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 REGULATION Part III. Texas Alcoholic Beverage Commission Chapter 33. Licensing Application Procedures 16 TAC sec.33.5 The Texas Alcoholic Beverage Commission adopts new sec.33.5, concerning the fee and requirements for holders of food and beverage certificates as required by Texas Alcoholic Beverage Code, sec.25.13(b) and (c), sec.28.18(b) and (c), sec.32.23(b) and (c), and sec.69.16(b) and (c), with changes to the proposed text as published in the July 4, 1995, issue of the Texas Register (20 TexReg 4897). This rule allows the commission to appropriately identify those licenses or permits whose primary business is that of a food service establishment. The adopted changes to the proposed text serve to make the rule more uniform and to more closely conform to the statutory framework. Comment was received from the Texas Restaurant Association pointing out aspects of the proposed rule that would, in certain circumstances, impose more limitations than allowed by the enabling statute. These comments were accommodated by amendment to the proposed text. The new section is adopted under the authority of Texas Alcoholic Beverage Code, sec.5.31, which provides the Alcoholic Beverage Commission with the authority to prescribe and publish rules necessary to carry out the provisions of the Texas Alcoholic Beverage Code. sec.33.5. Food and Beverage Certificate. (a) Each applicant for an original or renewal food and beverage certificate shall include all information required by the commission to insure compliance with all applicable statutes and rules and regulations of the agency. (b) Application for the certificate shall be upon forms provided by the agency. (c) The annual certificate fee for each location is $100 and must be submitted in the form of a cashier's check or U.S. postal money order payable to the Texas Alcoholic Beverage Commission. The original certificate will expire upon expiration of the primary permit or license. No prorated certificate fees will be given and no refunds made for issuance of the food and beverage certificate for less than one year. (d) The following words and terms, when used in this chapter, shall have the following meaning, unless the context clearly indicates otherwise. (1) Food service-Cooking or assembling food on premise primarily for on- premise consumption. Commercially pre-packaged items which require no cooking or assembly and which may be purchased off-premise do not constitute food service under this section. (2) Entree-Main dish of a meal. (3) Multiple entrees-No fewer than eight different entrees per meal period must be available to customers. (4) Food service facilities-A portion of the licensed premises where food is stored and prepared primarily for on-premise consumption. (e) An applicant is not qualified for a food and beverage certificate unless the following conditions, in addition to other requirements, are satisfied: (1) with respect to retail dealer's on-premise licenses and wine and beer retailer's permits, the applicant's primary business on the premises is food service and with respect to mixed beverage permits and private club registration permits, the applicant maintains food service on the premise; (2) multiple entrees are available to customers; (3) food service facilities are maintained on the premises; (4) the hours of operation for sale and service of food and alcoholic beverages are the same except that food may be sold or served before or after the legal hours for sale of alcoholic beverages; and (5) subject to the approval of the commission, an applicant may present evidence to the commission which demonstrates substantial compliance with subsection (e)(2) and (4) and that full compliance is limited by the nature of the business operation. Approval by the commission may be granted when the commission is satisfied that the operation is a food service establishment. (f) If the applicant is a hotel that maintains separate area restaurants, lounges or bars, food service facilities must exist for each of the licensed premises. (g) An applicant for an originally issued food and beverage certificate shall submit a sworn statement attesting that food service is maintained on the premises and for holders of wine and beer retailer's permits and retail dealer's on-premise licenses, food service is the primary business on the premises. The applicant shall furnish the following, as well as any other information as may be deemed reasonably necessary by the commission: (1) the menu or, if no menu is available, a listing of the food and beverage items; (2) hours of operation of food service and hours of operation for sale or service of alcoholic beverages; (3) sales data or, if not available, projection of sales. The projection or data should include sufficient breakdown of revenues of food, alcoholic beverages and other major categories at the location; (4) listing of equipment used in preparation and service of food versus the equipment used in preparation and service of alcoholic beverages; and (5) copies of floor plans of the licensed premises indicating areas devoted primarily to the preparation and service of food and those devoted primarily to the preparation and service of alcoholic beverages. (h) Applicants for renewal of food and beverage certificates whose primary permits are a wine and beer retailer's permit or a retail dealer's on-premise license shall submit sales information and other information or documents required by the commission to indicate the business at the licensed location is a food service establishment with food service facilities for the preparation and service of multiple entrees. (i) The commission may review the operation at the licensed premises to determine the applicant or holder of the food and beverage certificate has or is maintaining food service with food service facilities for the preparation and service of multiple entrees. In doing so the commission may review such items as required in the original or renewal application and advertising, promotional items, changes in operations or hours, changes in floor plans, prominence of food items on menu as compared to alcoholic beverages, name of business, number of transactions with food components, copies of city or county permits or certificates relating to type of business operation and any other item deemed necessary or applicable. (j) Failure to submit documentation requested or accurately maintain required records is prima facie evidence of non-compliance. (k) The certificate shall be posted in a conspicuous place adjacent to the primary permit or license at all times on the licensed premises. (l) In verifying that the certificate holder is maintaining food service as the primary business on the premises, the commission may examine all books, papers, records, documents, supplies and equipment of the certificate holder. (m) Recordkeeping requirements for holders of wine and beer retailer's permits, including railway cars and excursion boats, and retail dealer's on- premise licenses: (1) each holder of a food and beverage certificate whose primary permit or license is a wine and beer retailer's permit, including those issued for railway cars and excursion boats, or a retail dealer's on-premise license shall maintain records to reflect separate totals for alcoholic beverage sales, food sales and other major sales categories at the location. Purchase invoices must be maintained to reflect the total purchases of alcoholic beverages, food and other major purchase categories; (2) complimentary alcoholic beverages shall be recorded and included in the total alcoholic beverage sales as if it was a normal sale and clearly marked as being complimentary; (3) all records are required to be maintained for four years and made available to authorized representatives of the commission upon reasonable request; and (4) in examining the alcoholic beverage sales, the commission may compute and determine the percentage of alcoholic beverage sales upon the basis of information filed with the commission or held by the certificate holder, but if such information is insufficient, the computation and determination of the percentage of sales may be based upon any records or information which is available. (n) In considering alcoholic beverage sales for holders of mixed beverage permits, private club registration permits, private club exemption certificate permits and private club beer and wine permits, the dollar value of complimentary drinks shall be added to total sales of alcoholic beverages in determining the percentage of alcoholic beverage sales on the licensed premises. 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 August 10, 1995. TRD-9510021 Doyne Bailey Administrator Texas Alcoholic Beverage Commission Effective date: August 31, 1995 Proposal publication date: July 4, 1995 For further information, please call: (512) 206-3204 License and Permit Surcharges 16 TAC sec.33.23 The Texas Alcoholic Beverage Commission adopts an amendment to sec.33.23, with changes to the proposed text as published in the July 4, 1995, issue of the Texas Register (20 TexReg 4898). This amendment deals with the annual surcharges for all licenses and permits issued by the Texas Alcoholic Beverage Commission. This amendment was adopted to bring the agency's practice in conformance with statutory changes contained in contingency riders 11, 12, 13, and 14 to the agency's appropriation in House Bill 1, 74th Legislature, Regular Session. The amendment changes the surcharges for all licenses and permits. These changes will be effective September 1, 1995. The word "all", appearing over the surcharge amount column in the proposed text was deleted as surplus age. No comments were received regarding adoption of the amendment. The amendment is adopted under the Texas Alcoholic Beverage Code, Subchapter B, sec.5.31, which provides the Alcoholic Beverage Commission with the authority to prescribe and publish rules necessary to carry out the provisions of the Texas Alcoholic Beverage Code and sec.5.50(b), which specifically mandates the surcharges. sec.33.23. Alcoholic Beverage License and Permit Surcharges. (a) A surcharge of all original or renewal permit or license fees set by the Texas Alcoholic Beverage Code shall be levied against all license and permit holders as follows: Figure 1: 16 TAC sec.33.23(a) (1) The surcharge shall apply to each brewpub licensed under Texas Alcoholic Beverage Code, Chapter 74, even though one or more are licensed under the same general management or ownership. (2) An organization which meets the requirements for exemption from a private club registration permit under the Texas Alcoholic Beverage Code, sec.32.11, is also exempt from the surcharge. (b) The surcharges shall be due and payable at the same time and in the same place and manner as the original or renewal permit, certificate, or license fee to which the surcharges apply. (c) Failure or refusal to timely pay the license, certificate or permit surcharge shall be considered the same as failure to timely pay the original or renewal certificate, permit or license fee and the same penalties will apply. (d) The amount of surcharge due shall be determined by the issue date of the permit or license and the surcharge in effect under this rule on the issue date of that license or permit. (e) This section shall take effect September 1, 1995. 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 August 10, 1995. TRD-9510022 Doyne Bailey Administrator Texas Alcoholic Beverage Commission Effective date: September 1, 1995 Proposal publication date: July 4, 1995 For further information, please call: (512) 206-3204 16 TAC sec.33.24 The Texas Alcoholic Beverage Commission adopts new sec.33.24, concerning conduct surety bonds, with changes to the proposed text as published in the June 30, 1995, issue of the Texas Register (20 TexReg 4671). The rule governs the requirements of bonds required in connection with certain licenses and permits and the conditions under which those bonds can be revoked. The rule is being adopted to bring the agency's practice in conformance with amendments to the Alcoholic Beverage Code, sec.11.11 and sec.61.13. Section 33.24(j)(1) of the proposed text was amended to bring the rule into conformance with the stated legislative intent underlying the above mentioned statutory amendments. Public comment was received from the Gramercy Insurance Company indicating that it would be financially unfeasible to issue a bond to a licensee or permittee under the conditions stated in the proposed rule. This comment was accommodated by amendment to the proposed text. The new section is adopted under the Alcoholic Beverage Code, sec.5.31, which provides the Texas Alcoholic Beverage Commission with the authority to prescribe and publish rules necessary to carry out the provision of the Texas Alcoholic Beverage Code. sec.33.24. Conduct Surety Bond. (a) A bond required under the Alcoholic Beverage Code, Texas Civil Statutes, sec.11.11 and sec.61.13, must be executed only on forms prescribed by this agency with the licensee or permittee as principal, a qualified surety company doing business in this state as surety and the state as payee. (b) All bonds of permittees and licensees shall be payable in Travis county. (c) A separate surety, in the amount of $5,000 or $10,000, shall be obtained, submitted and maintained for each license or permit as set out in the Alcoholic Beverage Code, sec.11.11 and sec.61.13. (d) If certificates of deposit, savings accounts or letters of credit are furnished, the administrator or his designee shall keep them in his possession. Interest earned on a certificate of deposit or savings account is not subject to the assignment and remains the property of the owner of the certificate of deposit or savings account. (e) A certificate of deposit or savings account furnished by a licensee or permittee must be assigned to the state, in a manner approved by the administrator or his designee, to secure payment to the state. (f) A letter of credit furnished by a licensee or permittee, under this rule, must be on a form approved by the administrator or his designee and contain any conditions required by the administrator to secure payment to the state. (g) The surety bond, assignment of certificate of deposit, savings account, or letter of credit may be continuous in nature and must cover the minimum time required of the applicant to qualify for exemption from the surety imposed by the Alcoholic Beverage Code, sec.11.11 and sec.61.13. (h) Qualifications of Surety. (1) A surety company, to qualify to provide bonds under this rule, must be licensed by this state and in "good standing" with the State Board of Insurance, Comptroller of Public Accounts, Secretary of State and any other regulatory agencies with jurisdiction over its affairs. (2) A bank, savings institution or credit union, in addition to the requirements of the Alcoholic Beverage Code, sec.11.11 and sec.61.13, must have a physical facility in this state to accept cash deposits, make cash advances to customers and carry out day-to-day operations within this state. (i) Submission of Security. (1) An applicant for an original or renewal license or permit must submit, at the time of their application, the security as prescribed by the Alcoholic Beverage Code, sec.11.11 and sec.61.13, and meet the requirements of this rule. (2) Failure to submit the necessary surety in proper form will result in the denial of the application. (j) License/Permit Cancelled or Suspended. (1) If a license or permit is cancelled by the commission or three or more suspensions have been imposed after September 1, 1995, and no appeal is pending, the commission shall notify the surety company, bank, savings institution or credit union to remit to the state the amount of surety required within ten days after notification. (2) The commission may institute action in its own name, for the benefit of the state, on the surety supporting the bond, and against the bank, savings institution or credit union, as set forth in the Alcoholic Beverage Code, sec.11.70, to recover the security. (k) Release of Surety. (1) A surety company may terminate liability by giving the proper 30-day written notice, as provided in the Alcoholic Beverage Code, sec.11.71. (2) Grounds for termination of a permit/license upon termination of liability by surety is the same as provided in the Alcoholic Beverage Code, sec.11.71. (3) Upon expiration of the license or permit, its voluntary cancellation, or upon the applicant's subsequent approval for exemption from the surety requirement, the licensee or permittee may request the release and return of the security supporting their license or permit. (4) The release of this security will not be unreasonably withheld; however, the surety company, bank, savings institution or credit union is not released from its obligation until they receive written notice of the release from this 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 August 10, 1995. TRD-9510020 Doyne Bailey Administrator Texas Alcoholic Beverage Commission Effective date: August 31, 1995 Proposal publication date: June 30, 1995 For further information, please call: (512) 206-3204 Chapter 39. Port of Entry 16 TAC sec.39.1 The Texas Alcoholic Beverage Commission adopts an amendment to sec.39.1, without change to the proposed text as published in the July 4, 1995, issue of the Texas Register (20 TexReg 4899). This amendment deals with the handling of funds collected and tax stamps issued by the agency's ports of entry division. The amendment was adopted to increase efficiency in the administration of the alcoholic beverage tax stamp program. No comments were received regarding adoption of the amendment. The amendment is adopted under the authority of sec.5.31 of the Texas Alcoholic Beverage Code. 