PROPOSED 
 RULES 
 
 Before an agency may permanently adopt a new or amended section or repeal an 
existing section, a proposal detailing the action must be published in the  
Texas Register at least 30 days before action is taken. The 30-day time period 
gives interested persons an opportunity to review and make oral or written 
comments on the section. Also, in the case of substantive action, a public 
hearing must be granted if requested by at least 25 persons, a governmental 
subdivision or agency, or an association having at least 25 members. 
  Symbology in proposed amendments. New language added to an existing section is 
indicated by the use of  bold text. [Brackets] indicate deletion of existing 
material within a section. 
 
   
  TITLE 16. ECONOMIC REGULATION 
 Part II. Public Utility Commission of Texas 
  Chapter 22. Practice and Procedure 
  
  The Public Utility Commission of Texas proposes amendments to sec.22.52, 
concerning notice in electric licensing proceedings and sec.22.104, concerning 
late intervention in such proceedings. 
 The proposed changes address concerns raised by the Commissioners, the 
Commission Staff, and parties to various Commission proceedings about the type 
and content of notice provided to landowners and the public in proceedings 
issuing or amending certificates of convenience and necessity (CCN) for electric 
utility transmission lines. The amendments specify in greater detail the format 
and content of notice to be provided to owners of land directly affected by a 
proposed transmission line. The amendments provide a procedure for providing 
supplemental notice to directly affected landowners who initially do not receive 
notice, including a specific provision for late intervention. The amendments 
also require an electric utility to hold a public meeting concerning a proposed 
transmission line prior to filing the CCN application if 25 or more landowners 
would be directly affected by the line. 
 The rules currently provide that the utility shall determine who should receive 
direct notice of a CCN application by reviewing the current county tax rolls. 
The Commission may wish to consider requiring the utility to conduct a review of 
deed records to determine who should receive notice. To aid in the Commission's 
review, interested persons should include in the comments filed: 
 (1) anecdotal or statistical evidence of how often persons who should receive 
direct notice of a CCN application do not receive it at all or do not receive it 
in a timely manner; 
 (2) a quantification of the additional expense that a utility would incur by 
conducting a review of deed records rather than the tax rolls to prepare direct 
notice of a CCN application; and 
 (3) a cost\benefit analysis of the use of deed records to prepare direct notice 
of a CCN application. 
 Elizabeth M. Barton, assistant general counsel, has determined that for the 
first five-year period the sections are in effect there will be no fiscal 
implications for state or local government as a result of enforcing or 
administering the sections. 
 Ms. Barton also has determined that for each year of the first five years the 
sections are in effect the public benefit anticipated as a result of enforcing 
the sections will be the increased guidance and certainty provided to utilities 
and better information provided to persons affected by CCN proceedings. There 
will be no effect on small businesses. Ms. Barton believes that the economic 
cost of compliance will be offset by the decrease in litigation over notice to 
and intervention by those affected persons. 
 Ms. Barton has determined further that for each year of the first five years 
the sections are in effect they are likely to have no effect on the 
opportunities for employment in the geographic areas of Texas affected by 
implementing these sections. 
 Comments on the proposed amendments (13 copies) may be submitted within 30 days 
to Paula Mueller, Secretary of the Commission, 7800 Shoal Creek Boulevard, 
Austin, Texas 78757. Comments should refer to Project Number 14124. The 
Commission invites specific comments regarding the costs associated with, and 
benefits that will be gained by, implementation of the amendments to sec.22. 
52(a) and sec.22.104(d). General Counsel will conduct a public hearing on this 
rulemaking under Government Code, sec.2001.029 at the Commission's offices on 
November 1, 1995, at 10:00 a.m. 
   
  Subchapter D. Notice 
 
  16 TAC sec.22.52 
 
  The amendment is proposed under the Public Utility Regulatory Act of 1995, 
Senate Bill 319, sec.1.101, 74th Legislature, Regular Session 1995, as amended 
by Senate Bill 378 and House Bill 2128 (PURA), which provides the Public Utility 
Commission of Texas with the authority to make and enforce rules reasonably 
required in the exercise of its powers and jurisdiction. 
 The following statute is affected by this amendment: the Public Utility 
Regulatory Act of 1995, sec.1.101. 
 
 
  sec.22.52. Notice in Licensing Proceedings. 
 
  (a) Notice in Electric Licensing Proceedings. In all electric licensing 
proceedings except minor boundary changes and notice of intent and certification 
proceedings for new electric generating plants, the applicant shall give notice 
in the following ways: 
 
  (1) Applicant shall publish notice of the applicant's intent to secure a 
certificate of convenience and necessity in a newspaper having general 
circulation in the county or counties where a certificate of convenience and 
necessity is being requested, once each week for two consecutive weeks beginning 
with the week after the application is filed with the commission. This notice 
shall identify in general terms the type of facility if applicable, and the 
estimated expense associated with the project. [The notice shall further 
describe in clear, precise language the geographic area for which the 
certificate is being requested and the location of all preferred and alternative 
routes of the proposed facility. This description should refer to area 
landmarks, including but not limited to, geographic landmarks, municipal and 
county boundary lines, streets, roads, highways, railroad tracks, and any other 
readily identifiable points of reference.] The notice shall also include the 
following statement <nl>in the first paragraph<ol>: "Persons with questions 
about this project should contact (name of utility contact) at (utility contact 
telephone number). Persons who wish to intervene in the proceeding or comment 
upon action sought, should contact the Public Utility Commission of Texas, at 
7800 Shoal Creek Boulevard, Austin, Texas 78757, or call the Public Utility 
Commission Public Information Office at (512) 458-0256 or (512) 458-0221 for the 
text telephone. The deadline for intervention in the proceeding is <nl>(date 
<ol> 70 days after the date the application was filed with the commission <nl>), 
and a letter requesting intervention should be sent to the commission by that 
date." The notice shall further describe in clear, precise language the 
geographic area for which the certificate is being requested and the location of 
all preferred and alternative routes of the proposed facility. This description 
shall refer to area landmarks, including but not limited to geographic 
landmarks, municipal and county boundary lines, streets, roads, highways, 
railroad tracks, and any other readily identifiable points of reference, unless 
no such references exist for the geographic area. The notice shall state a 
location where a map may be reviewed and from whom a copy of the map may be 
obtained. The map shall clearly and conspicuously illustrate the location of the 
area for which the certificate is being requested including the preferred 
location and any alternative locations of the proposed facility, and shall 
reflect area landmarks, including but not limited to geographic landmarks, 
municipal and county boundary lines, streets, roads, highways, railroad tracks, 
and any other readily identifiable points of reference, unless no such 
references exist for the geographic area. <ol>[."] Proof of publication of 
notice shall be in the form of a publisher's affidavit which shall specify the 
newspaper(s) in which the notice was published <nl>,<ol>[;] the county or 
counties in which the newspaper(s) is or are of general circulation <nl>,<ol>[; 
and] the dates upon which the notice was published<nl>, and a copy of the notice 
as published<ol>. Proof of publication shall be submitted to the commission as 
soon as available. 
   
  (2) Applicant shall, upon [or before] filing an application, also mail notice 
of its application, <nl>to municipalities within five miles of the requested 
territory or facility,<ol> [which shall contain the information as set out in 
paragraph (1) of this subsection and a map which clearly and conspicuously 
illustrates the location of the area for which the certificate is being 
requested, including the preferred location and any alternative locations of the 
proposed facility, to cities and] neighboring utilities providing the same 
utility service within five miles of the requested territory or facility<nl>, 
and<ol>[. Applicant shall also provide notice to] the county government(s) of 
all counties in which any portion of the proposed facility or requested 
territory is located. The notice <nl>shall contain the information as set out in 
paragraph (1) of this subsection and a map as described in paragraph (1) of this 
subsection<ol> [provided to county government(s) shall be identical to that 
provided to cities and neighboring utilities]. An affidavit attesting to the 
provision of notice to <nl>municipalities, utilities, and<ol> counties shall 
specify the dates of the provision of notice and the identity of the individual 
<nl>municipalities, utilities, and<ol> counties to which such notice was 
provided. Before final approval of any modification in the applicant's proposed 
route(s), applicant shall provide notice as required under this paragraph to 
<nl>municipalities, <ol> [cities, neighboring] utilities and <nl>counties which 
<ol> [county governments who] have not <nl>previously <ol> [already] received 
[such] notice. 
   
  (3) Applicant shall, upon [or before] filing an application, mail notice of 
its application to the owners of land, as stated on the current county tax 
roll(s), who would be directly affected by the requested certificate, including 
the preferred location and any alternative location of the proposed facility. 
<nl>For purposes of this paragraph, land is directly affected if an easement 
would be obtained over all or any portion of it, or if it contains a habitable 
structure that would be within 200 feet of the proposed facility. 
 
  <nl>(A) The notice must contain all information required in paragraph (1) of 
this subsection and <nl>contain the following statement in the first paragraph 
of the notice printed in bold-face type: "Your<ol> [a clear and conspicuous 
statement that the owner's] land may be directly affected <nl>in this 
proceeding. If<ol> [by] the preferred route or one of the alternative routes 
<nl>requested under the certificate is approved by the commission, the utility 
will have the right to build a facility which may directly affect your land. 
This proceeding will not determine the value of your land or the value of an 
easement if one is needed by the utility to build the facility. If you have 
questions about this project, you should contact (name of utility contact) at 
(utility contact telephone number). If you wish to participate in this 
proceeding by becoming a party or to comment upon action sought, you should 
contact the Public Utility Commission of Texas, at 7800 Shoal Creek Boulevard, 
Austin, Texas 78757, or call the Public Utility Commission Public Information 
Office at (512) 458-0256 or (512) 458-0221 for the text telephone. If you wish 
to participate in this proceeding by becoming a party, the deadline for 
intervention in the proceeding is (date 70 days after the date the application 
was filed with the commission), and you must send a letter requesting 
intervention to the commission by that date."<ol> [if the certificate is 
granted. A map which clearly and conspicuously illustrates the preferred and any 
alternative locations of the facility proposed in the application shall be 
included] 
   
  <nl>(B) The notice must include a map as described in paragraph (1) of this 
subsection.<ol> Applicants may provide either a map of the entire proposed route 
or maps for each county. 
   
  <nl>(C) Before final approval of any modification in the applicant's proposed 
route(s), applicant shall provide notice as required under <nl>subparagraphs (A) 
and (B) of<ol> this paragraph to all directly affected landowners who have not 
already received such notice. [For the purposes of this paragraph, land is 
directly affected if an easement would be obtained over all or a portion of it, 
or if it contains a habitable structure that would be within 200 feet of the 
proposed facility.] 
   
  <nl>(D) Proof of notice may be established by an affidavit affirming that the 
applicant sent notice by first-class mail to each of the persons listed as an 
owner of directly affected land on the current county tax roll(s). <nl>The proof 
of notice shall include a list of all landowners to whom notice was sent and a 
statement of whether any contact between the utility and the landowner other 
than the notice has occurred.<ol> [Upon the filing of such proof] 
   
  <nl>(E) Upon the filing of proof of notice as described in subparagraph (D) of 
this paragraph,<ol> the lack of actual notice to any individual landowner will 
not in and of itself support a finding that the requirements of this paragraph 
have not been satisfied. <nl>If, however, the utility finds that an owner of 
directly affected land has not received notice, it shall immediately provide 
notice in the same form described in subparagraphs (A) and (B) of this 
paragraph, except that the notice shall state that the person has 20 days to 
intervene. The utility shall immediately notify the commission that such 
supplemental notice has been provided. 
     
  <nl>(4) The utility shall hold at least one public meeting prior to the filing 
of its licensing application if 25 or more persons would be entitled to receive 
direct mail notice of the application. 
   
  <nl>(5)<ol>[(4)] Failure to provide notice in accordance with this section 
shall be cause for day-for-day extension of deadlines for intervention and for 
commission action on the application. 
   
  <nl>(6) Upon entry of a final, appealable order by the commission approving an 
application, the utility shall provide notice to all owners of land who 
previously received direct notice. Proof of notice under this subsection shall 
be provided to the commission's general counsel. 
 
  <nl>(A) If the owner's land is directly affected by the approved route, the 
notice shall consist of a copy of the final order. 
   
  <nl>(B) If the owner's land is not directly affected by the approved route, 
the notice shall consist of a brief statement that the land is no longer the 
subject of a pending proceeding and will not be directly affected by the 
facility. 
       
  (b)-(c) (No change.) 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on September 28, 1995. 
 TRD-9512395 
  Paula Mueller 
 Secretary of the Commission 
 Public Utility Commission of Texas 
    Earliest possible date of adoption: November 6, 1995 
 For further information, please call: (512) 458-0100 
         
             
  Subchapter F. Parties 
 
  16 TAC sec.22.104 
 
  The amendment is proposed under the Public Utility Regulatory Act of 1995, 
Senate Bill 319, sec.1.101, 74th Legislature, Regular Session 1995, as amended 
by Senate Bill 378 and House Bill 2128 (PURA), which provides the Public Utility 
Commission of Texas with the authority to make and enforce rules reasonably 
required in the exercise of its powers and jurisdiction. 
 The following statute is affected by this amendment: the Public Utility 
Regulatory Act of 1995, sec.1.101. 
 
 
  sec.22.104. Motions to Intervene. 
 
  (a)-(c) (No change.) 
   
  (d) Late Intervention. 
 
  (1)-(3) (No change.) 
   
  <nl>(4) In an electric licensing proceeding in which a utility did not provide 
direct notice to an owner of land directly affected by the requested 
certificate, late intervention shall be granted as a matter of right to such a 
person, provided that the person files a motion to intervene within 20 days of 
actually receiving the notice. Such a person should be afforded sufficient time 
to prepare for and participate in the proceeding. 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on September 28, 1995. 
 TRD-9512396 
  Paula Mueller 
 Secretary of the Commission 
 Public Utility Commission of Texas 
    Earliest possible date of adoption: November 6, 1995 
 For further information, please call: (512) 458-0100 
         
               
  Subchapter E. Pleadings 
 
  16 TAC sec.22.71 
 
  The Public Utility Commission of Texas proposes an amendment to sec.22.71, 
concerning Filing of Pleadings and Other Materials. The amendment is necessary 
to provide a sufficient number of copies of filings to the commission's 
regulatory, policy, and administrative divisions and Central Records. The 
reasons underlying the need for this amendment are the commission 
reorganization, the transfer of the hearings function to the State Office of 
Administrative Hearings, and the need for a copy of all filings to be made 
promptly available for public review at the commission's Central Records office. 
Filing by way of electronic transmission at the commission is not yet available; 
however, this rule may be revisited when that process is in place. 
 A category of filings entitled "Applications, petitions and complaints" is 
added to provide a uniformity in the number of copies of such pleadings filed 
with the commission and to provide information to the public heretofore 
unavailable under the rule. This category will include notices of intent for 
generating plants. A category of filings entitled "tariffs for expedited review 
under sec.22.33" is also added. This category includes projects such as Extended 
Local Calling Service and Extended Area Service filings, other tariffs submitted 
for such review, and compliance filings. The proposed amendment would increase 
the number of copies for transmission line and boundary change certificates of 
convenience from four to six, and change this category to eliminate notice of 
intent applications. The proposed amendment would also increase the number of 
copies of exceptions, replies, interim appeals, requests for oral argument, and 
other documents addressed to the commissioners from 18 to 22; the number of 
discovery requests and responses from five to seven; the number of copies of 
testimony and briefs from ten to 11; and the number of copies of other pleadings 
and documents from eight to ten. In addition, parties will be required to file 
two extra copies of testimony, briefs, and other pleadings and documents in 
cases which have been transferred to the State Office of Administrative 
Hearings. 
 Kathleen Sanford, Assistant Director, Office of Policy Development, has 
determined that for the first five-year period the amendment is in effect there 
will be an insignificant fiscal implication for state or local governments as a 
result of enforcing or administering this section. 
 Ms. Sanford also has determined that for the first five-year period the 
amendment is in effect the public benefit anticipated as a result of enforcing 
this section will occur because the required filings will facilitate the 
commission's ability to provide an efficient review of regulatory matters that 
come before it. Commission staff will not be required to make additional copies 
and then route them separately, which is a resource-intensive effort. 
Furthermore, the proposed changes result in insignificant anticipated economic 
cost to persons who are required to comply with them. 
 Ms. Sanford has further determined that for the first five-year period the 
amendment is in effect there will be no impact on the opportunities for 
employment in the geographic areas of Texas affected by implementing the 
requirements of the amendment. 
 Comments on the proposed rule (13 copies) may be submitted to Paula Mueller, 
Secretary of the Commission, 7800 Shoal Creek Boulevard, Austin, Texas 78757, 
within 20 days after publication. All comments should refer to Project Number 
14696. The commission invites specific comments regarding the costs associated 
with, and benefits that will be gained from, implementing the amendment. The 
commission staff will conduct a public hearing on this rulemaking under 
Government Code, sec.2002.029 at the commission's offices on October 18, 1995, 
at 10:00 a.m. 
 The amendment is proposed under the Public Utility Regulatory Act of 1995, 
sec.1.101, which provides the Public Utility Commission of Texas with the 
authority to make and enforce rules reasonably required in the exercise of its 
powers and jurisdiction. 
 The following statute is affected by this amendment: the Public Utility 
Regulatory Act of 1995. 
 
 
  sec.22.71. Filing of Pleadings and Other Materials. 
 
  (a) (No change.) 
   
  (b) Number of Documents to Be Filed. Unless otherwise provided by this chapter 
or ordered by the presiding officer, the number of <nl>copies<ol> [documents] to 
be filed, <nl>including the original,<ol> are as follows: 
 
  <nl>(1) applications, petitions, and complaints: 13 copies; 
   
  <nl>(2) tariffs for review under sec.22.33 of this title (relating to Tariff 
Filings): six copies; 
   
  <nl>(3)<ol>[(1)] exceptions [Exceptions], replies, interim appeals, requests 
for oral argument, and other documents addressed to the commissioners: <nl>22 
<ol> [18] copies. 
   
