization. Proper proof includes, but is not limited to, all information submitted to the United States Coast Guard, National Strike Force Coordination Center. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on February 7, 1995. TRD-9501850 Garry Mauro Commissioner, General Land Office General Land Office Effective date: March 6, 1995 Proposal publication date: October 28, 1994 For further information, please call: (512) 305-9129 Subchapter C. Spill Response 31 TAC sec.sec.19.32-19.37 The changes to Chapter 19 are adopted pursuant to OSPRA sec.40.117, which authorizes the commissioner to adopt, amend, repeal and enforce regulations regarding the unauthorized discharge of oil. sec.19.34. Duties of Responsible Person. (a) In the event of an actual or threatened unauthorized discharge, it is the duty of the responsible person to immediately initiate response action, or to ensure that the person in charge will initiate response action. The responsible person is the owner or operator of a vessel or facility from which an unauthorized discharge of oil emanates or threatens to emanate. The person in charge is the person at the vessel or facility who is empowered by the responsible person to initiate response actions and to perform all actions necessary to prevent, abate, contain, and remove all pollution. The responsible person or the person in charge must inform the General Land Office (GLO) of the person's strategy for responding to the unauthorized discharge, including whether the facility's or vessel's discharge prevention and response plan will be adequate for abating, containing, and removing pollution or whether it appears that an adequate response to the discharge will require deviation from the plan. The response strategy and proposed deviations from the plan must be reported to the on-scene coordinator on a regular basis throughout response operations. (b) The GLO may determine that the responsible person is unknown or appears unwilling or unable to respond adequately to the discharge, including reasonably foreseeable worst case scenarios of the discharge. The commissioner may delegate this determination to the state on-scene coordinator. In the event of such a determination the state on-scene coordinator may order the responsible person to take certain response actions. The state on-scene coordinator may also initiate response action by the state, either in addition to or in lieu of further response actions by the responsible person. As soon as possible after a determination of inadequate response, the state on-scene coordinator will notify the responsible person or the person acting for the responsible person of the inadequacy of response and inform the person of the intended corrective action. A determination that a responsible person appears unwilling or unable to respond adequately will be made by evaluating the resources committed to the response, the degree of cooperation with directions of the on-scene coordinator, the ability to commit further resources, and adherence to response and contingency plans. (c) The responsible person or anyone acting on behalf of the responsible person must notify the state on-scene coordinator if the person intends not to comply with, or has not complied with, state response orders or actions. The GLO may determine the person has unreasonably failed to comply with state response actions if noncompliance is for any reason other than an objective and reasonable belief that compliance unavoidably conflicts with federal requirements or poses an unjustifiable risk to public safety or natural resources. Any failure to comply may be grounds for a determination of inadequate response under subsection (b) of this section. (d) The responsible person must orally state the reasons for noncompliance with an order of the state on-scene coordinator and must give written justification for the refusal within 48 hours as required by OSPRA, sec.40.106. (e) The responsible person is required to provide an emergency response plan consistent with 29 Code of Federal Regulations sec.1910.120 for the health and safety of spill response personnel at the spill response scene. In order to comply with the National Contingency Plan, responsible persons must ensure that contractors and others under their employ have an emergency response plan program for the health and safety of personnel responding during the spill response. Failure to provide an emergency response plan for the health and safety of responders will be considered a failure to adequately respond to a spill event. (f) The responsible person is required to respond and operate in a manner consistent with the National Contingency Plan and any applicable Area or local Contingency Plan. (g) The GLO will utilize the Incident Command System for all spills where a state on-scene coordinator is appointed by the commissioner. sec.19.36. Disposal. (a) Waste from unauthorized discharges must be disposed of only at sites that have all necessary permits to accept the type of waste discharged. Each responsible person or discharge cleanup organization removing waste shall inform the on-scene coordinator in writing of the name and location of the site where the waste will be disposed. (b) All responsible persons and discharge cleanup organizations engaged in spill response operations shall minimize the generation of waste by utilizing techniques such as reusing sorbent pads, recycling recovered oil, recovering boom, and best available technologies. (c) The responsible person must remove all waste generated from an unauthorized discharge of oil from the temporary staging area within 14 days of the completion of all response operations. (d) When waste generated in connection with spill response activities is disposed of, the responsible person shall provide the on-scene coordinator with copies of documentation, such as manifests, run tickets, or invoices, identifying the waste hauler and the disposal facility to which such waste was delivered within 30 days of the completion of all response operations. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on February 7, 1995. TRD-9501851 Garry Mauro Commissioner, General Land Office General Land Office Effective date: March 6, 1995 Proposal publication date: October 28, 1994 For further information, please call: (512) 305-9129 31 TAC sec.19.38 The General Land Office repeals sec.19.38, concerning remediation of natural resources injured by an unauthorized discharge of oil, without changes to the proposed text as published in the October 28, 1994, issue of the Texas Register (19 TexReg 8589). The rule is being repealed because the GLO has adopted comprehensive rules for assessing natural resource damages under 31 TAC Chapter 20. No comments were received regarding adoption of the repeal. The repeal is adopted under the Texas Natural Resources Code, Chapter 40, Subchapter C, sec.40.107, which provides the commissioner with the authority to adopt rules for assessing damages to natural resources. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on February 7, 1995. TRD-9501853 Garry Mauro Commissioner, General Land Office General Land Office Effective date: March 6, 1995 Proposal publication date: October 28, 1994 For further information, please call: (512) 305-9129 Subchapter D. Compensation and Liability. 31 TAC sec.sec.19.51-19.55 The changes to Chapter 19 are adopted pursuant to OSPRA sec.40.117, which authorizes the commissioner to adopt, amend, repeal and enforce regulations regarding the unauthorized discharge of oil. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on February 7, 1995. TRD-9501852 Garry Mauro Commissioner, General Land Office General Land Office Effective date: March 6, 1995 Proposal publication date: October 28, 1994 For further information, please call: (512) 305-9129 TITLE 34. PUBLIC FINANCE Part I. Comptroller of Public Accounts Chapter 3. Tax Administration Subchapter O. State Sales And Use Tax 34 TAC sec.3.323 The Comptroller of Public Accounts adopts an amendment to sec.3.323, concerning imports and exports, with changes to the proposed text as published in the December 9, 1994, issue of the Texas Register (19 TexReg 9718). Changes to the Tax Code, sec.151.307, added the definitions of "air forwarder" and "ocean forwarder." The amendment adds these definitions to the rule. The amendment references an exemption for automotive audio equipment installed in Texas, according to new Texas Tax Code, sec.151.3071. The amendment deletes a restriction that required a retailer to receive proof of export documentation only from the original purchaser. The changes to the Tax Code became effective June 19, 1993. In response to suggestions from customs brokers, subsection (c)(1)(C) has been changed to mention that alternative forms of the pedimento de importaciones are acceptable proof of export, and subsection (c)(2) has been changed to clarify that the old Texas Proof of Export form, which is no longer acceptable proof of export, and the current certification form provided by a Licensed Texas Customs Broker, which is acceptable, are two different forms. The following comments were received regarding adoption of the amendment. The Hidalgo Customs Brokers Association suggested that only receipts issued by licensed Federal Maritime Commission (FMC) and International Air Transportation Association (IATA) freight forwarders should be acceptable proof of export for sales tax purposes, when goods are delivered to a freight forwarder for export. The comptroller answered that subsections (a)(1), (a)(6), and (c)(1)(D) of the proposed amendment already so provide, in accordance with legislative amendments to the Tax Code, sec.151.307, that became effective June 19, 1993. The Hidalgo Customs Brokers Association also asked for subsection (d) on imports to be further clarified. The comptroller declined to make any changes at this time, citing the more immediate need to adopt amendments concerning exports in response to legislation and requests received from customs brokers, retailers, and others. Malmar Customhouse Brokerage commented that the 30-day presumption for storage contained in subsection (c)(3) should be reconsidered, because it sometimes takes more than 30 days to prepare goods for export. The comptroller declined to make further changes, at this time, because (c)(3) already provides that sufficient time will be allowed for shipping, and because property in the hands of a freight forwarder is not covered by the 30-day presumption. The comptroller also noted that the 30-day presumption of taxability may be overcome by evidence that property that remained in Texas more than 30 days after purchase was nevertheless held exclusively in anticipation of and preparation for export. Malmar Customhouse Brokerage also asked the comptroller to discuss the export of taxable services in the rule. The comptroller declined to make further changes, noting that sec.3.323 addresses exports of tangible personal property, and does not pertain to taxable services. The comptroller noted that taxable services purchased for use outside this state, or for use both inside and outside this state, are exempted from sales and use taxes under the Tax Code, sec.151.330(e) and (f). A purchaser of an exempt service may issue an exemption certificate to the seller and accrue tax on the taxable portion, if any, of the service. The exemption applies to services purchased for use in other countries as well as other states. Express International asked the comptroller to reconsider amendments to subsection (e)(1), (2), and (3). He suggested that allowing a purchaser of exported goods to assign his refund rights to a third party, such as a customs broker, could encourage tax fraud. The comptroller declined to change these subsections, noting that the legislature contemplated this practice in the Tax Code, sec.151.159(a), effective June 19, 1993, by providing that customs brokers could issue direct tax refunds to purchasers with the comptroller's permission. The only practical way for a broker to recover such a tax refund would be to apply directly to the retailer who collected the tax from the purchaser. The retailer could pay the refund to the broker only if the purchaser had assigned his refund rights to the broker. Casso International, Inc., asked the comptroller to consider emulating Proposition 187 from California, which he said allows sales and use tax rebates only for sales in excess of $500. The comptroller declined to make any changes to sec.3.323, in this regard, because only the Texas Legislature may change the law governing sales and use tax rebates for exported goods. Casso International, Inc., also suggested that purchasers of exported goods should be able to pick up tax refunds at local offices of the Texas Lottery Commission. The comptroller declined to make any changes to sec.3.323, in this regard, because the Tax Code, sec.111.104, provides that only a person who paid tax directly to the state, or that person's attorney, successor, or assignee, may claim a refund from the state. This means that, ordinarily, a purchaser must obtain a tax refund from the retailer to whom he paid the tax, and does not have standing to claim the refund directly from the state. The retailer may recover refunded taxes from the state after paying the refund to the purchaser. Only when the retailer assigns his refund rights to the purchaser may the purchaser apply directly to the state for the tax refund. The comptroller also noted that refund claims are processed and paid from the comptroller's headquarters in Austin, Texas, and that the Texas Lottery Commission is not affiliated with the comptroller. This amendment is adopted under the Tax Code, sec.111.002, which provides the comptroller with the authority to prescribe, adopt, and enforce rules relating to the administration and enforcement of the provisions of the Tax Code, Title 2. The amendment implements the Tax Code, sec.sec.151.157, 151.158, 151.160, 151. 