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 August 10, 1995. TRD-9510019 Doyne Bailey Administrator Texas Alcoholic Beverage Commission Effective date: August 31, 1995 Proposal publication date: July 4, 1995 For further information, please call: (512) 206-3204 Chapter 50. Alcohol Awareness and Education 16 TAC sec.50.9 The Texas Alcoholic Beverage Commission adopts an amendment to sec.50.9, concerning exemptions from certain administrative actions, without changes to the proposed text as published in the June 30, 1995, issue of the Texas Register (20 TexReg 4672). This rule clarifies when, and under what circumstances, licensees and permittees can claim exemption from administrative actions under Texas Alcoholic Beverage Code, sec.106.14. The rule was adopted to enhance enforcement of the relevant Texas Alcoholic Beverage Code provisions by increasing efficiency and certainty of application. The Texas Package Stores Association provided comment indicating it was in opposition to sec.50.9(c) of the rule. In the alternative to that opposition, the association suggested amendments relaxing the provisions of sec.50.9(c). The commission determined that the questioned provision was necessary. The suggested amendments were rejected because they would make the proposed rule too cumbersome in operation. This amendment is adopted under the authority of sec.5.31 of the Texas Alcoholic Beverage Code. 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 August 10, 1995. TRD-9510018 Doyne Bailey Administrator Texas Alcoholic Beverage Commission Effective date: August 31, 1995 Proposal publication date: June 30, 1995 For further information, please call: (512) 206-3204 TITLE 25. HEALTH SERVICES Part XI. Texas Cancer Council Chapter 703. Project Contracts and Grants 25 TAC sec.703.9, sec.703.10 The Texas Cancer Council adopts amendments to sec.703.9 and sec.703.10, concerning project contracts and grants, with changes to the proposed text as published in the May 26, 1995, issue of the Texas Register (20 TexReg 3886). The changes include a revised part (a) and the deletion of part (b) under sec.703.9 Audits, and a reordering of part of sec.703.10 Funding Restrictions due to the deletion of an original part F. The rules are being amended to comply with the requirements of the Uniform Grant and Contract Management Standards (UGCMS). The rules inform contractors of audit requirements of the Texas Cancer Council. Two comments were received concerning the applicability to state agencies and contractors who are not included under OMB Circular A-128. After reviewing the comments and consulting with the State Auditor's Office, the Council altered sec.703.9(a) and deleted sec.703.9(b). The amendments are proposed under the Health and Safety Code, Chapters 102. 002 and 102.009, which provides the Texas Cancer Council with the authority to develop and implement the Texas Cancer Plan, and Texas Civil Statutes, Article 6252-13a sec.4, which provide the Texas Cancer Council with the authority to adopt rules governing council practice and procedures. sec.703.9. Audits. Audits of contractors are required in accordance with the requirements of the Uniform Grant and Contract Management Standards (UGCMS). The Council shall reimburse the contractor for the relative cost of the required audit. sec.703.10. Funding Restrictions. (a)-(b) (No change.) (c) Disallowable costs. (1) The following are the most common types of costs which are disallowed: (A)-(E) (No change.) (F) payment for direct services to patients for screening, diagnosis, or other support services if third-party coverage is currently available. (2) (No change.) (d) (No change.) This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on August 9, 1995. TRD-9509985 Emily F. Untermeyer Executive Director Texas Cancer Council Effective date: August 30, 1995 Proposal publication date: May 26, 1995 For further information, please call: (512) 463-3190 TITLE 30. ENVIRONMENTAL QUALITY Part I. Texas Natural Resource Conservation Commission Chapter 116. Control of Air Pollution by Permits for New Construction or Modification The Texas Natural Resource Conservation Commission (TNRCC or commission) adopts new sec.116.14, concerning Standard Permit Definitions and new sec.116. 615, concerning General Conditions. Also, the TNRCC adopts amendments to sec.116.610, concerning Applicability and sec.116.617, concerning Standard Permit List. Sections 116.14, 116.615, and 116.617 are adopted with changes to the proposed text as published in the March 3, 1995, issue of the Texas Register (20 TexReg 1506). Section 116.610 is adopted without changes and will not be republished. The new sections and amendments streamline the permit process for oil and gas facilities and establish a new standard permit for oil and gas facilities under new sec.116.617(3). Section 116.14 adds a definition for the terms "oil and gas facility" and "off-plant receptor." Section 116.610 is modified to delete the General Conditions and retitle the section to "Applicability." Section 116.615 includes the general conditions now located in sec.116.610 and adds applicable general conditions found in Subchapter B, concerning applicable new source review permits. Section 116.617 contains the standard permit list and adds a new standard permit for oil and gas facilities. A public hearing was held in Austin on April 5, 1995. Six commenters submitted written testimony on the proposal and one commenter presented oral testimony. The Galveston-Houston Association for Smog Prevention (GHASP), the Texas Mid- Continent Oil and Gas Association (TMOGA), the City of Dallas, the Association of Texas Intrastate Natural Gas Pipelines (Intrastate), and the Pennzoil Company made objections or recommendations. The United States Environmental Protection Agency (EPA) submitted a letter stating that it has no issues of major concern. A general comment from the TMOGA and Intrastate was that there are existing provisions for permitting oil and gas facilities such as with the standard exemption program, and that today's standard permit should be a new, third alternative. Existing wording seems to imply that the oil and gas standard permit is a replacement for Standard Exemption Number 66. A key passage which clarified the relationship to the standard exemption program was inadvertently deleted from the Texas Register proposal. This standard permit is now a third alternative. The GHASP did not address specific rule language, but proposed that a distance requirement of perhaps 500 to 1,000 feet should be added to reduce potential air pollution impacts from oil and gas facilities. Another commenter disagreed with having distance requirements in this standard permit, since the TNRCC and industry policies are sufficient. There is an existing TNRCC regulation, sec.101.4 (concerning Nuisance), which prohibits the discharge of air contaminants in concentrations and duration which would be injurious to or which would adversely affect human health or welfare, animal life, vegetation, or property, or which would interfere with the normal use and enjoyment of animal life, vegetation, or property. Best Available Control Technology (BACT) and impacts considerations (including off-plant receptors) were incorporated into the rule development. Hydrogen sulfide (H [sub]2 S) emission limits in this rule take into consideration the distance to the nearest off-plant receptor to ensure consistency with the property line standards in 30 TAC sec.112.3(a) and sec.112. 31 (concerning control of sulfur dioxide); therefore, distance requirements have been adequately addressed. The GHASP also objected to the flat fee of $450 for each oil and gas standard permit on the grounds that this fee is equivalent to a subsidy for industry. Staff time and manpower to evaluate and process a standard permit application are significantly less than the resources required to review and process a formal Subchapter B permit application. The intent of a standard permit is to simplify and accelerate the permit review process for facilities which can pre- qualify to a relatively stringent level of control. Standard permit review is streamlined because BACT measures and pollution impacts are incorporated into the standard permit eligibility criteria so that the extent of the permit review consists only of ensuring the facility meets all conditions of the standard permit. The TNRCC staff maintains that a $450 permit application fee is consistent with the existing fee structure and is appropriate for the resources required to review and process a standard permit application. The TMOGA requested that the TNRCC consider deleting sec.116.610(d)-(g), concerning applicability, since they appear to be redundant to the general conditions under sec.116.615(1)-(3) and (9). The TNRCC staff agrees that the intent of the rule revision was to delete the outdated general conditions in sec.116.610(d)-(g) and create a new sec.116. 615 entitled "General Conditions." However, the final rule cannot be modified, because in the proposal, subsections (d)-(g) were proposed with no changes. Therefore, subsections (d)-(g) must be deleted in a future proposal. Intrastate and the TMOGA offered changes to the definition of the term "oil and gas facility" in sec.116.14, concerning Standard Permit Definitions. The TMOGA suggested using the term "water injection" in place of "salt water disposal," and adding a definition for "sulfur recovery unit" to distinguish sulfur recovery units from natural gas sweetening units. The new definition for sulfur recovery units would be "a process device whose primary purpose is to recover elemental sulfur from acid gas; a process device that incidentally recovers minor quantities of elemental sulfur during natural gas sweetening shall not be considered a sulfur recovery unit." In Intrastate's opinion, the term "facility cluster" is misleading and should be clarified to include special types of equipment. The TNRCC has no objection to replacing the term "salt water disposal" with "water injection," adding a definition for sulfur recovery unit, and replacing the term "facility cluster" with "facility." These changes have been incorporated into sec.116.14 relating to definitions. However, the TNRCC does not agree with the proposed definition for a sulfur recovery unit. The TMOGA does not consider a "Lo-Cat" unit (a proprietary device name) as a form of sulfur recovery and takes the position that the sulfur recovered by a Lo-Cat unit is incidental. Instead, the TNRCC considers a Lo-Cat unit to be a true form of sulfur recovery, and retains the original language to exclude all sulfur recovery units. Intrastate, the GHASP, and the City of Dallas disagreed with paragraphs in sec.116.615, concerning General Conditions. They stated that in paragraph (1), the terms "welfare and environment" should be added to the general purpose of protecting health and property. In paragraph (2), the GHASP objected to the 30- day time window to notify the TNRCC of changes in representations of the permit. Intrastate objected to the notification requirements in the case of plant shutdowns or decreases in production levels. The City of Dallas and the GHASP stated that paragraphs (2) and (6) should include notification of local air quality agencies in changes of representation and upon start-up. In paragraph (4), the GHASP stated that the term "reasonable time" should be better defined because it is too subjective; another commenter supported the more general terms. In paragraph (5), Intrastate objected to notification requirements upon changes in construction scheduling. The GHASP also desired clarification of time periods specified in paragraphs (6) and (7), relating to start-up notification and sampling requirements. Finally, the GHASP requested that information in paragraph (9), relating to recordkeeping, should be maintained by the plant operator for at least five years, instead of two years as proposed. Responses follow the order of comments presented. The TNRCC feels that the concept of "welfare" is adequately treated in paragraph (1) and is consistent with the General Rules (30 TAC sec.101.4). No change is needed to sec.116.615(2), regarding the notification to the TNRCC within 30 days after the change, because a facility may remain eligible for the standard permit following changes; therefore, post-change notification is acceptable, but the rule wording has been modified to clarify this assumption. The TNRCC does not agree with Intrastate's request to exclude notifications in the cases of removal, shutdown, or other decreases in emissions, because the current wording of sec.116.615(2) specifically states that notification to the TNRCC of changes in conditions is required if the facility is no longer eligible for a standard permit or if the change in conditions will result in a change in method of control, a change in character of emissions, or an increase in discharge of emissions. Notification to other air pollution agencies having jurisdiction has been added in paragraphs (2) and (6). The TNRCC has decided to retain the term "reasonable time" in paragraph (4), since "reasonable time" for project completion will vary depending on each project's size and complexity. In response to the comment regarding construction progress in paragraph (5), it is necessary to monitor start of construction and construction interruptions to enforce the requirements of paragraph (4). The TNRCC staff believes that it is not necessary to specify a minimum time for advance notification to the regional offices prior to start-up and sampling of facilities which are eligible for a standard permit, since the facilities are smaller sources of emissions. The TNRCC allocates staff resources to larger emission sources which are not eligible for the standard permit; therefore, the TNRCC feels that notification prior to start-up and sampling in paragraphs (6) and (7) without a minimum time specified is adequate. The TNRCC also disagrees with Intrastate's request to remove the requirement of contacting the TNRCC Office of Air Quality prior to sampling to obtain the proper data and forms and to get approval for the sampling method selected. These requirements are necessary to maintain consistency and to ensure sampling is conducted properly. Lastly, the TNRCC disagrees with the GHASP's request to require five years of data for demonstration of compliance in sec.116.615(9) and sec.116.617(3)(E)(viii). The TNRCC feels that the requirement to maintain information on file for at least two years is sufficient to demonstrate compliance with standard permit representations and is consistent with existing rules and current permit requirements. A public compliance file is maintained at the TNRCC Austin office for periods much longer than two years and may be viewed upon request. The TMOGA, Intrastate, the GHASP, and Pennzoil suggested revisions to sec.116.617(3)(A), concerning emission specifications. Several commenters desired the TNRCC to adopt some specific oil and gas industry terminology. The TMOGA disagreed with the wording concerning releases of more than 0.3 long tons of sulfur per day by specifying vents or flares in clause (i), because the limits apply to venting or flaring, not the content of the petrochemicals themselves. Intrastate desired that the standard permit limitation on sulfur emissions should be expanded to two (2.0) long tons per day to be consistent with the applicable standard exemption for oil and gas facilities. The TMOGA suggested that the proper term should be "routed" instead of "vented" in clause (ii). In clause (iii), the phrase "failure of utilities" should be replaced with "emergency relief of system pressure." The GHASP desired that rupture discs should be placed ahead of any safety relief valves; TMOGA disagreed with this design because industry safety policies expressly prohibit this practice. Finally, clause (vi) should be revised to clarify that a 40 million British thermal unit per hour heat input threshold relates to maximum heat input during operation instead of being a design parameter. The TNRCC agrees to some minor changes in terminology contained in sec.116. 