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 31. NATURAL RESOURCES AND CONSERVATION Part X. Texas Water Development Board Chapter 370. Colonia Plumbing Loan Program Policy Declarations 31 TAC sec.370.29 The Texas Water Development Board (board) adopts an amendment to sec.370. 29, concerning Eligible Households with changes to the proposed text as published in the January 13, 1995 issue of the Texas Register (20 TexReg 214). Amended sec.370.29 expands eligible borrowers under the Colonia Plumbing Loan Program to include homes all located in colonias in existence prior to November 9, 1989. The rule as it currently exists requires a home to have been owned by the current owner prior to November 9, 1989. The amendment also limits eligibility to colonias outside incorporated municipalities or other colonias approved by the U.S. Environmental Protection Agency. This change is consistent with the Environmental Protection Agency's operating agreement with the board for the Colonia Plumbing Loan Program. A comment was received from the law firm of Henry, Lowerre, Johnson, Hess, and Federick requesting clarification as to the requirement that the resident be located outside an unincorporated municipality. The reference to an unincorporated municipality appears to be an error in transcribing the language of the operating agreement. Inasmuch as the clear intention of the proposed rule, as set forth in the preamble thereto, is to mirror the operating agreement, the word "unincorporated" was corrected to "incorporated. " The amendment is adopted under Texas Water Code, sec.6.101 and sec.15.737 which require the board to adopt rules to carry out the powers and duties of the board under the Texas Water Code including Chapter 15, Subchapter L, relating to Plumbing and Improvement Loans, and other laws of this state. sec.370.29. Eligible Households. Borrowers may provide loans to the following individuals for plumbing improvements. (1) residents of a colonia outside an incorporated municipality or such other colonia approved by the United States Environmental Protection Agency that existed on November 9, 1989, and whose income is below the HUD Section 8 low-to- moderate income limits for the particular county in which the household is located; and (2) owners of real property who receive loans for plumbing improvements for real property leased to others in the project areas, provided the owner owned the property in a colonia outside an incorporated municipality or such other colonia approved by the United States Environmental Protection Agency that existed on November 9, 1989, agrees to rent the household unit(s) only to persons of low-to-moderate income until the loan is repaid in full, provides evidence of adequate collateral and credit history, and agrees not to displace the family currently living in any household unit which will receive the plumbing improvements, except for breach of a valid contract or lease. 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 16, 1995. TRD-9501995 Craig D. Pedersen Executive Administrator Texas Water Development Board Effective date: March 9, 1995 Proposal publication date: January 13, 1995 For further information, please call: (512) 463-7981 Title 34. PUBLIC FINANCE Part I. Comptroller of Public Accounts Chapter 3. Tax Administration Subchapter O. State Sales and Use Tax 34 TAC sec.3.284 The Comptroller of Public Accounts adopts an amendment to sec.3.284, concerning drugs, medicines, medical equipment, and devices, without changes to the proposed text as published in the October 14, 1994, issue of the Texas Register (19 TexReg 8098). The amendment exempts hot tubs, spas, and other similar appliances, as therapeutic appliances, regardless of size, when the purchaser furnishes the seller a signed statement from a doctor or other licensed practitioner of the healing arts, on the practitioner's letterhead, specifying why the hot tub, spa, or similar appliance is prescribed for the purchaser. The new documentation requirement will be applied retroactively to April 15, 1993, for hot tubs, spas, and other similar appliances seating more than four persons. The stricter documentation requirement will apply to all hot tubs, spas, and similar appliances regardless of size, from the effective date of this rule. No comments were received regarding adoption of the amendment. 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. 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 16, 1995. TRD-9501996 Martin Cherry Chief, General Law Comptroller of Public Accounts Effective date: March 9, 1995 Proposal publication date: October 14, 1994 For further information, please call: (512) 463-4028 TITLE 37. PUBLIC SAFETY AND CORRECTIONS Part III. Texas Youth Commission Chapter 81. Administrative Provisions General 37 TAC sec.81.12 The Texas Youth Commission (TYC) adopts new sec.81.12, concerning site selection for juvenile facility construction, with changes to the proposed text as published in the December 27, 1994, issue of the Texas Register (19 TexReg 10336). The justification for the new rule is for the public to be better informed of the process for selecting sites for construction of juvenile facilities. Changes were made in the proposed text to clarify that the site selection process will not exclude consideration of any area, metropolitan or rural; to add the availability of a culturally diverse work force and suitability of site for cost-effective construction as general