307, 151.3071, and 151.330. sec.3.323. Imports and Exports. (a) Definitions. The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise. (1) Air forwarder-A licensed International Air Transportation Association freight forwarder. (2) Consignee-The person named in a bill of lading to whom or to whose order the bill promises delivery. (3) Consignor-The person named in a bill of lading as the person from whom the goods have been received for shipment. (4) Licensed and certificated carrier-A person authorized by the appropriate United States agency or by the appropriate state agency within the United States to operate an aircraft, vessel, train, motor vehicle, or pipeline as a common or contract carrier. Certificates of inspection or airworthiness certificates are not the appropriate documents for authorizing a person to operate as a common or contract carrier. These documents relate to the carrier device itself rather than a person's right to operate a carrier business. (5) Licensed customs broker-A person who is licensed by the United States Customs Service to act as a custom house broker and who holds a Texas Customs Broker's License issued by the comptroller as provided in sec.3.360 of this title (relating to Customs Brokers). (6) Ocean forwarder-A licensed Federal Maritime Commission freight forwarder. (b) United States Constitution. On the basis of the import and export clause of the United States Constitution, Article 1, sec.10, clause 2, tangible personal property imported into or exported from Texas is exempt from taxation by the Tax Code, sec.151.307 and sec.151.330, so long as the property retains its character as an import or export. (c) Exports. (1) When an exemption is claimed because tangible personal property is exported beyond the territorial limits of the United States, proof of export may be shown only by: (A) a copy of a bill of lading issued by a licensed and certificated carrier of persons or property that shows the seller as consignor, the buyer as consignee, and a delivery point outside the territorial limits of the United States; (B) documentation that is valid under sec.3.360 of this title (relating to Customs Brokers) provided by a licensed customs broker certifying that delivery was made to a point outside the territorial limits of the United States; (C) formal entry documents from the country of destination showing that the property was imported into a country other than the United States. For the country of Mexico, the formal entry document would be the pedimento de importaciones document with a computerized, certified number issued by Mexican customs officials, or an alternative type of formal entry document also used by Mexican customs officials, such as the boleta; (D) a copy of the original airway, ocean, or railroad bill of lading issued by a licensed and certificated carrier that describes the property being exported and a copy of the air forwarder's, ocean forwarder's, or rail freight forwarder's receipt if an air, ocean, or rail freight forwarder takes possession of the property in Texas; or (E) a maquiladora exemption certificate issued by an organization of the type defined in sec.3.358 of this title (relating to Maquiladoras). The maquiladora must also provide a copy of its maquiladora export permit issued by the comptroller. (2) The retailer is responsible for obtaining proof of exportation. Only one type of proof relating to a particular piece of property is necessary. For example, a furniture store sells a table and collects sales tax. The purchaser returns to the store a week later with a valid pedimento de importaciones showing that the table was imported into Mexico. The retailer may accept the pedimento , alone, as proof of export and refund the tax. It is not necessary for the retailer to also obtain an export certification form issued by a licensed customs broker. Except as provided in sec.3.358 of this title (relating to Maquiladoras), exemption certificates, affidavits, or statements from the purchaser that the property will be or has been exported are not sufficient to exempt the sale as an export. The Texas proof of export form, which differs from the certification form provided by a licensed Texas customs broker as provided in sec.3.360 of this title (relating to Customs Brokers), is no longer acceptable as proof of export. A passport number taken by a seller from a passport issued by a foreign country is not acceptable as proof of export. (3) Storing property in Texas by the owner prior to exportation is a use of that property in Texas. Property stored or otherwise used or consumed in Texas by the owner loses its exemption as an export. For example, clothing or jewelry actually worn by the purchaser in Texas is used in Texas; automotive parts (not including electronic audio equipment) installed on the purchaser's motor vehicle in Texas are used in Texas if the vehicle is subsequently driven in Texas; and food ready for immediate consumption that is purchased in Texas is presumed to be used in Texas. By law, electronic audio equipment retains the exemption even if installed in a motor vehicle that is driven in Texas prior to export. Sufficient time will be allowed to arrange for shipping. Property in Texas longer than 30 days from date of purchase will be presumed to have been stored. Any use of the property in Texas by the owner prior to export also causes the loss of the export exemption. Property in the hands of a freight forwarder is not covered by this provision. (4) The sale of property to military personnel is taxable unless proof of export is maintained as outlined in paragraph (1) of this subsection. (5) If a seller delivers property to a purchaser in Texas, the seller must collect tax at the time of sale. The tax may not be refunded until the property has actually been exported from the territorial limits of the United States and the seller has received valid proof of export as described in this subsection. There is a rebuttable presumption that an export certification form issued by a licensed customs broker who complies with sec.3.360 of this title (relating to Customs Brokers) is valid. Tax not collected will be assessed against the seller. This paragraph does not apply when proof of export is provided to the seller at the time of sale by a maquiladora according to the terms of paragraph (1)(E) of this subsection. (d) Imports. Property imported into Texas from another country is exempt from Texas use tax as long as the property retains its character as an import. When transit ceases in Texas, the import becomes subject to the Texas use tax. (e) Refunds. (1) A retailer who collects sales tax on tangible personal property that qualifies for exemption under subsection (b) of this section may refund the tax to the original purchaser or the original purchaser's assignee upon receipt of export documentation as required by subsection (c) of this section. (2) The refund may be made by certified check, company check, money order, credit memo, or cash. If the refund is made in cash, the retailer must receive at the time the refund is made a receipt showing a description of the property purchased, the amount and date of the refund, and the name, address, and signature of the purchaser and, if applicable, the purchaser's assignee. A retailer who issues a tax refund to the purchaser's assignee must also receive a copy of the purchaser's written assignment of the right to a refund. (3) A copy of the certified check, company check, money order, credit memo, or signed cash receipt and a copy of the written assignment of the purchaser's right to a refund, if applicable, must be attached to the original export documents and maintained in the seller's files. (4) In an audit, the auditor must be able to tie the export documents to the original taxable transaction. The seller must retain the original invoice of the sale. Cash register receipts and other records of the original taxable transaction that do not include a detailed, specific description of the items purchased are not sufficient to tie the export documents to the original taxable transaction. Refunds made pursuant to undocumented or improperly documented export exemptions will be assessed against the seller. (f) Records. Please refer to sec.3.281 of this title (relating to Records Required; Information Required), sec.3.282 of this title (relating to Auditing Taxpayer Records), and sec.3.360 of this title (relating to Customs Brokers). This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on February 13, 1995. TRD-9501845 Martin Cherry Chief, General Law Comptroller of Public Accounts Effective date: March 6, 1995 Proposal publication date: December 9, 1994 For further information, please call: (512) 463-4028 34 TAC sec.3.360 The Comptroller of Public Accounts adopts the repeal of sec.3.360, concerning customs brokers, without changes to the proposed text as published in the December 9, 1994, issue of the Texas Register (19 TexReg 9720). Due to extensive changes and additions to Tax Code, Chapter 151, effective June 19, 1993, it has become necessary to repeal the rule now in effect and to propose a new rule. The changes to Chapter 151 set out the proper procedures for customs brokers certifying exports of tangible personal property to foreign countries and give the comptroller the authority to collect fees for customs brokers' licenses and export stamps, and to impose civil penalties for violations by customs brokers, retailers, and purchasers. The new rule will address all the Tax Code changes as well as prohibited acts by customs brokers. All this information is not covered in the current rule. No comments were received regarding adoption of the repeal. This repeal is adopted under the Tax Code, sec.111.002, which provides the comptroller with the authority to prescribe, adopt, and enforce rules relating to the administration and enforcement of the provisions of the Tax Code, Title 2. The repeal implements the Tax Code, sec.111.0043 and sec.151.307. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on February 13, 1995. TRD-9501846 Martin Cherry Chief, General Law Comptroller of Public Accounts Effective date: March 6, 1995 Proposal publication date: December 9, 1994 For further information, please call: (512) 463-4028 34 TAC sec.3.360 The comptroller of Public Accounts adopts new sec.3.360, concerning customs brokers, with changes to the proposed text as published in the December 9, 1994, issue of the Texas Register (19 TexReg 9720). Due to changes and additions to Tax Code, Chapter 151, effective June 19, 1993, it has become necessary to repeal the rule now in effect and to propose a new rule. The changes to Chapter 151 set out the procedures for licensing customs brokers certifying exports of tangible personal property to foreign countries. The new rule also addresses customs brokers' responsibilities and prohibited acts by customs brokers. The following comments were received regarding adoption of the new section. The Hidalgo County Customs Brokers Association asked the comptroller to define authorized employee's of a customs broker. The comptroller responded that subsection (a)(1) of the proposed rule already does this, consistent with the legislature's definition of authorized employee's in the Tax Code, sec.151. 157(h)(2). The Hidalgo County Customs Brokers Association also asked the comptroller to specify that a customs broker's export certification should identify the customer identically as shown on the sales invoice. The comptroller responded that subsection (m)(1) already requires the form to show the name and address of the purchaser of the property, as shown on the invoice, receipt, or similar document. The Hidalgo County Customs Brokers Association also asked the comptroller to prescribe a minimum $5.00 fee for each export certification stamp. The comptroller declined this suggestion because the legislature authorized the comptroller to charge no more than $.05, per stamp, under the Tax Code sec.151. 158(g), and the comptroller estimates that the cost of processing such small payments might exceed the costs of printing and distributing the stamps. The Hidalgo County Customs Brokers Association also asked the comptroller to limit the number of satellite offices by requiring authorized customs broker employees to staff each office during business hours. The comptroller responded that subsection (b) already provides that only a licensed broker or his or her authorized employee may fully or partially prepare, issue, and or sign a valid export certification form... and that subsection (n)(3)(I) provides that a broker faces license suspension or revocation if forms for which he or she is responsible are fully or partially prepared at a location for which no Texas Customs Broker's License has been issued. Taken together, these subsections should already limit the number of satellite offices that a broker can adequately supervise. The Hidalgo County Customs Brokers Association also asked the comptroller to require that fees for the preparation of export documentation be paid directly to customs brokers or licensed freight forwarders in order to eliminate sub- delegations. The comptroller declined to make this change because subsections (b) and (n)(3)(K) already limit the preparation of export certification documents to brokers and their bona fide, authorized employees and hold brokers responsible for supervision and control over their businesses. The El Paso Custom Brokers Association asked the comptroller to limit a broker to operating only a single outlet in each city in which the broker is allowed by the United States Customs Service to operate. The comptroller declined to make this change because subsections (b) and (n)(3)(K) already limit the preparation of export certification documents to brokers and their bona fide, authorized employees and hold brokers responsible for supervision and control over their businesses. The El Paso Customs Brokers Association also asked the comptroller to prohibit brokers located elsewhere in Texas from setting up offices in El Paso without having permits to operate as Customs brokers in El Paso and vice versa. The comptroller declined to make this change because subsections (f), which says a broker must display an original Texas Customs Broker's License at each place of business where export certification forms are fully or partially prepared, (n)(3)(I), which expressly prohibits a broker from preparing forms at a location for which no license has been issued, and (n)(3)(K) already provide practical restrictions designed to ensure that brokers adequately supervise their operations in all cities where they operate. The El Paso Customs Brokers Association also reported that some brokers had circumvented the employer-employee restriction by including a lessee as their employee and then [paying] them a commission for their share. The comptroller responded that subsection (a)(1) already prohibits a commissioned worker from preparing export documentation by including in the definition of employee the requirement that he be compensated with a regular salary or wages, operate under the direct control and supervision of the broker, and be subject to federal income tax withholding requirements, and that these requirements are likewise provided for in the law under the Tax Code, sec.151.157(a) and (h)(2). The El Paso Customs Brokers Association also asked the comptroller to expressly prohibit brokers from subleasing space and establishing outlets inside retail establishments, including shopping malls. The comptroller declined this suggestion for several reasons. First, the comptroller in 1993 concluded that a broker has adequate, legal means to supervise exportation regardless of whether he is located in a mall or right next to a bridge. Also, brokers are equally subject to discipline for law and rule violations regardless of whether they are inside malls or next to the bridges. Finally, this issue appears related more to brokers ability to compete with one another than the State's interest in ensuring that tax rebates are paid only on goods that are actually exported. Farias & Farias, Inc., Malmar Customhouse Brokerage, and Express International asked the comptroller to reconsider subsection (i)(5), to allow for more than ten working days for returning expired stamps at the end of each quarter. The comptroller accepted this suggestion and changed (i)(5) to provide for 15 working days. Express International also asked the comptroller to change subsection (f) to allow a broker to display a photocopy of his license at his place of business, so that he could store the original in a secure place. The comptroller declined this suggestion