617(3)(A)(i) and (ii) as recommended by the TMOGA. The TNRCC staff disagrees with the recommendation by Intrastate to change the sulfur limit to include facilities which condition produced gas up to 2.0 long tons per day of sulfur. While it is true that Standard Exemption Number 66 includes sulfur recovery units which condition produced gas containing less than two long tons per day of sulfur compounds, this standard permit does not include sulfur recovery units. Further, sulfur which is not recovered is emitted to the atmosphere and is limited by Standard Exemption 66 to a maximum of 25 tons per year of sulfur dioxide and 4.0 pounds per hour of total sulfur compounds. Regarding the discussion of rupture disks in sec.116.617(3)(A)(iii), the TNRCC disagrees with the recommendation to require rupture discs on safety relief valves, because debris from a ruptured disc could lodge in the safety valve causing it to malfunction and result in the loss of a vessel. Section 116.617(3)(C)(i)(VII) and (ii)(VII) require that accessible valves be leak- checked for fugitive emissions at least quarterly with an approved gas analyzer. These same subclauses allow the company the option of installing rupture discs on valves which are not monitored. Regarding sec.116.617(3)(A) (iii) and emergency procedures, the TNRCC disagrees with the TMOGA's recommendation to replace "failure of utilities" with "emergency relief of system pressure," since this would likely exempt all relief valves from minimum vent height requirements. The TNRCC disagrees with the TMOGA's recommendation to base the oxides of nitrogen (NO [sub]x ) limitation on the maximum heat input during operation as opposed to by design specification. The intent of this subparagraph is to ensure that combustion units with a design maximum heat input greater than 40 million British thermal units (MMBtu) per hour will not exceed 0.06 pounds of NO [sub]x per MMBtu. If based on heat input during actual operation, combustion units with design capacities greater than 40 MMBtu could be able to operate at or below 40 MMBtu and emit more than 0.06 pounds of NO [sub]x per MMBtu. There would be no guarantee that the unit would be able to achieve the 0.06 pounds per MMBtu NO [sub]x limitation if the heat input of the unit was increased above 40 MMBtu. Pennzoil offered an editorial change in sec.116.617(3)(A)(iv) to delete the phrase "relating to the Standard Permit list" because it appears to be redundant. The TNRCC does not agree with the Pennzoil comment that the last sentence of sec.116.617(3)(A)(iv) is redundant and should be deleted. The current language is not redundant, since sec.116.211(a)(1) of this title contains applicable emission limits which are not listed in Standard Exemption Number 6. Many commenters submitted major comments on process and fugitive emissions limits contained in sec.116.617(3)(A)(vii)(ix). The TMOGA and Pennzoil requested that the uncontrolled process emission limits for total volatile organic hydrocarbons in clause (vii) be set at 25 tons per year (tpy) and that the TNRCC set a new limit of 20 tpy for fugitive volatile organic compound (VOC) emissions. The existing 10 tpy applicability threshold as stated in the standard permit proposal for oil and gas facilities could impose regulatory burdens without regard to costs, while having negligible air quality benefits. Commenters also stated that requirements for monitoring total fugitive emissions below 25 tpy should be removed, because many of the affected oil and gas facilities are in remote, rural areas, making emissions controls and monitoring very costly. Another major recommendation for the proposed rule language is to remove the leak detection requirements for hydrogen sulfide and sulfur dioxide process emissions set forth in sec.116.617(3)(A)(ix). The TMOGA strongly objected to stringent leak detection and repair programs for the oil and gas industry, monitoring standards known as "28VHP," which require corrective actions if VOC levels exceed 500 parts per million, and suggested the deletion of the entire sec.116.617(3)(C)(ii). Finally, Intrastate again objected to fugitive leak detection for piping and valves smaller than a nominal two-inch diameter size. Pennzoil suggested that sec.116.617(3)(A)(vii) and (viii) could be improved by combining them to read: "If total VOC emissions exceed 25 tpy and total fugitive VOC emissions exceed 20 tpy, equipment will be inspected according to subparagraph (C)(i)." Alternatively, the TMOGA suggested language to not control VOC emissions at oil and gas facilities if total emissions are below 25 tpy and if fugitive emissions are below 20 tpy (as in Standard Exemption Number 66), and use "28M Guidelines" if total VOC emissions are equal to or above 25 tpy and fugitives are above 20 tpy. Relatively minor suggestions for the fugitive emissions sections in sec.116.617(3)(A)(vii)-(x) were also included. The TMOGA requested that only piping and valves greater than two inches nominal size be included in fugitive emissions estimations. Regarding the TMOGA and Pennzoil comments on sec.116.617(3)(A)(vii) and (viii), the TNRCC agrees to add flexibility into the fugitive VOC monitoring requirements by considering the distance between the facility and the nearest off-plant receptor. This flexibility will significantly reduce the number of facilities subject to sec.116.617(3)(A)(viii). The TNRCC disagrees with the recommendation to delete sec.116.617(3)(A)(viii) and sec.116.617(3)(C)(ii). The TNRCC feels this fugitive monitoring program is necessary to control large emission sources, including sources with uncontrolled emissions greater than 25 tpy which are located close to an off-plant receptor and for all sources with uncontrolled emissions greater than 40 tpy. These controls are necessary to protect public health, welfare, and the environment from the potential impacts of significant emission sources. The TNRCC disagrees with Intrastate's recommendation to exclude piping and valves less than two inches in nominal size from the fugitive emissions estimation, since these must be included to determine the level of fugitive VOC monitoring covered under sec.116.617(3)(C)(i) or (ii), and for the sake of rule consistency, as stated previously. For the sake of consistency and general engineering practices, 30 TAC Chapter 115 does not exclude piping and valves less than two inches in nominal diameter from monitoring requirements. Therefore, all piping must be monitored except as noted in the standard permit. The TMOGA requested that alternative methods to approve flare design, such as EPA Reference Method 22, should be allowed to be approved if approved by the executive director. Finally, the GHASP desired that infrared monitors be required to monitor flame temperature. The TMOGA opposed this view and offered that a thermocouple is equivalent to the use of infrared equipment for flame temperature detection. Regarding sec.116.617(3)(A)(x), the TNRCC agrees to include wording which will allow an equivalent performance standard approved by the commission. The intent of sec.116.617(3)(A)(x) is for flares to meet the design and operational requirements of 40 Code of Federal Regulations (CFR), Part 60.18 and not the physical inspection and testing requirements themselves. The word "inspected" has been removed from the rule text to clarify this requirement. Regarding the recommendation from the GHASP on the infrared monitor, an infrared monitor is not in this case an emissions measuring device. It is solely used to detect flame-out conditions. Opacity and visible emission operational requirements are contained in a separate rule (30 TAC sec.111.111(a)(4)). The TMOGA, Intrastate, and Pennzoil objected to paragraphs in sec.116.617(3) (B), concerning control requirements. One commenter stated that the limitations in subsection (i) should not apply to pressurized tanks, and that floating roof tanks should not be required unless the tank capacity is greater than 42,000 gallons. The existing rule language limits tanks without floating roofs to 25,000 gallons. Another commenter stated that barrels are the industry standard for measuring tank sizes (e.g., a 1,000-barrel limit). Further, BACT for storage tanks requires no controls if the true vapor pressure is less than 1.5 pounds per square inch (psi), as stated in 30 TAC Chapter 115. The BACT requirement should be increased from 0.5 psi to 1.5 psi at maximum operating temperatures, because these rules are designed to be the most stringent rules to prevent ozone formation in air quality nonattainment areas. Additionally, the desired 42,000 gallon and 1.5 psi levels are warranted because they are equivalent to EPA programs for federal New Source Performance Standards (NSPS) and Control Technology Guidelines. Opposing this view, the GHASP requested that the 25,000- gallon tank size limitation be restricted to 5,000 gallons, above which floating tank roofs would be required. Regarding comments to sec.116.617(3)(B)(i), the TNRCC agrees to include an exception for pressurized tanks which comply with Standard Exemption Number 83 and also agrees to include the term "nominal" relating to tank capacity, to allow for slight variations in tank capacity. The TNRCC disagrees with changing the size or vapor pressure exemption limits for storage tanks, since the limits in the proposed rule are consistent with current BACT requirements. The TNRCC also feels it is not necessary to express the storage tank capacity in units of barrels, since the conversion from units of gallons to barrels is very straightforward. In fact, barrels are used in monitoring and recordkeeping requirements in paragraph (E) of the standard permit, but tank capacity is typically sized in terms of gallons. The GHASP and the TMOGA responded to language in sec.116.617(3)(B)(i)(IV), relating to control requirements. In addition to using floating-roof tanks to capture VOCs, other containment or destruction methods should be allowed. The TMOGA noted that pressurized containers may be used to prevent hydrocarbon loss, as another option to requiring floating roof tanks or flares. The GHASP questioned why vapor recovery systems (95%) are 3.0% less effective than combustion devices (98%), so that the two alternatives are not equivalent. The TNRCC agrees to modify the wording of sec.116.617(3)(B)(ii)(II)(-a-) from "control efficiency" to "destruction efficiency" for consistency with sec.116.617(3)(B)(i)(IV)(-a-). In response to the comment regarding the 3.0% difference between the control efficiencies of combustion devices and vapor recovery systems, it is not technically feasible for a vapor recovery system to achieve the same control efficiency as a combustion device. The TNRCC does not specify the type of control to be used, since this will vary depending on variables such as the type and quantity of pollutants to be controlled, type of process, and technical and economic feasibility. The control efficiencies identified in sec.116.617(3)(B)(ii)(II)(-a-) and (-b-) represent efficiencies which the TNRCC currently considers to be best available and most technically feasible for the respective control devices. It is important to note that vapor recovery systems do not introduce new contaminants into ambient air as a result of the control process, as do combustion devices and flares. Vapor recovery systems remove contaminants from a waste stream, whereas combustion devices convert contaminants into other less hazardous compounds which are then introduced into the atmosphere. The TMOGA suggested amending sec.116.617(3)(C)(i)(I), concerning inspection requirements, to delete metric measurement units, include evaluation of applicable NSPS criteria for determining whether to monitor piping and valves two inches in nominal size and smaller, and remove the term "upstream" relating to installation of rupture discs to allow flexibility in rupture disc location. Regarding the TMOGA comments on sec.116.617(3)(C)(i)(I), metric equivalents are proposed as a method of being flexible, not as a restrictive measure. In the last sentence of the same subclause, the TNRCC agrees with the TMOGA's recommendation to include the applicability of NSPS and Chapter 115. The TNRCC also agrees with TMOGA's recommendation to delete "upstream" to allow the option of installing an upstream or downstream rupture disc. In sec.116.617(3)(C)(i)(II), the GHASP questioned the definition of the terms "technically feasible" and "rendered impractical" as they apply to repairs on leaking process VOC fugitive emissions. The same commenter similarly questioned the definition of the term "reasonably accessible" in subclause (IV). Also, the commenter requested that walk-through inspection records be maintained on a weekly basis in subclause (V), and in subclause (VII) that pressure gauges should be installed to monitor rupture disc integrity. These same comments would also apply to sec.116.617(3)(C)(ii), concerning oil and gas facilities which have the potential to emit over 25 tons per year. Regarding the GHASP's comments on the terms "technically feasible" and "rendered impractical," the TNRCC feels that these terms cannot be specifically defined, since there are too many variables to evaluate before a determination is made. The definitions will vary depending on the type and complexity of the project or situation. The TNRCC will determine what is considered "technically feasible" and a "rendered impractical" on a project-by-project basis. Regarding the comment on the definition of the term "reasonably accessible" used in sec.116.617(3)(C)(i)(IV) and (ii)(IV), reasonably accessible valves are those which would not expose monitoring personnel to immediate danger. The TNRCC determines what is considered "reasonably accessible" on a case-by-case basis due to the variability of monitoring scenarios. The height limitation of two meters originated in 40 CFR, Part 60.482-7(h), which considers valves to be inaccessible if they cannot be monitored without elevating the monitoring personnel more than two meters above a support surface. Section 116.617(3)(C) (i)(IV) and (ii)(IV) require that a list of inaccessible valves be maintained and made available upon request; therefore, any valves which the company considers to be inaccessible are subject to evaluation by the TNRCC. Regarding the GHASP comment on sec.116.617(3)(C)(i)(V) and (ii)(V) which identified the need to keep records documenting visual, audible, and olfactory inspections, these records are already included in sec.116.617(3)(E)(ii). Regarding the GHASP comment on sec.116.617(3)(C)(i)(VII) and (ii)(VII) requesting that rupture discs be required to be equipped with pressure gauges, this requirement is already included in these two subclauses. The TNRCC does not agree with the GHASP's request to include sec.116.617(3)(C)(ii)(XI) under sec.116.617(3)(C)(ii). Including the directed maintenance requirements in two locations under the same fugitive monitoring program would be redundant. The TMOGA suggested the removal of the requirement to perform daily inspections for each site in sec.116.617(3)(C)(iii) on the basis that added expenses would make marginal oil and gas facilities unprofitable. The TNRCC has modified the language of sec.116.617(3)(A)(ix) and added new sec.116.617(3)(E)(i) to allow the option of installing ambient H [sub]2 S property line monitors in the event it is not possible for operations personnel to check the facility on a daily basis. This regulatory flexibility allows for low-cost, unmanned surveillance. The TNRCC has replaced "plant personnel" with "operating personnel." The TNRCC does not agree with the recommendation to delete sec.116.617(3)(C)(iii) (III). This requirement is necessary in the event that efforts to isolate and repair the leak, as required by sec.116.617(3)(C)(iii)(I) and (II) are unsuccessful. The TMOGA suggested modifications to sec.116.617(3)(D), concerning approved test methods, in which air quality models could be used to demonstrate proper operation of condensers instead of using monitors. Use of dispersion modeling can be used for predicting VOC emissions from glycol dehydrator units. The TNRCC does not entirely agree with the TMOGA's recommendations to sec.116.617(3)(D), regarding the use of computer simulation modeling in lieu of ambient sampling to demonstrate proper in-use operation of a condenser. While computer simulations are effective tools for predicting air quality impacts, they cannot be used to verify actual operating conditions for demonstration of compliance with permit limits. The TNRCC maintains that sampling and testing is necessary to obtain actual data to verify that a control device is actually operating as previously predicted or represented. The TMOGA, GHASP, and the City of Dallas offered corrections to sec.116. 