  <nl>(4)<ol>[(2)] testimony and briefs: <nl>11<ol> [ten] copies, <nl>except 
that in contested cases transferred to the State Office of Administrative 
Hearings, parties must file 13 copies of testimony and briefs; 
   
  <nl>(5)<ol>[(3)] rate filing package: 16 copies; 
   
  <nl>(6)<ol>[(4) ] applications for certificates of convenience and necessity 
<nl>for transmission lines or boundary changes:<ol> [and notice of intent 
petitions]  <nl>six<ol> [four] copies; 
   
  <nl>(7)<ol>[(5)] discovery requests and responses: <nl>seven <ol> [five] 
copies; and 
   
  <nl>(8)<ol>[(6)] other pleadings and documents: <nl>ten <ol> [eight] copies, 
<nl>except that in contested cases transferred to the State Office of 
Administrative Hearings, parties must file 12 copies of other pleadings and 
documents. 
     
  (c)-(h)  (No change.) 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on September 28, 1995. 
 TRD-9512384 
  Paula Mueller 
 Secretary of the Commission 
 Public Utility Commission of Texas 
    Earliest possible date of adoption: November 6, 1995 
 For further information, please call: (512) 458-0100 
         
               Chapter 23. Substantive Rules 
  
  The Public Utility Commission of Texas proposes amendments to Substantive 
Rules sec.23.3 (relating to Definitions),  s23.6 (relating to Spanish Language 
Requirements), sec.23.11 (relating to General Reports), sec.23.12 (relating to 
Financial Records and Reports), sec.23.13 (relating to Statistical Reports), 
sec.23.17 (relating to Administration of IntraLATA Compensation and 
Interexchange Carrier Access Charge Revenues), sec.23.31 (relating to 
Certification Criteria), sec.23.33 (relating to Telephone Solicitation), sec.23. 
61 (relating to Telephone Utilities), sec.23.69 (relating to Integrated Services 
Digital Network-ISDN), and sec.23.91 (relating to Long Run Incremental Cost 
Methodology for LEC Services). The proposed amendments are occasioned by recent 
legislation, as well as a need to update certain definitions in the sections. 
The changes made in response to legislation include recognition of new 
certification categories, such as certificates of operating authority and 
service provider certificates of operating authority, for providers of 
telecommunications services, and clarifications as to the areas where the 
commission's jurisdiction is restricted to dominant certificated 
telecommunications utilities. 
 Roger Pea, assistant general counsel, has determined that for each year of the 
first five-year period the proposed sections are in effect there will be no 
fiscal implications for state or local government as a result of enforcing or 
administering the sections. 
 Mr. Pea also has determined that for each year of the first five years the 
proposed sections are in effect the public benefit anticipated as a result of 
enforcing the section will be that there will be greater opportunities for new 
providers to enter the telecommunications services market in Texas. There will 
be no effect on small businesses as result of enforcing this section. There is 
no anticipated economic cost to persons who are required to comply with the 
section as proposed. 
 Mr. Pea also has determined that for each year of the first five years the 
proposed sections are in effect there will be no impact on employment in the 
geographical area affected by implementing the requirements of the section. 
 Comments on the proposed amendments (13 copies) may be submitted to Secretary, 
Public Utility Commission of Texas, 7800 Shoal Creek Boulevard, Austin, Texas 
78757, within 20 days of the date of publication in the Texas Register. The 
commission invites specific comments regarding the costs associated with, and 
benefits that will be gained by, implementation of the amendments. The 
commission will consider the costs and benefits in deciding whether to adopt the 
section. All comments should refer to Project Number 14372. The commission staff 
will hold a public hearing on this proposal on November 10, 1995. 
   
  General Rules 
 
  16 TAC sec.23.3, sec.23.6 
 
  The amendments are proposed under the Public Utility Regulatory Act of 1995, 
74th Legislature, Regular Session 1995, which provides the Public Utility 
Commission with the authority to make and enforce rules reasonably required in 
the exercise of its powers and jurisdiction, including rules of practice and 
procedure. 
 Cross Index to Statutes: Public Utility Regulatory Act of 1995, 74th 
Legislature, Regular Session 1995. 
 
 
  sec.23.3 Definitions.  The following words and terms, when used in this 
chapter, shall have the following meanings, unless the context clearly indicates 
otherwise: 
   
   Act-The Public Utility Regulatory Act  <nl>of 1995<ol>.[, Texas Civil 
Statutes, Article 1446c.] 
   
   Affected person -Any public utility affected by any action of the regulatory 
authority, any person, partnership, cooperative corporation, corporation, or any 
combination thereof, whose utility service or rates are affected by any 
proceeding before the regulatory authority, or any person, partnership, 
cooperative corporation, corporation, or any combination thereof, that is a 
competitor of a public utility with respect to any service performed by the 
utility or that desires to enter into competition. 
   
   Affiliated interest -The definition of affiliated interest is that definition 
given in the Public Utility Regulatory Act <nl>of 1995, sec.1.003(2)<ol> [, 
Article I, sec.3(i)]. 
   
   Agency-Any state board, commission, department, or officer having statewide 
jurisdiction (other than an agency wholly financed by federal funds, the 
legislature, the courts, the Industrial Accident Board, and institutions for 
higher education) which makes rules or determines contested cases. 
   
   Allocations-For all utilities, the division of plant, revenues, expenses, 
taxes, and reserves between states, between municipalities, or between 
municipalities and unincorporated areas, where such items are used for providing 
public utility service in a state or municipality or for a municipality and 
unincorporated areas. 
   
   Applicant-Any person, partnership, cooperative corporation, corporation, or 
any combination thereof requesting affirmative service or action from the 
utility. 
   
   Base rate-The portion of a consumer's utility bill which is attributable to a 
set level of expenses fixed during rate proceedings. This would include a cost 
factor specifically identified as fuel expense. <nl>Basic local 
telecommunications service flat rate residential and business local exchange 
telephone service, including primary directory listings; tone dialing service; 
access to operator services; access to directory assistance services; access to 
911 service where provided by a local authority or dual party relay service; the 
ability to report service problems seven days a week; lifeline and tel-
assistance services; and any other service the commission, after a hearing, 
determines should be included in basic local telecommunications service. 
   
   Bulletin-The commission's unofficial reporter, published once monthly. Final 
orders of significant interest are printed in full with headnotes, while less 
significant material appears as memorandum citations. 
   
     <nl>Business service -A telecommunications service provided a customer 
where the use is primarily of a business, professional, institutional or 
otherwise occupational nature. 
   
     <nl>Central office -A switching unit in a telecommunications system which 
provides service to the general public, having the necessary equipment and 
operating arrangements for terminating and interconnecting customer lines and 
trunks or trunks only. 
   
     <nl>Class of service or customer class-A description of utility service 
provided to a customer which denotes such characteristics as nature of use 
(business or resident) or type of rate (flat rate or message rate). Classes may 
be further subdivided into grades, denoting individual or multipary line or 
denoting quality of service. Qualified businesses as defined by the Texas 
Enterprise Zone Act, Texas Government Code, Title 10, Chapter 2303 may be 
considered to be a separate customer class of electric utilities <ol>. 
   
   Commission-The Public Utility Commission of Texas. 
   
     <nl>Competitive exchange service-Any of the following services, when 
provided on an inter- or intrastate basis within an exchange area: central 
office based PBX-type services for systems of 75 stations or more; billing and 
collection services; (high speed private line services of 1. 544 megabits or 
greater; customized services; private line and virtual private line services; 
resold or shared local exchange telephone services if permitted by tariff; dark 
fiber services; non-voice data transmission service when offered as a separate 
service and not as a component of basic local telecommunications service; 
dedicated or virtually dedicated access services; services for which a local 
exchange carrier has been granted authority to engage in pricing flexibility 
pursuant to sec.23.27 of this title; any service initially provided within an 
exchange after October 26, 1992, if first provided by an entity other than the 
incumbent local exchange company (companies) certificated to provide service 
within that exchange; and any other service the commission declares is not local 
exchange telephone service<ol>. 
   
   [Class of service or customer class-A description of utility service provided 
to a customer which denotes such characteristics as nature of use or type of 
rate. Classes may be further subdivided into grades denoting quality of service. 
Qualified businesses as defined by the Texas Enterprise Zone Act, Texas Civil 
Statutes, Article 5190.7, may be considered to be a separate customer class of 
electric utilities.] 
   
   Corporation-Any corporation, joint-stock company, or association, domestic or 
foreign, and its lessees, assignees, trustees, receivers, or other successors in 
interest, having any of the powers or privileges of corporations not possessed 
by individuals or partnerships, but shall not include municipal corporations 
unless expressly provided otherwise in the Public Utility Regulatory Act <nl>of 
1995<ol>. 
   
     <nl>Customer access line-A unit of measurement representing a 
telecommunications circuit or, in the case of ISDN, a telecommunications channel 
designated for a particular customer. One customer access line shall be counted 
for each circuit which is capable of generating usage on the line side of the 
switched network or a private line circuit, regardless of the quantity or 
ownership of customer premises equipment connected to each circuit. In the case 
of multiparty lines, each party shall be counted as a separate customer access 
line. 
   
     <nl>Dominant carrier -A provider of any particular communication service 
which is provided in whole or in part over a telephone system who as to such 
service has sufficient market power in a telecommunications market as determined 
by the commission to enable such provider to control prices in a manner adverse 
to the public interest for such service in such market. Any provider of local 
exchange telephone service within a certificated exchange area on September 1, 
1995, as to such service and as to any other service for which a competitive 
alternative is not available in a particular geographic market. Any provider of 
local exchange telephone service within a certificated exchange area as to 
intraLATA long distance message telecommunications service originated by dialing 
the access code 1+ so long as the use of that code for the origination of 1+ 
intraLATA calls within its certificated exchange area is exclusive to that 
provider. This term does not include an interexchange carrier that is not a 
certificated local exchange carrier, with respect to interexchange services. 
   
     <nl>Dominant certificated telecommunications utility (DCTU) -A certificated 
telecommunications utility that is also a dominant carrier. 
   
     <nl>Exchange Area-The geographic territory delineated as an exchange area 
by official commission boundary maps. An exchange area usually embraces a city 
or town and its environs. There is usually a uniform set of charges for 
telecommunications service within the exchange area. An exchange area may be 
served by more than one central office. An exchange area may also be referred to 
as an exchange<ol>. 
   
   Extended area service (EAS)-A telephone switching and trunking arrangement 
which provides for optional calling service by <nl>dominant certificated 
telecommunications utilities <ol> [local exchange carriers] within a local 
access and transport area (LATA) and between two contiguous exchanges or between 
an exchange and a contiguous metropolitan exchange local calling area. For 
purposes of this definition, a metropolitan exchange local calling area shall 
include all exchanges having local or mandatory EAS calling throughout all 
portions of any of the following exchanges: Austin metropolitan exchange, Corpus 
Christi metropolitan exchange, Dallas metropolitan exchange, Fort Worth 
metropolitan exchange, Houston metropolitan exchange, San Antonio metropolitan 
exchange, or Waco metropolitan exchange. EAS is provided at rate increments in 
addition to local exchange rates, rather than at toll message charges. 
[Exceptions to EAS, as defined here, are permitted as noted in sec.23.49(i) of 
this title (relating to Telephone Extended Area Service)]. 
   
   Hearing-Any proceeding <nl>at which evidence is taken on the merits of the 
matters at issue, not including prehearing conferences <ol> [based on an 
application, petition, complaint, or motion]. 
   
     <nl>Line-A circuit or channel extending from a central office to the 
customer's location to provide telecommunications service. One line may serve 
one customer, or all customers served by a multiparty line<ol>. 
   
     <nl>Local calling area-The area within which telecommunications service is 
furnished to customers under a specific schedule of exchange rates. A local 
calling area may include more than one exchange area. 
   
     <nl>Local exchange company-A telecommunications utility that has been 
granted either a certificate of convenience and necessity or a certificate of 
operating authority to provide local exchange telephone service, basic local 
telecommunications service, or switched access service within the state. A local 
exchange company is also referred to as a local exchange carrier. 
   
     <nl>Local exchange telephone service-Telecommunications service provided 
within an exchange to establish connections between customer premises within the 
exchange, including connections between a customer premises and a long distance 
provider serving the exchange. The term includes tone dialing, service 
connection charges, and directory assistance services when offered in connection 
with basic local telecommunications service and interconnection with other 
service providers. Local exchange telephone service may also be referred to as 
local exchange service. However, a competitive exchange service is not local 
exchange telephone service. This fact, and the definition of competitive 
exchange service, shall be liberally construed to encourage a competitive 
marketplace. 
   
     <nl>Local message-A completed call between customer access lines located 
within the same local calling area. 
   
     <nl>Local service charge-The charge for furnishing facilities to enable a 
customer to send or receive telecommunications within the local calling area. 
This local calling area may include more than one exchange area. 
   
  <nl>   Message-A completed customer telephone call. 
   
   Order-The whole or part of the final disposition, whether affirmative, 
negative, injunctive, or declaratory in form, of the commission in a matter 
other than rulemaking but including issuance of "certificates of convenience and 
necessity, <nl>certificates of operating authority, service provider 
certificates of operating authority,<ol>[" ]and rate setting. 
   
     <nl>Private line-A transmission path that is dedicated to a customer and 
that is not connected to a switching facility of a telecommunications utility, 
except that a dedicated transmission path between switching facilities of 
interexchange carriers shall be considered a private line<ol>. 
   
   Public Utility -The definition of public utility is that definition given in 
the Public Utility Regulatory Act <nl>of 1995, sec.2. 0011(1) and 
sec.3.002(9)<ol>[, Article I, sec.3(c)]. A Recreational Vehicle Park Owner who 
intends to recover any shortfall of revenues collected from the recreational 
vehicle occupants if legislative amendments are made to Texas Civil Statutes, 
Article 1446d-2, that would allow the recovery of such shortfall will still not 
be considered a public utility if such owner otherwise complies with Article 
1446d-2 and keeps a record of such shortfall. 
   
   Rate-Includes every compensation, tariff, charge, fare, fee, deposit, toll, 
rental, and classification, or any of them demanded, observed, charged, or 
collected whether directly or indirectly by any public utility for any service, 
product, or commodity <nl>described in the definition of utility <ol> [defined] 
in the Public Utility Regulatory Act <nl>of 1995, sec.2.0011 or sec.3.002<ol>[, 
Article I, sec.3(c)] and any rules, regulations, practices, or contracts 
affecting any such compensation, tariff, charge, fare, fee, deposit, toll, 
rental, or classification. Register -The Texas Register established by the 64th 
Legislature, 1975, cited in Texas <nl>Government Code, Title 10, Chapter 
2002.<ol> [Civil Statutes, Article 6252-13a]. 
   
   Separation-For  <nl>telecommunications<ol> [communications] utilities only, 
the division of plant, revenues, expenses, taxes, and reserves applicable to 
<nl>local<ol> exchange <nl>telephone<ol> [or local] service where such items are 
used in common for providing [public utility service to] both local exchange 
<nl>telephone<ol> service and other <nl>services <ol> [service], such as 
interstate or intrastate toll service. 
   
     <nl>Station-A telephone instrument or other terminal device. 
   
     <nl>Telecommunications utility -A dominant carrier or a nondominant 
carrier. A telecommunications utility may also be referred to as a telephone 
utility <ol>. 
   
   Test year-The most recent 12 months for which operating data for a public 
utility are available, and shall commence with a calendar quarter <nl>or a 
fiscal year quarter<ol>. 
 
   
  sec.23.6. Spanish Language Requirements. 
 
  (a) Application. This section applies to each utility that serves an 
applicable county as defined in subsection (b)(3) of this section and is either 
a <nl>dominant certificated telecommunications utility (DCTU) <ol> [local 
exchange carrier(LEC) ], as the term is defined by sec.<nl>23.3 <ol> [sec.23.61] 
of this title (relating to <nl>Definitions <ol> [Telephone Utilities]), or a 
retail electric utility subject to the original jurisdiction of the commission 
over rates. 
   
  (b)-(d) (No change.) 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on September 29, 1995. 
 TRD-9512462 
  Paula Mueller 
 Secretary of the Commission 
 Public Utility Commission of Texas 
    Earliest possible date of adoption: November 6, 1995 
 For further information, please call: (512) 458-0100 
         
             
  Records and Reports 
 
  16 TAC sec.sec.23.11-23.13, 23.17 
 
  The amendments are proposed under the Public Utility Regulatory Act of 1995, 
74th Legislature, Regular Session 1995, which provides the Public Utility 
Commission with the authority to make and enforce rules reasonably required in 
the exercise of its powers and jurisdiction, including rules of practice and 
procedure. 
 Cross Index to Statutes: Public Utility Regulatory Act of 1995, 74th 
Legislature, Regular Session 1995. 
 
 
  sec.23.11. General Reports. 
 
  (a) Who shall file. The recordkeeping, reporting, and filing requirements 
listed in this section shall apply to all public utilities operating in the 
State of Texas, excluding municipally owned utilities, unless otherwise 
specified. <nl>In this section, the term utility, insofar as it relates to 
telecommunications utilities, shall refer to dominant carriers<ol>. 
   
  (b)-(c) (No change.) 
   
  (d) Due dates of reports. All periodic reports must be received by the 
commission on or before the following due dates unless otherwise specified in 
this section. 
 
  (1)-(7) (No change.) 
   
  (8) Reports required by subsection (j) of this section [for filings made 
during calendar year 1994 the reports shall be due on December 31, 1994, and for 
subsequent years the reports] shall be due at the same time that filings are 
made with the respective governmental agency. 
   
  <nl>(9) Periodic Certificate of Operating Authority report: Due as set forth 
in the commission order granting the certificate. 
     
  (e) (No change.) 
   
  (f) Relationships with affiliates. Copies of contracts or arrangements between 
any [public] utility and any affiliated interest shall be filed with the 
commission on request. If such contract or arrangement is not in writing, it 
shall be reduced to writing. The requirements of this subsection are not 
satisfied by the filing of an earnings report. The following information shall 
be reported annually: 
 
  (1)-(2)  (No change.) 
     
  (g)-(p) (No change.) 
 
     
  sec.23.12. Financial Records and Reports. 
 
  (a) Uniform System of Accounts. <nl>In this section the term utility, insofar 
as it relates to telecommunications utilities, shall refer to dominant 
carriers<ol> Every [public] utility shall keep uniform accounts as prescribed by 
the commission of all business transacted. The classification of utilities, 
index of accounts, definitions, and general instructions pertaining to each 
uniform system of accounts as amended from time to time shall be adhered to at 
all times, unless provided otherwise by these rules, or specifically permitted 
by the commission. 
 