because the prominent display of original permits and licenses provides a degree of consumer protection and because photocopied licenses are prone to being materially altered for the purpose of deception. The comptroller noted that, if theft of original licenses becomes a problem in the future, he would reconsider. Express International also questioned the need for subsection (j)(1), which provides that a broker must keep an exact photocopy of each export certification form and says carbon copies and pages from multi-page forms are not acceptable because they do not contain an image of the export certification stamp. The comptroller accepted this suggestion and changed subsection (j)(1) to allow a broker to keep either photocopies or carbons from multi-part forms, provided the carbon copies show the identification number of the stamp that was affixed to the original form. Express International also asked the comptroller to relax subsection (j)(6), which requires brokers to keep exact copies of all invoices, receipts, or other documents. The comptroller accepted this suggestion. Subsection (j)(6) has been changed to provide that a broker must keep such copies only when he actually incorporates them into the form as permitted in subsection (m)(5). If the broker instead itemizes on the face of the form the invoices by number, date, product description and sales price as provided in subsection (m)(5) and (6), it will not be necessary for the broker to also keep copies of the invoices or receipts. Express International also asked the comptroller to promulgate guidelines to help the broker know that his efforts to verify exportation have been sufficient. The comptroller declined to make further changes of this kind to proposed sec.3.360 in part because of the delay that it would cause to the adoption of the rule. The comptroller said that he hoped brokers themselves would approach him with their own suggestions for export verification. The comptroller said he hesitated to substitute a reasonable care standard for verification because the standard might be too vague to be enforced effectively. Express International also asked the comptroller to reconsider subsections (f) and (n)(3)(J), to the extent they require export certification stamps to be kept and affixed to export forms only at licensed locations of the broker, and prohibit brokers from delivering incomplete (unstamped) forms to their customers. He suggested that brokers should be allowed to distribute export stamps to authorized employees stationed at verification checkpoints. These employees would then affix the export stamps to the forms at the point of export. The comptroller declined to make this change, noting that the comptroller needs to be able to examine stamp inventories at brokers' licensed locations and wants to closely monitor and regulate the traffic in export certification stamps. Casso International, Inc., asked the comptroller to consider adopting an export system similar to those in Arizona, New Mexico, and California. The comptroller replied that these suggestions should best be directed to the Texas Legislature, which prescribed the current system of allowing sales and use tax rebates for all exported goods. Casso International, Inc., also asked whether a broker could be penalized if the broker's client exported goods and then returned to Texas with the goods at a later date. The comptroller replied that the broker would not be penalized if the goods in question were actually exported at the time and place and on the date to which the broker certified, noting that, under subsection (n)(3)(F), a broker is subject to penalties for intentionally participating in unlawful tax evasion. Casso International, Inc., also proposed that liability for making or accepting false export certification forms should be joint. The comptroller replied that all parties to a purchase export transaction are presently subject to liability for improper behavior. The firm also suggested that retailers should not be allowed to split fees, negotiate rates, or take kick backs from brokers. Both a purchaser and a retailer are potentially liable for unpaid sales and use taxes, plus penalties and interest, and a 50% fraud penalty for intentional tax evasion. Also, brokers themselves are subject to monetary penalties and license suspension or revocation. Casso International, Inc., also asked the comptroller to require brokers to print their fees on the face of their forms. The comptroller accepted this suggestion in part, and added another paragraph to subsection (j) requiring brokers to keep detailed records regarding the amount they charge their clients for certifying exports. Casso International, Inc., also asked the comptroller to limit the number of satellite offices a broker may operate. The comptroller declined to make this change because subsections (b) and (n)(3)(K) already limit the preparation of export certification documents to brokers and their bona fide, authorized employees and hold brokers responsible for supervision and control over their businesses. Casso International, Inc., also asked the comptroller to allow purchasers to claim tax refunds at local offices of the Texas Lottery Commission, to streamline the system and prevent retailers from claiming refunds falsely. The comptroller declined to make changes to the rules, in this regard, because the Tax Code, sec.111.104, contemplates that purchasers generally must go to retailers for their tax refunds, and not to the State. Also, refund claims are processed and paid from the comptroller's headquarters in Austin, Texas, and the Texas Lottery Commission is not affiliated with the comptroller. The comptroller also noted that a retailer who manipulates his accounting system is already subject to a 50% fraud penalty, in addition to liability for tax, ordinary penalty, and interest. Casso International, Inc., also asked the comptroller to consider a new system whereby officers of the Texas Alcoholic Beverage Commission (TABC) could monitor exports and certify export documents on behalf of customs brokers. The comptroller declined to make changes to the rules, in this regard, noting that the legislature intended for customs brokers, freight forwarders, carriers, and foreign customs officials, and not state employees, to perform services of this type. This new rule is adopted under the Tax Code, sec.111.002, which provides the comptroller with the authority to prescribe, adopt, and enforce rules relating to the administration and enforcement of the provisions of the Tax Code, Title 2. The new rule implements the Tax Code, sec.sec.151.157, 151.158, and 151.307. sec.3.360. Customs Brokers. (a) Definitions. The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise. (1) Employee-A person who is authorized by his employer to perform customs transactions or related services on behalf of the employer, is compensated by the employer with a regular salary or wages, is under the direct control and supervision of the employer, and from whose salary or wages the employer is required to and actually does deduct and withhold a tax under federal law. This definition applies to employees of customs brokers and employees of verification contractors. (2) Licensed customs broker-A person who is licensed by the United States Customs Service to act as a custom house broker and who holds a Texas Customs Broker's License issued by the comptroller as provided for in this section. (3) Verification contractor-An independent contractor who, for consideration and under a written contract with a licensed customs broker, facilitates the monitoring of exports to be certified by the broker. Unless the context clearly indicates otherwise, all references in this section to a verification contractor include an employee of a verification contractor. (b) Certification of exports. Only a licensed customs broker or an employee of a licensed customs broker may fully or partially prepare, issue, and or sign a valid export certification form as provided for in this section and in sec.3. 323 of this title (relating to Imports and Exports). (c) Texas Customs Broker's License; prerequisites. A person may apply to the comptroller for a Texas Customs Broker's License, which is a license to issue export certification forms for the purpose of claiming exemption from Texas sales and use taxes. To obtain a license, a person must: (1) be currently licensed by the United States Customs Service to act as a custom house broker; (2) submit an application in the form prescribed by the comptroller; and (3) be current in payment of all taxes and fees administered by the comptroller. (d) Form of application. The comptroller will prescribe an application form for a Texas Customs Broker's License, which must include or be accompanied by the following: (1) a copy of the applicant's license to act as a custom house broker issued by the United States Customs Service; (2) the applicant's name, mailing address, primary business address, business telephone number, home address, and home telephone number, and the names, home addresses, and home telephone numbers of all the general partners (if the applicant is a partnership), the charter number, charter date, federal employers identification number, and the names, home addresses, and home telephone numbers of the officers and directors (if the applicant is a corporation), or the names, home addresses, and home telephone numbers of the members (if the applicant is an association other than a partnership or corporation); (3) the names, mailing addresses, primary business addresses, business telephone numbers, home addresses, and home telephone numbers of all verification contractors and all authorized employees of verification contractors, and the names, home addresses, and home telephone numbers of all the general partners (if the verification contractor is a partnership), the charter number, charter date, federal employers identification number, and the names, home addresses, and home telephone numbers of the officers and directors (if the verification contractor is a corporation), or the names, home addresses, and home telephone numbers of the members (if the verification contractor is an association other than a partnership or corporation), and the date of contract of all verification contractors; (4) the names, home addresses, and home telephone numbers of all employees who are authorized to certify exports in the name of the applicant and the date of hire of all such employees; (5) a copy of each authorized employee's power of attorney to certify exports in the name of the applicant; (6) the trade name of the applicant's business and the address of each location where export certifications are to be fully or partially prepared; (7) the original signature or signatures of the applicant (if he is a sole proprietor), an officer or director (if the applicant is a corporation), all general partners (if the applicant is a partnership), or an authorized member (if the applicant is an association other than a corporation or partnership), and the original signatures of all employees of the broker; (8) the social security number of each employee, verification contractor, authorized employee of a verification contractor, and the social security number of the applicant (if he is a sole proprietor), each general partner (if the applicant is a partnership), each officer and director (if the applicant is a corporation), or each member (if the applicant is an association other than a partnership or corporation); and (9) any other information the comptroller requires. (e) Duration of license. A license issued under this section continues in effect until canceled by the broker or suspended or revoked by the comptroller. All canceled, suspended, or revoked licenses must be immediately returned to the comptroller or they will be subject to confiscation. (f) Display of license. An original Texas Customs Broker's License must be prominently displayed at each place of business of the broker where export certification forms are fully or partially prepared. (g) Locations outside the United States. No Texas Customs Broker's Licenses will be issued for locations beyond the territorial limits of the United States. (h) Verification contractors. A licensed customs broker may enter into a written contract with a verification contractor to facilitate the monitoring of exports certified by the broker. A verification contractor may authorize by power of attorney his full- or part-time employee to perform verification services on his behalf. A verification contractor may not fully or partially prepare, issue, and or sign export certification forms and may not affix export certification stamps to export certification forms. A verification contractor's contract must be submitted to and approved by the comptroller, prior to which the verification contractor may not perform valid export verification services described in this subsection. (i) Export certification stamps. The comptroller will produce or have produced export certification stamps to be affixed to export certification forms. (1) The comptroller may change the design as often as necessary for the enforcement of this section. The design will be changed at least once each calendar quarter. (2) Only a licensed customs broker or his authorized employee may receive stamps. A person obtaining stamps in person must present photographic identification. (3) There is no fee for the stamps. (4) The stamps are non-transferable. A stamp is void if transferred to a person other than the broker to whom the comptroller originally issued the stamp or to that broker's employee in the ordinary course of business. This subdivision does not apply to a stamp that is actually affixed to an export certification form that is transferred in compliance with this section. (5) All unused, expired stamps must be returned to the comptroller within 15 working days of the end of each calendar quarter. All such stamps must be delivered to the comptroller on the same date, at the same time, and at the same location of the comptroller. Unused stamps must be immediately returned to the comptroller upon cancellation, suspension, or revocation of the broker's license or upon notification that the broker is out of business and may be confiscated if not returned. Unused, expired stamps may not be retained, destroyed, or disposed of except by the comptroller. (6) As soon as practicable after discovery, a broker must report in writing to the comptroller the theft, destruction, or other loss of stamps issued to the broker, including the numbers assigned to the lost stamps (if the comptroller has numbered the stamps sequentially). (7) A broker must notify the comptroller as soon as practicable in writing if the broker has no remaining inventory of stamps following use, theft, and/or other loss of the stamps. (j) Records required. A licensed customs broker must maintain books and records that include, at a minimum, the following: (1) an exact photographic image, including the exact photographic image of the export certification stamp, of each export certification form signed by the broker within the last two years (but not before January 1, 1993) . Carbon copies and pages from multi-page forms are acceptable in lieu of photocopies provided the number of the