criteria for a request for proposal; and to include a board member on the review committee. The new rule will provide for selection of construction sites for TYC juvenile facilities using a systematic process including request for proposal except when otherwise directed by the TYC board or state legislature. The summary of comments received and the commission's responses are as follows. One commenter proposed that consideration should not be given only to sites located near metropolitan areas. He proposed that the committee also include representation of the rural community. The commission agrees with this proposal and is including consideration being given to both metropolitan and rural areas when selecting sites for juvenile facility construction. One commenter suggested that the TYC require that city ordinances and zoning regulations be complied with as a matter of TYC policy. The commission is acutely aware of the problems associated with the location of state facilities in communities when the local ordinances and conditions are ignored by the agencies involved. The commission customarily conducts public hearings prior to any site selection and will continue this process as part of the selection for any future sites. The commission is committed to cooperating with local governments in addressing the problems of juvenile corrections in the most efficient manner possible consistent with the local environment. An individual commented that when TYC selected a West Texas site over an urban site, it appeared that the commission was not supporting a regional program concept to keep youth near their home communities. He recommended needing the site selection policy to emphasize the agency's policy that having youth close to their home communities is the best solution for rehabilitation. The site selection policy includes a provision that request for proposal's will be based on population needs in each region. The commission remains committed to its rehabilitation mission and the importance of family contact to achieve it. One commenter said that the County Commissioners Court in his county unanimously approved support of securing a juvenile facility for their county in regular session, November 14, 1994. He suggested that the area would provide a safe and secure environment for a place to locate a youth facility. If funding is appropriated for the construction of a facility, the commission will forward a request for proposal for site selection to that county in response to the support of the Commissioners Court. The new rule is adopted under the Human Resources Code, sec.61.048, which provides the Texas Youth Commission with the authority to promulgate rules relating to the award of contracts for the construction of buildings and improvements. The proposed rule implements the Human Resource Code, sec.61.034. sec.81.12. Administrative Provisions. (a) Policy. The Texas Youth Commission (TYC) uses a systematic process for selecting sites for construction of juvenile facilities. Sites should facilitate settings that provide safe and secure environments for staff and students and provide reasonable protection for the public. The site selection process includes consideration of sites adjacent to or near existing TYC facilities. When sites other than those adjacent to or near existing TYC facilities will be considered, the agency will select a site through a Request for Proposal (RFP) process unless otherwise directed by the TYC board or state legislature. Procedures herein do not apply to selection of sites adjacent to or near existing facilities, contracted program sites or leased facilities. (b) Rules. (1) Request for Proposals. (A) A RFP for the site selection of each facility to be owned and operated by TYC shall be prepared by staff selected by the executive director. (B) The RFP shall identify the minimum requirements for the site and improvements that are necessary to locate the facility described in the RFP or contemplated by TYC. The RFP shall include criteria to be used to evaluate the site and improvements. (C) RFPs for site selection are based on population, projected by TYC staff for each region. (D) All government entities and private groups or individuals within an identified region will be encouraged to submit proposals. It is the responsibility of each proponent to obtain a copy of the RFP. (E) The general criteria in the RFP shall include, but not be limited to, the following general categories: (i) availability of adequate, trained labor force that represents the cultural diversity of the youth served; (ii) availability of adequate, nearby medical facilities; (iii) availability of academic and educational support; (iv) availability of fire and police protection and service in the immediate area; (v) location of the site in relation to existing facilities such as schools, churches, residential developments, etc.; (vi) suitability of site for ease of construction and cost effectiveness; (vii) availability of utilities to the site and accessibility of the site; and (viii) social impact and level of community support. (2) Selection. (A) The executive director shall select a review committee composed of TYC staff. The board chair shall appoint one board member to chair the committee. (B) The review committee shall review all proposals received, evaluate the proposals based on the criteria stated in the RFPs, and shall rank proposals in preferential order. (C) The chair of the review committee is responsible for presenting the results of the review to the TYC board. (D) Final site selection will be made by the board unless otherwise identified by the state legislature. 