  (1) (No change.) 
   
  (2) System of accounts. For the purpose of accounting and reporting to the 
commission, each public utility shall maintain its books and records in 
accordance with the following prescribed uniform system of accounts: 
 
  (A)-(B) (No change.) 
   
  (C) Other system of accounts. When a utility has adopted a uniform system of 
accounts as may be required by a state or federal agency other than those 
previously mentioned in this section (e.g. United States Department of 
Agriculture-Rural  <nl>Utilities Service<ol> [Electrification Administration]), 
that system of accounts may be adopted by the utility after notification to the 
commission. 
   
  (D) (No change.) 
     
  (3)-(4) (No change.) 
     
  (b) Financial and operating reports. The following financial and operating 
reports shall be filed with the commission. 
 
  (1) Annual reports. 
 
  (A) Telephone utilities: Each Class A and B telephone utility shall file with 
the commission the same annual report as is required of such utility by the 
Federal Communications Commission or United States Department of Agriculture-
Rural  <nl>Utilities Service<ol> [Electrification Administration]. Such annual 
reports shall be filed on the same dates as required to be filed by the Federal 
Communications Commission or the United States Department of Agriculture- Rural 
<nl>Utilities Service<ol> [Electrification Administration], whichever is 
applicable. 
   
  (B) Electric utilities. 
 
  (i)  Each major electric utility shall file with the commission the same 
annual report required by the Federal Energy Regulatory Commission or United 
States Department of Agriculture - Rural <nl>Utilities Service <ol> 
[Electrification Administration]. Such annual reports shall be filed with the 
commission on the same dates as required to be filed by the Federal Energy 
Regulatory Commission or United States Department of Agriculture - Rural 
<nl>Utilities Service<ol> [Electrification Administration], whichever is 
applicable. Major electric utilities which are not required to file such reports 
shall file with the commission an annual report on the form prescribed by the 
Federal Energy Regulatory Commission. 
   
  (ii) Each nonmajor electric utility shall file with the commission the same 
annual report as is required of such utility by the Federal Energy Regulatory 
Commission or United States Department of Agriculture-Rural <nl>Utilities 
Service<ol> [Electrification Administration]. Such annual reports shall be filed 
with the commission on the same dates as required to be filed by the Federal 
Energy Regulatory Commission or United States Department of Agriculture Rural 
<nl>Utilities Service <ol> [Electrification Administration], whichever is 
applicable. 
     
  (C) (No change.) 
     
  (2) Annual earnings report. Each utility shall file with the commission an 
earnings report providing the information required by the commission to enable 
it to properly monitor telephone and electric utilities within the state. 
 
  (A)-(B) (No change. ) 
   
  (C) On the due date of the annual earnings report, each utility with a rate 
proceeding pending before the commission, pursuant to <nl>sec.sec.2. 211, 2.212, 
3.210 or 3.211<ol> [ s42 or sec.43] of the Public Utility Regulatory Act <nl>of 
1995<ol> in which a rate filing package is required, may submit an abbreviated 
earnings report. Specifications for the abbreviated filing will be included in 
the General Filing Instructions for the annual earnings report. 
     
  (3)-(4) (No change.) 
     
  (c)-(e) (No change.) 
 
     
  sec.23.13. Statistical Reports. 
 
  (a) Capital needs and acquisition plan. A capital needs and acquisition plan, 
based upon operations and construction plans, shall be filed annually by all 
Class A telephone  <nl>utilities<ol>, and  <nl>major<ol> [Class A and B] 
electric utilities <nl>as described in  s23.12(a) of this chapter, relating to 
financial reports and records<ol>. The plan shall be accompanied by an 
appropriate written description. 
   
  (b)-(c) (No change.) 
   
  (d) Telephone utilities. Each <nl>dominant certificated<ol> [telephone] 
utility shall submit annually  <nl>an access line report as part of its annual 
earnings report<ol> [a station data report on a form prescribed by the 
commission]. 
   
  (e) (No change.) 
 
     
  sec.23.17. Administration of IntraLATA Compensation and Interexchange Carrier 
Access Charge Revenues. 
 
  (a) Purpose. The provisions of this section are intended to ensure that the 
revenues from Intrastate IntraLATA Message Toll Services (MTS), Wide Area 
Telecommunications Services (WATS), Private Line Services, and from the 
imposition of access charges for the origination or termination of these 
services when provided between <nl>dominant certificated telecommunications 
utilities (DCTUs)<ol> [local exchange carriers] are distributed in a fair and 
reasonable manner; and that revenues from Intrastate Interexchange Carrier 
Access Charges (ICAC) are distributed in accordance with commission orders. 
   
  (b) Exchange carrier association. An association shall be established by the 
<nl>DCTUs<ol> [local exchange carriers] of Texas in order to develop 
administrative procedures for the purpose set out in subsection (a) of this 
section. These procedures shall include procedures for the distribution of 
revenues from the ICAC and from Intrastate IntraLATA MTS, WATS, Private Line 
Services, and from the imposition of access charges for the origination or 
termination of these services when provided between <nl>DCTUs<ol> [local 
exchange carriers]. 
   
  (c) Procedures for the distribution of revenues. 
 
  (1)  Procedures developed by the association may allow for the pooling of 
those revenues described in subsection (a) of this section. 
   
  (2) Procedures developed by the association may allow <nl>DCTUs<ol> [local 
exchange carriers] to withdraw or remain as participants in the pooling of those 
revenues described in subsection (a) of this section. 
   
  (3) Procedures developed by the association may provide for the imposition of 
access charges for the origination or termination of the services described in 
subsection (a) of this section when provided between <nl>DCTUs<ol> [local 
exchange carriers]. Any such access charges shall be imposed at the same rates 
and under the same terms and conditions as access services are provided to 
interexchange carriers in Texas. 
   
  (4) Procedures developed by the association may provide for transition 
payments to be made by <nl>DCTUs <ol> [local exchange carriers]. 
     
  (d) Initial filing of procedures. On <nl>January 9, 1992<ol> [the effective 
date of this section], the association shall file with the commission all 
administrative procedures developed for the purpose set out in subsection (a) of 
this section, including all procedures that are used to determine the 
distribution of those revenues described in subsection (a) of this section. 
Within 30 days of filing, a commissioner or any party that demonstrates a 
justiciable interest may request that the procedures be docketed, and upon such 
request the procedures shall be docketed. If the initial procedures are docketed 
within 30 days of filing, those initial procedures will remain in effect subject 
to modification or reversal upon interim or final determination of the 
commission or <nl>presiding officer<ol> [examiner]. If the initial procedures 
are not docketed within 30 days of filing, those initial procedures will remain 
in effect unless changed pursuant to subsection (e) or (g) of this section. 
   
  (e) Changes to the procedures. 
 
  (1) (No change.) 
   
  (2) For changes to the procedures that affect the distribution of those 
revenues described in subsection (a) of this section, the association must also 
file an application for approval of such changes within 30 days of their 
implementation. [Such changes are subject to a final determination of the 
commission or the examiner. The commission or the examiner may in the final 
determination reverse or modify all or some of the changes.] The commission 
shall process all applications for approval of changes using the criteria and 
procedures set out in subparagraphs (A)-(C) of this paragraph. 
 
  (A) (No change.) 
   
  (B)  Each application shall: 
 
  (i)-(ii) (No change.) 
   
  (iii)  identify the annual revenue impact on each <nl>DCTU<ol> [local exchange 
carrier] affected by the changes; and[,] 
   
  (iv) state whether the annual revenue impact identified in clause (iii) of 
this subparagraph will require any <nl>DCTU<ol> [local exchange carrier] to 
request a rate increase under <nl>the Public Utility Regulatory Act of 1995, 
sec.3.211<ol> [Texas Civil Statutes, Article 1446c, sec.43], within one year of 
the filing of the application. 
     
  (C) Each application shall be assigned a [project] control number[, assigned 
to an examiner,] and reviewed <nl>pursuant to the following procedures <ol> 
[administratively]. 
 
  (i)  (No change.) 
   
  (ii) Within 90 days of filing, <nl>based on the comments filed under clause 
(i) of this subparagraph <ol> [after administrative review], the presiding<nl> 
officer <ol> [examiner] shall approve, approve with modification,  <nl>or<ol> 
deny, or [docket] <nl> set<ol> the application <nl>for hearing<ol>. The 
<nl>presiding officer<ol> [examiner] may postpone a decision on the application 
beyond the 90th day after filing if he or she finds that additional information 
is needed [to determine whether good cause exists]. 
   
  (iii) If the presiding <nl>officer<ol> [examiner] approves, approves with 
modification, or denies the application, any party that has participated in the 
review process may request, within 10 days of the <nl>presiding officer's<ol> 
[examiner's] ruling, that the application be <nl>set for hearing<ol> [docketed] 
and upon such request, the application  <nl>shall<ol> [may] be <nl>set for 
hearing<ol> [docketed]. 
   
  (iv) If <nl>no request for hearing has been filed within ten days, <ol> the 
presiding <nl>officer's <ol> [examiner has approved, approved with modification, 
or denied the application and the application has not been docketed pursuant to 
this subparagraph, a copy of the examiner's] ruling <nl>becomes final<ol> [shall 
be provided to the commission. The commission may, within 40 days of the 
examiner's ruling, overrule the approval or denial and order that the 
application be docketed]. 
       
  (3) (No change. ) 
     
  (f) Association records. The association shall maintain accurate historical 
and current records necessary to determine the appropriate management and 
distribution of those revenues described in subsection (a) of the section. The 
association shall make available to the Public Utility Commission of Texas and 
to the Office of Public Utility Counsel all books, records, studies, electronic 
databases, or other information upon request. The association shall file semi-
annual reports with the commission and with the Office of Public Utility Counsel 
concerning the distribution of revenues under this rule and shall file annual 
audited reports on the association's management and distribution of revenues. 
[After reviewing one full year of such filings, the general counsel shall 
recommend to the commission appropriate changes to the filing procedures for the 
semi-annual reports and annual audit.] Any claims of confidentiality that 
accompany information provided to the Public Utility Commission of Texas or to 
the Office of Public Utility Counsel will be subject to the provisions of Texas 
<nl>Government Code, Chapter 552 (the Open Records Act)<ol> [Civil Statutes, 
Article 6252-17a] . 
   
  (g) Formal inquiry. Upon its own motion, upon the motion of the <nl>commission 
staff<ol> [general counsel], or upon petition of any person that demonstrates a 
justiciable interest, the commission may initiate a formal inquiry into any 
matter pertaining to this section. 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on September 29, 1995. 
 TRD-9512463 
  Paula Mueller 
 Secretary of the Commission 
 Public Utility Commission of Texas 
    Earliest possible date of adoption: November 6, 1995 
 For further information, please call: (512) 458-0100 
         
             
  Certification 
 
  16 TAC sec.23.31, sec.23.33 
 
  The amendments are proposed under the Public Utility Regulatory Act of 1995, 
74th Legislature, Regular Session 1995, which provides the Public Utility 
Commission with the authority to make and enforce rules reasonably required in 
the exercise of its powers and jurisdiction, including rules of practice and 
procedure. 
 Cross Index to Statutes: Public Utility Regulatory Act of 1995, 74th 
Legislature, Regular Session 1995. 
 
 
  sec.23.31. Certification Criteria. 
 
  (a) (No change.) 
   
  (b)  Certificates <nl>of convenience and necessity<ol> for existing service 
areas and facilities. For purposes of granting <nl>these<ol> certificates [of 
convenience and necessity] for those facilities and areas in which a utility was 
providing service on September 1, 1975, or was actively engaged in the 
construction, installation, extension, improvement of, or addition to any 
facility actually used or to be used in providing public utility service on 
September 1, 1975, unless found by the commission to be otherwise, the following 
provisions shall prevail for certification purposes: 
 
  (1)-(3)  (No change.) 
     
  (c) Certificates <nl>of convenience and necessity<ol> for new service areas 
and facilities. Except for certificates granted under subsection (b) of this 
section, the commission may grant applications and issue <nl>these<ol> 
certificates only after finding that the certificate is necessary for the 
service, accommodation, convenience, or safety of the public. For an electric 
utility generating unit, the commission may grant an application only when it 
finds that purchased power, conservation, and alternative capacity and 
associated energy sources available at a lower or equal cost to the ratepayers, 
together with capacity from qualifying facilities with which contracts have been 
executed, cannot be reasonably expected to be available in sufficient quantity 
and for sufficient duration to allow the utility to modify its capacity 
expansion plan so as to provide for deferral or cancellation of the generating 
unit for which certification is requested. The commission may issue the 
certificate as applied for, or refuse to issue it, or issue it for the 
construction of a portion, only of the contemplated system or facility or 
extension thereof, or for the partial exercise only of the right or privilege. 
The commission may amend or revoke any certificate issued under this section 
upon a finding of fact that the public convenience and necessity requires such 
amendment or revocation. The cost of construction of a new electric generating 
unit found reasonable in granting a certificate may be taken into consideration 
in determining the amount of construction work in progress and the plant in 
service associated with that unit to be included in the rate base of the 
utility. In addition, the projected design electrical rating, capacity factor, 
and heat rate associated with the unit shall be taken into consideration in 
determining recoverable fuel expenses associated with the operation of the unit. 
 
  (1)  (No change.) 
   
  (2) A certificate is not required for the following: 
 
  (A) a contiguous extension of those facilities described in <nl>sec.2. 253 or  
s3.251 of<ol> the Public Utility Regulatory Act  <nl>of 1995<ol> [,  s51]; 
   
  (B)-(C) (No change.) 
   
  (D) routine activities associated with transmission facilities that are 
conducted by electric utilities, including wholesale generation and transmission 
utilities, and as specifically noted following: 
 
  (i)-(v) (No change.) 
   
  (vi)  nothing contained in clauses (i)-(v) of this subparagraph should be 
construed as a limitation of the commission's authority as set forth in the 
Public Utility Regulatory Act <nl>of 1995<ol>. Any activity described in clauses 
(i)-(v) of this subparagraph must be reported to the commission not less than 30 
days prior to the commencement of construction, and the commission may require 
additional facts or call a public hearing thereon to determine whether a 
Certificate of Convenience and Necessity is required. Reports shall include a 
general description of and explanation of the reason for the project, estimated 
costs, a map(s) detailing the location, and copies of documents indicating 
landowner(s) consent, as necessary. For projects that require new or additional 
rights-of-way direct mail notice is required to landowners of adjacent property 
within 200 feet of the proposed project, the parks and recreation areas within 
1,000 feet, and airports within 10,000 feet, of the proposed project is also 
required. 
     
  (E)-(H) (No change.) 
     
  (3)-(6) (No change.) 
   
  (7) If an electric utility files an application for the approval of a purchase 
of capacity from a qualifying facility under the Public Utility Regulatory Act, 
<nl>sec.2.209 <ol> [sec.41A], following a solicitation under this subsection, it 
shall explain why it decided to purchase the capacity it did, rather than accept 
one of the other proposals submitted in the solicitation. 
   
  (8) Information concerning proposals made to the utility and its evaluation of 
those proposals shall be made available in any proceeding that is related to 
that capacity need, including a proceeding in which the utility seeks a 
certificate or seeks approval of a purchase of capacity from a qualifying 
facility under the Public Utility Regulatory Act <nl>of 1995, sec.2.209<ol> [, 
s41A]. 
   
  (9) (No change.) 
     
  <nl>(d) Certificates of operating authority. In lieu of applying for a 
certificate of convenience and necessity, a company may apply for a certificate 
of operating authority as provided under the Public Utility Regulatory Act of 
1995, sec.3.2531. In granting such certificates, the commission will consider 
factors such as listed in paragraphs (1)-(3) of this subsection. In an 
application to serve an exchange where an incumbent local exchange company 
serves fewer than 31,000 access lines, the commission shall also consider the 
factors listed in paragraphs (4)-(7) of this subsection. However, the commission 
may not, before September 1, 1998, grant a certificate of operating authority in 
an exchange of an incumbent LEC serving fewer than 31,000 access lines. 
 
  <nl>(1) The technical and financial qualifications of the applicant. 
   
  <nl>(2) The applicant's ability to meet the commission's quality of service 
requirements. 
   
  <nl>(3) The adequacy of the applicant's build out plan pursuant to 
sec.3.2531(c) and (d). 
   
  <nl>(4) The effect of granting the certificate on any public utility already 
serving the area and on the utility's customers. 
   
  <nl>(5) The existing utility's ability to provide adequate service at 
reasonable rates. 
   
  <nl>(6) The impact on the existing utility's ability as the provider of last 
resort. 
   
  <nl>(7) The ability of the exchange, not the company, to support more than one 
provider of service. 
     
  <nl>(e) Service provider certificate of operating authority. Eligible 
companies may apply for a service provider certificate of operating authority as 
provided under the Public Utility Regulatory Act of 1995, sec.3.2532. In 
granting such certificates the commission will consider factors such as the 
technical and financial qualifications of the applicant, the applicant's ability 
to meet the commission's quality of service requirements, and whether the 
services meet the requirements of the Public Utility Regulatory Act of 1995, 
sec.3.2532. 
   
  <nl>(f)<ol>[(d)] Transferability of certificates. Any certificate granted 
under this section is not transferable without approval of the commission and 
shall continue in force until further order of the commission. 
   
  <nl>(g)<ol>[(e)] Exclusiveness of certificate. Any certificate granted under 
this section shall not be construed to vest exclusive service or property rights 
in and to the area certificated. The commission may grant, upon finding that the 
public convenience and necessity requires additional certification to another 
utility or utilities, additional certification to any other utility or utilities 
to all or any part of the area heretofore certificated under this section. 
   
  <nl>(h)<ol>[(f)] Certification forms. The commission shall adopt a form or 
forms which will facilitate the granting of certificates [of convenience and 
necessity] so that the granting of certificates, both contested and uncontested, 
will be expedited. <nl>Forms may be obtained from the secretary of the 
commission. 
   
  <nl>(i)<ol>[(g)]  Radio-telephone service provided by a telephone utility. A 
telephone utility subject to the jurisdiction of the commission shall not be 
required to obtain a certificate of convenience and necessity or an amendment 
thereto to provide paging service, mobile telephone service, or rural radio 
service unless a base station or repeater facility is to be located outside the 
area certificated to the utility for wireline telephone service. 
   