export certification stamp affixed to the original is recorded on the additional copies; (2) a ledger that: (A) lists sequentially all export certification forms issued or voided within the last two years (but not before January 1, 1993); (B) identifies the person or persons who fully or partially prepared, issued, and/or signed each form; and (C) identifies the person's or persons' relationship to the licensed customs broker; (3) an inventory of export certification stamps and records tracking transfers of stamps between the broker and his employees, identifying the recipients and showing the dates of transfer, quantities transferred, the sequential numbers of the transferred stamps (if the comptroller has numbered the stamps sequentially), and detailed records regarding stamps that have been lost, stolen, or are otherwise unaccounted for; (4) a current list of all employees authorized to fully or partially prepare, issue, and/or sign export certification forms and information relating to the hiring and termination of employees; (5) all contracts executed between the broker and verification contractors and information relating to the termination or cancellation of such contracts; (6) exact copies of all invoices, receipts, or other documents relating to property whose export the broker has certified. This requirement applies only if the broker attached such copies to the original form as provided in subsection (m)(5) of this section; (7) a copy of a certified check, company check, or money order made payable to the purchaser, or a credit memo or cash receipt signed by the purchaser, and the purchaser's written assignment of the right to a Texas sales or use tax refund for each instance in which the broker obtained a refund assignment from the purchaser; (8) detailed records showing the amount the broker charges clients for his export certification services and the broker's gross receipts from certifying exports; and (9) information of the exact same type as required to be submitted with the application for a license as described in subsection (d) of this section, updated and kept current since the date of application. (k) Examination of records. A licensed customs broker must maintain all required records available for examination by the comptroller. The comptroller will issue written notice of routine examination of records at least 15 days prior to the date of examination. No advance notice will be issued if the comptroller determines that notice could jeopardize the proper enforcement of the tax laws and the comptroller's rules. The examination will take place at the broker's principal place of business unless the comptroller agrees to examine the records at another location. (l) Retention of records. A licensed customs broker must retain records for a period of at least two years from the date of the document, the date of completion (if the required record is a contract), or the date of final entry (if the required record is a list or ledger). Copies of export certification forms must be retained for at least two years after the date the broker or the broker's employee signs the form, regardless of the date of export. For other documents with multiple dates, the two-year period for retention begins on the latest date reflected on the document. (m) Export certification form and contents. The export certification forms issued by a licensed customs broker must be substantially in the form recommended by the comptroller. A separate form must be completed for each seller. Multiple invoices from a single seller may be listed on a single export certification form only if all the listed items were exported at the same place, on the same date, and at the same time. The required information must be completed in English on the face of the form, in addition to any other language in which the form is completed. The comptroller may immediately confiscate from any person an export certification form that is incomplete on its face, indecipherable, fraudulent, or otherwise in violation of this section. An export certification form must, at a minimum, reflect the following information: (1) the name and address of the purchaser of the property, as shown on the invoice, receipt, or similar document; (2) the name of the seller and the seller's location from which the property was sold; (3) the name, address, and Texas Customs Broker's License number of the broker in whose name the export is being certified; (4) the date of sale, date and time the property was exported, and exact location (e.g., the bridge or airport) where the property was exported; (5) a description of the property, a list of Store Keeping Unit (SKU) or other product identification codes, or copies of invoices securely attached to the form and signed and dated individually by the broker or the broker's authorized employee; (6) the invoice numbers (if any) and sales prices of the property; (7) the original signature of the licensed customs broker or the broker's employee, together with a certification that the property has been exported; (8) the name of the person who signed the form, typed or legibly printed near the signature; (9) a valid export certification stamp whose expiration date falls within the same calendar quarter as the date of export (regardless of the date of sale); and (10) a sequential export certification form number assigned by the licensed customs broker. (n) License denial, suspension, and revocation. The comptroller may deny, suspend, or revoke a Texas Customs Broker's License for cause. (1) Grounds for denying a person's application for a Texas Customs Broker's License include, but are not limited to: (A) ineligibility for a license under subsection (c) of this section, including filing incomplete, false, or misleading information with the license application; (B) disqualification for a license due to prior denial, suspension, or revocation, as provided in this subsection; or (C) forfeiture of corporate privileges, certificate of authority, or charter, if the applicant is a corporation. (2) A person whose application for a Texas Customs Broker's License has been denied may resubmit the application not sooner than 90 days after the date on which the comptroller's decision to deny the application becomes final. However, the comptroller may authorize re-application at an earlier date if he determines it is warranted under the circumstances. (3) Acts or omissions of a licensed customs broker, his employee, his verification contractor, an officer or director, a general partner, or association member (as applicable) that constitute cause for suspension or revocation of a license under this section include, but are not limited to: (A) cancellation, suspension, or revocation by the United States Customs Service of the broker's license to act as a custom house broker or cancellation of that license by the broker; (B) violation of any provision of the Tax Code or the comptroller's rules; (C) delivering to any person a signed and/or stamped export certification form if all or a portion of the property described thereon was not actually exported at the time and place and on the date reflected on the certification form; (D) delivering to any person a signed and/or stamped export certification form based solely on: (i) foreign import documents, bills of lading, freight forwarder's receipts, or other documents that constitute valid proof of export in and of themselves under sec.3.323 of this title (relating to Imports and Exports); or (ii) proof of foreign citizenship; (E) transferring an export certification stamp to a person other than the licensed customs broker or the broker's employee, except if, at the time of transfer, the stamp is affixed to an export certification form issued in compliance with this section; (F) delivering to any person an export certification form with knowledge that the recipient intends to use the form to evade tax that is legally due or to assist another person in the evasion of tax that is legally due; (G) soliciting, advertising, or promoting the unlawful evasion of tax through use of export certification forms; (H) knowingly making a false verbal or written statement to the comptroller; (I) fully or partially preparing export certification forms at a location for which no Texas Customs Broker's License has been issued; (J) transferring signed and/or stamped export certification forms that are otherwise blank or incomplete at the time of transfer to a person other than the licensed customs broker or the broker's employee in the ordinary course of business; (K) failing to exercise responsible supervision and control over the conduct of export certification business, including inadequate supervision of employees and verification contractors; (L) failing to keep current in a correct, orderly, and itemized manner the records required under this section, failing to timely provide the comptroller with information required to be provided, or failing to account for all export certification stamps received from the comptroller; (M) refusing the comptroller access to, concealing, removing, or destroying without the comptroller's prior, written consent, the whole or any part of a record required to be kept under this section, or refusing to cooperate with the comptroller's investigation; (N) attempting to unduly influence the comptroller by the use of a threat, false accusation, duress, or the offer of any special inducement or promise of advantage, or by bestowing any gift, favor, or other thing of value; (O) withholding information from or knowingly imparting false information to a client; (P) failing to timely return to the comptroller unused, expired export certification stamps as required by this section, absent a showing and timely report to the comptroller of loss by theft or accident; (Q) selling or buying export certification forms and/or export certification stamps except as consistent with this section; (R) seeking and/or obtaining under false pretenses a tax refund from a seller, including giving a false refund assignment to the seller or otherwise representing that the broker has the authority to obtain a refund of tax paid by another person if the broker does not have such authority, in fact; or (S) failing promptly to notify the seller, in writing, that an export certification form relating to that seller is for any reason incomplete, misleading, void, or otherwise invalid. (4) After notice and hearing, the comptroller may suspend a license for no fewer than 60 days and no more than 120 days if the broker's license has not been previously suspended or revoked, for no fewer than 120 days and no more that 180 days if the broker's license has been previously suspended or revoked, or concurrently and for the same length of time as a suspension by the United States Customs Service of the broker's license to act as a custom house broker. The suspension becomes effective on the date the comptroller's decision to suspend the license becomes final. Suspension of a license applies to all locations of the broker. (5) After notice and hearing, the comptroller may revoke a broker's license indefinitely if the broker's license has been suspended at least twice previously or has been previously revoked, or if the broker's license to act as a custom house broker has been revoked by the United States Customs Service. The revocation becomes effective on the date the comptroller's decision to revoke the license becomes final. Revocation of a license applies to all locations of the broker. (6) A Texas Customs Broker's License that has been suspended is reinstated automatically upon the expiration of the period of suspension, unless the licensee notifies the comptroller in writing that the license should not be reinstated. Not sooner than one year after the effective date of revocation, a person whose Texas Customs Broker's License has been revoked may apply to the comptroller for reinstatement. The comptroller may reinstate the license if the person otherwise qualifies for a license as provided in this section and the comptroller is satisfied that the person has a good faith intent to comply with the tax laws and the comptroller's rules. (7) For procedures relating to license denial, suspension, and revocation, see sec.3. 361 of this title (relating to Practice and Procedure for Texas Customs Broker's License Denial, Suspension, and Revocation). (o) Suggested form of certification. A suggested form for the Licensed Customs Broker's Export Certification is set out as follows. Figure: 34 TAC 3.360(o) This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on February 13, 1995. TRD-9501844 Martin Cherry Chief, General Law Comptroller of Public Accounts Effective date: March 6, 1995 Proposal publication date: December 9, 1994 For further information, please call: (512) 463-4028 Subchapter V. Franchise Tax 34 TAC sec.3.547 The Comptroller of Public Accounts adopts an amendment to sec.3.547, concerning taxable capital: accounting methods, without changes to the proposed text as published in the December 20, 1994, issue of the Texas Register (19 TexReg 10083). Subsection (c)(4) was amended to delete the irrevocable election requirement. The amendment to subsection (d)(3)(A) prohibits push-down accounting on reports due on or after January 1, 1994, in accordance with legislation enacted by the 73rd Legislature, 1993. Subsection (d)(3)(B) was added to reflect current policy on push-down accounting for reports due prior to January 1, 1994. No comments were received regarding adoption of the amendment. The amendment is adopted under the Tax Code, sec.111.002, which provides the comptroller with the authority to prescribe, adopt, and enforce rules relating to the administration and enforcement of the provisions of the Tax Code, Title 2. The amendment implements the Tax Code, sec.sec.171.109 et seq. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on February 14, 1995. TRD-9501871 Martin Cherry Chief, General Law Section Comptroller of Public Accounts Effective date: March 7, 1995 Proposal publication date: December 20, 1994 For further information, please call: (512) 463-4028 34 TAC sec.3.548 The Comptroller of Public Accounts adopts an amendment to sec.3.548, concerning close and S corporations for taxable capital purposes, without changes to the proposed text as published in the December 20, 1994, issue of the Texas Register (19 TexReg 10084). Subsection (f) was amended to delete the irrevocable election requirement. The amendment to subsection (g) allows an eligible corporation to provide notice of its election to use the federal tax method on or before the extended due date of the affected report. This amendment is in accordance with legislation enacted by the 73rd Legislature, 1993. Former subsection (g) has been changed to subsection (h). No comments were received regarding adoption of the amendment. The amendment is adopted under the Tax Code, sec.111.002, which provides the comptroller with the authority to prescribe, adopt, and enforce rules relating to the administration and enforcement of the provisions of the Tax Code, Title 2. The amendment implements the Tax Code, sec.171.113. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on February 14, 1995. TRD-9501872 Martin Cherry Chief, General Law Comptroller of Public Accounts Effective date: March 7, 1995 Proposal publication date: December 20, 1994 For further information, please call: (512) 463-4028 34 TAC sec.3.563 The Comptroller of Public Accounts adopts new sec.3.563, concerning savings and loan associations, with changes to the proposed text as published in the November 25, 1994, issue of the Texas Register (19 TexReg 9339). The new section contains guidelines for determining the taxable capital and earned surplus of a savings and loan association. This section is a result of the repeal of the savings and loan association exemption from franchise tax by the 72nd Legislature, 1991. The citation in subsection (b)(3)(C) was changed to reflect the codified reference. No comments were received regarding adoption of the new section. The new section is adopted under the Tax Code, sec.111.002, which provides the comptroller with the authority to prescribe, adopt, and enforce rules relating to the administration and enforcement of the provisions of the Tax Code, Title 2. The new section implements the Tax Code, Chapter 171, including, but not limited to, sec.sec.171.054 (repealed), 171.001, 171.101, 171.1031, 171.259, and 171.317. sec.3.563. Savings and Loan Associations. (a) Effective date. The provisions of this section apply to franchise tax reports originally due after January 1, 1992. (b) Definitions. The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise. (1) Commercial domicile-The principal place from which the trade or business of the entity is directed. (2) Net worth- (A) Net worth for a savings and loan association shall include the amount of issued and outstanding common stock, preferred stock (to the extent such preferred stock may be considered a part of the association's net worth under generally accepted accounting principles) plus any retained earnings and paid in surplus as well as such other items as the Texas savings and loan commissioner may approve in writing for inclusion in the association's net worth. (B) Net worth for a mutual association shall include its pledged savings liability and expense fund plus any retained earnings and such other items as the Texas savings and loan commissioner may approve in writing for inclusion in its net worth. (3) Savings and loan association-An entity that qualifies as a savings and loan association under the Internal Revenue Code, sec.7701(a)19. This includes, but is not limited to: (A) state savings and loan association-any savings and loan association organized under the laws of this state; (B) federal savings and loan association-any savings and loan association organized under the laws of the United States of America; (C) state-chartered savings bank-any savings bank organized under or subject to the Texas Civil Statutes, Article 489e, Savings Bank Act; (D) federal savings bank-any savings bank organized under the laws of the United States of America; and (E) mutual savings bank-a savings bank not authorized to issue capital stock. (c) Subject to tax. All savings and loan associations or savings banks that are chartered, authorized to do business, or doing business in Texas are subject to Texas franchise tax, in the same manner as other corporations, beginning January 1, 1992. (d) Other franchise tax provisions apply. All provisions of this subchapter, concerning the Texas franchise tax, are applicable to savings and loan associations and savings banks. However, this section will control if it conflicts with another section of this subchapter. (e) Apportionment of dividends and interest. (1) If a savings and loan association or a savings bank has its commercial domicile in Texas, all dividends and interest received, including interest from the federal government unless otherwise excluded by sec.3.555(k) of this title (relating to Earned Surplus: Computation) , are considered to be Texas gross receipts and gross receipts everywhere. (2) If a savings and loan association or a savings bank does not have its commercial domicile in Texas, dividends and interest received are not considered to be Texas gross receipts but all are considered to be gross receipts everywhere unless otherwise excluded by sec.3.555(k) of this title (relating to Earned Surplus: Computation). (3) Interest received by a savings and loan association for mortgages owned by the savings and loan association are considered Texas receipts if the savings and loan association's commercial domicile is in Texas. (f) Mortgage loans. (1) The sale of mortgages by a savings and loan association are apportioned based on the legal domicile of the payor. (2) Receipts from servicing loans are apportioned based on where the servicing activities occur. (g) Enforcement. (1) The Texas Savings and Loan Commissioner shall revoke the charter of a savings and loan association or a savings bank certified by the comptroller as delinquent in the payment of its franchise tax. (2) Except as provided in paragraph (1) of this subsection, no savings and loan association or savings bank will have its corporate privileges or charter forfeited by the comptroller for not paying its franchise tax. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on February 14, 1995. TRD-9501873 Martin Cherry Chief, General Law Section Comptroller of Public Accounts Effective date: March 7, 1995 Proposal publication date: November 25, 1994 For further information, please call: (512) 463-4028 TITLE 37. PUBLIC SAFETY AND CORRECTION Part I. Texas Department of Public Safety Chapter 11. Commercial Vehicle Registration Commercial Vehicle Registration Enforcement 37 TAC sec.sec.11.1, 11.4, 11.5 The Texas Department of Public Safety, adopts amendments to sec.sec.11.1, 11. 4, and 11.5 concerning commercial vehicle registration enforcement, without changes to the proposed text as published in the January 6, 1995, issue of the Texas Register (20 TexReg 65). The rules are being amended for clarification and consistency with the statute. The amendments to the sections change the name State Department of Highways and Public Transportation to the Texas Department of Transportation. The amendments are necessary to comply with the requirements of the 72nd Legislature, 1st Called Session, 1991. No comments were received regarding adoption of the amendments. The amendments are proposed under Texas Government Code sec.411.006(4) which provides the director with the authority to adopt rules, subject to commission approval, considered necessary for the control of the department. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on February 7, 1995. TRD-9501864 James R. Wilson Director Texas Department of Public Safety Effective date: March 7, 1995 Proposal publication date: January 6, 1995 For further information, please call: (512) 465-2890 TITLE 40. SOCIAL SERVICES AND ASSISTANCE Part IX. Texas Department on Aging Chapter 266. In-Home Services for Frail Older Individuals Statutes and Regulations 40 TAC sec.sec.266.1, 266.3, 266.5 The Texas Department on Aging adopts the repeal of sec. sec.266.1, 266.3, and 266.5, concerning in-home services for frail older individuals and definitions and eligibility policies associated with these services without changes to the proposed text as published in the December 16, 1994, issue of the Texas Register (19 TexReg 9978). Adoption of this repeals are necessary to preclude duplicative or conflicting requirements for these services. No comments were received regarding adoption of the repeals. The repeals are adopted under the Human Resources Code, Chapter 101, which provides the Texas Department on Aging with the authority to promulgate rules governing the operation of the Department. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on February 13, 1995. TRD-9501818 Mary Sapp Executive Director Texas Department on Aging Effective date: March 6, 1995 Proposal publication date: December 16, 1994 For further information, please call: (512) 444-2727 Chapter 270. General Service Requirements Statutes and Regulations 40 TAC sec.sec.270.13, 270.15, 270.17, 270.19, 270.21 The Texas Department on Aging adopts new sec.270.13 relating to policies governing the delivery of adult day care services, sec.270.15, relating to emergency response services, sec.270.17, relating to services provided to frail elderly, sec.270.19, relating to residential repair services, and sec.270.21 relating to operating multipurpose senior centers by area agencies on aging and service providers in the State with changes to the proposed text as published in the December 16, 1994, issue of the Texas Register (19 TexReg 9978). The rules were revised and relocated in the Administrative Code as a continuation of the Department's program to update and reorganize policies pertaining to operation of programs for older Texans authorized under the Older Americans Act. A number of comments were received on these rules. In sec.270.15, Emergency Response Service Standards, a recommendation to amend the language of subsection (c) Service Objective, was made to better explain the purpose of the emergency response program. The language in this subsection was revised according to this suggestion. In subsection (d)(1), it was suggested that this language be amended to include "or during the night, or live". The Department concurs and has amended the text accordingly. In subsection (d)(3) is was suggested that having a private telephone line should not necessarily be a prerequisite for the service. If the client needs the service, arranging the private phone line could be part of the arranged service. The Department concurs. A decision by the case manager to procure a private line is at the option of the area agency. There is no need to amend the language. A comment regarding the wording for the target group for Emergency Response Services was made. The program shall be provided for persons 60 years of age or older with priority given to meeting the needs of persons with the greatest economic or social needs, and who are at greatest risk, e.g. prone to falling, live in a dangerous neighborhood, have an existing medical condition which might be life threatening if patient does not receive immediate aid. The Department concurs and has amended the text accordingly. Additionally, it was stated that this section does not speak to giving priority to individuals having some health condition that puts them at-risk. If ERS is a safety/security service, then anyone living alone could benefit, however, since funds are not available to provide ERS for every senior living alone, some criteria related to being at-risk would help with prioritization. Factors to consider are prone to falling, living in a dangerous neighborhood, existing medical condition requiring immediate response. The Department has amended the language to reflect these concerns. In Subsection (e), (1), (2) and (3) a re- write was suggested to clarify the responsibilities of the emergency response service provider. The Department agreed with much of the suggested wording and amended the text accordingly. A suggestion was made to rewrite Subsection (f) relating to service outcomes as follows: "Service Outcome. The individuals receiving service shall be able to continue to live alone knowing help can be contacted should an emergency arise due to the safety-net provided by the ERS system". The rationale given is that ERS alone cannot assure that the client will maintain their highest level of independence possible as an outcome. All it can provide as an outcome is a greater sense of assurance help can be contacted should an emergency arise, thus giving greater peace of mind. The Department concurs and has amended the text accordingly. In Subsection (h), an opinion was given that although these requirements are comprehensive and desirable, it may be difficult for the AAA to monitor them if the service is purchased on a vendor basis, e.g. the monthly systems checks or the three attempts to reach the client. Additionally, a suggestion to re-word for greater accuracy to remove global implication was made. The Department did not concur as scope refers to the applicability to the rules and there is no need to restate language previously appearing in Subsection (b). A comment regarding Subsection (h)(6) suggested repairing or replacing equipment within 24-72 hours instead of one day upon becoming aware that the equipment malfunctioned, stating that the one-day repair requirement allows no consideration for travel time required in large rural districts where a unit may not be readily available and must be picked up in another town, nor for unforeseen emergencies, e.g. sick or vacationing repair person, accident in route to location or inconvenient to client. The Department concurs with the need to document the failure of equipment but does not concur with specifying a time period different from DHS. We will address this issue more specifically in the Department procedures manual. In Subsection (j), referring to Records, it was suggested that we address the records that would be created in a vendor agreement. This is not necessary as these provisions apply to contracted services and not to direct purchase of service agreements from vendors. This concludes the comments on sec.270.15, Emergency Response Service Standards. In sec.270.17, In Home Service Requirements for Frail Older Adults, suggestions to reword subsection (d)(1) and (2) to promote clarity were accepted and the text was amended accordingly. In subsection (g)(7), the suggested wording was not considered for addition as it did not conform to the requirements in the Older Americans Act. No other recommendations were made on sec.270.17. In sec.270.19, Residential Repair Services, it was suggested that the current policy on rental units should be included in the proposed rule changes. It assures all areas of concern on rental units are identified. The Department concurs with the inclusion of the current rental policy and has included these words in subsection (f). It was also recommended that the current delivery of services certification process be included as it helps identify and document needs as well as review actual work activity for compliance with work plans. We have amended subsection (h)(3) to add this language. It was suggested that subsection (f))(1) be amended to delete the reference to "head of household." The Department cannot concur with removal of this language as enabling legislation (sec.101.022 HRC) and the housing bond fee legislation (sec.394.902 of the Texas Local Government Code) includes "head of household" as a requirement to provide this service. In subsection (f)(1), it was recommend that a unit of service shall not exceed $1,500 per household per program year. The Department concurs and has amended the text accordingly. In subsection (f)(2)(C) Electrical, it was recommended that the language be expanded to include replacement of telephone conduits to permit the installation of an emergency response unit, repair or replacement of essential appliances. The Department concurs and has amended the language accordingly. In subsection (f)(2)(D) Plumbing, it was suggested that the language be amended to include replacement of essential plumbing lines or fixtures. The Department concurs and has amended the text accordingly. In subsection (f)(2) (F), Safety and security modification, it was recommended that "grab rails inside or outside the residence" be added to