617(3)(E), concerning monitoring and recordkeeping requirements. The TMOGA argued that inspection records be kept for process vents or flares, but not for all process streams. The GHASP and the City of Dallas noted that local air pollution agencies should be included in sec.116.617(3)(E)(i), regarding availability of fugitive inspection and repair information. The TNRCC agrees with the TMOGA's recommendation to allow records to be kept on the total sulfur content of gas process vents or flares, but does not agree with removing the option of keeping records on the total sulfur content of gas processing streams. The TNRCC prefers to include both options to allow flexibility in the method used for demonstrating compliance with total sulfur content limits. The TNRCC agrees with recommendations to include air pollution control agencies in the notification requirements under sec.116.615(6) and (7) and sec.116.617(3)(E)(ii), as recommended by GHASP and the City of Dallas. Under sec.116.617(3)(E)(iv), the GHASP requested definition of the term "continuous compliance." The TMOGA suggested that the term "continuous" in clause (iv) should be deleted from permit compliance demonstrations. Regarding the GHASP's request for a definition of "continuous compliance," this term cannot be specifically defined, since demonstration of compliance will vary depending on each facility and type of operation; therefore, the TNRCC will determine how continuous compliance will be demonstrated on a case-by-case basis. Continuous compliance may be demonstrated through a variety of methods which may include periodic monitoring or recording of appropriate operational parameters on a continuous basis or on some ongoing specified frequency. The TNRCC has replaced the term "continuous" with "ongoing," however, to clarify its intent, because the former term can be confused with Continuous Emission Monitoring Systems, a technical sampling protocol. Subchapter A. Definitions 30 TAC sec.116.14 The new section is adopted under the Texas Health and Safety Code, Texas Clean Air Act (TCAA) sec.382.017, which provides the TNRCC with the authority to adopt rules consistent with the policy and purposes of the TCAA. sec.116.14. Standard Permit Definitions. The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise. Oil and gas facility-For the purposes of Subchapter F of this chapter (relating to Standard Permits) only, oil and gas facilities shall be defined as facilities which handle gases and liquids associated with the production, conditioning, processing, and pipeline transfer of fluids found in geologic formations beneath the earth's surface. These oil and gas facilities include, but are not limited to: oil or gas production facilities; water injection facilities; carbon dioxide separation facilities; or oil or gas pipeline facilities consisting of one or more tanks, separators, dehydration units, free water knock-outs, gunbarrels, heater treaters, vapor recovery units, flares, pumps, internal combustion engines, gas turbines, compressors, natural gas liquid recovery units, or gas sweetening and other gas conditioning facilities. This definition does not include sulfur recovery units. Sulfur recovery unit-For the purposes of Subchapter F of this chapter only, sulfur recovery unit shall be defined as a process device whose primary purpose is to recover elemental sulfur from acid gas. Off-plant receptor -For the purposes of Subchapter F of this chapter only, off-plant receptor shall be defined as any recreational area or residence or other structure not occupied or used solely by the owner or operator of the facilities or owner of the property upon which the facilities are located. 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 authority. Issued in Austin, Texas, on August 9, 1995. TRD-9510157 Lydia Gonzalez-Gromatzky Acting Director, Legal Services Division Texas Natural Resource Conservation Commission Effective date: September 1, 1995 Proposal publication date: March 3, 1995 For further information, please call: (512) 239-1966 Subchapter F. Standard Permits 30 TAC sec.sec.116.610, 116.615, 116.617 The amendments and new section are adopted under the Texas Health and Safety Code, Texas Clean Air Act (TCAA), sec.382.017, which provides the TNRCC with the authority to adopt rules consistent with the policy and purposes of the TCAA. sec.116.615. General Conditions. The following general conditions shall be applicable to holders of standard permits, but may not be specifically stated within the standard permit document. (1) Protection of public health and welfare. The emissions from the facility shall comply with all applicable rules and regulations of the Texas Natural Resource Conservation Commission (TNRCC or commission) adopted under the Texas Health and Safety Code, Chapter 382, and with intent of the Texas Clean Air Act (TCAA), including protection of health and property of the public. (2) Standard permit representations. All representations with regard to construction plans, operating procedures, and maximum emission rates in any registration for a standard permit become conditions upon which the facility or changes thereto, shall be constructed and operated. It shall be unlawful for any person to vary from such representations if the change will affect that person's right to claim a standard permit under this section. Any change in condition such that a person is no longer eligible to claim a standard permit under this section requires proper authorization under sec.116.110 of this title (relating to Applicability). If the facility remains eligible to claim a standard permit, the owner or operator of the facility must notify the TNRCC of any change in conditions which will result in a change in the method of control of emissions, a change in the character of the emissions, or an increase in the discharge of the various emissions as compared to the representations in the original registration or any previous notification of a change in representations. Notice of changes in representations must be received by the TNRCC no later than 30 days after the change. (3) Standard permit in lieu of permit amendment. All changes authorized by standard permit to a facility previously permitted pursuant to sec.116.110 of this title (relating to Applicability) shall be administratively incorporated into that facility's permit at such time as the permit is amended or renewed. (4) Voiding of standard permit. A standard permit under this chapter is automatically void if the holder fails to begin construction within 18 months of date of registration, discontinues construction for more than 18 consecutive months prior to completion, or fails to complete construction within a reasonable time. Upon request, the executive director may grant a onetime 18- month extension of the date to begin construction. (5) Construction progress. Start of construction, construction interruptions exceeding 45 days, and completion of construction shall be reported to the appropriate regional office of the TNRCC not later than 15 working days after occurrence of the event. (6) Start-up notification. The appropriate air program regional office of the commission and any other air pollution control program having jurisdiction shall be notified prior to the commencement of operations of the facilities authorized by the standard permit in such a manner that a representative of the TNRCC may be present. Phased construction, which may involve a series of units commencing operations at different times, shall provide separate notification for the commencement of operations for each unit. (7) Sampling requirements. If sampling of stacks or process vents is required, the standard permit holder shall contact the TNRCC Office of Air Quality and any other air pollution control program having jurisdiction prior to sampling to obtain the proper data forms and procedures. All sampling and testing procedures must be approved by the executive director and coordinated with the regional representatives of the commission. The standard permit holder is also responsible for providing sampling facilities and conducting the sampling operations or contracting with an independent sampling consultant. (8) Equivalency of methods. It shall be the responsibility of the standard permit holder to demonstrate or otherwise justify the equivalency of emission control methods, sampling or other emission testing methods, and monitoring methods proposed as alternatives to methods indicated in the conditions of the standard permit. Alternative methods shall be applied for in writing and must be reviewed and approved by the executive director prior to their use in fulfilling any requirements of the standard permit. (9) Recordkeeping. A copy of the standard permit along with information and data sufficient to demonstrate applicability of and compliance with the standard permit shall be maintained in a file at the plant site and made available at the request of personnel from the TNRCC, United States Environmental Protection Agency, or any air pollution control program having jurisdiction. For facilities that normally operate unattended, this information shall be maintained at the nearest staffed location within Texas specified by the standard permit holder in the standard permit application. This information shall include, but is not limited to, production records and operating hours. Additional recordkeeping requirements may be specified in requirements for the standard permit. Information in the file shall be retained for at least two years following the date that the information or data is obtained. (10) Maintenance of emission control. The facilities covered by the standard permit shall not be operated unless all air pollution emission capture and abatement equipment is maintained in good working order and operating properly during normal facility operations. Notification for upsets and maintenance shall be made in accordance with sec.101.6 and sec.101.7 of this title (relating to Notification Requirements for Major Upset and Notification Requirements for Maintenance). (11) Compliance with rules. Registration of a standard permit by a standard permit applicant constitutes an acknowledgement and agreement that the holder will comply with all rules, regulations, and orders of the commission issued in conformity with the TCAA and the conditions precedent to the granting of the standard permit. If more than one state or federal rule or regulation or permit condition are applicable, the most stringent limit or condition shall govern and be the standard by which compliance shall be demonstrated. Acceptance includes consent to the entrance of commission employees and agents into the permitted premises at reasonable times to investigate conditions relating to the emission or concentration of air contaminants, including compliance with the standard permit. sec.116.617. Standard Permit List. Pursuant to the Texas Clean Air Act, sec.382.051, projects involving the types of facilities or physical or operational changes to facilities listed in this section qualify for a standard permit subject to the conditions stated in sec.116.610 of this title (relating to Applicability). (1)-(2) (No change.) (3) Installation and/or modification of oil and gas facilities. (A) Emission specifications. (i) Venting or flaring more than 0.3 long tons per day of total sulfur shall not be allowed. (ii) No facility shall be allowed to emit total uncontrolled emissions of sulfur compounds, except sulfur dioxide (SO [sub]2 ), from all vents (excluding process fugitives emissions) equal to or greater than four pounds per hour unless the vapors are collected and routed to a flare. (iii) Any vent, excluding any safety relief valves that discharge to the atmosphere only as a result of fire or failure of utilities, emitting sulfur compounds other than sulfur dioxide, shall be at least 20 feet above ground level. (iv) New or modified internal combustion reciprocating engines or gas turbines permitted under this standard permit shall satisfy all of the requirements of Standard Exemption Number 6, except that registration using the Form PI-7 or PI- 8 shall not be required. Emissions from engines or turbines shall be limited to the amounts found in sec.116.211(a)(1) of this title (relating to Standard Exemption List). (v) Total volatile organic compound (VOC) emissions from a natural gas glycol dehydration unit shall not exceed ten tons per year (tpy) unless the vapors are collected and controlled in accordance with subparagraph (B)(ii) of this paragraph. (vi) Any combustion unit (excluding flares, internal combustion engines, or natural gas turbines), with a design maximum heat input greater than 40 million British thermal units (Btu) per hour (using lower heating values) shall not emit more than 0.06 pounds of nitrogen oxides (NO point=4.52p [sub]x) per million Btu. (vii) No facility which is less than 500 feet from the nearest off-plant receptor shall be allowed to emit uncontrolled VOC process fugitive emissions equal to or greater than ten tpy, but less than 25 tpy, unless the equipment is inspected and repaired according to subparagraph (C)(i) of this paragraph. (viii) No facility which is 500 feet or more from the nearest off-plant receptor shall be allowed to emit uncontrolled VOC process fugitive emissions equal to or greater than 25 tpy unless the equipment is inspected and repaired according to subparagraph (C)(i) of this paragraph. (ix) No facility which is less than 500 feet from the nearest off-plant receptor shall be allowed to emit uncontrolled VOC process fugitive emissions equal to or greater than 25 tpy unless the equipment is inspected and repaired according to subparagraph (C)(ii) of this paragraph. (x) No facility shall be allowed to emit uncontrolled VOC process fugitive emissions equal to or greater than 40 tpy unless the equipment is inspected and repaired according to subparagraph (C)(ii) of this paragraph. (xi) No facility which is located less than one quarter of a mile from the nearest off-plant receptor shall be allowed to emit hydrogen sulfide (H [sub]2S) or SO [sub]2 process fugitive emissions unless the equipment is inspected and repaired according to subparagraph (C)(iii) of this paragraph. No facility which is located at least one quarter of a mile from the nearest off-plant receptor shall be allowed to emit H [sub]2S or SO point=4.52p [sub]2 process fugitive emissions unless the equipment is inspected and repaired according to subparagraph (C)(iii) of this paragraph or unless the H [sub]2S or SO [sub]2 emissions are monitored with ambient property line monitors according to subparagraph (E)(i) of this paragraph. Components in sweet crude oil or gas service as defined by Chapter 101 of this title (relating to General Rules) are exempt from these limitations. (xii) Flares shall be designed and operated in accordance with 40 Code of Federal Regulations (CFR), Part 60.18 or equivalent standard approved by the commission, including specifications of minimum heating values of waste gas, maximum tip velocity, and pilot flame monitoring. If necessary to ensure adequate combustion, sufficient gas shall be added to make the gases combustible. An infrared monitor is considered equivalent to a thermocouple for flame monitoring purposes. An automatic ignition system may be used in lieu of a continuous pilot. (xiii) Appropriate documentation shall be submitted to demonstrate that compliance with the Prevention of Significant Deterioration (PSD) and nonattainment new source review (NSR) provisions of the FCAA, Parts C and D, and regulations promulgated thereunder, are being met. The oil and gas facility shall be required to meet the requirements of Subchapter B of the chapter (relating to New Source Review Permits) instead of this subchapter if a PSD or nonattainment permit is required. (xiv) Documentation shall be submitted to demonstrate compliance with applicable New Source Performance Standards (NSPS, 40 CFR 60) and National Emission Standards for Hazardous Air Pollution (NESHAP, 40 CFR 61). (xv) New and increased emissions shall not cause or contribute to a violation of any National Ambient Air Quality Standard (NAAQS) or regulation property line standards as specified in Chapters 111, 112, and 113 of this title (relating to Control of Air Pollution From Visible Emissions and Particulate Matter; Control of Air Pollution From Sulfur Compounds; and Control of Air Pollution From Toxic Materials). Engineering judgment and/or computerized air dispersion modeling may be used in this demonstration. To show compliance with sec.116.610(a)(1) of this title (relating to Applicability) for H point=4.52p [sub]2S emissions from process vents, ten milligrams per cubic meter shall be used as the "L" value instead of the value represented by sec.116.610(a)(1) of this title. (xvi) Fuel for all combustion units and flare pilots shall be sweet natural gas or liquid petroleum gas, fuel gas containing no more than ten grains of total sulfur per 100 dry standard cubic feet (scdf), or field gas. If field gas contains more than 1.5 grains of H [sub]2S or 30 grains total sulfur compounds per 100 scdf, the operator shall maintain records, including at least