  <nl>(j) <ol>[(h)] Notice-of-intent applications for generating plants. A 
utility should file a notice-of-intent (NOI) application upon deciding that it 
should construct a new generating plant. 
 
  (1) Purpose of proceeding. The purpose of an NOI proceeding is to decide the 
appropriateness of a proposed plant, in light of the alternatives, before a 
utility commits or expends substantial resources on the proposed plant. It is 
not the purpose of an NOI proceeding to decide the specific site or site 
facilities, whether conservation and alternative energy sources cannot meet the 
need, or whether the proposed plant is the best and most economical choice of 
technology available, because those issues will be decided in the subsequent 
certification proceeding in the event that the NOI is approved. 
   
  (2)  Commission review. The commission will approve the NOI if it concludes 
that the proposed plant is feasible and reasonable, is compatible with the 
commission's most recent long-term forecast, and should be given further 
consideration in light of the alternatives. Approval of the NOI thus allows the 
utility to apply for certification of the proposed plant, but does not imply 
that the plant is the best alternative available to the utility. 
   
  (3) Standards. The commission will apply the standards in this paragraph in 
reviewing a utility's NOI filing, which must include the information required in 
the commission's application to enable the commission to decide the 
appropriateness of the proposed plant. 
 
  (A) Specificity of plans. The utility's plans and cost estimates must be 
specific enough for the proposed plant to be compared with alternatives, but the 
plans should not be final. In particular, the utility need not propose a 
specific site for a generating plant. 
   
  (B) Need. The utility must demonstrate that the proposed plant is compatible 
with the commission's most recent long-term forecast. Such compatibility may be 
demonstrated by showing that there is a reasonable likelihood that the proposed 
plant will be needed when scheduled to be in service. The demonstration of 
compatibility includes consideration of any data that materially affect the 
commission's most recent long-term forecast. 
     
  (4) Analysis of alternatives. The utility must show that it used a reasonable 
method to evaluate the advantages and disadvantages of the proposed plant and a 
broad range of alternatives to it. 
 
  (A) Scope. At a minimum, the following alternatives must be considered: 
 
  (i)  increasing the capacity or efficiency of existing generation, 
transmission, and distribution facilities; 
   
  (ii) extending the life of existing generating capacity; 
   
  (iii) purchasing all or a portion of an existing or planned generating plant; 
   
  (iv)  constructing a generating plant employing technologies or fuels 
different from those of the proposed plant; and 
   
  (v) demand-side management, including conservation and renewable resources. 
     
  (B)  Method. The utility must show that it used a reasonable method of 
narrowing the range of alternatives and that it adequately considered the 
remaining alternatives to the proposed plant. At a minimum, adequate 
consideration includes an assessment of the following factors for the proposed 
plant and each feasible alternative: 
 
  (i) availability; 
   
  (ii)  cost and benefits -operating and capital costs, cost of related 
facilities, environmental costs and benefits, and any cost and benefits accruing 
to persons other than the utility and its ratepayers (for example, 
environmental, social and health); 
   
  (iii) reliability; 
   
  (iv)  risks; and 
   
  (v) financing requirements-whether the utility can finance the proposed plant 
or an alternative without unduly impairing its financial condition. 
       
  (5) Definitions. The following words and terms, when used in this subsection, 
have the following meanings unless the context clearly indicates otherwise. 
 
  (A) Feasible-(With respect to a proposed plant or alternative) reasonably 
likely to work or be useful in attaining the end desired. 
   
  (B) Proposed plant-One or more generating units, including an additional 
generating unit at an existing generating plant site. 
 
         
  sec.23.33. Telephone Solicitation. 
 
  (a)-(b) (No change.) 
   
  (c) Responsibility of LECs. Each LEC shall inform its customers of the 
provisions of the Business and Commerce Code, Chapter 37, and <nl>sec.3.659 
of<ol> the Public Utility Regulatory Act <nl>of 1995,<ol> [sec.119 (Texas Civil 
Statutes, Article 1446c),] by inserting the notice prescribed by this subsection 
annually in the billing statement mailed to a customer. The notice required by 
this subsection shall be mailed to each customer as a bill insert. For 
residential customers, the notice required by this subsection and the CPNI 
notice required by sec.23.57(e) of this title (relating to Telecommunications 
Privacy) shall be published as a single insert and mailed to the customer in a 
billing statement. Each LEC shall also publish the notice required by this 
subsection in the consumer information pages of its local telephone directory on 
the same page or on a page adjacent to where the CPNI notice required by 
sec.23.57(e) of this title appears. The notice shall read as follows: 
     
  TELEPHONE SOLICITATION 
   
  Texas law provides certain protections for a person who receives a telephone 
solicitation at a residence. 
   
  A telephone solicitor must: 
   
  * identify himself or herself by name; 
   
  * identify the business on whose behalf he or she is calling; 
   
  * identify the purpose of the call; 
   
  * identify the telephone number at which the person, company, or organization 
making the call may be reached. 
   
  A telephone solicitor may not call a residence before 9:00 a.m. or after 9: 00 
p.m. on a weekday or Saturday or before noon or after 9:00 p.m. on Sunday. 
   
  If a telephone solicitor uses an automatic dialing/announcing device, the 
machine must disconnect from your line within 30 seconds after termination of 
the call. 
   
  Exceptions: The requirements above do not apply to telephone solicitations 
made at your request, or solicitations made in connection with an existing debt 
or contract, or calls from a telephone solicitor with whom you have a prior or 
existing business relationship. 
   
  If you use a credit card to purchase a good or service from a telephone 
solicitor other than a public charity (an organization exempt from federal 
income tax under the Internal Revenue Code sec.501(c)(3)), the seller must: 
   
  * offer a full refund for the return of undamaged and unused goods within 
seven days after you receive the goods or service (the seller must process the 
refund within 30 days after you return the merchandise or cancel your order for 
undelivered goods or services); or 
   
  * provide you with a written contract fully describing the goods or services 
being offered, the total price charged, the name, address, and business phone of 
the seller, and any terms and conditions affecting the sale. 
   
  Complaints. The Texas Attorney General investigates complaints relating to a 
violation of this law, which is found at the Business and Commerce Code Chapter 
37. If you have a complaint about a telephone solicitor whom you believe has 
violated this law, contact: 
   
  Consumer Protections Division, Office of the Attorney General of Texas, P. O. 
Box 12548, Austin, Texas 78711, (512) 463-2070. 
   
  Another law, found at <nl>sec.3.659 and sec.3.660 of the Public Utility 
Regulatory Act of 1995 [Texas Civil Statutes Article 1446c,  s119 and sec.120], 
requires a telephone solicitor to make every effort not to call a consumer who 
asks not to be called again. Complaints relating to a violation of this law are 
investigated by the Public Utility Commission of Texas. If you have a complaint 
about repeated solicitation from a telephone solicitor you have asked not to 
call you again, contact: Office of Consumer Affairs, Public Utility Commission 
of Texas, <nl>(insert current commission address) [7800 Shoal Creek Boulevard, 
Suite 276, Austin, Texas 78757], <nl>(insert current commission telephone 
number)<ol> [(512) 458-0223] or <nl>(insert current commission telephone number 
for teletypewriter for the deaf) [, (512) 458-0221] teletypewriter for the deaf. 
Be advised that you may have additional rights under federal law. Please contact 
the Federal Trade Commission or the Federal Communications Commission for 
further information on these additional rights. 
 
  (d) (No change.) 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on September 29, 1995. 
 TRD-9512465 
  Paula Mueller 
 Secretary of the Commission 
 Public Utility Commission of Texas 
    Earliest possible date of adoption: November 6, 1995 
 For further information, please call: (512) 458-0100 
         
             
  Quality of Service 
 
  16 TAC sec.23.61, sec.23.69 
 
  The amendments are proposed under the Public Utility Regulatory Act of 1995, 
74th Legislature, Regular Session 1995, which provides the Public Utility 
Commission with the authority to make and enforce rules reasonably required in 
the exercise of its powers and jurisdiction, including rules of practice and 
procedure. 
 Cross Index to Statutes: Public Utility Regulatory Act of 1995, 74th 
Legislature, Regular Session 1995. 
 
 
  sec.23.61. Telephone Utilities. 
 
  (a) Definitions. The following words and terms, when used in this <nl>section 
[chapter], shall have the following meanings, unless the context clearly 
indicates otherwise: 
 
  (1)-(4) (No change.) 
   
  [(5) Business service-A telecommunications service provided a customer where 
the use is primarily of a business, professional, institutional or otherwise 
occupational nature.] 
   
  <nl>(5)<ol>[(6)] Busy hour -The clock hour each day during which the greatest 
usage occurs. 
   
  <nl>(6) <ol>[(7)] Busy season-That period of the year during which the 
greatest volume of traffic is handled in the office. 
   
  [(8) Central office-A switching unit in a telecommunications system which 
provides service to the general public, having the necessary equipment and 
operating arrangements for terminating and interconnecting customer lines and 
trunks or trunks only. 
   
  [(9) Class of service-A description of telecommunications service furnished a 
customer which denotes such characteristics as nature of use (business or 
resident) or type of rate (flat rate or message rate). Classes of service are 
usually subdivided in "grades," such as individual or multiparty line. 
   
  [(10) Competitive exchange service-Any of the following services, when 
provided on an inter- or intrastate basis within an exchange area: 
 
  [(A) services for [which local exchange carriers have been granted authority 
to enter into customer-specific contracts pursuant to the Act, sec.18(e)(3)(B), 
as those services are described in sec.23.27 of this title (relating to Rate-
Setting Flexibility for Services Subject to Significant Competitive Challenges); 
   
  [(B) services for which a local exchange carrier has been granted authority to 
engage in pricing flexibility pursuant to sec.23.27 of this title; 
   
  [(C) private line services or virtual private line services; 
   
  [(D) resale or sharing of local exchange service, where that resale or sharing 
is allowed by commission approved tariffs; 
   
  [(E) dark fiber services; 
   
  [(F) non-voice data transmission services; 
   
  [(G) dedicated or virtually dedicated access services; 
   
  [(H) any service initially provided within an exchange after October 26, 1992, 
if first provided by an entity other than the local exchange carrier(s) 
certificated to provide service within that exchange; or 
   
  [(I)  any service that the commission determines by final order in a docketed 
proceeding is not local exchange service.] 
     
  <nl>(7)<ol>[(11)] Complex service -The provision of a circuit requiring 
special treatment, special equipment, or special engineering design. This 
includes private lines, WATS, PBX trunks, rotary lines, special assemblies, etc. 
   
  [(12) Customer access line-A unit of measurement representing a 
telecommunications circuit designated for a particular customer. One customer 
access line shall be counted for each circuit which is capable of generating 
usage on the line side of the switched network or a private line circuit, 
regardless of the quantity or ownership of customer premises equipment connected 
to each circuit. In the case of multiparty lines, each party shall be counted as 
a separate customer access line.] 
   
  <nl>(8)<ol>[(13)] Customer trouble report-Any oral or written report from a 
customer or user of telecommunications service received by any 
telecommunications utility relating to a physical defect, difficulty, or 
dissatisfaction with the service provided by the telecommunications utility's 
facilities. A separate report shall be counted for each telephone or PBX 
switchboard position reported in trouble when several items are reported by one 
customer at the same time, unless the group of troubles so reported is clearly 
related to a common cause. 
   
  <nl>(9)<ol>[(14)] dBrn-A unit used to express noise power relative to one Pico 
watt (-90 dBm). 
   
  <nl>(10) <ol>[(15)] dBrnC -Noise power in dBrn, measured with C-message 
weighting. 
   
  <nl>(11)<ol>[(16)] dBrnCO-Noise power in dBrnC referred to or measured at a 
zero transmission level point. 
   
  [(17)  Dominant carrier. 
 
  [(A) A provider of any particular communication service which is provided in 
whole or in part over a telephone system who as to such service has sufficient 
market power in a telecommunications market as determined by the commission to 
enable such provider to control prices in a manner adverse to the public 
interest for such service in such market. 
   
  [(B) Any provider of local exchange telephone service within a certificated 
exchange area as to such service. 
   
  [(C)  This term does not include an interexchange carrier that is not a 
certificated local exchange carrier, with respect to interexchange services. 
     
  [(18) Exchange Area-The geographic territory delineated as an exchange area by 
official commission boundary maps. An exchange area usually embraces a city or 
town and its environs. There is usually a uniform set of charges for 
telecommunications service within the exchange area. An exchange area may be 
served by more than one central office. An exchange area may also be referred to 
as an exchange.] 
   
  <nl>(12)<ol>[(19)] Grade of service-The number of customers a line is 
designated to serve. 
   
  <nl>(13) <ol>[(20)] Impulse Noise-Any momentary occurrence of the noise on a 
channel significantly exceeding the normal noise peaks. It is evaluated by 
counting the number of occurrences that exceed a threshold. This noise degrades 
voice and data transmission. 
   
  <nl>(14) Incumbent local exchange company-A local exchange company that has a 
certificate of convenience and necessity on September 1, 1995. 
   
  <nl>(15)<ol>[(21)] Intercept service -A service arrangement provided by the 
local exchange carrier whereby calls placed to a disconnected or discontinued 
telephone number are intercepted and the calling party is informed by an 
operator or by a recording that the called telephone number has been 
disconnected, or discontinued, or changed to another number, or that calls are 
being received by another telephone, etc. 
   
  <nl>(16) Least Cost Technology -The technology, or mix of technologies, that 
would be chosen in the long run as the most economically efficient choice, 
provided that the choice of least cost technologies is: 
 
  <nl>(A) restricted to technologies that are currently available on the market 
and for which vendor prices can be obtained; 
   
  <nl>(B)  consistent with the level of output necessary to satisfy current 
demand levels for all services using the basic network function in question; and 
   
  <nl>(C) consistent with overall network design and topology requirements. 
     
  [(22) Line-A circuit or channel extending from a central office to the 
customer's location to provide telecommunications service. One line may serve 
one customer, or all customers served by a multiparty line. 
   
  [(23) Local calling area-The area within which telecommunications service is 
furnished to customers under a specific schedule of exchange rates. A local 
calling area may include more than one exchange area. 
   
  [(24) Local exchange company-A telecommunications utility certificated to 
provide local exchange service within the state. A local exchange company is 
also referred to as local exchange carrier. 
   
  [(25) Local exchange service. 
 
  [(A) Telecommunications service provided within an exchange for the purpose of 
establishing connections between customer premises within the exchange, 
including connections between a customer premises and a long distance service 
provider serving the exchange. Local exchange service may also be referred to as 
local exchange telephone service. 
   
  [(B) Notwithstanding subparagraph (A) of this paragraph, a competitive 
exchange service is not local exchange service. 
   
  [(C) The provisions of paragraphs (10) and subparagraph (B) of this paragraph 
shall be liberally construed to encourage a competitive marketplace. 
     
  [(26) Local message-A completed call between customer access lines located 
within the same local calling area.] 
   
  <nl>(17)<ol>[(27)] Local message charge-The charge that applies for a 
completed telephone call that is made when the calling customer access line and 
the customer access line to which the connection is established are both within 
the same local calling area, and a local message charge is applicable. 
   
  [(28) Local service charge-The charge for furnishing facilities to enable a 
customer to send or receive telecommunications within the local calling area. 
This local calling area may include more than one exchange area.] 
   
  <nl>(18)<ol>[(29)] Long distance telecommunications service-That part of the 
total communication service rendered by a telecommunications utility which is 
furnished between customers in different local calling areas in accordance with 
the rates and regulations specified in the utility's tariff. 
   
  [(30) Message-A completed customer telephone call.] 
   
  <nl>(19)<ol>[(31)] Message rate service-A form of local exchange service under 
which all originated local messages are measured and charged for in accordance 
with the utility's tariff. 
   
  <nl>(20)<ol>[(32)] Nondominant carrier- 
 
  (A) An interexchange telecommunications carrier (including a reseller of 
interexchange telecommunications services). 
   
  (B) Any of the following that is not a dominant carrier: 
 
  (i) a specialized communications common carrier; 
   
  (ii) any other reseller of communications; 
   
  (iii)  any other communications carrier who conveys, transmits, or receives 
communications in whole or in part over a telephone system; or 
   
  (iv)  a provider of operator services who is not a subscriber. 
       
  <nl>(21)<ol>[(33)] Out-of-service trouble report-An initial customer trouble 
report in which there is complete interruption of incoming or outgoing local 
exchange service. On multiple line services a failure of one central office line 
or a failure in common equipment affecting all lines is considered out of 
service. If an extension line failure does not result in the complete inability 
to receive or initiate calls, the report is not considered to be out of service. 
   
  <nl>(22) Pricing flexibility-Discounts and other forms of pricing flexibility 
may not be preferential, prejudicial, or discriminatory. Pricing flexibility 
includes: 
 
  <nl>(A) customer specific contracts; 
   
  <nl>(B) volume, term, and discount pricing; 
   
  <nl>(C) zone density pricing; 
   
  <nl>(D) packaging of services; and 
   
  <nl>(E)  other promotional pricing flexibility 
     
  <nl>(23)<ol>[(34)] Primary service -The initial provision of voice grade 
access between the customer's premises and the switched telecommunications 
network. This includes the initial connection to a new customer or the move of 
an existing customer to a new premises, but does not include complex services. 
   
  [(35) Private line-A transmission path that is dedicated to a customer and 
that is not connected to a switching facility of a telecommunications utility, 
except that a dedicated transmission path between switching facilities of 
interexchange carriers shall be considered a private line.] 
   
  <nl>(24)<ol>[(36)] Public telephone service-An individual line customer 
service equipped with a coin collecting or coinless public telephone instrument 
installed for use of the general public in locations where the general public 
has access to these telephones. 
   
  <nl>(25)<ol>[(37)] Regrade-An application for a different grade of service. 
   
  <nl>(26)<ol>[(38)] Repeated trouble report-A customer trouble report regarding 
a specific line or circuit occurring within 30 days or one calendar month of a 
previously cleared trouble report on the same line or circuit. 
   
  [(39)  Station-A telephone instrument or other terminal device. 
   