the requirements. The Department does not concur as installation of grab bars is included under subsection (f) (2)(B) Accessibility modification. In subsection (h) Administrative Requirements, the Department was asked to clarify that "provider" is the Area Agency on Aging and not the vendor when the AAA provides the services directly. The Department concurs and has amended the text accordingly. This concludes comments on sec.270.19. In sec.270.21, Senior Center Requirements, a question was posed regarding the rule's application. The rule applies to both senior centers and multipurpose senior centers but does not apply to nutrition sites. The language has been amended in subsection (b) to provide clarification. Regarding subsection (e)(2), annual fire/safety inspections, a question was asked regarding what will constitute an "inspection" and "report" and what entity is considered qualified to perform such inspection and file reports? The Department responds that whomever is responsible for fire/safety inspections, such as volunteer fire departments, local law enforcement officials, state health departments or county governments can provide the inspections and issue the reports. A suggestion was made regarding the wording in subsection (e)(3), annual training. The Department concurs with the language recommended and has amended the text accordingly. In subsection (e)(5) , relating to smoking, it was suggested that this be deleted, since a county or city has the option to authorize designated smoking area(s) within their facilities. While we recognize this, the Department's intent is to protect the health of all participants in a senior program. Consequently, we have amended the language to pertain to those programs funded under the Older Americans Act and conducted in space dedicated for these programs. Language has been altered to reflect this policy. In subsection (e)(6), a commenter suggested that the entity responsible for developing basic operational policies and procedures be identified in this subsection, and that "paid" be substituted for permanent when describing staff. The Department concurs with these suggestions and has altered the text accordingly. A commenter suggested that subsection (g) be reworded to require an applicant for funding to specify how the service need of the low-income, minorities shall be met. The Department concurs and has amended the text. Rewording was suggested for subsection (h), relating to insurance, to clarify the language. The Department has adopted the suggested language. It was suggested that subsection (j) be reworded to clarify the periods of time and the circumstances governing the operation of senior programs in joint use buildings or other facilities. The Department concurs and has amended the text. Regarding reversionary policy in subsection (k), it was stated that "never is the percentage or amount of federal dollars referenced. What if the OAA funds were used strictly to purchase some kitchen outfitting and the remainder of the building was built with other funds? If these regulations apply no matter how small the amount, that needs to be stated." The Department agrees that additional clarifying language is necessary and has amended the text. In subsection (k)(1), a commenter asked what time limit was established under the reversionary policy for a senior center that has been renovated?" The Department responds that the time established in the Older Americans Act, sec.312, which is within ten years of acquisition, or within 20 years after the completion of construction. The text has been amended to clarify this requirement and it is the intent of this policy to perpetuate the requirement established in the OAA sec.312 (42 USC 3030b) and AoA PI 91-04 relating to protecting federal reversionary interest in multipurpose senior centers to ensure that federal funds are recovered as specified. A commenter questioned the policy in subsection (k)(6) regarding sectarian use of center facilities acquired and/or constructed with federal funds. The Department responds by stating that this requirement is in accordance with OAA 307(14) and the policy was established by Board Action on October 30, 1991. Regarding subsection (k)(l), Designation of Focal Points, a commenter recommended suggestions to wording in the characteristics for focal points which provided a clearer description of those characteristics. The suggested language also recommended that the term multipurpose be deleted from this subsection. The Department concurs with the proposed language and has amended the text accordingly. However, the Department takes exception to the recommendation to exclude "multipurpose" from this paragraph as this term is clearly justified for use by the Older Americans Act and Federal Regulations. This concludes comments on sec.270.21, Senior Center Operations. The Texas Association of Regional Councils, the Operations subcommittee, the Board and the Staff of the Department, and the public commented on these rules. The new sections are adopted under the Human Resources Code, Chapter 101, which provides the Texas Department on Aging with the authority to promulgate rules governing the operation of the Department. sec.270.13. Adult Day Care Service Requirements. (a) Purpose. This chapter establishes the rules for area agencies on aging to contract for or purchase the delivery of adult day care services authorized by the Older Americans Act for the elderly in their planning and service area. (b) Scope. This rule applies to all adult day care services provided in accordance with sec.270.1(b) of this title (relating to Scope of General Service Requirements). (c) Target group for Adult Day Care Services. The target group for this service is persons 60 years of age or older and/or their spouses who: (1) are at least moderately to severely impaired in their functioning regarding the performance of activities of daily living and instrumental activities of daily living; and (2) lack access to such services through other funding sources. (d) Service objective. The purpose of this service is to provide protective supervision, social and recreational opportunities, nutrition, counseling, and in some cases health care for frail individuals while promoting respite for family caregivers. (e) Service outcome. Participants shall receive services which will improve their quality of life while temporarily easing the responsibility for caregivers. (f) Access. Older persons may be referred by self, physician, hospital, case manager, family member, friend or other service provider. Services are provided in a variety of settings outside of the client's own home. (g) Service provider eligibility. An adult day care program that provides health, social, and related support services shall be licensed by the Texas Department of Human Services in accordance with 40 TAC 98, Adult Day Care Facilities. For programs not providing all three components, area agencies on aging shall refer to the Department's policies and procedures manual for specific guidelines. (h) Services activities. Activities of the Texas Department of Human Services licensed adult day care program are specified in 40 TAC 98, Adult Day Care Facilities. This program may include nursing, rehabilitative, nutrition, transportation and other supportive services. (i) Monitoring and evaluation. Performance of adult day care programs not licensed as required under subsection (g) of this section (relating to service provider eligibility) shall be monitored and evaluated in accordance with the Department's procedures established for monitoring services. sec.270.15. Emergency Response Service Standards. (a) Purpose. This chapter establishes policies and procedures to be followed when area agencies on aging contract for emergency response services in their planning and service area. (b) Scope. This rule applies to all emergency response services provided in accordance with sec.270.1 of this title (relating to General Service Requirements). (c) Service Objective. The purpose of the emergency response program is to enable aged and disabled adults to remain at home safely. (d) Target Group for Emergency Response Services. The program shall be provided for persons 60 years of age or older with priority given to meeting the needs of persons with the greatest economic or social needs, and who: (1) live alone, are alone during the night or alone routinely for eight or more hours during a twenty four hour period, or live with an incapacitated individual who could not call for help or otherwise assist in an emergency; (2) are mentally alert enough to operate the equipment properly; (3) have a telephone with a private line, if the system requires a private line to function properly; (4) are willing to sign a release statement that allows the responder to make a forced entry into the client's home if he is asked to respond to an activated alarm call and has no other means of entering the home to respond; (5) live in a place other than a skilled institution, personal care home, foster care setting, or any other setting where 24-hour supervision is available. (6) are at greatest risk, such as prone to falling, or have an existing medical condition that may be life threatening if client does not receive immediate assistance. (e) Service Activities. The emergency response service provider shall coordinate and oversee the installation and management of the system assuring the following: (1) Immediately upon completing installation, client will be taught how to use the system and demonstrate understanding during a test run. (2) The provider agency must conduct a monthly systems check for each client or make a minimum of three attempts to reach the client on three different days during the month. The provider agency must document monthly systems checks and/or attempts to contact the client if the client was not home or not available. (3) The provider agency must repair or replace equipment within one day of becoming aware that the equipment malfunctioned. The provider agency must ensure that once services have begun, a client is not without services for more than one day from the time the malfunction is reported. (4) At least two volunteers shall be solicited who are willing to respond to the client when the alarm is activated. This could be a neighbor, friend or family member who lives near the client. These volunteers are in addition to police, fire, and emergency medical services personnel. (f) Service Outcome. The individuals receiving service shall be able to continue to live alone knowing help can be contacted should an emergency arise due to the safety-net provided by the ERS system. (g) Service Provider Eligibility. The service provider shall have a 24-hour, seven-day-a-week emergency response monitoring capability, and shall: (1) be a public agency, or a private, non-profit or profit corporation that is either chartered with or authorized by the Secretary of State to transact business within the state; (2) comply with all provisions of federal laws and regulations, applicable statutes, and any subsequent additions, deletions and amendments to those rules; (3) execute a contract with the area agency which will allow units to be purchased by performance based unit rate contracting, cost reimbursement contracting, or direct purchase of service contracting as detailed in sec.260.2(f), (relating to area agency responsibilities) and sec.260.19, Direct Purchase of Services; (4) be licensed by the Texas Board of Private Investigators and private Security Agencies, unless exempt from its regulation. The provider agency must send a copy of its license and a copy of the annual renewal of its license to the area agency on aging; (5) notify the area agency on aging in writing of any change in its ownership at least 60 days before the change. A change in ownership is any change that materially or substantially alters the business organization of the entity actually responsible for delivering services to the clients; (6) obtain the area agency on aging's approval to subcontract any services to be performed under the agreement/contract. Subcontractors must meet the same requirements as the prime contractor. (h) Service Requirements. The service provider shall perform the following requirements for contracted services only: (1) connect the home unit equipment to the monitoring system and ensure that the equipment has an alternate power source if the power fails. The equipment at the response center shall be equipped with a tape readout that prints the code number of the alarm, the unit/subscriber number, the date, and the time of the activated alarm; (2) respond to all alarm calls 24 hours a day, seven days a week. Failure to respond shall result in contract termination; (3) document alarm calls as they are received and resolved. The documentation includes: (A) the date and time the alarm is received; (B) the name of the client; (C) the name of the contacted responder(s) ; (D) a brief description of the incident and a statement of how the incident was resolved; and (E) the date the case manager/program supervisor was notified; (4) notify the case manager/program supervisor of any emergency or significant change in the client's condition as soon as possible but no later than the next work day. Notification shall be followed up in writing within seven days after the occurrence; (5) conduct a monthly system check for each client as specified in subsection (e)(2) of this section, (relating to Service Activities). These checks or attempts to contact the client shall be documented; (6) repair or replace equipment within one day of becoming aware that the equipment malfunctioned as specified in subsection (e)(3) of this section (relating to Service Activities). Equipment malfunctions and the action taken shall be documented; (7) respond to all complaints in a reasonable and prompt manner. The provider agency shall investigate and respond in writing to all written complaints and maintain accessible and available records of the complaint and its resolution; (8) notify the area agency on aging in writing if the coordinator, provider agency address, or telephone number changes; (9) ensure that service is not interrupted because of a change; (10) test the equipment when the equipment is removed from the client's home, unless a monthly systems check has been conducted during the same calendar month, or the provider agency is unable to test the equipment because: (A) the client's telephone was disconnected; (B) the client damaged his home unit; or (C) the equipment was picked up at a location other than the client's home. (i) Staffing. The provider agency shall, at least, employ a coordinator. The remaining staff may be employees, subcontractors, or volunteers. These persons shall be able to perform the duties prescribed and meet the same level of competency. Duties are as follows. (1) The coordinator is responsible for the overall management of the service and to ensure that services are delivered according to established rules, policies and procedures. The coordinator shall document in the service provider's records that each installer and monitor is competent in performing his job responsibilities. (2) The installer shall be able to communicate with clients and be responsible for installing the equipment. This staff