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-9501946 Steve Robinson Executive Director Texas Youth Commission Effective date: March 8, 1995 Proposal publication date: December 27, 1994 For further information, please call: (512) 483-5244 TITLE 43. TRANSPORTATION Part I. Texas Department of Transportation Chapter 2. Environmental Policy Subchapter A. Comprehensive Policy on the Environment 43 TAC sec.sec.2.1-2.4 The Texas Department of Transportation adopts new sec. sec.2.1-2.4 concerning comprehensive policy on the environment, without changes to the proposed text as published in the December 9, 1994, issue of the Texas Register (19 TexReg 9731). Sections 2.1-2.4 extend the principles of the department's environmental policy to all transportation modes and the department's commitment to environmental protection to all phases of its operations. The legislature, by Chapter 492, Acts of the 72nd Legislature, 1991, stated that it was its intent that the department balance social, environmental, and economic concerns consistent with proper engineering principles, mitigate any adverse impact on the environment directly resulting from the construction or improvement of the state highway system to the extent feasible and to enhance the environment when practicable. On December 19, 1994, the department conducted a public hearing on the proposed adoption of new sec.sec.2.1-2.4, in order to receive testimony. The department received one comment on the proposed sections requesting changes or clarification. Two other commenters indicated their support of the proposed sections. Regarding the sections as proposed, one commenter, the Associated General Contractors of Texas-Highway, Heavy, Utilities and Industrial Branch (AGC), stated that the department's comprehensive policy focuses mostly on the planning and design of transportation facilities, and not on the construction phase, and that environmental concerns should not be addressed during construction. The department concurs that the planning and design of transportation facilities require intensive environmental scrutiny, and believes that this is reflected in these sections. However, these sections also reflect that environmental considerations are and will continue to be reflected in all departmental operations. Transportation systems are planned, designed, constructed, maintained and operated. Each of these activities could in fact consider or not consider environmental concerns. However, the first three activities are integrally tied together. During project planning, the appropriate strategy for solving a transportation need is identified, and this is reflected in the design of the transportation facility. For example, the design process for highway projects involves three phases, that of environmental studies, geometric design, and the development of construction plans. Geometric layouts should address environmental concerns through alignment and specific design features. Construction plans translate the geometric layout into the plans and specifications to construct the project. In addition, construction plans included construction methods that address environmental considerations, such as storm water pollution prevention and abatement, as well as water pollution and abatement, restrictions on clearing of vegetation, and construction phasing to name a few concerns. As a result, environmental concerns must be addressed during the construction phase of a project. Regarding sec.2.4(5), Administration, the AGC stated that a field study as described would disrupt field operations, and considered the filed study to be unnecessary, given that appropriate environmental studies would already have been completed on a project. The field study as described in the sections is not an environmental study as defined by environmental assessments or environmental impact statements. Within these sections, the field study is the inspection of environmental commitments made during the "environmental study" and considered and reflected in the design (geometric layout and construction plans and specifications) of the project. The department considers a construction phase field study to be an appropriate way to ensure that environmental commitments are implemented and effective. The department considers this field study to be similar to inspections that are already done during construction. The new sections are adopted under Texas Civil Statutes, Articles 6666, which provide the Texas Transportation Commission with the authority to establish rules for the conduct of the work of the Texas Department of Transportation. 