  [(40) Telecommunications utilities-A dominant carrier or a nondominant 
carrier.] 
   
  <nl>(27) Tier 1 local exchange company. A local exchange company with annual 
regulated operating revenues exceeding $100 million. 
   
  <nl>(28)<ol>[(41)] Trunk-A circuit facility connecting two switching systems. 
   
  <nl>(29)<ol>[(42)] Virtual private line-Circuits or bandwidths, between fixed 
locations, that are available on demand and that can be dynamically allocated. 
     
  (b) (No change.) 
   
  (c) Emergency operation. 
 
  (1) Each <nl>DCTU's<ol> [local exchange carrier's] central office not equipped 
with permanently installed standby generators shall contain as a minimum four 
hours of battery reserve without voltage falling below the level required for 
proper operation of all equipment. It is also essential that all central offices 
have adequate provisions for emergency power. In offices without installed 
emergency power facilities, there shall be a mobile power unit available which 
can be delivered and connected on short notice. 
   
  (2) (No change.) 
     
  (d) Inspections and tests. 
 
  (1)  Each <nl>DCTU<ol> [dominant carrier] shall adopt a program of periodic 
tests, inspections, and preventive maintenance aimed at achieving efficient 
operation of its system and rendition of safe, adequate, and continuous service. 
   
  (2) Each <nl>DCTU<ol> [dominant carrier] shall maintain or have access to test 
facilities enabling it to determine the operating and transmission capabilities 
of all equipment and facilities. The actual transmission performance of the 
network shall be monitored in order to determine if the service objectives in 
this chapter are met. This monitoring function shall include, but not be limited 
to, circuit order tests prior to placing trunks in service, routine periodic 
trunk maintenance tests, tests of actual switched trunk connections, periodic 
noise tests of a sample of customer loops in each exchange, and special 
transmission surveys of the network. 
   
  (3) Each central office serving more than 300 customer access lines shall be 
equipped with a 1,000 626>20 hertz, one milliwatt test signal generator and a 
900 Ohm balanced termination device wired to telephone numbers so that they may 
be accessed for dial test purposes. Each <nl>DCTU<ol> [dominant carrier] shall 
advise the commission of the numbers assigned for these test terminations. 
     
  (e) Service objectives and Surveillance Levels. This section establishes 
service objectives that should be provided by a <nl>DCTU<ol> [dominant carrier], 
as applicable. The rules also include surveillance levels that indicate a need 
for the utility to investigate, take appropriate corrective action, and provide 
a report of such activities to the commission. The objective service levels are 
based on monthly averages, except for dial service and transmission 
requirements, which are based on specific samples. <nl>DCTUs<ol> [Local exchange 
carriers] shall make measurements to determine the level of service quality for 
each item included in these rules. Each <nl>DCTU<ol> [local exchange carrier] 
shall provide the commission with the measurements and summaries thereof for any 
of the items included herein on request of the commission. Records of these 
measurements and summaries shall be retained by the <nl>DCTU<ol> [local exchange 
carrier] as specified by the commission. 
 
  (1) One-Party Line Service and Voice Band Data. 
 
  (A)-(C) (No change.) 
   
  (D) Within 180 days of the effective date of this section, a <nl>DCTU<ol> 
[local exchange carrier] may request a waiver from the requirements of 
subparagraph (C) of this paragraph. Such a waiver request may be granted only if 
the commission determines that all of the following requirements have been met. 
 
  (i) The cost to the <nl>DCTU<ol> [local exchange carrier] of implementing the 
provisions of subparagraph (C) of this paragraph exceeds the public benefit 
thereof. 
   
  (ii) The <nl>DCTU <ol> [local exchange carrier] has submitted a reasonable 
implementation plan stating, on an exchange-by-exchange basis, the date (not 
later than December 31, 2003) by which it will comply with the requirement, for 
each exchange, that all switched voice circuits shall be adequately designed and 
maintained to allow transmission of at least 2,400 bits of data per second when 
connected through an industry standard modem (CCITT V.22bis or equivalent) or a 
facsimile machine. The <nl>DCTU<ol> [local exchange carrier] may also seek to 
show why this clause requirement should not be imposed. The commission shall 
have discretion to waive or modify this clause requirement consistent with the 
terms of clause (i) of this subparagraph. 
   
  (iii) The <nl>DCTU <ol> [local exchange carrier] has submitted proposed tariff 
sheets which provide that: 
 
  (I) upon request by a customer, the <nl>DCTU <ol> [local exchange carrier] 
will upgrade the customer's switched voice circuits to allow transmission of at 
least 2,400 bits of data per second when connected through an industry standard 
modem (CCITT V.22bis or equivalent) or a facsimile machine; 
   
  (II)-(III) (No change.) 
     
  (iv) The <nl>DCTU <ol> [local exchange carrier] has agreed to provide an on-
going customer education program, acceptable to the commission, which assures 
that the <nl>DCTU's<ol> [local exchange carrier's] customers are aware of the 
availability of the service quality upgrade. 
       
  (2) Installation of service. Unless otherwise provided by the commission: 
 
  (A) Ninety-five percent of the <nl>DCTU's <ol> [local exchange carrier's] 
service orders for installing primary service shall be completed within five 
working days, excluding those orders where a later date was specifically 
requested by the customer. Surveillance Level: 85% in any exchange area for a 
period of three consecutive months. 
   
  (B) Ninety percent of the <nl>DCTU's<ol> [local exchange carrier's] service 
orders for regular service installations shall be completed within five working 
days, excluding those orders where a later date was specifically requested by 
the customer. This includes orders for primary and other services, 
installations, moves, or changes, but not complex services. Surveillance Level: 
85% in any exchange area for a period of three consecutive months. 
   
  (C) Each <nl>DCTU<ol> [local exchange carrier] shall establish and maintain 
installation time commitment guidelines for the various complex services 
contained in its tariff. Those guidelines should be available for public review 
and should be applied in a nondiscriminatory manner. 
   
  (D) (No change.) 
   
  (E) If the <nl>DCTU<ol> [local exchange carrier] elects, it may collect data 
on the basis of seven calendar days. In that case, these requirements shall 
pertain to seven calendar days in lieu of five working days. 
   
  (F) The <nl>DCTU<ol> [local exchange carrier] shall provide to the customer a 
due date on which the requested installation or change shall be made. If a 
customer requests that the work be done on a regular working day later than that 
offered by the  <nl>DCTU<ol> [local exchange carrier], then the customer's 
requested date shall be the commitment date. If a premises visit is required, 
the <nl>DCTU<ol> [local exchange carrier] shall establish an appointment period 
with the customer for morning or afternoon, on the due date. Where an 
appointment cannot be kept by the <nl>DCTU<ol> [local exchange carrier], the 
<nl>DCTU <ol> [local exchange carrier] shall attempt to notify the customer by a 
telephone call and schedule a new appointment. If unable to gain access to the 
customer's premises during the scheduled appointment period, the  <nl>DCTU<ol> 
[local exchange carrier] carrier representative shall leave a notice at the 
premises advising the customer how to reschedule the work. 
   
  (G) Ninety percent of the <nl>DCTU's<ol> [local exchange carrier's] 
commitments to customers as to the date of installation of service orders shall 
be met excepting customer-caused delays. Surveillance Level: 88% in any exchange 
area for a period of three consecutive months. 
   
  (H) (No change.) 
   
  (I) A held regrade order is one not filled within 30 days after the customer 
has made application for a different grade of service except where the customer 
requests a later date. In the event of the <nl>DCTU's<ol> [local exchange 
carrier's] inability to so fill such an order, the customer will be advised and 
furnished the date when it will be available. The number of held regrade orders 
shall not exceed 1.0% of the total number of customer access lines served. 
     
  (3)  Operator handled calls. 
 
  (A) <nl>DCTUs<ol> [Dominant carriers] shall maintain adequate personnel to 
provide an average operator answering performance as follows for each exchange 
on a monthly basis: 
 
  (i)-(iii)  (No change.) 
     
  (B) (No change.) 
   
  (C) <nl>DCTUs<ol> [Dominant carriers] may measure answer time on a toll center 
or operating unit basis in lieu of measuring answer time in each exchange unless 
specifically requested by the commission. 
     
  (4) (No change.) 
   
  (5) Local interoffice dial service. 
 
  (A) Each <nl>DCTU<ol> [local exchange carrier] shall provide and maintain 
interoffice trunks on its portion of the local exchange service network so that 
97% of the interoffice local calls excluding calls between central offices in 
the same building are completed without encountering equipment busy conditions 
or equipment failures. For  <nl>DCTUs<ol> [local exchange carriers] testing, 
record-keeping, and reporting purposes,  <nl>DCTUs<ol> [local exchange carriers] 
are not required to separate local dial service results from local interoffice 
dial service results unless specifically requested by the commission. 
   
  (B) (No change.) 
     
  (6) (No change.) 
   
  (7) Customer trouble reports. 
 
  (A) The <nl>DCTU<ol> [local exchange carrier] shall maintain its network 
service in such a manner that the average monthly rate of customer trouble 
reports, excluding customer premises equipment (CPE) reports, per 100 customer 
access lines does not exceed six. Surveillance Level: eight per 100 access lines 
per month per exchange for a period of three consecutive months. 
   
  (B) The <nl>DCTU<ol> [local exchange carrier] shall provide to the customer a 
commitment time by which the trouble will be cleared. If a premises visit is 
required, the <nl>DCTU<ol> [local exchange carrier] shall establish an 
appointment period with the customer for the morning or afternoon. When an 
appointment cannot be kept by the <nl>DCTU <ol> [local exchange carrier], the 
<nl>DCTU<ol> [local exchange carrier] shall attempt to notify the customer by a 
telephone call and schedule a new appointment. If unable to gain access to the 
customer's premises during the scheduled appointment period, the<nl>DCTU<ol> 
[local exchange carrier] representative shall leave a notice at the premises 
advising the customer how to reschedule the work. 
   
  (C)  At least 90% of out-of-service trouble reports on service provided by a 
<nl>DCTU<ol> [local exchange carrier] shall be cleared within eight working 
hours, except where access to the customer's premises is required but not 
available or where interruptions are caused by unavoidable casualties and acts 
of God affecting large groups of customers. Surveillance Level: 85% in any 
exchange area for a period of three consecutive months. 
   
  (D) Each <nl>DCTU<ol> [local exchange carrier] shall establish procedures to 
insure the prompt investigation and correction of trouble reports so that the 
percentage of repeated trouble reports on residence and single line business 
lines does not exceed 22% of the total customer trouble reports on those lines. 
     
  (8) Transmission requirements. 
 
  (A) Requirements. All voice-grade trunk facilities shall conform to accepted 
transmission design factors and shall be maintained to meet the following 
objectives when measured from line terminals of the originating central office 
to the line terminals of the terminating central office. 
 
  (i) Interoffice local exchange service calls. Excluding calls between central 
offices in the same building, 95% of the measurements on the network of a  
<nl>DCTU<ol> [local exchange carrier] should have from two to ten decibels loss 
at 1000 626>20 hertz and no more than 30 decibels above reference noise level 
("C" message weighting). 
   
  (ii) (No change.) 
     
  (B) (No change.) 
   
  (C) PBX, key, and multiline trunk circuits. PBX, key, and multiline trunk 
circuits shall be designed and maintained so that transmission loss at the 
subscriber station does not exceed eight decibels. If the PBX or other 
terminating equipment is customer owned and if transmission loss exceeds eight 
decibels the <nl>DCTU's<ol> [local exchange carrier's] responsibility shall be 
limited to providing a trunk circuit with no more than five decibels loss from 
the central office to the point of connection with customer facilities. 
   
  (D)  (No change.) 
       
  (f) Service observing. Before any business telephone customer utilizes service 
observing equipment to monitor calls originated by or received at the business 
telephones, the customer must agree in writing to inform all employees that 
calls over the business telephones are subject to being monitored. 
   
  (g) Traffic usage studies. In all <nl>DCTU <ol> central offices serving 2,000 
or fewer access lines, traffic usage studies shall be performed at least once 
every three years unless otherwise authorized by the commission. In all 
<nl>DCTU<ol> central offices serving in excess of 2, 000 customer access lines, 
traffic usage studies shall be performed at least annually unless otherwise 
authorized by the commission. Traffic usage studies shall include at least three 
days (within a consecutive five-day period or five days within a consecutive 
seven-day period) and shall include a usage record on at least an hourly basis. 
The usage record shall be in CCS or similar measurement (peg counts are not 
acceptable for this purpose). Record of the most recent study shall be 
maintained and made available on request for commission review. 
   
  (h) Depreciation rates. <nl>DCTUs<ol> [Dominant carriers] shall utilize 
depreciation rates approved by the commission for determination of depreciation 
expense and provision for accumulated depreciation (also referred to as 
depreciation reserve). For the purpose of this rule depreciation rates used 
prior to September 1, 1976 and those in effect on September 1, 1976 shall be 
deemed appropriate for use unless subsequently modified by the commission. 
 
  (1) (No change.) 
   
  (2)  Depreciation rate changes for other dominant carriers. Any <nl>DCTU<ol> 
[dominant carrier], except as covered in paragraph (1) of this subsection, 
requesting a change in depreciation rates must request commission approval and 
include the following in its request: 
 
  (A)-(C) (No change.) 
     
  (3)  (No change.) 
   
  (4) Burden of proof. A <nl>DCTU<ol> [dominant carrier] shall have the burden 
of proof to show that depreciation or amortization expense is reasonable, 
necessary and in the public interest. The  <nl>DCTU<ol> [dominant carrier] shall 
also be required to show that depreciation rate changes were timely requested in 
accordance with prudent management practices. The burden of proof shall not be 
satisfied solely by demonstrating that the depreciation rates or amortization 
periods utilized were approved. If the <nl>DCTU<ol> [carrier] fails to meet this 
burden the commission may deny as a cost of service that depreciation or 
amortization expense. 
   
  (5) Interim booking. Unless ordered otherwise by the commission or any 
<nl>presiding officer <ol> [examiner], a <nl>DCTU <ol> [dominant carrier] may, 
at its option, book depreciation and amortization expense on an interim basis 
based on proposed depreciation rates from the month of filing until interim or 
final action by <nl>a presiding officer<ol> [an examiner or the commission]. 
Such interim booking must be revised using the finally approved depreciation 
rates and records must be maintained showing the interim booking and the 
adjustments, if any, after a final order is entered. 
   
  (6) Special amortization. Where all or a substantial portion of a property 
account or subaccount is retired earlier than anticipated and the reserve for 
that account is less than the amount to be retired less salvage, or in other 
instances when an amortization is appropriate, special amortization may be 
requested. 
 
  (A) If the amortization period is two years or less and the annual amount is 
less than 2.0% of annual revenues, the  <nl>DCTU<ol> [dominant carrier] shall so 
advise the commission. No commission approval is necessary. However the 
commission may review the appropriateness of said amortization during rate 
cases. 
   
  (B) (No change.) 
     
  (7)  New depreciation rates. When a <nl>DCTU <ol> [dominant carrier] 
determines a need to establish a new depreciation rate for a new class of 
property it may adopt a depreciation rate approved by the commission for another 
similar <nl>DCTU<ol> [dominant carrier] for the same property class if the 
estimated lives and salvage are expected to be similar. The <nl>DCTU<ol> 
[dominant carrier] must notify the commission of said action but no commission 
approval is necessary. The commission may review said rate and make changes upon 
appropriate motion or in subsequent rate or depreciation proceedings. 
     
  (i)  Registration of nondominant telecommunications carriers. Each nondominant 
carrier <nl>not holding a certificate of operating authority or service provider 
certificate of operating authority and<ol> not currently registered with the 
commission shall file with the commission the information set forth in 
paragraphs (1)-(7) of this subsection within 30 days of commencing service in 
Texas [or within 30 days of the effective date of this subsection, whichever is 
later].  <nl>Each uncertificated nondominant carrier<ol> [This information] 
shall <nl>keep this information <ol> [be] updated and [kept] current at all 
times. <nl>Each certificated nondominant carrier also shall keep updated and 
current the similar information included in its application for a 
certificate.<ol> By June 30 of each year each nondominant carrier that has not 
filed during the previous 12- months changes to the information filed pursuant 
to this subsection shall file with the commission a letter informing the 
commission that no changes have occurred. <nl>An uncertificated nondominant 
carrier failing to file either the letter or the updates required by this 
subsection during the 12-month period ending June 30 may no longer be considered 
to be registered with the commission. 
 
  (1)-(7) (No change.) 
     
  (j) Information regarding rates and services of nondominant carriers. 
<nl>All<ol> [Each] nondominant <nl>carriers,<ol> [carrier,] including those 
holding a certificate of operating authority or a service provider certificate 
of operating authority, shall file the information set forth in paragraphs (1)-
(3) of this subsection. This information shall be updated and kept current at 
all times. By June 30 of each year, each nondominant carrier that has not filed 
during the previous 12 months changes to the information filed pursuant to this 
subsection shall file with the commission a letter informing the commission that 
no changes have occurred. <nl>An uncertificated nondominant carrier failing to 
file either this letter or the updates required by this subsection during the 
12-month period ending June 30 may no longer be considered to be registered with 
the commission. 
 
  (1)-(3) (No change.) 
     
  [(k) Information regarding competitive exchange services. Each 
telecommunications utility providing competitive exchange service shall file 
with the commission the information set forth in paragraphs (1)-(2) of this 
subsection within 30 days of commencing service in Texas or within 30 days of 
the effective date of this subsection, whichever is later. This filing shall be 
made in addition to the reports required by subsections (i) and (j) of this 
section. Beginning in 1994, the information shall be updated February 1 and 
August 1 of each year. 
 
  [(1) A functional and technical description of each competitive exchange 
service provided, including: 
 
  [(A) the functions that the service is intended to perform for the customer; 
   
  [(B) the types of equipment used to provide the service (including, but not 
limited to, transmission facilities, switching facilities, customer equipment, 
software functions, and protocol); 
   
  [(C) LEC services required to provide the service; and 
   
  [(D) a schematic diagram showing how the service is provided. 
     
  [(2) A description that identifies specifically the geographic area(s) in 
Texas in which the carrier provides competitive exchange service.] 
 
       
  sec.23.69. Integrated Services Digital Network (ISDN). 
 