quarterly measurements of fuel H [sub]2S and total sulfur content, which demonstrate that the annual SO [sub]2 emissions from the facility do not exceed the limitations listed in the standard permit registration. If a flare is the only combustion unit on a property, the operator shall not be required to maintain such records on flare pilot gas. (B) Control requirements. (i) Floating roofs or equivalent controls shall be required on all new or modified storage tanks, other than pressurized tanks which meet Standard Exemption 83, unless the tank is less than 25,000 gallons in nominal size or the vapor pressure of the compound to be stored in the tank is less than 0.5 pounds per square inch absolute (psia) at maximum short-term storage temperature. (I) For internal floating roofs, mechanical shoe primary seal or liquid- mounted primary seal or a vapor-mounted primary with a rim-mounted secondary seals shall be used. (II) Mechanical shoe or liquid-mounted primary seals shall include a rim- mounted secondary seal on all external floating roofs tanks. Vapor-mounted primary seals will not be accepted. (III) All floating roof tanks shall comply with the requirements under sec.115.112(a)(2)(A)-(F) of this title (relating to Control Requirements). (IV) In lieu of a floating roof, tank emissions may be routed to: (-a-) a destruction device such that a minimum VOC destruction efficiency of 98% is achieved; or (-b-) a vapor recovery system such that a minimum VOC recovery efficiency of 95% is achieved. (V) Independent of the exemptions listed in this clause, if the emissions from any fixed roof tank exceed ten tpy of VOC or ten tpy of sulfur compounds, the tank emissions shall be routed to a destruction device, vapor recovery unit, or equivalent method of control that meets the requirements listed in subclause (IV) of this clause. (ii) The VOC emissions from a natural gas glycol dehydration unit shall be controlled as follows. (I) If total uncontrolled VOC emissions are equal to or greater than ten tons per year, but less than 50 tons per year, a minimum of 80% by weight minimum control efficiency shall be achieved by either operating a condenser and a separator (or flash tank), vapor recovery unit, destruction device, or equivalent control device. (II) If total uncontrolled VOC emissions are equal to or greater than 50 tpy, a minimum of: (-a-) 98% by weight minimum destruction efficiency shall be achieved by a destruction device or equivalent; or (-b-) 95% by weight minimum control efficiency shall be achieved by a vapor recovery system or equivalent. (C) Inspection requirements. (i) Owners or operators who are subject to subparagraph (A)(vii) or (viii) of this paragraph shall comply with the following requirements. (I) No component shall be allowed to have a VOC leak for more than 15 days after the leak is detected to exceed a VOC concentration greater than 10, 000 parts per million by volume (ppmv) above background as methane, propane, or hexane, or the dripping or exuding of process fluid based on sight, smell, or sound for all components. The VOC fugitive emission components which contact process fluids where the VOCs have an aggregate partial pressure or vapor pressure of less than 0.5 psia at 100 degrees Fahrenheit are exempt from this requirement. If VOC fugitive emission components are in service where the operating pressure is at least 0.725 pounds per square inch (psi) (five kilopascals (Kpa)) below ambient pressure, then these components are also exempt from this requirement as long as the equipment is identified in a list that is made available upon request by Texas Natural Resource Conservation Commission (TNRCC) representatives, the EPA, or any other air pollution agency having jurisdiction. All piping and valves two inches nominal size and smaller, unless subject to Federal New Source Performance Standards requiring a fugitive VOC emissions leak detection and repair program or Chapter 115 of this title (relating to Control of Air Pollution from Volatile Organic Compounds), are also exempt from this requirement. (II) All technically feasible repairs shall be made to repair a VOC leaking process fugitive component within 15 days after the leak is detected. If the repair of a component would require a unit shutdown, the repair may be delayed until the next scheduled shutdown. All leaking components which cannot be repaired until a scheduled shutdown shall be identified for such repair by tagging. The TNRCC executive director, at his or her discretion, may require early unit shutdown or other appropriate action based on the number and severity of tagged leaks awaiting shutdown. (III) New and reworked underground process pipelines containing VOCs shall contain no buried valves such that process fugitive emission inspection and repair is rendered impractical. (IV) To the extent that good engineering practice will permit, new and reworked valves and piping connections in VOC service shall be so located to be reasonably accessible for leak-checking during plant operation. Valves elevated more than two meters above a support surface will be considered non-accessible and shall be identified in a list to be made available upon request. (V) New and reworked piping connections in VOC service shall be welded or flanged. Screwed connections are permissible only on piping smaller than two- inch diameter. No later than the next scheduled quarterly monitoring after initial installation or replacement, all new or reworked connections shall be gas-tested or hydraulically-tested at no less than normal operating pressure and adjustments made as necessary to obtain leak-free performance. Flanges in VOC service shall be inspected by visual, audible, and/or olfactory means at least weekly by operating personnel walk-through. (VI) Each open-ended valve or line in VOC service, other than a valve or line used for safety relief, shall be equipped with a cap, blind flange, plug, or a second valve. Except during sampling, the second valve shall be closed. (VII) Accessible valves in VOC service shall be monitored by leak-checking for fugitive emissions at least quarterly using an approved gas analyzer. For valves equipped with rupture discs, a pressure gauge shall be installed between the relief valve and rupture disc to monitor disc integrity. All leaking discs shall be replaced at the earliest opportunity, but no later than the next process shutdown. Sealless/leakless valves (including, but not limited to, welded bonnet bellows and diaphragm valves) and relief valves equipped with a rupture disc or venting to a control device are exempt from monitoring. (VIII) Dual pump seals with barrier fluid at higher pressure than process pressure, seals degassing to vent control systems kept in good working order, or seals equipped with an automatic seal failure detection and alarm system, submerged pumps, or sealless pumps (including, but not limited to, diaphragm, canned, or magnetic driven pumps) are exempt from monitoring. (IX) All other pump and compressor seals emitting VOC shall be monitored with an approved gas analyzer at least quarterly. (X) After completion of the required quarterly inspections for a period of at least two years, the operator of the oil and gas facility may request in writing to the TNRCC, Office of Air Quality, New Source Review Division that the monitoring schedule be revised based on the percent of valves leaking. The percent of valves leaking shall be determined by dividing the sum of valves leaking during current monitoring and valves for which repair has been delayed by the total number of valves subject to the requirements. This request shall include all data that has been developed to justify the following modifications in the monitoring schedule. (-a-) After two consecutive quarterly leak detection periods with the percent of valves leaking equal to or less than 2.0%, an owner or operator may begin to skip one of the quarterly leak detection periods for the valves in gas/vapor and light liquid service. (-b-) After five consecutive quarterly leak detection periods with the percent of valves leaking equal to or less than 2.0%, an owner or operator may begin to skip three of the quarterly leak detection periods for the valves in gas/vapor and light liquid service. (ii) Owners or operators who are subject to subparagraph (A)(ix) or (x) of this paragraph shall comply with the following requirements. (I) No component shall be allowed to have a VOC leak for more than 15 days after the leak is found which exceeds a VOC concentration greater than 500 ppmv for all components except pumps and compressors and greater than 2, 000 ppmv for pumps and compressors above background as methane, propane, or hexane, or the dripping or exuding of process fluid based on sight, smell, or sound. The VOC fugitive emission components which contact process fluids where the VOCs have an aggregate partial pressure or vapor pressure of less than 0. 044 psia at 100 degrees Fahrenheit are exempt from this requirement. If VOC fugitive emission components are in service where the operating pressure is at least 0.725 psi (five Kpa) below ambient pressure, these components are also exempt from this requirement as long as the equipment is identified in a list that is made available upon request by TNRCC representatives, the EPA, or any air pollution control agency having jurisdiction. All piping and valves two inches nominal size and smaller are also exempt from this requirement. (II) All technically feasible repairs shall be made to repair a VOC leaking process fugitive component within 15 days after the leak is detected. If the repair of a component would require a unit shutdown, the repair may be delayed until the next scheduled shutdown. All leaking components which cannot be repaired until a scheduled shutdown shall be identified for such repair by tagging. The executive director, at his or her discretion, may require early unit shutdown or other appropriate action based on the number and severity of tagged leaks awaiting shutdown. (III) New and reworked underground process pipelines containing VOCs shall contain no buried valves such that process fugitive emission inspection and repair is rendered impractical. (IV) To the extent that good engineering practice will permit, new and reworked valves and piping connections in VOC service shall be so located to be reasonably accessible for leak-checking during plant operation. Valves elevated more than two meters above a support surface will be considered non-accessible and shall be identified in a list to be made available upon request. (V) New and reworked piping connections in VOC service shall be welded or flanged. Screwed connections are permissible only on piping smaller than two- inch diameter. No later than the next scheduled quarterly monitoring after initial installation or replacement, all new or reworked connections shall be gas-tested or hydraulically-tested at no less than normal operating pressure and adjustments made as necessary to obtain leak-free performance. Flanges in VOC service shall be inspected by visual, audible, and/or olfactory means at least weekly by operating personnel walk-through. (VI) Each open-ended valve or line in VOC service, other than a valve or line used for safety relief, shall be equipped with a cap, blind flange, plug, or a second valve. Except during sampling, the second valve shall be closed. (VII) Accessible valves in VOC service shall be monitored by leak-checking for fugitive emissions at least quarterly using an approved gas analyzer. For valves equipped with rupture discs, a pressure gauge shall be installed between the relief valve and rupture disc to monitor disc integrity. All leaking discs shall be replaced at the earliest opportunity, but no later than the next process shutdown. Sealless/leakless valves (including, but not limited to, welded bonnet bellows and diaphragm valves) and relief valves equipped with a rupture disc or venting to a control device are exempt from monitoring. (VIII) Dual pump seals with barrier fluid at higher pressure than process pressure, seals degassing to vent control systems kept in good working order or seals equipped with an automatic seal failure detection and alarm system, submerged pumps, or sealless pumps (including, but not limited to, diaphragm, canned, or magnetic driven pumps) are exempt from monitoring. (IX) All other pump and compressor seals emitting VOC shall be monitored with an approved gas analyzer at least quarterly. (X) After completion of the required quarterly inspections for a period of at least two years, the operator of the oil and gas facility may request in writing to the TNRCC, Office of Air Quality, New Source Review Division that the monitoring schedule be revised based on the percent of valves leaking. The percent of valves leaking shall be determined by dividing the sum of valves leaking during current monitoring and valves for which repair has been delayed by the total number of valves subject to the requirements. This request shall include all data that have been developed to justify the following modifications in the monitoring schedule. (-a-) After two consecutive quarterly leak detection periods with the percent of vaflves leaking equal to or less than 2.0%, an owner or operator may begin to skip one of the quarterly leak detection periods for the valves in gas/vapor and light liquid service. (-b-) After five consecutive quarterly leak detection periods with the percent of valves leaking equal to or less than 2.0%, an owner or operator may begin to skip three of the quarterly leak detection periods for the valves in gas/vapor and light liquid service. (XI) A directed maintenance program shall be used and consist of the repair and maintenance of VOC fugitive emission components assisted simultaneously by the use of an approved gas analyzer such that a minimum concentration of leaking VOC is obtained for each component being maintained. Replaced components shall be remonitored within 30 days of being placed back into VOC service. (iii) For owners and operators who are subject to the applicable parts of subparagraph (A)(xi) of this paragraph, auditory and visual checks for SO [sub]2 and H [sub]2S leaks within the operating area shall be made every day. Immediately, but no later than eight hours upon detection of a leak, operating personnel shall take the following actions: (I) isolate the leak; and (II) commence repair or replacement of the leaking component; or (III) use a leak collection/containment system to prevent the leak until repair or replacement can be made if immediate repair is not possible. (D) Approved test methods. (i) An approved gas analyzer used for the VOC fugitive inspection and repair requirement in subparagraph (C) of this paragraph, shall conform to requirements listed in 40 CFR 60.485(a) and (b). (ii) Tutweiler analysis or equivalent shall be used to determine the hydrogen sulfide content as required under subparagraphs (A) and (E) of this paragraph. (iii) Proper operation of any condenser used as a VOC emissions control device to comply with subparagraph (A)(v) of this paragraph shall be tested to demonstrate compliance with the minimum control efficiency. Sampling shall occur within 60 days after start-up of new or modified facilities. The permittee shall contact the Engineering Services Section, Air Quality Enforcement Division 45 days prior to sampling for approval of sampling protocol. The appropriate regional office in the region where the source is located shall also be contacted 45 days prior to sampling to provide them the opportunity to view the sampling. Neither the regional office nor the Engineering Services Section, Air Quality Enforcement Division personnel are required to view the testing. Sampling reports which comply with the provisions of the TNRCC Sampling Procedure Manual, Chapter 14, shall be distributed to the appropriate regional office, any local programs, and the Engineering Services Section, Air Quality Enforcement Division. (E) Monitoring and recordkeeping requirements. (i) If the operator elects to install and maintain ambient H [sub]2S property line monitors to comply with subparagraph (A)(xi) of this paragraph, the monitors shall be approved by the TNRCC Engineering Services Section, Air Quality Enforcement Division office in Austin, and shall be capable of detecting and alarming at H [sub]2S concentrations of ten ppmv. Operations personnel shall perform an initial on-site inspection of the facility within 24 hours of initial alarm and take corrective actions as listed in subparagraph (C)(iii)(I)- (III) of this paragraph within eight hours of detection of a leak. (ii) The results of the VOC leak detection and repair requirements shall be made available to the executive director, his or her designated representative, or any air pollution control agency having jurisdiction upon request. Records, for all components, shall include: (I) appropriate dates; (II) test methods; (III) instrument readings; (IV) repair results; and (V) corrective actions. Records of flange inspections are not required unless a leak is detected. (iii) Records for repairs and replacements made due to inspections of H [sub]2S and SO [sub]2 components shall be maintained. (iv) Records shall be kept for each production, processing, and pipeline tank battery or for each storage tank if not located at a tank battery, on a monthly basis, as follows: (I) tank battery identification or storage tank identification, if not located at a tank battery; (II) compound stored; (III) monthly throughput in barrels/month; and (IV) cumulative annual throughput, barrels/year. (v) A plan shall be submitted to show how ongoing compliance will be demonstrated for the efficiency requirements listed in subparagraph (B)(i) (IV) of this paragraph. The demonstration may include, but is not limited to, monitoring flowrates, temperatures, or other operating parameters. (vi) Records shall be kept on at least a monthly basis of all production facility flow rates (in standard cubic feet per day) and total sulfur content of process vents or flares or gas processing streams. Total sulfur shall be calculated in long tons per day. (vii) Records shall be kept of all ambient property line monitor alarms and shall include the date, time, duration, and cause of alarm, date and time of initial on-site inspection, and date and time of corrective actions taken. (viii) All required records shall be made available to representatives of the TNRCC, EPA, or local air pollution control agencies upon request and be kept for at least two years. All required records shall be kept at the plant site, unless the plant site is unmanned during business hours. For plant sites ordinarily unmanned during business hours, the records shall be maintained at the nearest office in the state having day-to-day operations control of the plant site. 