shall be competent in all of the following areas: (A) installation procedures; (B) proper use of the equipment; (C) federal Communications Commission requirements; and (D) proper identification methods. (3) Monitors shall be retained who are able to communicate with clients and who are responsible for monitoring the service delivery 24 hours a day, seven days a week. Monitors shall be competent in the following areas: (A) procedures for responding to activated claims; (B) monitoring and documenting an alarm call from the time the alarm is received to the time the client receives assistance and the case manager/program supervisor is notified; (C) conducting and documenting monthly systems checks; (D) recognizing client characteristics and needs; and (E) using the emergency response equipment properly. (4) Volunteer responders (other than emergency medical services, fire, police and sheriff's office) shall be given written procedures that explain the service. The procedures shall identify the responder's roles and responsibilities in delivering services. The responder shall receive the written procedures on or before the services are initiated. The service provider shall have written documentation in the agency files that emergency medical service, sheriff, fire and/or police department responders are notified that they have agreed to respond to emergencies when called upon by their service provider. (j) Records. The service provider shall ensure that client records, personnel records, financial records and any miscellaneous records are maintained as may be required to document service delivery. The service provider shall ensure compliance with the minimum requirements established below. (1) Client records shall contain at least the following information: (A) client intake information and assessments; (B) record of the monthly systems check or documentation that three attempts have been made; (C) record of each incident or alarm call; (D) home entry release statement; (E) record of the orientation given to the client and the responders; (F) record that the client received a verbal explanation and written copy of the provider agency's complaint procedures. (2) Personnel records shall be kept in a central location by the provider. These records shall include staff qualifications, performance reports, attendance records and staff development records. (3) Financial records shall be kept in a central location, and shall be maintained according to recognized fiscal and accounting procedures. These records shall include details on charges and payments made on behalf of each client. (4) Miscellaneous records consisting of a monthly log of systems checks along with the documentation of why clients are unable to participate in the monthly systems check shall be required. (5) A list of the area agency on aging clients and their corresponding responders, including the responders' telephone numbers, shall be provided to the area agency staff within seven days of receiving a written request. (6) Failure to maintain records shall cause the area agency on aging to: (A) request corrective action plans; (B) request monetary recoupment; or (C) terminate the provider agency's agreement or contract. (k) Service Delivery Characteristics. Service providers shall deliver services in the following manner: (1) Case managed services shall adhere to procedures established by the Department in accordance with sec.260.7 of this title (relating to Case Management Services). (2) Annualized contracts shall adhere to the following: (A) An initial assessment shall be performed by the designated staff of the contracted agency. A home visit shall be made to the prospective client to determine whether the client meets eligibility criteria. (B) If determined eligible, delivery of service shall be based on specific client needs as determined by the designated contract staff during the in-home assessment. (C) Services shall be initiated no later than 14 working days from the date of referral. If the provider agency cannot initiate service delivery in accordance to these criteria, the referral shall be terminated and referred to another agency. Additional service initiation procedures shall be met. (i) If the client is not in the home during the first 14 days from the date of referral, the provider agency shall begin services as soon as possible after the client returns home. (ii) If services do not begin on the date verbally negotiated, the coordinator telephones the case manager/program supervisor on or before the day services were scheduled to begin and explains why services were not begun. (iii) If the case manager/program supervisor disagree about the appropriateness of a referral or about service delivery issues involving the client, supervisory staff of the two agencies shall resolve the differences. (iv) The provider agency shall secure two responders for each client on or before the date services begin, unless the provider agency is able to document that the client has no available responders and that only one resource is available that can respond to emergencies. (v) The installer shall perform the following: (I) installs and makes an initial test of the emergency response equipment; (II) explains to the client how to use the equipment; (III) provides a written copy and explanation to the client of the complaint procedures; and (IV) has the client sign a statement that allows the responder to enter the client's home by force if necessary, in an emergency. (vi) The provider agency completes the client's card file which shall include: (I) the client's name, telephone number address, and medical condition(s); (II) the client's attending physician's name and telephone number; (III) the responders' names and telephone numbers; and (IV) any other useful information. (vii) The provider agency shall notify the case manager/program supervisor of the status of all referrals within 21 days from the referral date. (viii) The area agency on aging shall encourage the client to choose the most economical alternative for service provision. (ix) If a provider agency is delivering services according to the requirements in this chapter, a client shall not change provider agencies within the first six months of authorization, unless the client and the provider agency mutually agree. (D) Each client shall be reassessed as needed, at least every six months. (E) Service plan changes must be reported. If the client's condition changes significantly, the service provider shall report it to the area agency staff within seven days of awareness. A significant change is an event in the client's status or condition that may require a change in the client's service authorization. Events include: (i) hospitalization; (ii) changes in functional abilities (or ability to operate unit); (iii) complaints of pain; (iv) housing (eviction); (v) changes in household composition; (vi) an emergency, in which the client is involved, that receives a response; and (vii) three unsuccessful attempts to contact the client for monthly systems check. (l) Termination and Suspension of Services. The service provider shall suspend services before the end of the authorization period and remove the equipment from the client's home, with or without obtaining area agency approval, if: (1) the client moves to another county where the provider agency does not provide services; (2) the client is admitted to an institution, personal care home, foster care setting, or any other setting where 24-hour supervision is available; (3) the client dies; or (4) the client requests that services end; (m) Equipment Removal. If the equipment is removed from the client's home, the service provider shall notify the area agency staff by the next workday, and follow-up with written notification of service termination within seven working days. (n) Special Reporting Considerations. The service provider shall notify the area agency staff within one work day of awareness when the following circumstances occur. (1) client abuses the service by committing the following acts: (A) activating four false alarms which result in a response by emergency personnel within a six-month period; or (B) Twenty false alarms of any kind within a six-month period. (2) The client is away from the home or is unable to participate in the service delivery for three consecutive months or more. (3) The client is no longer mentally alert enough to operate the equipment properly. (4) The client threatens the health or safety of others. (o) Administrative Requirements. (1) Agencies providing emergency response services shall comply with the administrative and other requirements specified in sec.270.1 of this title (relating to General Service Requirements). (2) The provider agency shall have a written contingency plan in the event of dissolution for continuity of client care. Records shall be maintained in accordance with the Department's established procedures. (3) The provider agency shall inform the client and/or the family in writing of the terms of their agreement for services. (p) Monitoring and evaluation. The emergency response program performance shall be monitored and evaluated in accordance with the Department's procedures described in sec.255.35(c)(4) of this title (relating to monitoring). sec.270.17. In Home Service Requirements for Frail Older Adults. (a) Purpose. This chapter establishes the rules for area agencies on aging to contract or purchase in home services for frail elderly funded by Title III, Part D funds of the Older Americans Act, as amended. (b) Scope. This rule applies to all in-home services provided in accordance with sec.270.1(b) of this title (relating to Scope of General Service Requirements). (c) Target group for In-Home Services. The target group for this service is persons 60 years of age or older and/or their spouses who are functionally impaired in their ability to perform regular activities of daily living. (d) Client eligibility. In addition to the age requirement, to be eligible for in home services under this section, an individual shall meet the following: (1) have a physical or mental disability, such as Alzheimer's Disease, or disorder which restricts the ability of an individual to perform daily tasks, or which threatens their capacity to live independently; or (2) is without access to persons who are able and willing to perform needed activities of daily living support services; or (3) has greatest economic need; or (4) has greatest social need caused by non-economic factors which include language barriers and cultural, social, or geographic isolation, including isolation caused by racial or ethnic status, that restricts the ability of an individual to perform normal daily tasks; or threatens the capacity of the individual to live independently. (e) Access. Older persons may be referred by self, physician, hospital, case manager, family member, friend or other service provider. (f) Service outcome. Frail older individuals and their families shall receive the needed information and assistance and therefore increase the opportunities to retain their independence for as long as possible. (g) Service activities. In-home services includes: (1) homemaker; (2) visiting and telephone reassurance; (3) chore maintenance; (4) in-home respite care for families and adult day care; (5) minor home modifications; (6) personal assistance services; and (7) other in home services as defined in the State Plan and area plans. (h) Service provider eligibility. Providers of the activities listed in subsection (g) of this section shall adhere to the Department's rules, policies, and procedures governing each specific service. (i) Monitoring and evaluation. The in-home services for the frail program performance shall be monitored and evaluated in accordance with the Department's procedures established for monitoring of services. sec.270.19. Residential Repair Services. (a) Purpose. The purpose of this rule is to upgrade the condition of the older person's residence to improve its energy efficiency, structural integrity, health and safety environment. (b) Scope. This rule applies to residential repair services funded in whole or part with Title III funds and/or state funds provided through The Texas Department on Aging and any local funds or other funds provided to and managed by the area agencies on aging. (c) Target Group for Residential Repair Services. Persons 60 years of age or older with greatest economic and social need, including but not limited to low income, minority, living alone, frail and/or disabled. Special consideration shall be given to those persons identified through case management including clients receiving homemaker, home health and other in-home services. (d) Access. Services may be obtained by contacting the local area agency on aging. A client intake shall be completed to determine an individual's eligibility prior to service delivery. (e) Outcomes. Older person's homes shall receive those repairs and/or modifications which are essential for the health and safety of the residents and to help maintain them independently in their homes. (f) Service Activities. (1) A unit of service for residential repair is one unduplicated dwelling unit which has been repaired and/or modified and is occupied by a person 60 years of age. It is preferred that the 60 plus person be the head of the household. It shall include all the labor, material and service committed to repairing one dwelling unit in one program year. A unit of service shall not exceed Department policy for the maximum allowable federal or state expenditure of $1, 500 per household per program year. (2) The individual repair and/or modifications shall be of quality workmanship. Allowable repairs are as follows. (A) Structural. This includes any repairs to the structure itself considered necessary to the health and safety of the client. Examples are repairs to the ceiling, walls, floors, doors and windows. (B) Accessibility modification. This includes structural adaptations which meet the needs of older persons who have disabling conditions. Examples are installation of a chair lift or ramp, modifying appliance and electrical controls for easier manipulation, widening and installation of doorways, repair and replacement of and/or installation of grab bars and/or handrails. (C) Electrical. This includes replacement of unsafe or defective wiring, replacement of telephone conduits to permit the installation of an emergency response unit, repair or replacement of essential appliances and replacement of light switches. Essential appliances are defined as those appliances necessary to sustain a healthful environment such as refrigeration, heating, cooking and cooling. (D) Plumbing. This includes replacement, repair and/or installation of essential plumbing lines or fixtures such as bathtub, shower, kitchen and bathroom sinks, toilet, water heater, septic tanks, drain field, or well. (E) Weatherization. This includes repairs and/or modifications or purchase of supplies that protect the home or its resident(s) from the effects of the weather, conserve energy or provide alternative energy sources to heat or cool a dwelling. Examples are providing and installing storm windows, insulation, servicing heating systems, roof repair and maintenance and installation of mobile home skirts. (F) Safety