  (a)  Purpose. The commission finds that Integrated Services Digital Network 
(ISDN) is an alternative to "plain old telephone service." At this time, ISDN is 
not a replacement for "plain old telephone service," but rather ISDN provides 
the public switched telephone network with end-to-end digital connectivity. As 
such, ISDN should be made available to customers at a reasonable price, should 
be as accessible as possible to customers who want ISDN, should meet minimum 
standards of quality and consistency, and should be provided in such a manner 
that permits the <nl>dominant certificated telecommunications utility (DCTU)<ol> 
[LEC] a reasonable opportunity to earn a reasonable return on invested capital. 
The provisions of this section are intended to establish the minimum criteria 
for the provision of ISDN. 
   
  (b)  Application. 
 
  (1) This section applies to <nl>DCTUs<ol> [local exchange companies (LECs) as 
that term is defined by sec.23.61 of this title (relating to Telephone 
Utilities)]. 
   
  (2) All <nl>DCTUs<ol> [LECs] providing ISDN must do so in accordance with the 
requirements of this section. 
   
  (3) (No change.) 
     
  (c) Definitions. The following words and terms when used in this section shall 
have the following meaning unless the context clearly indicates otherwise: 
 
  (1)-(4) (No change.) 
   
  (5) Exchange Area-has the same meaning as defined in sec.<nl>23.3<ol> 
[sec.23.61(a)] of this title (relating to Definitions). 
   
  (6)-(8) (No change.) 
   
  (9)  Line-has the same meaning as defined in  s<nl>23.3<ol> [sec.23.61(a)] of 
this title <nl>(relating to Definitions)<ol>. 
   
  (10)-(12) (No change.) 
     
  (d) Availability of ISDN. 
 
  (1) No later than July 1, 1996, each <nl>DCTU <ol> [LEC] shall make ISDN 
available to all customers in exchange areas having 50,000 or more access lines 
as of the effective date of this section. For purposes of this section, making 
ISDN available means providing ISDN to a customer within 30 days of that 
customer's request. Nothing in this section shall be construed as requiring a 
<nl>DCTU <ol> [LEC] to provide ISDN to any customer prior to that customer's 
request for ISDN. The requirements of this paragraph shall not be met by making 
ISDN available to the customers of these exchange areas using a foreign exchange 
(FX) arrangement. 
   
  (2) No later than July 1, 1996, each <nl>DCTU <ol> [LEC] subject to the 
requirements of paragraph (1) of this subsection shall make ISDN available to 
all customers in exchange areas having less than 50,000 access lines as of 
<nl>February 22, 1995 <ol> [the effective date of this section]. The 
requirements of this paragraph may be met by making ISDN available to the 
customers of these exchange areas using a foreign exchange (FX) arrangement, if 
that is the most economically efficient means for the <nl>DCTU<ol> [LEC] to make 
ISDN available. 
   
  (3) It is the goal of the commission that ISDN should be made available to 
customers in all exchange areas not included in paragraphs (1) and (2) of this 
subsection. To this end, all telecommunications providers are encouraged to work 
together to make ISDN available to the customers of the <nl>DCTUs <ol> [LECs] 
that do not have the facilities with which to make ISDN available to their 
customers. In the exchange areas not included in paragraph (1) of this section, 
the commission recognizes that ISDN may be made available using a foreign 
exchange (FX) arrangement, if that is the most economically efficient means for 
the <nl>DCTU<ol> [LEC] to make ISDN available. 
   
  (4) No later than July 1, 1996, each LEC subject to paragraphs (1) and (2) of 
this subsection shall prepare a plan describing in detail the <nl>DCTU's<ol> 
[LEC's] proposal for its good faith effort toward making ISDN available without 
FSO and FX arrangements to all of the <nl>DCTU's <ol> [LEC's] customers no later 
than January 1, 2000, and/or the <nl>DCTU's <ol> [LEC's] proposal for its good 
faith effort toward making available end-to-end digital connectivity that is 
equal to or superior to ISDN as offered pursuant to this section and that is 
compatible with such ISDN. 
   
  (5) No later than January 1, 1997, each <nl>DCTU <ol> [LEC] not subject to 
paragraphs (1) and (2) of this subsection shall prepare a plan describing in 
detail the <nl>DCTU's<ol> [LEC's] proposal for its good faith effort toward 
making ISDN available to all of the <nl>DCTU's<ol> [LEC's] customers no later 
than January 1, 2000, and/or the <nl>DCTU's<ol> [LEC's] proposal for its good 
faith effort toward making available end-to- end digital connectivity that is 
equal to or superior to ISDN as offered pursuant to this section and that is 
compatible with such ISDN. 
   
  (6) The plans required by paragraphs (4) and (5) of this subsection shall 
include, but not be limited to, information as to the number and percentage of 
access lines in the <nl>DCTU's <ol> [LEC's] service area for which ISDN would be 
available; the total number of customers that would be served via FX and FSO 
arrangements; a specific timetable for the upgrading of each exchange; and the 
proposed steps and methods of each upgrade. 
     
  (e)  ISDN Standards and Services. 
 
  (1) ISDN standards. 
 
  (A) At a minimum, all ISDN shall comply with National ISDN-1 and National 
ISDN-2 Standards as promulgated by Bellcore as of <nl>February 22, 1995 <ol> 
[the effective date of this section]. 
   
  (B) (No change.) 
     
  (2) ISDN services. At a minimum, the <nl>DCTU <ol> [LEC] shall make available 
the ISDN services listed in the National ISDN-1 and National ISDN-2 Standards 
promulgated by Bellcore as of <nl>February 22, 1995<ol> [the effective date of 
this section]. 
   
  (3) Existing customers. Existing customers as of the effective date of this 
section may continue to receive ISDN irrespective of whether that ISDN complies 
with this subsection. Those customers may continue to receive such ISDN and 
shall be required to receive ISDN under the requirements of this subsection only 
if there is at least a 30 day customer-caused cessation of the ISDN service 
provided by the <nl>DCTU<ol> [LEC]. 
   
  (4) Waiver provision. A <nl>DCTU<ol> [LEC] may request, and the presiding 
officer may grant for good cause, modification or waiver of paragraphs (1) 
and/or (2) of this subsection. Such a request may be reviewed administratively. 
Any request for modification or waiver of the requirements of paragraphs (1) 
and/or (2) of this subsection shall include a complete statement of the 
<nl>DCTU's<ol> [LEC's] arguments and factual support for that request. 
     
  (f) Costing and Pricing of ISDN. 
 
  (1)  (No change.) 
   
  (2) Pricing of ISDN. 
 
  (A) (No change.) 
   
  (B) Foreign serving office (FSO) rate. Where the  <nl>DCTU<ol> [LEC] makes 
ISDN available by designating a foreign serving office (FSO) arrangement, the  
<nl>DCTU<ol> [LEC] shall not charge an FSO rate. 
   
  (C) Foreign exchange (FX) rate. 
 
  (i) Except as provided in clause (ii) of this subparagraph, where the  
<nl>DCTU<ol> [LEC] is allowed to make ISDN available by designating a foreign 
exchange (FX) arrangement, the <nl>DCTU<ol> [LEC] may charge an FX rate. A new 
FX rate shall be developed specifically for ISDN and this rate shall not be 
usage based. If the FX rate is priced at not less than 100% of LRIC and at not 
more than 105% of LRIC, there shall be a rebuttable presumption that the amount 
of joint and/or common costs recovered is appropriate. 
   
  (ii) Where the  <nl>DCTU<ol> [LEC] can make ISDN available to a customer by 
designating an FSO arrangement, the <nl>DCTU<ol> [LEC] shall not charge a 
foreign exchange (FX) rate. 
     
  (D) (No change.) 
   
  (E) Existing customers. Existing customers as of  <nl>February 22, 1995<ol> 
[the effective date of this section] shall be subject to the rates set in 
compliance with this subsection, notwithstanding their choice to continue 
receiving ISDN under subsection (e) of this section. 
     
  (3)  Pricing of ISDN for Small LECs. After a Class A <nl>DCTU<ol> [LEC] is in 
compliance with this section, a Small Local Exchange Carrier (SLEC) as defined 
in sec.23.94 of this title (relating to Small Local Exchange Carrier 
Flexibility) may price ISDN services at plus or minus 25% of the rates approved 
by the commission for that Class A <nl>DCTU <ol> [local exchange carrier] 
providing the service within the State of Texas or at the rates for ISDN 
services approved by the commission for a similar SLEC. For the purpose of this 
section a similar SLEC is defined as a SLEC having a total number of access 
lines within 5,000 access lines of the applying SLEC. 
     
  (g)  Requirements for notice and contents of application in compliance with 
this section. 
 
  (1) Notice of application. The presiding officer may require notice to the 
public as required by Subchapter D of the commission's Procedural Rules and 
shall require direct notice to all existing ISDN customers. Unless otherwise 
required by the presiding officer or by law, the notice shall include at a 
minimum a description of the service, the proposed rates and other terms of the 
service, the types of customers likely to be affected if the application is 
approved, the probable effect on the <nl>DCTU's<ol> [LEC's] revenues if the 
application is approved, the proposed effective date for the application, and 
the following language: "Persons who wish to comment on this application should 
notify the commission by (specified date, ten days before the proposed effective 
date). Requests for further information should be mailed to the Public Utility 
Commission of Texas, <nl>(insert current commission address)<ol> [7800 Shoal 
Creek Boulevard, Austin, Texas 78757], or you may call the Public Utility 
Commission Public Information Office at <nl>(insert current commission telephone 
number)<ol> [(512) 458-0256] or <nl>(insert current commission telephone number 
<ol> [(512) 458- 0221] for text telephone) <nl>for text telephone<ol>." 
   
  (2)  Contents of application for each <nl>DCTU <ol> [LEC] not electing the 
SLEC pricing provisions of subsection (f)(3) of this section. A <nl>DCTU <ol> 
[LEC] that makes ISDN available shall file with the commission an application 
complying with the requirements of this section. In addition to copies required 
by other commission rules, one copy of the application shall be delivered to the 
<nl>Regulatory<ol> [Telephone] Division and one copy shall be delivered to the 
Office of Public Utility Counsel. The application shall contain the following: 
 
  (A) (No change.) 
   
  (B) a statement by the <nl>DCTU<ol> [LEC] describing how it intends to comply 
with this section, including how it intends to comply with subsections (d), (e) 
and (f) of this section as required by subsection (h) of this section; 
   
  (C) (No change.) 
   
  (D) a statement by the <nl>DCTU<ol> [LEC] of whether the application contains 
a rate change; 
   
  (E) (No change.) 
   
  (F) a statement detailing the method and content of the notice, if any, the 
utility has provided or intends to provide to the public regarding the 
application and a brief statement explaining why the <nl>DCTU's<ol> [LEC's] 
notice proposal is reasonable and that the <nl>DCTU's <ol> [LEC's] notice 
proposal complies with applicable law; 
   
  (G)-(J) (No change.) 
   
  (K) a statement specifying the exchanges in which the <nl>DCTU<ol> [LEC] 
proposes to offer ISDN, the exchanges in which the <nl>DCTU <ol> [LEC] proposes 
to offer ISDN using an FSO arrangement, the exchanges in which the <nl>DCTU<ol> 
[LEC] proposes to offer ISDN using an FX arrangement, and the exchanges in which 
the <nl>DCTU<ol> [LEC] does not propose to offer ISDN; and 
   
  (L) any other information which the <nl>DCTU <ol> [LEC] wants considered in 
connection with the commission's review of its application. 
     
  (3) Contents of application for a SLEC. A SLEC that makes ISDN available and 
elects to price ISDN services under subsection (f)(3) of this section shall file 
with the commission an application complying with the requirements of this 
section. In addition to copies required by other commission rules, one copy of 
the application shall be delivered to the <nl>Regulatory <ol> [Telephone] 
Division and one copy shall be delivered to the Office of Public Utility 
Counsel. The application shall contain the following: 
 
  (A)-(B) (No change.) 
   
  (C) a notarized affidavit from a representative of the SLEC: 
 
  (i)  verifying the number of access lines, including the access lines of 
affiliates of such SLEC providing local exchange <nl>telephone <ol> service 
within the state, the SLEC has in service in the State of Texas; 
   
  (ii) -(iii) (No change.) 
     
  (D)-(E) (No change.) 
       
  (h) Timing of and requirements for each <nl>DCTU's <ol> [LEC's] compliance 
with this section. 
 
  (1) Timing of and requirements for the compliance application. 
 
  (A) Each <nl>DCTU<ol> [LEC] that is required to make ISDN available under 
subsection (d)(1) and (2) of this section shall file with the commission within 
270 days of <nl>February 22, 1995<ol> [the effective date of this section] an 
application (as described in subsection (g) of this section). The effective date 
for the tariffs and compliance under this paragraph shall be no later than July 
1, 1996. Pursuant to subsection (g)(2)(A) and (B) of this section, the 
<nl>DCTU<ol> [LEC] shall show its compliance with the requirements of: 
 
  (i) subsection (d)(1) and (2) of this section; 
   
  (ii) subsections (e)(1)(A) and (B), (2)(A), and (3) of this section or request 
a waiver pursuant to subsection (e)(4) of this section and provide sufficient 
justification for the good cause exception; and 
   
  (iii) subsection (f)(2)(B), (C), and (D) of this section. 
     
  (B)  Each <nl>DCTU<ol> [LEC] having ISDN tariffs in effect as of <nl>February 
22, 1995<ol> [the effective date of this section] and that is not subject to 
subparagraph (A) of this paragraph shall file with the commission <nl>by 
November 20, 1995<ol> [within 270 days of the effective date of this section], 
an application (as described in subsection (g) of this section). The effective 
date for the tariffs and compliance under this paragraph shall be no later than 
July 1, 1996. Pursuant to subsection (g)(2)(A) and (B) of this section, the 
<nl>DCTU <ol> [LEC] shall show its compliance with the requirements of: 
 
  (i) subsections (e)(1)(A) and (B), (2)(A), and (3) of this section or request 
a waiver pursuant to subsection (e)(4) of this section and provide sufficient 
justification for the good cause exception; and 
   
  (ii)  subsection (f)(2)(B), (C), and (D) of this section. 
     
  (C) Rates proposed for services pursuant to paragraph (1)(A)(ii) and (B)(i) of 
this subsection that are not tariffed as of the effective date of this section 
and rates proposed under paragraph (1)(A)(iii) and (B)(ii) of this subsection 
shall comply with the requirements of subsection (f)(1) and (2)(A) and (E) of 
this section. 
   
  (D) Each <nl>DCTU<ol> [LEC] offering ISDN after the effective date of this 
section shall file with the commission an application (as described in 
subsection (g) of this section). Pursuant to subsection (g)(2) (A) and (B) of 
this section the <nl>DCTU<ol> [LEC] shall show its compliance with the 
requirements of: 
 
  (i) subsection (e)(1)(A) and (B) and (2) (A) of this section or request a 
waiver pursuant to subsection (e)(4) of this section and provide sufficient 
justification for the good cause exception; and 
   
  (ii) subsection (f)(1) and (2) of this section for each <nl>DCTU<ol> [LEC] not 
electing the SLEC pricing provisions of subsection (f) (3) of this section or 
subsection (f)(3) of this section for a SLEC. 
     
  <nl>(E) Each incumbent local exchange company electing under Subtitle H of 
Title III of the Public Utility Regulatory Act of 1995, and having ISDN tariffs 
in effect on September 1, 1995, does not have to show compliance with subsection 
(f)(2)(B), (C), and (D) of this section with respect to the rates in such 
tariffs. 
     
  (2) Timing of each <nl>DCTU's<ol> [LEC's] plan. 
 
  (A) Each <nl>DCTU's<ol> [LEC's] plan required by subsection (d)(4) of this 
section shall be filed with the commission no later than July 1, 1996 and each 
<nl>DCTU's<ol> [LEC's] plan required by subsection (d)(5) of this section shall 
be filed with the commission no later than January 1, 1997. 
   
  (B) After the due date of the plan, each <nl>DCTU <ol> [LEC] shall file a 
revised plan with the commission as updates or modifications are made to the 
<nl>DCTU's<ol> [LEC's] plan. 
       
  (i) Commission processing of application. 
 
  (1) Administrative review. An application considered under this section may be 
reviewed administratively unless the <nl>DCTU<ol> [LEC] requests the application 
be docketed or the presiding officer, for good cause, determines at any point 
during the review that the application should be docketed. 
 
  (A) The operation of the proposed rate schedule may be suspended for 35 days 
after the effective date of the application. The effective date shall be no 
earlier than 30 days after the filing date of the application or 30 days after 
public notice is completed, whichever is later. 
   
  (A)-(B) (No change.) 
   
  (C) While the application is being administratively reviewed, the commission 
staff and the staff of the Office of Public Utility Counsel may submit requests 
for information to the <nl>DCTU <ol> [LEC]. Six copies of all answers to such 
requests for information shall be filed with Central Records and one copy shall 
be provided the Office of Public Utility Counsel within 10 days after receipt of 
the request by the <nl>DCTU <ol> [LEC]. 
   
  (D) (No change.) 
   
  (E) No later than 35 days after the effective date of the application, the 
presiding officer shall issue an order approving, denying, or docketing the 
<nl>DCTU's<ol> [LEC's] application. 
     
  (2) Approval or denial of application. The application shall be approved by 
the presiding officer if the proposed ISDN offered by the <nl>DCTU<ol> [LEC] 
complies with each requirement of this section. If, based on the administrative 
review, the presiding officer determines that one or more of the requirements 
not waived have not been met, the presiding officer shall docket the 
application. 
   
  (3)-(4) (No change.) 
   
  (5) Interim rates. For good cause, interim rates may be approved after 
docketing. If the service requires substantial initial investment by customers 
before they may receive the service, interim rates shall be approved only if the 
<nl>DCTU <ol> [LEC] shows, in addition to good cause, that it will notify each 
customer prior to purchasing the service that the customer's investment may be 
at risk due to the interim nature of the service. 
     