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 authority. Issued in Austin, Texas, on August 9, 1995. TRD-9510158 Lydia Gonzalez-Gromatzky Acting Director, Legal Services Division Texas Natural Resource Conservation Commission Effective date: September 1, 1995 Proposal publication date: March 3, 1995 For further information, please call: (512) 239-1966 TITLE 34. PUBLIC FINANCE Part I. Comptroller of Public Accounts Chapter 3. Tax Administration Subchapter O. State Sales and Use Tax 34 TAC sec.3.315 The Comptroller of Public Accounts adopts an amendment to sec.3.315, concerning motor vehicle parking and storage, without changes to the proposed text as published in the February 24, 1995, issue of the Texas Register (20 TexReg 1328). The amendment occurs in subsection (a) and reflects current comptroller policy on the taxability of charges for parking and storage services of vehicles when the services include transportation charges. Language was added to the amendment in order to provide clarification. Comments were received suggesting that the amendment be prospective and not retroactive to October 1, 1993, and that we had not given proper notification of the policy change. The change is not retroactive. The policy has been in effect since at least 1992 and is being applied from October 1, 1993, forward. Another taxpayer commented that the statutory basis for the rule amendment is unclear. Although transportation is not in itself a taxable service, the law defines the sales price of a taxable item as "...the total amount for which a taxable item is sold without a deduction for the cost of... transportation incident to the performance of a taxable service." The definition also provides that the "...total amount for which a taxable item is sold includes a service that is a part of the sale..." sec.151.007. Another taxpayer commented that the 5.0% policy should apply to motor vehicle parking and storage services. The 5.0% policy was not included in the rule on motor vehicle parking and storage services because it only applies in situations where nontaxable unrelated services and taxable services are sold for a single charge. The law specifies that transportation incident to the performance of a taxable service is taxable. Because the transportation is not a nontaxable unrelated service, the 5.0% rule would not apply. 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 August 9, 1995. TRD-9509957 Martin E. Cherry Chief, General Law Section Comptroller of Public Accounts Effective date: August 30, 1995 Proposal publication date: February 24, 1995 For further information, please call: (512) 463-4028 TITLE 37. PUBLIC SAFETY AND CORRECTIONS Part XIII. Texas Commission on Fire Protection Chapter 421. Standards for Certification 37 TAC sec.421.5 The Texas Commission on Fire Protection adopts an amendment to sec.421.5, concerning definitions, without changes to the text as published in the May 30, 1995, issue of the Texas Register (20 TexReg 3967). The justification for the section is that higher levels of certification requirements are streamlined and focused on professional fire protection courses delivered by colleges and the National Fire Academy (resident or field courses). The amendment to this section deletes the definition of "training points" made obsolete by proposed changes to other chapters that will discontinue the use of training points to determine eligibility for higher levels of certification, effective September 1, 1995. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; and Texas Government Code, sec.419.022(a)(5), which provides the commission with authority to establish standards for advanced fire protection personnel positions. 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 August 9, 1995. TRD-9510107 Jack Woods General Counsel Texas Commission on Fire Protection Effective date: September 1, 1995 Proposal publication date: May 30, 1995 For further information, please call: (512) 918-7184 Chapter 423. Fire Suppression Subchapter A. Minimum Standards for Structure Fire Protection Personnel Certification 37 TAC sec.sec.423.3, 423.5, 423.7 The Texas Commission on Fire Protection adopts the repeal of sec.sec.423.3, 423.5, and 423.7, concerning minimum standards for intermediate, advanced, and master structure fire protection personnel certification, without changes to the proposed text as published in the May 30, 1995, issue of the Texas Register (20 TexReg 3968). The justification for repealing the sections and replacing with new sections is that higher levels of certification requirements are streamlined and focused on professional fire protection courses delivered by colleges and the NFA (resident and field courses). In addition, the new sections replacing the repealed sections allow more flexibility in scheduling of courses, particularly for colleges in rural areas of the state that offer courses on a three- or four-year rotation. The repealed sections are replaced by new sections dealing with the same subject matter. The repeals have a September 1, 1995, effective date. No comments were received regarding adoption of the repeals. The repeals are adopted under Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; and Texas Government Code, sec.419.022, which provides the commission with authority to establish minimum training standards for fire protection personnel in advanced or specialized fire protection personnel positions. 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 August 9, 1995. TRD-9510108 Jack Woods General Counsel Texas Commission on Fire Protection Effective date: September 1, 1995 Proposal publication date: May 30, 1995 For further information, please call: (512) 918-7184 The Texas Commission on Fire Protection adopts new sec. sec.423.3, 423.5, and 423.7, concerning minimum standards for intermediate, advanced, and master structure fire protection personnel certification, without changes to the proposed text as published in the May 30, 1995, issue of the Texas Register (20 TexReg 3968). The justification for the new sections and is that higher levels of certification requirements are streamlined and focused on professional fire protection courses delivered by colleges and the NFA (resident and field courses). In addition, the new sections allow more flexibility in scheduling of courses, particularly for colleges in rural areas of the state that offer courses on a three- or four-year rotation. The new sections replace repealed sections dealing with the same subject matter. The new sections discontinue the use of training points for determining eligibility for higher levels of certification as well as the balancing of length of experience with the amount of training points, and substitute experience requirements of three, six, and nine years for intermediate, advanced, and master certification levels, respectively. In addition, the new sections permit credit for any college fire science or fire technology course or NFA course, instead of requiring specific courses for specific levels. The new sections will have a September 1, 1995, effective date. No comments were received regarding adoption of the new sections. The new sections are adopted under Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; and Texas Government Code, sec.419.022, which provides the commission with authority to establish minimum training standards for fire protection personnel in advanced or specialized fire protection personnel positions. 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 August 11, 1995. TRD-9510253 Jack Woods General Counsel Texas Commission on Fire Protection Effective date: September 1, 1995 Proposal publication date: May 30, 1995 For further information, please call: (512) 918-7184 Subchapter B. Minimum Standards for Aircraft Crash and Rescue Fire Protection Personnel 37 TAC sec.sec.423.205, 423.207, 423.209 The Texas Commission on Fire Protection adopts the repeal of sec.sec.423.205, 423.207, 423.209, concerning minimum standards for intermediate, advanced and master aircraft rescue and fire protection personnel certification, without changes to the proposed text as published in the May 30, 1995, issue of the Texas Register (20 TexReg 3969). The justification for repealing the sections and replacing with new sections is that higher levels of certification requirements are streamlined and focused on professional fire protection courses delivered by colleges and the NFA (resident and field courses). In addition, the new sections replacing the repealed sections allow more flexibility in scheduling of courses, particularly for colleges in rural areas of the state that offer courses on a three- or four-year rotation. The repealed sections are replaced by new sections dealing with the same subject matter. The repeals have a September 1, 1995, effective date. No comments were received regarding adoption of the repeals. The repeals are adopted under Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; Texas Government Code, sec.419. 022, which provides the commission with authority to establish minimum training standards for fire protection personnel in advanced or specialized fire protection personnel positions; and Texas Government Code, sec.419.038, which provides the commission with authority to adopt requirements for certification of aircraft rescue and fire protection personnel. 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 August 10, 1995. TRD-9510110 Jack Woods General Counsel Texas Commission on Fire Protection Effective date: September 1, 1995 Proposal publication date: May 30, 1995 For further information, please call: (512) 918-7184 The Texas Commission on Fire Protection adopts new sec. sec.423.205, 423. 207, and 423.209, concerning minimum standards for intermediate, advanced and master aircraft rescue and fire protection personnel certification, without changes to the proposed text as published in the May 30, 1995, issue of the Texas Register (20 TexReg 3970). The justification for the new sections is that higher levels of certification requirements are streamlined and focused on professional fire protection courses delivered by colleges and the NFA (resident and field courses). In addition, the new sections allow more flexibility in scheduling of courses, particularly for colleges in rural areas of the state that offer courses on a three- or four-year rotation. The new sections replace repealed sections dealing with the same subject matter. The new sections discontinue the use of training points for determining eligibility for higher levels of certification as well as the balancing of length of experience with the amount of training points, and substitute experience requirements of three, six, and nine years for intermediate, advanced, and master certification levels, respectively. In addition, the new sections permit credit for any college fire science or fire technology course or NFA course, instead of requiring specific courses for specific levels. The new sections have a September 1, 1995, effective date. No comments were received regarding adoption of the new sections. The new sections are adopted under Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; Texas Government Code, sec.419. 022, which provides the commission with authority to establish minimum training standards for fire protection personnel in advanced or specialized fire protection personnel positions; and Texas Government Code, sec.419.038, which provides the commission with authority to adopt requirements for certification of aircraft rescue and fire protection personnel. 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 August 10, 1995. TRD-9510109 Jack Woods General Counsel Texas Commission on Fire Protection Effective date: September 1, 1995 Proposal publication date: May 30, 1995 For further information, please call: (512) 918-7184 Subchapter C. Minimum Standards for Marine Fire Protection Personnel 37 TAC sec.sec.423.305, 423.307, 423.309 The Texas Commission on Fire Protection adopts new sec. sec.423.305, 423.307, and 423.309, concerning minimum standards for intermediate, advanced and master marine fire protection personnel certification, without changes to the proposed text as published in the May 30, 1995, issue of the Texas Register (20 TexReg 3972). The justification for the new sections is that higher levels of certification requirements are streamlined and focused on professional fire protection courses delivered by colleges and the NFA (resident and field courses). In addition, the new sections allow more flexibility in scheduling of courses, particularly for colleges in rural areas of the state that offer courses on a three- or four-year rotation. The new sections discontinue the use of training points for determining eligibility for higher levels of certification as well as the balancing of length of experience with the amount of training points, and substitute experience requirements of three, six, and nine years for intermediate, advanced, and master certification levels, respectively. In addition, the new sections permit credit for any college fire science or fire technology course or NFA course, instead of requiring specific courses for specific levels. The new sections have a January 1, 1996, effective date. No comments were received regarding adoption of the new sections. The new sections are adopted under Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; Texas Government Code, sec.419. 022, which provides the commission with authority to establish minimum training standards for fire protection personnel in advanced or specialized fire protection personnel positions; and Texas Government Code, sec.419.037, which provides the commission with authority to adopt requirements for certification of marine fire protection personnel. 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 August 10, 1995. TRD-9510111 Jack Woods General Counsel Texas Commission on Fire Protection Effective date: January 1, 1996 Proposal publication date: May 30, 1995 For further information, please call: (512) 918-7184 Chapter 429. Minimum Standards for Fire Inspectors 37 TAC sec.sec.429.5, 429.7, 429.9 The Texas Commission on Fire Protection adopts the repeal of sec.sec.429.5, 429.7, and 429.9, concerning standards for intermediate, advanced, and master fire inspector certification, without changes to the proposed text as published in the May 30, 1995, issue of the Texas Register (20 TexReg 3973). The justification for repealing the sections and replacing with new sections is that higher levels of certification requirements are streamlined and focused on professional fire protection courses delivered by colleges and the NFA (resident and field courses). In addition, the new sections replacing the repealed sections allow more flexibility in scheduling of courses, particularly for colleges in rural areas of the state that offer courses on a three- or four-year rotation. The repealed sections are replaced by new sections dealing with the same subject matter. The repeals have a September 1, 1995, effective date. No comments were received regarding adoption of the repeals. The repeals are adopted under Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; and Texas Government Code, sec.419.022, which provides the commission with authority to establish minimum training standards for fire protection personnel in advanced or specialized fire protection personnel positions. 