and security modification. These include measures which prevent accidents, fires or intrusion into a dwelling. Examples are installation of a secure door and window locks, addition of exterior flood lights or lights along access walls and installation of smoke detectors, fire escapes or alarm systems. (G) Housing Counseling. This includes advice or printed material provided to older homeowners to assist them in improving or financing their homes, dealing with financial matters related to housing and dealing with the landlord and utility companies. (H) Yard Work and Home Maintenance. These include tasks that an individual can no longer perform and which help maintain the health and safety of the client. Some examples are the repair or removal of safety hazards in the yard such as faulty septic tanks, drain fields, open wells, faulty utility lines, maintenance of walkways, replacement of window panes, fuses and electrical plugs and non- expert insect and rodent control. (I) Repair of Rental Units. Residential repair services on rental units is prohibited without prior approval by the area agency on aging. It is the option of the area agency to decide to perform residential repair service on rental homes occupied by eligible clients who are the primary resident. If work is performed on rental units, the residential repair service providers (AAA) must obtain a signed agreement from the landlord authorizing the repairs and/or modifications and stating that the tenant will not be evicted within one year of the completion of the repairs and/or modifications without substantial cause and that the rent will not be raised due to the increased value of the unit as a result of the repairs and/or modifications. (g) Prohibited Activities. This includes the following: (1) Major repairs of houses and/or furnishing such as replacement of a roof, floor and foundation. (2) Construction, repair or maintenance of outbuildings such as garages, carports, animal shelters or greenhouses. (3) Installation, repair or maintenance on nonessential appliances. Examples are decorative light fixtures or television sets; and (4) Beautification of property or activities which are strictly for cosmetic purposes such as landscaping, planting a garden, purchase of gardening equipment, complete paint job, ornamental shutters or trim, fancy porch supports, carpeting, patio and/or mending fences unless essential to the client's safety. (h) Administrative Requirements. The provider agency (AAA) shall have the necessary legal authority to operate in conformity with federal, state and local law and shall maintain the following documentation: (1) specific information on the number of houses and the cost per house repaired and/or modified with OAA funds and other funding sources; (2) specific information on coordination activities with other funding sources which resulted in the leveraging of additional funds for residential repair and/or modifications; (3) service agreements between the service provider and the recipient of services and the landlord, if applicable, shall be executed. Copies of the service agreement and the area agency's approval, if applicable, shall be maintained and updated for each program year. The following activities must be accomplished each program year to certify the delivery of services. (A) a client intake must be completed to determine that the individual is eligible for the service prior to service delivery. (B) an on-site evaluation of the home will be provided and a written service agreement will be developed with the client advising of the work to be performed prior to service delivery. (C) a scheduled work plan will be developed and implemented. (D) after completion, the client will sign an affidavit that the work was satisfactory. (4) signed certification that compliance to requirements with all appropriate codes for building, plumbing and electrical repair have been met. sec.270.21. Senior Center Requirements. (a) Purpose. The requirements contained in this section are to be used by center facilities in conjunction with the service delivery rules adopted for each service provided. (b) Scope. These rules apply to all senior center or multipurpose senior center facilities and services provided therein under contract or grant funded in whole or part with funds provided by the Department under the Older Americans Act, as amended, or State general revenue, other funding source granted or contracted to the Department for use in providing services, or other funds pooled with such funds to meet the costs for services under the Older Americans Act. (c) Service objective. To provide a community facility where persons aged 60 or older meet together to pursue mutual interests, receive services and take part in activities that will enhance their quality of life, support their independence, and encourage their continued involvement in and with the community. (d) Physical facility. (1) Center facilities should be located in areas central to and easily accessible by targeted populations. (2) A center facility shall be designed, constructed and maintained in compliance with all applicable Federal, state and local building safety and fire codes, including the Occupational Safety and Health Act, as amended, and the Americans with Disabilities Act, as amended. (e) Operation. (1) All center facilities shall comply with the requirements of the Americans with Disabilities Act (ADA) and the Rehabilitation Act, sec.504. (2) Annual fire/safety inspections shall be made and reports kept on file at the center for review by area agency on aging and Department staff. (3) All full-time center staff shall have current certification in first aid and cardiopulmonary resuscitation (CPR). (4) Basic first aid supplies shall be maintained, clearly marked and accessible to all staff. (5) The Surgeon General of the United States has determined that the smoking of tobacco constitutes a health hazard. Smoking of tobacco is prohibited during the hours of operation of senior programs and in footage designated for senior activities funded by the Department. (6) Basic operational policies and procedures developed by the governing/advisory entity or its designee, shall be in writing and available to funding sources, paid and volunteer staff and participants. (f) Political activity. Senior center facilities shall not be used for political campaigning except in those instances where representatives of all opposing sides are represented. Political materials shall not be posted or left in the center facility. (g) Service needs/outreach. An application to an area agency on aging for funding of services at a center facility shall specify how the service needs of low-income minority persons shall assured in accordance with their needs and how outreach efforts shall be used to identify eligible persons, with a special emphasis on populations targeted in the Older Americans Act. (h) Insurance. At a minimum, general liability coverage for volunteers and participants shall be carried. Worker's Compensation shall be carried for paid staff. Appropriate and sufficient insurance coverage shall be maintained on the building. (i) Program contributions. Procedures shall be developed which protect each person's privacy with respect to his/her voluntary contribution. No otherwise eligible person shall be denied service because he/she will not or cannot contribute to the service. (j) Non-Title III related activities. During hours of senior program operation and in footage designated for senior activities, non-Title III activities shall be approved by the governing body of the senior center and be in accordance with federal, state and local laws. (k) Reversionary policy. The following shall be the policy of the Department with regard to protecting the federal reversionary interest in multipurpose senior centers: (1) When Older Americans Act funds have been used for the acquisition, construction and/or alteration/renovation of a senior center facility, there remains a federal reversionary interest for current market value of the facility equal to the percentage of Older Americans Act Funds contributed to the original costs of the facility for ten years after acquisition, or for 20 years after the completion of construction. (2) Each area agency on aging shall maintain an accurate inventory of center facilities which were acquired, constructed and/or renovated with Older Americans Act funds and provide an annual update to the Department. (3) The federal government, through the Department, is entitled to recover its funds in accordance with the Older Americans Act if: (A) the owner of the center facility ceases to be a public or nonprofit private agency or organization; or (B) the facility ceases to be used for the purposes for which it was acquired, within the above time periods. (4) It shall be the responsibility of the area agency on aging to notify the Department in writing within 10 working days after any change occurs which could affect the Federal reversionary interest in a center facility. (5) All grantees of Older Americans Act construction or acquisition awards must file a notice of record within 30 calendar days with the appropriate unit of local government upon purchase or completion of construction of the facility. (6) Center facilities acquired and/or constructed with federal funds shall not be used for sectarian instruction or as a place for religious worship. (l) Designation of Focal Points. The area agency on aging shall designate which multipurpose senior centers are focal points. Designated centers criteria shall include: (1) accessibility of location and structure; (2) space for housed services and activities; (3) ability to provide privacy for interviewing persons seeking assistance; and (4) ability to provide access to the full range of services which are available and reflect as closely as financially possible the needs of older residents and promote independence and dignity of older persons. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on February 13, 1995. TRD-9501819 Mary Sapp Executive Director Texas Department on Aging Effective date: March 6, 1995 Proposal publication date: December 16, 1994 For further information, please call: (512) 444-2727 Chapter 271. Multipurpose Senior Centers Statutes and Regulations 40 TAC sec.sec.271.1, 271.3, 271.5, 271.7, 271.9 The Texas Department on Aging adopts the repeal of sec. sec.271.1, 271.3, 271.5, 271.7, and 271.9, concerning multipurpose senior center standards for program structure and definition, planning and operation, personnel, performance reviews and reversionary interest in multipurpose senior centers with no changes to the text published in the December 16, 1994, issue of the Texas Register (19 TexReg 9984). Adoption of the repeals are necessary to preclude duplicative or conflicting requirements for these services. No comments were received regarding adoption of the repeals. The repeals are adopted under the Human Resources Code, Chapter 101, which provides the Texas Department on Aging with the authority to promulgate rules governing the operation of the Department. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on February 8, 1995. TRD-9501820 Mary Sapp Executive Director Texas Department on Aging Effective date: March 6, 1995 Proposal publication date: December 16, 1994 For further information, please call: (512) 444-2727 Chapter 276. Guidelines for Residential Repair Statutes and Regulations 40 TAC sec.sec.276.1, 276.3, 276.5, 276.7, 276.9, 276.11, 276. 13, 276.15, 276.17 The Texas Department on Aging adopts the repeal of sec. sec.276.1, 276.3, 276.5, 276.7, 276.9, 276.11, 276.13, 276.15, and 276.17, concerning definitions, guidelines objectives, preferred target group, limitations on amount per unit, policy on rental units, service activities, delivery characteristics, prohibited service and administrative requirements with no changes to the text published in the December 16, 1994m issue of the Texas Register (19 TexReg 9984). Adoption of the repeals are necessary to preclude duplicative or conflicting requirements for these services. No comments were received regarding adoption of the repeals. The repeals are adopted under the Human Resources Code, Chapter 101, which provides the Texas Department on Aging with the authority to promulgate rules governing the operation of the Department. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on February 13, 1995. TRD-9501821 Mary Sapp Executive Director Texas Department on Aging Effective date: March 6, 1995 Proposal publication date: December 16, 1994 For further information, please call: (512) 444-2727 Chapter 289. Procedures for Approval of Area Agency Requests to Provide Services Directly Statutes and Regulations 40 TAC sec.289.3, sec.289.15 The Texas Department on Aging adopts the repeal of sec.289.3 and sec.289.15, concerning the scope and quality of service provided by the delivery of a service directly by an area agency with no changes to the text published in the December 16, 1994, issue of the Texas Register (19 TexReg 9984). Adoption of the repeals are necessary to preclude duplicative or conflicting requirements for these services. No comments were received regarding adoption of the repeals. The repeals are adopted under the Human Resources Code, Chapter 101, which provides the Texas Department on Aging with the authority to promulgate rules governing the operation of the Department. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on February 13, 1995. TRD-9501822 Mary Sapp Executive Director Texas Department on Aging Effective date: March 6, 1995 Proposal publication date: December 16, 1994 For further information, please call: (512) 444-2727 TITLE 43. TRANSPORTATION Part I. Texas Department of Transportation Chapter 1. Management Department Advisory Committees 43 TAC sec.1.85 The Texas Department of Transportation adopts an amendment to sec.1.85, concerning department advisory committees, without changes to the proposed text as published in the December 13, 1994, issue of the Texas Register (19 TexReg 9844). Section 1.85 is amended to establish the El Paso District Citizens Advisory Team. The El Paso District Citizens Advisory Team is adopted to provide the department with a comprehensive understanding of public perception and expectations regarding the department's roles and responsibilities for El Paso's transportation system. On December 27, 1994, the department conducted a public hearing on the proposed amendment and no comments were received. The amendment is adopted under Texas Civil Statutes, Articles 6666, which provides the Texas Transportation Commission with the authority to establish rules for the conduct of the work of the Texas Department of Transportation, and more specifically Texas Civil Statutes, Article 6252-33, which provides that a state agency that is advised by an advisory committee shall adopt rules that state the purpose of the committee and describe the task of the committee and the manner in which the committee will report to the agency. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on February 14, 1995. TRD-9501915 Diane L. Northam Legal Executive Assistant Texas Department of Transporation Effective date: March 8, 1995 Proposal publication date: December 13, 1994 For further information, please call: (512) 463-8630