  (j)  Commission processing of waivers. Any request for modification or waiver 
of the requirements of this section shall include a complete statement of the 
<nl>DCTU's<ol> [LEC's] arguments and factual support for that request. The 
presiding officer shall rule on the request expeditiously. 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on September 29, 1995. 
 TRD-9512467 
  Paula Mueller 
 Secretary of the Commission 
 Public Utility Commission of Texas 
    Earliest possible date of adoption: November 6, 1995 
 For further information, please call: (512) 458-0100 
         
           
  16 TAC sec.23.91 
 
  The amendment is proposed under the Public Utility Regulatory Act of 1995, 
74th Legislature, Regular Session 1995, which provides the Public Utility 
Commission with the authority to make and enforce rules reasonably required in 
the exercise of its powers and jurisdiction, including rules of practice and 
procedure. 
 Cross Index to Statutes: Public Utility Regulatory Act of 1995, 74th 
Legislature, Regular Session 1995. 
 
 
  sec.23.91. Long Run Incremental Cost Methodology for <nl>Dominant Certificated 
Telecommunications Utility (DCTU) [LEC] Services. 
 
  (a)  Application. This section shall apply to <nl>DCTUs <ol> [local exchange 
carriers (LECs), as that term is defined in sec.23.61 of this title (relating to 
Telephone Utilities),] with annual revenues from regulated telecommunications 
operations in Texas of $100 million or more for five consecutive years. <nl>An 
incumbent local exchange carrier that is not a Tier 1 local exchange company as 
of September 1, 1995, at that company's option, may adopt the cost studies 
approved by the commission for a Tier 1 local exchange company. 
   
  (b) Purpose. This section shall be used to determine the long run incremental 
costs incurred by <nl>DCTUs <ol> [LECs] in the provision of telecommunications 
services. The costs determined in this section shall not be used to determine a 
company's revenue requirement during a proceeding pursuant the Public Utility 
Regulatory Act <nl>of 1995<ol>, <nl>sec.3.210<ol> [sec.42] or sec.<nl>3.211<ol> 
[sec.43]. 
   
  (c)  Definitions. The following words and terms when used in this section 
shall have the following meaning unless the context clearly indicates otherwise. 
 
  (1)-(8) (No change.) 
   
  (9) Cost of money - The weighted annual cost to the <nl>DCTU<ol> [LEC] of the 
debt and equity capital invested in the company. 
   
  (10) Dedicated and Switched Transport - The category of BNFs that provide for 
dedicated or shared transmission transport between two or more <nl>DCTU<ol> 
[LEC] switching offices or wire centers. This BNF category consists of two 
subcategories of BNFs: Dedicated Transport and Switched Transport. 
 
  (A)-(B) (No change.) 
     
  (11)-(17) (No change.) 
   
  (18) Network Access-The category of BNFs that accommodate access to other 
network functions provided by <nl>DCTUs <ol> [LECs]. Access is accomplished by 
transmission paths between customers and LEC wire centers. This category 
consists of three subcategories of BNFs: Network Access Channel; Network Access 
Channel Connection; and Channel Performance and Other Features and Functions. 
 
  (A) Network Access (NA) Channel-The subcategory of BNFs that provide the 
transmission path between the point of interface at the customer location and 
the main distribution frame, or equivalent (e.g., DSX-1, DSX-3), of <nl>a 
DCTU<ol> [an LEC] wire center. 
   
  (B) Network Access (NA) Channel Connection-The subcategory of BNFs that 
provide the interface between the Network Access Channel and the <nl>DCTU<ol> 
[LEC] wire center switching equipment, subsequent dedicated transport equipment 
(dedicated interoffice circuits), or subsequent channel equipment (dedicated 
intraoffice circuits). 
   
  (C) (No change.) 
     
  (19)-(20) (No change.) 
   
  (21) Switching and Switch Functions-The category of BNFs that provide for 
switched access between two or more Network Access Channels or between Network 
Access Channels and other BNFs, such as interoffice transport. This function is 
accomplished through the establishment of a temporary transmission path between 
Network Access Channels in the same switching office; between a Network Access 
Channel and the interoffice facilities that interconnect switching offices; or 
between a Network Access Channel and other BNFs. This BNF category shall cover 
the first point of switching for a customer. This BNF category consists of three 
subcategories of BNFs: Interoffice Switching; Intraoffice Switching; and 
Switching Features. 
 
  (A) Interoffice Switching-The subcategory of BNFs that provide for: switching 
between Network Access Channels and Switched Transport facilities which are 
connected to different wire centers; and switching between Network Access 
Channels and Switched Transport facilities when a tandem switch is used as the 
first point of interface to the <nl>DCTU<ol> [LEC] switched network (e.g., 
connection of facilities from an interexchange carrier's point of network 
interface). 
   
  (B) (No change.) 
     
  (22)-(24) (No change.) 
     
  (d) General principles. 
 
  (1)  Underlying the construction and application of this section is the 
recognition that the <nl>DCTU<ol> [LEC] network consists of a finite number of 
BNFs that, when bundled in various combinations, can be used to deliver and 
market a vast variety of telecommunications services. Therefore, the 
determination of the cost of a service and the costs of a group of services 
under this section shall involve the identification and costing of BNFs. 
   
  (2) The LRIC studies that the <nl>DCTU<ol> [LEC] is required to file under 
this section shall assume that the company is operating in the long run and 
employs least cost technologies, as those terms are defined in subsection (c) of 
this section. 
   
  (3) In order to obtain accurate LRIC study results, the <nl>DCTU<ol> [LEC] 
shall avoid the use of embedded cost data; expense items and capital costs shall 
reflect long run incremental costs and the <nl>DCTU <ol> [LEC] shall justify any 
instance in which embedded cost data are used. Further, the fact that the costs 
determined under this section may differ from the company's embedded costs as 
determined during proceedings under the Public Utility Regulatory Act <nl>of 
1995,<ol>  <nl>sec.3.210<ol> [sec.42] or <nl>sec.3.211 [sec.43], should in no 
way cause the company to attribute any of this cost discrepancy to LRIC studies 
for BNFs, services, or groups of services. 
   
  (4)-(7) (No change.) 
   
  (8) Nothing in this section is intended to either endorse or reject the 
<nl>DCTU's<ol> [LEC's] current rate and tariff structures. 
     
  (e) Identification of Basic Network Functions. The  <nl>DCTU<ol> [LEC] shall 
identify for each subcategory of BNFs the relevant and separately identifiable 
BNFs. The determination of the appropriate degree of aggregation of network 
components, functions, or activities into separately identifiable BNFs shall be 
consistent with the principles described in subsection (d) of this section. 
Furthermore, in choosing BNFs, the <nl>DCTU<ol> [LEC] shall seek to minimize the 
number of network components, functions, or activities that are not included in 
BNFs. In addition to BNFs the company identifies under this subsection, the 
company shall identify for each subcategory of BNFs the following prescribed 
BNFs: 
 
  (1)-(11) (No change.) 
     
  (f) LRIC studies for individual BNFs. The <nl>DCTU <ol> [LEC] shall perform a 
LRIC study for each of the BNFs identified under subsection (e) of this section. 
The company shall perform the LRIC studies consistent with the principles 
described in subsection (d) of this section. Additionally, the company shall use 
the following instructions in determining the LRIC for individual BNFs. 
 
  (1)-(10) (No change.) 
     
  (g) LRIC studies for tariffed services. The <nl>DCTU <ol> [LEC] shall perform 
a LRIC study for each tariffed service, except those services for which a waiver 
has been granted under the workplan approved under subsection (m) of this 
section. Each LRIC study for a tariffed service shall be calculated as the sum 
of the costs caused by that a service's use of BNFs and any other service 
specific costs associated with functions not identified as separate BNFs, such 
as expenses of billing, service specific advertising and marketing, and service 
specific taxes. Each LRIC study for a tariffed service shall be consistent with 
the principles described in subsection (d) of this section. Additionally, the 
company shall use the following instructions in determining the LRIC for 
individual tariffed services: 
 
  (1)-(9) (No change.) 
     
  (h) (No change.) 
   
  (i) LRIC studies for groups of tariffed services that share significant common 
costs. The <nl>DCTU<ol> [LEC] shall perform a LRIC study for each group of 
services identified under subsection (h)(2) of this section. Each group LRIC 
shall be calculated as the sum of the LRICs (as determined under subsection (g) 
of this section) for the services in the group and the common costs for those 
services (as identified under subsection (h)(2) of this section). Each LRIC 
study shall be consistent with the principles described in subsection (d) of 
this section. Additionally, the company shall use the following instructions in 
determining the LRIC for groups of services. 
 
  (1)-(6) (No change.) 
     
  (j) Filing requirements for <nl>DCTU<ol> [LEC] provided workplan. Within 70 
days of the effective date of this section, the <nl>DCTU<ol> [LEC] shall file 
with the commission and the Office of Public Utility Counsel (OPUC) a plan for 
compliance with the provisions of this section. The workplan shall be consistent 
with the principles, instructions and requirements set forth in this section and 
shall be reviewed in accordance with the procedures established in subsection 
(m) of this section. The workplan submitted by the <nl>DCTU<ol> [LEC] shall 
include the following components. 
 
  (1)  Identification of BNFs and cost methodology. The workplan submitted by 
the <nl>DCTU<ol> [LEC] shall discuss the BNFs identified under this section and 
include a detailed discussion of the cost methodology the  <nl>DCTU<ol> [LEC] 
proposes to use for the studies required under this section. Additionally, the 
workplan shall meet the following requirements: 
 
  (A) List of BNFs. The workplan shall include a list of all BNFs that the 
<nl>DCTU<ol> [LEC] has identified pursuant to subsection (e) of this section. 
   
  (B) Additional BNFs. If the <nl>DCTU<ol> [LEC] proposes to identify BNFs in 
addition to the BNFs identified in subsection (e)(1)-(11) of this section, the 
workplan shall include a description of each of the BNFs that the <nl>DCTU<ol> 
[LEC] proposes to identify, and a discussion of why these BNFs should be 
identified in addition to the BNFs identified in subsection (e)(1)-(11) of this 
section. 
   
  (C) Definitions of BNFs. For each BNF identified under subsection (e) of this 
section, the workplan shall include, a precise definition of the BNF, including 
the points of demarcation in the <nl>DCTU's<ol> [LEC's] network between each BNF 
and other BNFs. 
   
  (D) Diagrams. For each BNF identified under subsection (e) of this section, 
the workplan shall include a diagram that illustrates the BNF's role in the 
provision of <nl>DCTU <ol> [LEC] services. 
   
  (E) (No change.) 
   
  (F) Identification of investments. The workplan shall include a discussion of 
the methodology that the <nl>DCTU <ol> [LEC] proposes to use in identifying 
investments associated with each of the BNFs identified under subsection (e) of 
this section. 
   
  (G)-(H) (No change.) 
   
  (I) Automated cost models. The workplan shall include a description of any 
automated cost models which the <nl>DCTU <ol> [LEC] proposes to use in 
developing the cost of the BNF. For each such automated cost model, the workplan 
shall provide a detailed description of the algorithm of the cost model and 
demonstrate that the methodology of the cost model is consistent with the long 
run incremental cost methodology described in this section. 
   
  (J) (No change.) 
   
  (K)  List of cost drivers. For each BNF identified under subsection (e) of 
this section, the workplan shall identify the cost drivers that the <nl>DCTU<ol> 
[LEC] has identified pursuant to subsection (f)(10) of this section. 
   
  (L)  Additional cost drivers. If the <nl>DCTU <ol> [LEC] proposes to identify 
and account for cost drivers in addition to the cost drivers identified in 
subsection (f)(10)(A)-(G) of this section, the workplan shall include a 
description of each of the cost drivers that the <nl>DCTU <ol> [LEC] proposes to 
use, and a discussion of why these cost drivers should be used in addition to 
the cost drivers identified in subsection (f)(10)(A)-(G) of this section. 
   
  (M) Loading factors. The workplan shall include a discussion of the 
methodology that the <nl>DCTU<ol> [LEC] proposes to use in identifying operating 
expenses, depreciation and taxes relating to each of the BNFs identified under 
subsection (e) of this section. 
   
  (N)-(P) (No change.) 
     
  (2) Identification of costs common to BNFs. The workplan submitted by the 
<nl>DCTU<ol> [LEC] shall identify which BNFs share common costs and the sources 
of the common costs (as identified under subsection (h)(1) of this section). 
   
  (3) Identification of groups of services. The workplan submitted by the 
<nl>DCTU<ol> [LEC] shall include a list of all groups of services that the 
<nl>DCTU<ol> [LEC] has identified pursuant to subsection (h) (2) of this 
section. The list shall meet the following requirements: 
 
  (A) -(C) (No change.) 
     
  (4) Proposed schedule for completion and filing of cost studies. The workplan 
submitted by the <nl>DCTU <ol> [LEC] shall include a proposed completion and 
filing date for: the LRIC study for each BNF identified under subsection (e) of 
this section, including the required BNFs specified in subsection (e)(1)-(11) of 
this section; the LRIC study for each tariffed service offered by the 
<nl>DCTU<ol> [LEC]; and the LRIC study for each group of services identified 
under subsection (h) of this section. The proposed schedule submitted by the 
<nl>DCTU<ol> [LEC] shall meet the following requirements: 
 
  (A) If the schedule proposed by the <nl>DCTU <ol> [LEC] would result in 
completion of any cost study later than 18 months following <nl>September 10, 
1993<ol> [the effective date of this section], the <nl>DCTU<ol> [LEC] should 
discuss in detail the reasons why the cost study may not be completed within 18 
months. 
   
  (B) In no event should the schedule proposed by the  <nl>DCTU<ol> [LEC] result 
in the completion of any cost study later than thirty months following 
<nl>September 10, 1993 <ol> [the effective date of this section]. 
   
  (C) The schedule proposed by the <nl>DCTU <ol> [LEC] should space the 
completion and filing of cost studies relatively evenly over the course of the 
period of time allowed for completing the studies and avoid, to the greatest 
degree possible, the filing of large quantities of studies at any one date. 
   
  (D) The schedule proposed by the <nl>DCTU <ol> [LEC] shall not result in 
completion of any LRIC study for a tariffed service before the completion of the 
LRIC studies for all the BNFs that are used in the provision of the tariffed 
service. 
     
  (5) Prototype LRIC studies for BNFs, tariffed services, and groups of tariffed 
services. The workplan shall provide prototype LRIC studies for BNFs, tariffed 
services, and groups of tariffed services, to serve as models for the studies 
filed pursuant to this section. In devising the prototype studies the <nl>DCTU 
<ol> [LEC] shall consider the following instructions. 
 
  (A)-(C) (No change.) 
     
  (6) (No change.) 
   
  (7)  Proposal for the treatment of information designated as confidential or 
proprietary. The workplan submitted by the <nl>DCTU<ol> [LEC] shall include the 
<nl>DCTU's <ol> [LEC's] proposal for the treatment of information to be filed 
pursuant to this section that the <nl>DCTU<ol> [LEC] designates or intends to 
designate as confidential and/or proprietary. The <nl>DCTU <ol> [LEC] shall 
include the following information: 
 
  (A) Identification. Identification of the information to be filed pursuant to 
this section (e.g. cost models, algorithms, data) that the <nl>DCTU<ol> [LEC] 
will designate as confidential and/or proprietary. 
   
  (B) Explanation. For each item identified in subparagraph (A) of this 
paragraph, an explanation supporting the <nl>DCTU's <ol> [LEC's] designation of 
information as confidential and/or proprietary. 
   
  (C) Proposal. The <nl>DCTU's<ol> [LEC's] proposal for the treatment of 
information designated by the <nl>DCTU<ol> [LEC] as confidential and/or 
proprietary that the  <nl>DCTU<ol> [LEC] will file pursuant to this section 
(e.g., a proposed protective agreement). 
       
  (k)  Requirements for initial filings of LRIC studies. The <nl>DCTU<ol> [LEC] 
shall file with the commission and OPUC the LRIC studies required under this 
section. The LRIC studies shall be consistent with the principles, instructions, 
and requirements set forth in this section and shall be reviewed in accordance 
with the procedures established in subsection (n) of this section. In accordance 
with the workplan, and the waivers therein, approved under subsection (m) of 
this section, the <nl>DCTU<ol> [LEC] shall file [a] LRIC studies for: 
 
  (1)-(4) (No change.) 
     
  (l) Requirements for subsequent filings of LRIC studies. The LRIC studies 
required by this subsection shall be consistent with the principles, 
instructions and requirements set forth in this section and the workplan 
approved in subsection (m) of this section and shall be reviewed in accordance 
with the procedures established in subsection (n) of this section. 
 
  (1) Updated studies. Thirty-six months after the effective date of the 
section, and every six months thereafter, the  <nl>DCTU<ol> [LEC] shall file 
with the commission and OPUC updated versions of all filings, other than the 
workplan, required under this section. The <nl>DCTU<ol> [LEC] is not required to 
update its filings for those studies where no significant changes have occurred. 
   
  (2)  Provisions for new BNFs. When significant technological or other changes 
occur that necessitate a change in the definition of current BNFs or the 
identification of new BNFs, the <nl>DCTU <ol> [LEC] shall file with the 
commission and OPUC updated versions for all affected LRIC studies or new 
studies as appropriate. 
   
  (3) Provisions for new services. For each application for a service filed 
pursuant to this title, the <nl>DCTU <ol> [LEC] shall file with the commission 
and OPUC a LRIC study for the service consistent with the principles described 
in subsection (d) of this section and the specific requirements set forth in 
subsection (g) of this section. 
   
  (4) Unbundling of existing tariffed services. When an application filed 
pursuant to this title proposes a service that previously had been bundled with 
other BNFs into a tariffed service, the <nl>DCTU<ol> [LEC] shall carefully 
reexamine the identification of groups of services that share significant common 
costs (as required under subsection (h) of this section). If the new service 
significantly changes the identification of groups of services and the 
identification of common costs, the <nl>DCTU<ol> [LEC] should update all studies 
required under this section that are affected by these changes. 
     
  (m) Review process for <nl>DCTU<ol> [LEC] workplan. <nl>A DCTU<ol> [An LEC] 
workplan considered under this section shall be reviewed administratively to 
determine whether the <nl>DCTU's<ol> [LEC's] workplan is consistent with the 
principles, instructions and requirements set forth in this section. 
 