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 August 10, 1995. TRD-9510113 Jack Woods General Counsel Texas Commission on Fire Protection Effective date: September 1, 1995 Proposal publication date: May 30, 1995 For further information, please call: (512) 918-7184 The Texas Commission on Fire Protection adopts new sec. sec.429.5, 429.7, and 429.9, concerning standards for intermediate, advanced, and master fire inspector certification, without changes to the proposed text as published in the May 30, 1995, issue of the Texas Register (20 TexReg 3973). The justification for the new sections is that higher levels of certification requirements are streamlined and focused on professional fire protection courses delivered by colleges and the NFA (resident and field courses). In addition, the new sections allow more flexibility in scheduling of courses, particularly for colleges in rural areas of the state that offer courses on a three- or four-year rotation. The new sections replace repealed sections dealing with the same subject matter. The new sections discontinue the use of training points for determining eligibility for higher levels of certification as well as the balancing of length of experience with the amount of training points, and substitute experience requirements of three, six, and nine years for intermediate, advanced, and master certification levels, respectively. In addition, the new sections permit credit for any college fire science or fire technology course or NFA course, instead of requiring specific courses for specific levels. The new sections have a September 1, 1995, effective date. No comments were received regarding adoption of the new sections. The new sections are adopted under Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; and Texas Government Code, sec.419.022, which provides the commission with authority to establish minimum training standards for fire protection personnel in advanced or specialized fire protection personnel positions. 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 August 10, 1995. TRD-9510112 Jack Woods General Counsel Texas Commission on Fire Protection Effective date: September 1, 1995 Proposal publication date: May 30, 1995 For further information, please call: (512) 918-7184 Chapter 431. Minimum Standards for Fire and Arson Investigator 37 TAC sec.sec.431.5, 431.7, 431.9 The Texas Commission on Fire Protection adopts the repeal of sec.sec.431.5, 431.7, and 431.9, concerning standards for intermediate, advanced, and master fire and arson investigator certification, without changes to the proposed text as published in the May 30, 1995, issue of the Texas Register (20 TexReg 3974). The justification for the new sections is that higher levels of certification requirements are streamlined and focused on professional fire protection courses delivered by colleges and the NFA (resident and field courses). In addition, the new sections replacing the repealed sections allow more flexibility in scheduling of courses, particularly for colleges in rural areas of the state that offer courses on a three- or four-year rotation. The repealed sections are replaced by new sections dealing with the same subject matter. The repeals have a September 1, 1995, effective date. No comments were received regarding adoption of the repeals. The repeals are adopted under Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; and Texas Government Code, sec.419.022, which provides the commission with authority to establish minimum training standards for fire protection personnel in advanced or specialized fire protection personnel positions. 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 August 10, 1995. TRD-9510115 Jack Woods General Counsel Texas Commission on Fire Protection Effective date: September 1, 1995 Proposal publication date: May 30, 1995 For further information, please call: (512) 918-7184 The Texas Commission on Fire Protection adopts new sec. sec.431.5, 431.7, and 431.9, concerning standards for intermediate, advanced, and master fire and arson investigator certification, without changes to the proposed text as published in the May 30, 1995, issue of the Texas Register (20 TexReg 3975). The justification for the new sections is that higher levels of certification requirements are streamlined and focused on professional fire protection courses delivered by colleges and the NFA (resident and field courses). In addition, the new sections allow more flexibility in scheduling of courses, particularly for colleges in rural areas of the state that offer courses on a three- or four-year rotation. The new sections replace repealed sections dealing with the same subject matter. The new sections discontinue the use of training points for determining eligibility for higher levels of certification as well as the balancing of length of experience with the amount of training points, and substitute experience requirements of three, six, and nine years for intermediate, advanced, and master certification levels, respectively. In addition, the new sections permit credit for any college fire science or fire technology course or NFA course, instead of requiring specific courses for specific levels. The new sections will have a September 1, 1995, effective date. No comments were received regarding adoption of the new sections. The new sections are adopted under Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; and Texas Government Code, sec.419.022, which provides the commission with authority to establish minimum training standards for fire protection personnel in advanced or specialized fire protection personnel positions. 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 August 10, 1995. TRD-9510114 Jack Woods General Counsel Texas Commission on Fire Protection Effective date: September 1, 1995 Proposal publication date: May 30, 1995 For further information, please call: (512) 918-7184 Chapter 435. Fire Fighter Safety 37 TAC sec.435.3 The Texas Commission on Fire Protection adopts an amendment to sec.435.3, concerning self-contained breathing apparatus, without changes to the proposed text as published in the May 30, 1995, issue of the Texas Register (20 TexReg 3976). The justification for the amendment is that the risk of contaminants in breathing air is increased where a storage system is used. Therefore, testing of breathing air before it enters the storage system and at the orifice where SCBA cylinders are filled will enhance the safety of those who rely on SCBA and minimize the liability of departments that employ firefighters. The amendment requires a vendor that is providing compressed breathing air to a fire department to provide certification of compressed breathing air testing, whether the SCBA cylinder is supplied by the department or the vendor or a larger cylinder is filled for use in a cascade or storage system. One commenter opposed the amendment for the reason that it requires more testing for a department that acquires vendor supplied air than a department that compresses its own breathing air. The commission disagreed with the commenter for the reason that the risk of contaminants is increased with the use of storage systems and that breathing air may not always be acquired from the same vendor. Other commenters spoke in favor of the amendment citing the increased level of protection and minimizing liability of the fire department, and examples of problems some departments had encountered with contamination with water introduced into a cascade system by a large cylinder after the regular semi- annual test of air from the cylinder that caused SCBA cylinders to "freeze up" at a fire incident. In addition, another commenter noted the risk of particulate contamination including rust from the interior of a cylinder. A representative of the Commerce Fire Department submitted comments against the amendment. Commenters in favor of the rule amendment included representatives of the Texas Fire Chief's Association, the Killeen Fire Department, and International Personnel Protection, Inc. The amendment is adopted under Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; and Texas Government Code, sec.419.041, which provides the commission with authority to adopt standards for self-contained breathing apparatus. 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 August 10, 1995. TRD-9510116 Jack Woods General Counsel Texas Commission on Fire Protection Effective date: September 1, 1995 Proposal publication date: May 30, 1995 For further information, please call: (512) 918-7184 Chapter 439. Examinations for Certification 37 TAC sec.sec.439.5, 439.7, 439.9 The Texas Commission on Fire Protection adopts amendments to sec.sec.439.5, 439.7, and 439.9, concerning examinations for fire protection personnel certification definitions, procedures, and eligibility, without changes to the proposed text as published in the May 30, 1995, issue of the Texas Register (20 TexReg 3977). The justification for this section is that the changes clarify the respective roles of approved training facilities and commission staff regarding determination of eligibility for examinations and promote uniformity in applying examination standards. The changes to sec.439.5 add a new definition of "certificate of completion" furnished by the provider of training and modify the definition of "endorsement of eligibility" to be issued only by commission staff. The changes to sec.439.7 pertain to course approvals and certificates of completion. The changes to sec.439.9 require a certificate of completion in order to qualify for an examination, and reiterate that commission staff determine eligibility for an examination. No comments were received regarding adoption of the amendments. The amendments are adopted under Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; and sec.419.032(b), concerning basic certification examinations. 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 August 10, 1995. TRD-9510117 Jack Woods General Counsel Texas Commission on Fire Protection Effective date: September 1, 1995 Proposal publication date: May 30, 1995 For further information, please call: (512) 918-7184 Chapter 463. Application Criteria 37 TAC sec.463.1, sec.463.4 The Texas Commission on Fire Protection adopts amendments to sec.463.1 and sec.463.4, concerning the application process and competitive needs criteria for the Fire Department Emergency Program, without changes to the proposed text as published in the May 16, 1995, issue of the Texas Register (20 TexReg 3651). The justification for adopting the amended sections is that competitive needs criteria that were deemed obsolete were replaced with more pertinent and relevant criteria. The amendment to sec.463.1 changes the deadline for submitting applications from 45 days prior to the Funds Allocation Advisory Committee meeting to 30 days prior thereto. The amendment to sec.463.4 concerning competitive needs criteria substitutes average weekly wage for per capita and family income and deletes key insurance rates, tax burden data and population density from the list of criteria. The ratio of fire responses to fire apparatus was substituted for the ratio of physical resources to fire responses to give a more meaningful comparison. In addition, separate criteria for applications from incorporated areas and applications from rural and unincorporated areas were consolidated with other criteria. Finally, the comparison of the amount of approved protective clothing with the number of personnel and fire responses was added. No comments were received regarding adoption of the amendments. The amendments are adopted under Texas Government Code, sec.sec.419.051- 419.064, which provides the Texas Commission on Fire Protection with the authority to establish rules for the administration of Texas Government Code, sec.sec.419. 051-419.064 for the Fire Department Emergency Program. 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 August 9, 1995. TRD-9510106 Jack Woods General Counsel Texas Commission on Fire Protection Effective date: September 1, 1995 Proposal publication date: May 16, 1995 For further information, please call: (512) 918-7184 TITLE 40. SOCIAL SERVICES AND ASSISTANCE Part XII. Texas Board of Occupational Therapy Examiners Chapter 365. Types of Licenses 40 TAC sec.365.1 The Texas Board of Occupational Therapy Examiners adopts an amendment to sec.365.1, concerning Types of Licenses, without changes to the proposed text as published in the May 12, 1995, issue of the Texas Register (20 TexReg 3565). This amended section is being adopted to limit the duration of a temporary license granted to a foreign-trained licensee. This amended section limits the duration of a temporary license issued to an applicant trained outside the United States or its territory, the same length of time one is issued to an applicant trained in the United States or its territory. No comments were received regarding adoption of the amendment. The amendment is adopted under the Occupational Therapy Practice Act, Texas Civil Statutes, Article 8851, which provide the Texas Board of Occupational Therapy Examiners with the authority to adopt rules consistent with this Act to carry out its duties in administering this 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 authority. Issued in Austin, Texas, on August 10, 1995. TRD-9510099 John P. Maline Executive Director Texas Board of Occupational Therapy Examiners Effective date: August 31, 1995 Proposal publication date: May 12, 1995 For further information, please call: (512) 443-8202 Chapter 372. Referral 40 TAC sec.372.1 The Texas Board of Occupational Therapy Examiners adopts an amendment to sec.372.1, concerning Referral, without changes to the proposed text as published in the May 12, 1995, issue of the Texas Register (20 TexReg 3566). This amended section is being adopted to clarify and strengthen the requirement for written orders to verify referrals. This amended section specifies an oral referral for direct treatment must be followed by a written referral signed by the referring physician. No comments were received regarding adoption of the amendment. The amendment is adopted under the Occupational Therapy Practice Act, Texas Civil Statutes, Article 8851, which provide the Texas Board of Occupational Therapy Examiners with the authority to adopt rules consistent with this Act to carry out its duties in administering this 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 authority. Issued in Austin, Texas, on August 10, 1995. TRD-9510100 John P. Maline Executive Director Texas Board of Occupational Therapy Examiners Effective date: August 31, 1995 Proposal publication date: May 12, 1995 For further information, please call: (512) 443-8202 Chapter 373. Supervision 40 TAC sec.373.1 The Texas Board of Occupational Therapy Examiners adopts an amendment to sec.373.1, concerning Supervision, with typographical changes to the proposed text as published in the May 12, 1995, issue of the Texas Register (20 TexReg 3566). This amended section is being adopted to establish a new form and procedure for OTAs and COTAs to follow to maintain records of professional supervision. This amended section requires documentation of supervision of COTAs and OTAs on a "COTA/OTA Supervision Log" prescribed by the board. It also requires retention of the original logs by COTAs and OTAs, with copies of the logs to be maintained by the licensees' employers. No comments were received regarding adoption of the amendment. The amendment is adopted under the Occupational Therapy Practice Act, Texas Civil Statutes, Article 8851, which provide the Texas Board of Occupational Therapy Examiners with the authority to adopt rules consistent with this Act to carry out its duties in administering this Act. sec.373.1. Supervision. (a) Supervision of COTAs. (1) (No change.) (2) A COTA shall provide occupational therapy services only under the general supervision of a licensed OTR. (A) A minimum of eight hours of supervision per month for full time COTAs must be documented on a "COTA/OTA Supervision Log" prescribed by the board. COTAs employed part time shall prorate the required supervision. (If the COTA is employed less than 20 hours per month, a minimum of four hours of supervision is required.) The "COTA/OTA Supervision Log" must be kept by the COTA, and a copy of this form must be maintained by the facility where the COTA provides services. (B)-(C) (No change.) (3)-(9) (No change.) (b) (No change.) (c) Supervision of an occupational therapist or an occupational therapy assistant with a temporary license: (1) Temporary License Pending Passage of Certification Examination: (A) (No change.) (B) A minimum of 16 hours of supervision per month for full time OTAs must be documented on a "COTA/OTA