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-9501977 Diane L. Northam Legal Executive Assistant Texas Department of Transportation Effective date: March 8, 1995 Proposal publication date: December 9, 1994 For further information, please call: (512) 463-8630 Subchapter C. Environmental Review and Public Involvement for Transportation Projects 43 TAC sec.sec.2.40-2.50 The Texas Department of Transportation adopts new sec. sec.2.40-2.50, concerning environmental review and public involvement for transportation projects, without changes to the proposed text as published in the December 9, 1994, issue of the Texas Register (19 TexReg 9733). Currently, sec.sec.11.80-11.90, which are being contemporaneously adopted for repeal, provide for environmental and public involvement for highway improvement projects. Texas Civil Statutes, Article 6673g, as added by sec.17, Chapter 551, Acts of the 72nd Legislature, 1991, require the commission to adopt rules to provide for the environmental review and public involvement of transportation projects not covered under the National Environmental Policy Act. Adoption of sec. sec.2.40- 2.50 complies with this legislation and provides environmental review and public involvement for projects concerning aviation, public transportation, the Gulf Intracoastal Waterway, and maintenance of state highways. On December 19, 1994, the department conducted a public hearing on the proposed adoption of sec.sec.2.40-2.50, in order receive testimony. The department received two comments on the proposed sections requesting changes or clarification. Two other commenters indicated their support of the proposed sections. Regarding sec.2.43(b) (Early coordination and public involvement), the Associated General Contractors of Texas-Highway, Heavy, Utilities and Industrial Branch (AGC) stated that they supported soliciting public input into the planning and development process, as long as efforts are made for timely completion of the public hearing phase, in order to keep potential projects on a reasonable schedule. Comment noted. The department strives to provide a balance between effective public input into the planning and design of transportation facilities with providing transportation facilities in a timely manner. The most intensive part of the department's public input occurs during the planning and design of a project, well before a construction letting date is set. Regarding sec.2.43(c) (Categorical exclusions (CE)), the AGC indicated that categorical exclusions would provide an excellent way to move certain projects along. The commenter suggested that serious consideration be given to defining "significant" and "substantial" in terms of environmental impact. The department defines "significant" in sec.2.41 (Definitions). "Substantial" is considered a term with common usage, and is considered by the department to be the same and equivalent in meaning to the same term as they appear in federal laws and regulations. Also regarding sec.2.43(c), the Texas Parks and Wildlife Department (TPWD) indicated that certain projects defined as categorical exclusions may not always apply as CEs depending on the scope of work. Section 2.43(c)(4)(A) addresses this concern, stating that the CE designation should be a result of environmental analysis and interagency coordination. Regarding sec.2.43(e)(4)(C), TPWD requested that two additional copies of departmental DEISs be sent to their agency, and that coordination through the Texas Review and Comment System (TRACS) not be used as the primary method for obtaining the agency's comments. The department does not consider TRACS to be the primary method for interagency coordination. The department will send additional copies to any agency. The new sections are adopted under Texas Civil Statutes, Articles 6666, which provide 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 by Texas Civil Statutes, Article 6673g, which require the commission to adopt rules to provide for the environmental review and public involvement of transportation projects not covered under the National Environmental Policy Act. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on February 15, 1995. TRD-9501978 Diane L. Northam Legal Executive Assistant Texas Department of Transportation Effective date: March 8, 1995 Proposal publication date: December 9, 1994 For further information, please call: (512) 463-8630 Chapter 11. Design Division Environmental and Public Involvement for Highway Improvement Projects 43 TAC sec.sec.11.80-11.90 The Texas Department of Transportation adopts the repeal of sec.sec.11.80-11. 90 concerning environmental and public involvement for highway improvement projects without changes to the text as published in the December 9, 1994, issue of the Texas Register (19 TexReg 9743). The subject matter of the sections adopted for repeal is reenacted in an amended form in new sec.sec.2.40-2.50, concerning environmental review and public involvement for transportation projects, which are being contemporaneously adopted. Texas Civil Statutes, Article 6673g, as added by sec.17, Chapter 551, Acts of the 72nd Legislature, 1991, require the commission to adopt rules to provide for the environmental review and public involvement of transportation projects not covered under the National Environmental Policy Act. On December 19, 1994, the department conducted a public hearing on the proposed repeal of sec.sec.11.80-11.90 and no oral or written comments were received. The repeals are proposed under Texas Civil Statutes, Articles 6666, which provide 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 by Texas Civil Statutes, Article 6673g which require the commission to adopt rules to provide for the environmental review and public involvement of transportation projects not covered under the National Environmental Policy Act. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on February 15, 1995. TRD-9501976 Diane L. Northam Legal Executive Assistant Texas Department of Transportation Effective date: March 8, 1995 Proposal publication date: December 9, 1994 For further information, please call: (512) 463-8630