Supervision Log" prescribed by the board. OTAs employed part time shall prorate the required supervision. (If the OTA is employed less than 20 hours per month, a minimum of four hours of supervision is required.) The "COTA/OTA Supervision Log" must be kept by the OTA, and a copy of this form must be maintained by the facility where the OTA provides services. (C)-(F) (No change.) (2) (No change.) This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's authority. Issued in Austin, Texas, on August 10, 1995. TRD-9510101 John P. Maline Executive Director Texas Board of Occupational Therapy Examiners Effective date: August 31, 1995 Proposal publication date: May 12, 1995 For further information, please call: (512) 443-8202 Chapter 374. Disciplinary Actions/Complaints 40 TAC sec.374.1 The Texas Board of Occupational Therapy Examiners adopts an amendment to sec.374.1, concerning Disciplinary Actions, without changes to the proposed text as published in the May 12, 1995, issue of the Texas Register (20 TexReg 3567). This amended title is being adopted to clarify the subject of the rule, and this amended section is being adopted to establish requirements for reinstatement of a license after a probationary period. This amended title accurately reflects the chapter contents. This amended section specifies a licensee will have his or her license reinstated after a period of suspension once all licensing requirements have been met. No comments were received regarding adoption of the amendment. The amendment is adopted under the Occupational Therapy Practice Act, Texas Civil Statutes, Article 8851, which provide the Texas Board of Occupational Therapy Examiners with the authority to adopt rules consistent with this Act to carry out its duties in administering this 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 authority. Issued in Austin, Texas, on August 10, 1995. TRD-9510102 John P. Maline Executive Director Texas Board of Occupational Therapy Examiners Effective date: August 31, 1995 Proposal publication date: May 12, 1995 For further information, please call: (512) 443-8202 Chapter 376. Registration of Facilities 40 TAC sec.376.5, sec.376.8 The Texas Board of Occupational Therapy Examiners adopts the amendments to sec.376.5, concerning Exemptions to Registration, and sec.376.8, concerning Restoration of Registration, without changes to the proposed text as published in the May 26, 1995, issue of the Texas Register (20 TexReg 3889). The amended sections are being adopted to establish conditions under which the board will waive registration fees, and requirement for reinstatement of a facility registration after it has expired. The amended sections allow the facility registration fees to be waived for qualifying facilities which offer occupational therapy services. They also specify how the restoration of registration fees will be calculated for facilities which have allowed facility registration to expire. No comments were received regarding adoption of the amendments. The amendments are adopted under the Occupational Therapy Practice Act, Texas Civil Statutes, Article 8851, which provide the Texas Board of Occupational Therapy Examiners with the authority to adopt rules consistent with this Act to carry out its duties in administering this 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 authority. Issued in Austin, Texas, on August 10, 1995. TRD-9510103 John P. Maline Executive Director Texas Board of Occupational Therapy Examiners Effective date: August 31, 1995 Proposal publication date: May 26, 1995 For further information, please call: (512) 443-8202 Texas Department of Insurance Exempt Filing Exempt Filing Notification Pursuant to the Insurance Code, Chapter 5, Subchapter L, Article 5.96 (Editor's Note: As required by the Insurance Code, Articles 5.96 and 5.97, the Texas Register publishes notices of actions taken by the Department of Insurance pursuant to Chapter 5, Subchapter L, of the Code. Board action taken under these articles is not subject to the Administrative Procedure Act. These actions become effective 15 days after the date of publication or on a later specified date. The text of the material being adopted will not be published, but may be examined in the offices of the Department of Insurance, 333 Guadalupe, Austin.) The Commissioner of Insurance, at a public hearing held on August 4, 1995, at 9:00 a.m., under Docket Number 2152, in Room 100 of the Texas Department of Insurance Building, 333 Guadalupe Street in Austin, Texas, adopted amendments to Texas Homeowner's Policy forms and endorsements and amendments to rules in the Homeowner's Section of the Texas Personal Lines Manual. The amendments were proposed by the Texas Association of Insurance Agents (TAIA) in a petition filed on February 7, 1995, and amended on April 11, 1995. The TAIA petition requested consideration of twelve proposals to change the Texas Homeowner's Policy forms and Manual rules, including six proposals for additional coverages and six proposals for clarification of existing forms and rules. Only those proposals for clarification of existing forms and rules were considered and adopted by the Commissioner. Notice of the proposed changes (Reference Number P-0295-3) were published in the June 27, 1995, issue of the Texas Register (20 TexReg 4623). The hearing was initially scheduled for August 2, 1995, and was re-scheduled to August 4, 1995 (20 TexReg 5314, July 18, 1995). The adopted proposals are contained in Item Numbers 1, 4, 6, 8, 11, and 12 of the TAIA petition and are adopted without changes to the proposals as published. The Commissioner has determined that the adopted amendments are necessary to clarify existing forms and rules. The amendments as adopted by the Commissioner are: Item 1. Amendment to the Special Limits of Liability provision #4 relating to business personal property in the Coverage B (Personal Property) subsection of Section I-Property Coverage in all homeowner's policy forms to delete the words "or farm and ranch property." The Commissioner has determined that this change is necessary to clarify that all property insured under a homeowner's policy (HO-A, HO-B, HO-C, HO-BT, HO-CT, HO-CON-B, and HO-CON-C), including farm and ranch related property, is covered up to the policy limit of liability unless such property is used for business purposes. Amendatory Endorsement Number HO- 147 is adopted to implement this change. Item 4. Amendment to paragraph 2-a in the Coverage A (Dwelling) subsection of Section I-Property Coverage of HO-A, HO-B, and HO-C policy forms to delete the references to "commercial, manufacturing or farming" and to substitute the term "business." The Commissioner has determined that this change is needed to clarify the types of other structures located on the residence premises that are excluded from the ten percent of the Coverage A (Dwelling) limit of liability that is provided in the HO-A, HO-B, and HO-C policy forms. The lack of a definition in the policy for the terms "commercial, manufacturing or farming" has resulted in confusion and different interpretations among insurers. The term "business" is defined in the homeowner's policy forms and includes "trade, profession, or occupation." The substitution of the term "business" in lieu of the terms "commercial, manufacturing, or farming" will clarify that any other structures used for business purposes of any type are excluded from the ten percent of the Coverage A (Dwelling) limit of liability that is provided in the HO-A, HO-B, and HO-C policy forms. Amendatory Endorsement Number HO-146 is adopted to implement this change. Item 6. Amendment of the definition of the term "residence premises" in the Definitions section of homeowner's policies HO-A, HO-B, HO-C, HO-BT, HO-CT, HO- CON-B, and HO-CON-C to delete the reference to "where you reside or intend to reside" and to substitute "where an insured resides or intends to reside"; amendment to paragraph 1 in the Coverage A (Dwelling) subsection of Section I- Property Coverage of HO-A, HO-B, and HO-C policy forms to delete subparagraphs 1-a and 1-b to eliminate redundancy of the proposed definition of "residence premises" in the policy form; and amendment to endorsement HO-305 in the replacement definition of "residence premises" to delete the reference to "where you reside or intend to reside" and to substitute "where an insured resides or intends to reside" and to delete the reference to paragraph 1-b of the Coverage A (Dwelling) subsection of Section I-Property Coverage of HO-A, HO-B, and HO-C policy forms. The Commissioner has determined that these amendments are necessary to eliminate any conflict between the definition of "residence premises" in the policy forms and endorsement and the coverage provided to the residence premises under Coverage A (Dwelling) in the policy coverage forms. Without these changes coverage could be denied if the named insured is not actually occupying the dwelling at the time of loss. The adopted amendments remove any question that coverage applies to a dwelling if occupied by a person that is included within the definition of the term "insured" and Endorsement Number HO-301 is attached. Amendatory Endorsements Numbers HO-145 and HO-146 are adopted to implement these changes. Item 8. Amendment to paragraph 1 in Coverage C (Personal Liability) subsection of Section II-Liability Coverage of all homeowner's policy forms to add language to provide that "Damages include pre-judgment interest awarded against the insured." The Commissioner has determined that this language is necessary to clarify that liability damages paid under the Texas Homeowner's Policy include pre-judgment interest. Amendatory Endorsement Number HO-231 is adopted to implement this change. Item 11. Amendment to the Additional Insured Endorsement Number HO-301 to delete the language "a resident of your household" in the Occupant-Section II Liability portion of the endorsement and to substitute the language "an occupant of the residence premises." The Commissioner has determined that this change is necessary to ensure that Section II-Liability Coverage is provided under this endorsement to an additional insured who occupies the insured dwelling, whether or not the dwelling owner resides at the residence premises. Item 12. Amendment to Texas Personal Lines Manual Rule II.A. to add the words "grandparent or grandchild" to the provision on the application of "Owner occupancy" and amendment to Manual Rule II.E.1. to include "grandparent or grandchild" among the additional insureds, along with "mother, father, son, or daughter or any combination thereof, of the owner of the property," who may be covered under Endorsement Number HO-301. The Commissioner has determined that these amendments are necessary to permit coverage under a homeowner's insurance policy if the owner's grandparent or grandchild resides on the residence premises. The Commissioner has jurisdiction of this matter pursuant to the Insurance Code, Articles 5.35, 5.101, and 5.96. The amendments as adopted by the Commissioner of Insurance are on file in the Chief Clerk's Office of the Texas Department of Insurance under Reference Number P-0295-3 and are incorporated by reference by Commissioner Order Number 95-0792. This notification is made pursuant to the Insurance Code, Article 5.96, which exempts action taken under Article 5.96 from the requirements of the Administrative Procedure Act (73rd Legislature, Regular Session, Chapter 268, sec.1, 1993 Texas Genenal Laws 737 (codified at Government Code, title 10, Chapter 2001)). Consistent with the Insurance Code, Article 5.96(h), prior to October 1, 1995, the effective date of this action, the Texas Department of Insurance will notify all insurers affected by this action. IT IS THEREFORE THE ORDER of the Commissioner of Insurance that the amendments to the policy forms, endorsements, and Texas Personal Lines Manual rules for homeowner's insurance, and the amendatory endorsements to implement these amendments, as specified herein, which are attached to this Order and incorporated into this Order by reference, are adopted to become effective on all applicable policies issued on and after October 1, 1995. 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 authority. Issued in Austin, Texas, on August 11, 1995. TRD-9510224 Alicia M. Fechtel General Counsel and Chief Clerk Texas Department of Insurance Effective date: October 1, 1995 Proposal publication date: June 27, 1995 For further information, please call: (512) 463-6327 The Commissioner of Insurance, at a public hearing under Document Number 2156 held at 1:30 p.m., August 8, 1995, in Room 100 of the Texas Department of Insurance Building, 333 Guadalupe Street, Austin, Texas, adopted a forms filing by the Texas Alcoholic Beverage Commission (TABC) for a new surety bond form entitled "Conduct Surety Bond" (Bond). The Bond is a requirement of the Alcoholic Beverage Code (Code), Texas Civil Statutes, sec.11. 11 and sec.61.13, as amended by House Bill 984, acts of the 74th Legislature, Regular Session 1995. The forms were filed in the Chief Clerk's Office on July 12, 1995. The Bond is conditioned on the applicant or holder of a license or permit conforming with the Alcoholic Beverage Code and any rules of the Commission. The amount of the penalty on the Bond is $5,000 but if the place of business is within 1,000 feet of the property line of a public school the penalty increases to $10,000. The Bond may be canceled by the surety by giving 30 days written notice, however, the surety remains liable under the Bond for the period of time the Bond was in force. Under certain circumstances set out in subsection (e) of sec.11.11 and sec.61.13, a person who holds a permit or license may be exempt from the Bond requirement. The full text of the surety bond form filing (Reference Number 0-0795-17), was published in the July 21, 1995, issue of the Texas Register (20 TexReg 5370 and 20 TexReg 5431). The Texas Department of Insurance has jurisdiction over this matter pursuant to the Insurance Code, Articles 5.13, 5.15, and 5.97. The full text of the new Conduct Surety Bond form as adopted by the Texas Department of Insurance is filed with the Chief Clerk under (Reference Number 0- 0795-17) and is incorporated by reference by Commissioner Order Number 95-0796. This notification is made pursuant to the Insurance Code, Article 5.97, which exempts it from the requirements of the Administrative Procedure Act. The Texas Department of Insurance hereby certifies that the adopted form filing referenced herein has been reviewed by legal counsel and found to be within this agency's authority to adopt. 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 authority. Issued in Austin, Texas, on August 11, 1995. TRD-9510225 Alicia M. Fechtel General Counsel and Chief Clerk Texas Department of Insurance Effective date: September 2, 1995 Proposal publication date: July 21, 1995 For further information, please call: (512) 463-6327 The Commissioner of Insurance at a public hearing under Docket Number 2157 held at 1:30 p.m., August 8, 1995, in Room 100 of the Texas Department of Insurance Building, 333 Guadalupe Street, Austin, Texas, adopted a forms filing by the Texas Department of Insurance (Department) for two revised surety bond forms entitled "Texas Title Agent's/Direct Operation's Bond" and "Texas Escrow Officers Schedule Bond". The bonds are a requirement of Article 9.38 and Article 9.45 respectively of the Texas Insurance Code. The forms were filed in the Chief Clerk's Office on July 12, 1995. The Texas Insurance Code, Article 1.01, as amended by acts of the 72nd Legislature, in part created the Texas Department of Insurance. The bond forms have been revised to change the name of the obligee from the State Board of Insurance to the Texas Department of Insurance and to change "KNOW ALL MEN BY THESE PRESENTS" to "KNOW ALL PERSONS BY THESE PRESENTS". The full text of the surety bond form filing (Reference Number O-0795-18-I), was published in the July 21, 1995, issue of the Texas Register (20 TexReg 5371 and 20 TexReg 5432 ). The Texas Department of Insurance has jurisdiction over this matter pursuant to the Insurance Code, Articles 5.13, 5.15, and 5.97. The full text of the surety bond forms entitled "Texas Title Insurance Agent's/Direct Operation's Bond" and "Texas Escrow Officers Schedule Bond", as adopted by the Texas Department of Insurance is filed with the Chief Clerk under (Reference Number O-0795-18-I) and is incorporated by reference by Commissioner Order Number 95-0795. This notification is made pursuant to the Insurance Code, Article 5.97, which exempts it from the requirements of the Administrative Procedure 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 authority. Issued in Austin, Texas, on August 11, 1995. TRD-9510226 Alicia M. Fechtel General Counsel and Chief Clerk Texas Department of Insurance Effective date: September 2, 1995 Proposal publication date: July 21, 1995 For further information, please call: (512) 463-6327