  (1) Sufficiency. The workplan shall be examined for sufficiency. To be 
sufficient, the <nl>DCTU's<ol> [LEC] workplan shall include the components 
required by subsection (j) of this section. If the presiding <nl>officer <ol> 
[examiner] or the commission staff concludes that material deficiencies exist in 
the workplan, the <nl>DCTU <ol> [LEC] shall be notified within 15 days of the 
filing date of the specific deficiency in its workplan. The <nl>DCTU<ol> [LEC] 
shall have 15 days from the date it is notified of the deficiency to file a 
corrected workplan. 
   
  (2) Time Schedule. 
 
  (A) No later than 60 days after the filing date of the sufficient workplan, 
any party that demonstrates a justiciable interest may file with the presiding 
<nl>officer <ol> [examiner] written comments or recommendations concerning the 
workplan. 
   
  (B) No later than 70 days after the filing date of the sufficient workplan, 
OPUC may file with the presiding <nl>officer <ol> [examiner] written comments or 
recommendations concerning the workplan. 
   
  (C) No later than 80 days after the filing date of the sufficient workplan, 
the commission staff shall file with the presiding <nl>officer<ol> [examiner] 
written comments or recommendations concerning the workplan. 
   
  (D) No later than 90 days after the filing date of the sufficient workplan, 
any party that demonstrates a justiciable interest, OPUC, or the <nl>DCTU<ol> 
[LEC] may file with the presiding <nl>officer<ol> [examiner] a written response 
to the commission staff's recommendation. 
   
  (E) No later than 100 days after the filing date of the sufficient workplan, 
the presiding <nl>officer<ol> [examiner] shall complete an administrative review 
to determine whether the <nl>DCTU's <ol> [LEC's] workplan is consistent with the 
principles, instructions and requirements set forth in this section. The 
<nl>presiding officer <ol> [examiner] shall approve the workplan or order the 
<nl>DCTU<ol> [LEC] to refile the workplan incorporating all modifications 
recommended by the <nl>presiding officer<ol> [examiner]. 
     
  (3) Requests for Information. While the workplan is being administratively 
reviewed, the commission staff, OPUC, and any party that demonstrates a 
justiciable interest may submit requests for information to the <nl>DCTU<ol> 
[LEC]. Three copies of all answers to such requests for information shall be 
provided within 15 days after receipt of the request by the <nl>DCTU<ol> [LEC] 
to the commission staff, OPUC and any party that demonstrates a justiciable 
interest. 
   
  (4)  Suspension. At any point within the first 60 days of the review process, 
the presiding <nl>officer <ol> [examiner], the commission staff, OPUC, the 
<nl>DCTU <ol> [LEC], or any party that demonstrates a justiciable interest may 
request that the review process be suspended for 30 days. The <nl>presiding 
officer <ol> [examiner] may grant a request for suspension only if he or she has 
determined that the party has demonstrated that good cause exists for such 
suspension. 
   
  (5) Effective date of the <nl>DCTU's<ol> [LEC] workplan. The effective date of 
the <nl>DCTU's <ol> [LEC] workplan shall be the date it is approved by the 
presiding <nl>officer<ol> [examiner]. 
     
  (n) Review process for LRIC studies. A LRIC study considered under this 
section shall be reviewed administratively to determine whether the 
<nl>DCTU's<ol> [LEC's] LRIC study is consistent with the principles, 
instructions and requirements set forth in this section. 
 
  (1) Sufficiency. The LRIC study shall be examined for sufficiency. To be 
sufficient, the LRIC study shall conform to the prototype studies developed 
under the workplan approved under subsection (m) of this section. If the 
presiding <nl>officer <ol> [examiner] or the commission staff concludes that 
material deficiencies exist in the LRIC study, the  <nl>DCTU<ol> [LEC] shall be 
notified within 15 days of the filing date of the specific deficiency in its 
LRIC study. The <nl>DCTU<ol> [LEC] shall have 15 days from the date it is 
notified of the deficiency to file a corrected LRIC study. 
   
  (2) Time Schedule. 
 
  (A) No later than 45 days after the filing date of the sufficient LRIC study, 
any party that demonstrates a justiciable interest may file with the presiding 
<nl>officer <ol> [examiner] written comments or recommendations concerning the 
LRIC study. 
   
  (B) No later than 55 days after the filing date of the sufficient LRIC study, 
OPUC may file with the presiding  <nl>officer<ol> [examiner] written comments or 
recommendations concerning the LRIC study. 
   
  (C) No later than 65 days after the filing date of the sufficient LRIC study, 
the commission staff shall file with the presiding <nl>officer<ol> [examiner] 
written comments or recommendations concerning the LRIC study. 
   
  (D) No later than 75 days after the filing date of the sufficient LRIC study, 
any party that demonstrates a justiciable interest, OPUC, or the <nl>DCTU<ol> 
[LEC] may file with the presiding <nl>officer<ol> [examiner] a written response 
to the commission staff's recommendation. 
   
  (E) No later than 85 days after the filing date of the sufficient LRIC study, 
the presiding <nl>officer <ol> [examiner] shall complete an administrative 
review to determine whether the  <nl>DCTU's<ol> [LEC's] LRIC study is consistent 
with the principles, instructions and requirements set forth in this section. 
The <nl>presiding officer<ol> [examiner] shall approve the LRIC study or order 
the <nl>DCTU <ol> [LEC] to refile the LRIC study incorporating all modifications 
recommended by the <nl>presiding officer<ol> [examiner]. 
   
  (F) Any party may appeal to the commission an administrative determination by 
a presiding officer within five days after the date of notification of the 
determination. The commission shall rule on the appeal within 30 days after the 
date it receives the appeal. If the commission or a presiding officer orders a 
cost study to be changed, the dominant certificated telecommunications utility 
shall be ordered to make those changes within a period that is commensurate with 
the complexity of the LRIC study. 
     
  (3)  Requests for Information. While the LRIC study is being administratively 
reviewed, the commission staff, OPUC, and any party that demonstrates a 
justiciable interest may submit requests for information to the <nl>DCTU<ol> 
[LEC]. Three copies of all answers to such requests for information shall be 
provided within 10 days after receipt of the request by the <nl>DCTU <ol> [LEC] 
to the commission staff, OPUC and any party that demonstrates a justiciable 
interest. 
   
  (4) Suspension. At any point within the first 45 days of the review process, 
the presiding <nl>officer <ol> [examiner], the commission staff, OPUC, the 
<nl>DCTU <ol> LEC], or any party that demonstrates a justiciable interest may 
request that the review process be suspended for 30 days. The <nl>presiding 
officer <ol> [examiner] may grant a request for suspension only if he or she has 
determined that the party has demonstrated that good cause exists for such 
suspension. 
   
  (5) Effective date of the LRIC study. The effective date of the LRIC study 
shall be the date it is approved by the presiding <nl>officer<ol> [examiner]. 
     
  (o) Notice requirements. At least 10 days before  <nl>a DCTU<ol> [ LEC] files 
any workplan or LRIC study pursuant to this section, the <nl>DCTU <ol> [LEC] 
shall file with the commission and OPUC a notice of its intent to file such 
workplan or LRIC study and the expected filing date. The <nl>DCTU's<ol> [LEC's] 
notice shall indicate that the filing is being made pursuant to this section. 
The commission shall then publish notice of the <nl>DCTU's<ol> [LEC's] intent to 
file the workplan or LRIC study in the Texas Register. 
   
  (p) Pricing rule. Within 180 days of <nl>September 10, 1993<ol> [the effective 
date of this section], the commission shall initiate a rulemaking proceeding to 
develop a pricing methodology for <nl>DCTU<ol> [LEC] services that is consistent 
with the cost information obtained under this section. 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on September 29, 1995. 
 TRD-9512468 
  Paula Mueller 
 Secretary of the Commission 
 Public Utility Commission of Texas 
    Earliest possible date of adoption: November 6, 1995 
 For further information, please call: (512) 458-0100 
         
           
  16 TAC sec.23.92 
 
  The Public Utility Commission of Texas proposes an amendment to sec.23.92, 
concerning expanded interconnection. The amendments concern the provision of 
expanded interconnection between an incumbent local exchange carrier and another 
local exchange carrier and are added pursuant to the provisions of Section 3.456 
of the Public Utilities Regulatory Act of 1995. An incumbent local exchange 
carrier is required to provide expanded interconnection to another local 
exchange carrier only if the second local exchange carrier agrees to provide 
expanded interconnection, in a like manner, to the incumbent local exchange 
carrier. The amendment provides definitions for terms used in the section as 
well as establishes deadlines for filing of tariff changes required by the rule. 
 Patrick J. Sullivan, Assistant General Counsel, has determined that for the 
first five-year period the section is in effect there will be no fiscal 
implications for state or local governments as a result of enforcing or 
administering the section. 
 Mr. Sullivan also has determined that for each year of the first five years the 
section is in effect, the public benefits anticipated as a result of enforcing 
the rule as proposed are enhanced competition in the special access, private 
line and local transport market as well as the provision of additional service 
choices to customers that value redundancy and route diversity. The growth in 
competition in the special access, private line and local transport market is 
expected to have a positive effect on both small and large businesses that can 
avail themselves of the increased service choices made possible by expanded 
interconnection. There is no anticipated economic costs to persons who are 
required to comply with the proposed rules because such access providers are 
being permitted to charge rates that would ensure the recovery of appropriate 
costs incurred by the provision of expanded interconnection. 
 Mr. Sullivan also has determined that for each of the first five years the 
section is in effect there will be no impact on employment in the geographical 
areas affected by implementing the requirements of the section. 
 The Commission invites specific comments regarding the costs associated with, 
and benefits that will be gained by, implementation of the proposed amendments. 
 Comments on the proposal (15 copies) may be submitted to Paula Mueller, 
Secretary of the Commission, 7800 Shoal Creek Boulevard, Austin, Texas 78757, 
within 30 days after publication. Reply comments may be submitted within 45 days 
after publication. All comments should refer to Project Number 14511. A public 
hearing on this matter will be held at 10:00 a.m. on December 5, 1995, at the 
Commission's offices at 7800 Shoal Creek Boulevard, Austin, Texas. 
 The amendment is proposed under the Public Utility Regulatory Act of 1995, 
sec.1.101, 74th Legislature, Regular Session 1995, as amended by House Bill 
2128, which provides the Public Utility Commission of Texas with the authority 
to make and enforce rules reasonably required in the exercise of its powers and 
jurisdiction; sec.3.051 which provides that the public interest requires that 
new rules, policies, and principles be formulated and applied to protect the 
public interest and to provide equal opportunity to all telecommunications 
utilities in a competitive marketplace; and sec.3.456 which directs the 
Commission to adopt rules for expanded interconnection. 
 The following statute is affected by this rule: the Public Utility Regulatory 
Act of 1995, sec.1.101, 74th Legislature, Regular Session 1995, as amended by 
House Bill 2128. 
 
 
  sec.23.92. Expanded Interconnection. 
 
  (a) Applicability. <nl>Unless the context clearly indicates otherwise, 
this<ol> [This] section applies to each <nl>dominant certificated 
telecommunications utility (DCTU)<ol> [local exchange carrier, as defined in 
sec.23.61 of this title (relating to Telephone Utilities),] that has interstate 
tariffs in effect that provide for expanded interconnection with local telephone 
company facilities for special access and/or switched transport services. 
   
  (b) Definitions. The following words and terms, when used in this section, 
shall have the following meanings, unless the context clearly indicates 
otherwise. 
 
  (1)  Central Office-The location of the central switching unit of a 
<nl>DCTU<ol> [local exchange carrier] where customer lines and trunks terminate 
and are interconnected with the rest of the network. 
   
  (2)  Interconnection-The point in a network where a customer's transmission 
facilities interface with the  <nl>DCTU's<ol> [local exchange carrier's] network 
under the provisions of this section. 
   
  (3) Interconnector-A customer that interfaces with the <nl>DCTU's<ol> [local 
exchange carrier's] network under the provisions of this section. 
   
  (4) Special Access-A transmission path connecting customer designated premises 
to each other either directly or through a hub or hubs where bridging, 
multiplexing or network reconfiguration service functions are performed and 
includes all exchange access not requiring switching performed by the 
<nl>DCTU's<ol> [local exchange carrier's] end office switches. 
   
  (5) Switched Transport-Transmission between a  <nl>DCTU's<ol> [local exchange 
carrier's] central office (including tandem-switching offices) and an 
interexchange carrier's point of presence. 
     
  (c) Expanded Interconnection for Special Access and Private Line Services. 
 
  (1) Expanded interconnection for DS1 and DS3 Special Access Services, and 
Special Access Services for which interstate expanded interconnection has been 
granted. Each <nl>DCTU <ol> [local exchange carrier] that is subject to this 
section shall offer expanded interconnection as specified in this subsection for 
the services listed in subparagraphs (A)-(C) of this paragraph. The <nl>DCTU<ol> 
[LEC] shall offer expanded interconnection for these services at the same 
locations, in the same manner, and, except for price, under the same terms and 
conditions as it offers expanded interconnection for interstate special access 
services, unless ordered otherwise by the commission. This paragraph applies to 
the following intrastate special access services: 
 
  (A)-(C) (No change.) 
     
  (2)  Expanded interconnection for all Special Access and Private Line 
Services. Each <nl>DCTU<ol> [local exchange carrier] that is subject to this 
section shall offer expanded interconnection as specified in this subsection for 
the services listed in subparagraphs (A)-(B) of this paragraph. The <nl>DCTU<ol> 
[LEC] shall offer expanded interconnection for these services at the same 
locations, in the same manner, and, except for price, under the same terms and 
conditions as it offers expanded interconnection for interstate special access 
services, unless ordered otherwise by the commission. This paragraph applies to 
the following intrastate services: 
 
  (A) all private line services, as that term is defined in <nl>sec.23.3<ol> 
[sec.23.61] of this title <nl>(relating to Definitions)<ol> [(relating to 
Telephone Utilities);] and 
   
  (B) (No change.) 
     
  (3) Tariff Provisions. 
 
  (A) Each <nl>DCTU<ol> [local exchange carrier] that is subject to this section 
shall file tariff revisions to unbundle each service for which expanded 
interconnection shall be offered and to remove any resale or sharing 
restrictions for each such service. As used in this subparagraph, to unbundle 
means to make available, on an unrestricted basis, the individual rate elements 
necessary to provide a special access service or a private line service. 
   
  (B) Each <nl>DCTU<ol> [local exchange carrier] that is subject to this section 
shall file tariffs to establish connection charges for the use of equipment and 
facilities that are associated with offerings of expanded interconnection under 
this subsection. Unless ordered otherwise by the commission, the definitions of 
such connection charges and the regulations governing their application shall be 
the same as those contained in the carrier's interstate expanded interconnection 
tariffs. The <nl>DCTU<ol> [local exchange carrier] shall not impose a separate 
charge or rate element that is not included in its interstate tariffs for 
interconnection for special access services. The  <nl>DCTU<ol> [local exchange 
carrier] shall not impose a separate charge or rate element for interconnection 
for private line services that is not included in its tariffs for 
interconnection for special access services. 
     
  (4) Implementation. All <nl>DCTUs<ol> [local exchange carriers] subject to 
this section shall file tariff amendments in compliance with paragraph (3) of 
this subsection. 
 
  (A) Initial filing to implement paragraph (1) of this subsection. The 
<nl>DCTU<ol> [LEC] shall file initial tariff amendments to implement the 
provisions of paragraph (1) of this subsection not later than 30 days after 
February 22, 1994, <nl>or within 60 days of being declared a dominant carrier. 
   
  (B) Initial filing to implement paragraph (2) of this subsection. The 
<nl>DCTU<ol> [LEC] shall file initial tariff amendments to implement the 
provisions of paragraph (2) of this subsection not later than March 1, 1995 to 
be effective not later than May 1, 1995, unless suspended, <nl>or within 60 days 
of being declared a dominant carrier. 
   
  (C) Initial filings in compliance with this subsection shall be filed pursuant 
to sec.23.26 of this title (relating to New and Experimental Services). Initial 
tariff amendments filed in compliance with this subsection shall be filed 
pursuant to sec.23.26; provided, however, the provisions of sec.23.26(c)(6) 
shall not apply with respect to rates proposed in compliance with paragraph 
(3)(A) or (3)(B) of this subsection if the  <nl>DCTU<ol> [local exchange 
carrier] proposes rates that are the same as the rates in effect for the 
carrier's interstate provision of the same, equivalent or substitutable service. 
Tariff revisions filed pursuant to this subsection shall not be combined in a 
single application with any other tariff revision. 
   
  (D) Additional filings. A <nl>DCTU<ol> [local exchange carrier] shall make, 
within 15 days of the effective date of an interstate tariff providing for 
expanded interconnection, such additional tariff filings as are required to 
remain in compliance with this subsection. The proposed effective date of such 
additional tariff filings shall be not later than 60 days after the filing date, 
unless suspended. 
     
  (5) (No change.) 
     
  (d) Expanded Interconnection for Switched Transport Services. 
 
  (1) Expanded Interconnection for all Switched Transport Services. Each 
<nl>DCTU<ol> [local exchange carrier] that is subject to this section shall 
offer expanded interconnection as specified in this subsection for all switched 
transport services at the same locations, in the same manner, and except for 
price, under the same terms and conditions as it offers expanded interconnection 
for interstate switched transport services, unless ordered otherwise by the 
commission. 
   
  (2) Tariff Provisions and Implementation. Each <nl>DCTU <ol> [local exchange 
carrier] that is subject to this section shall file tariffs to establish 
connection charges for the use of equipment and facilities that are associated 
with offerings of expanded interconnection under this subsection. 
 
  (A) (No change.) 
   
  (B)  Absent additional costs, the <nl>DCTU <ol> [local exchange carrier] shall 
impose a single charge when the same facilities are used to provide expanded 
interconnection for both special access and switched transport services. If 
additional facilities are used, the <nl>DCTU<ol> [local exchange carrier] may 
assess additional cost-based connection charge subelements for the use of such 
additional facilities. 
   
  (C) The <nl>DCTU<ol> [local exchange carrier] shall not impose a separate 
charge or rate element that is not included in its interstate tariffs for 
interconnection for switched transport services. 
   
  (D) A <nl>DCTU<ol> [local exchange carrier] shall apply nonrecurring 
reconfiguration charges in a neutral manner to customers of either the 
interconnector or <nl>DCTU <ol> [local exchange carrier] unless justified by 
specific identifiable cost differences. In addition, any differences between the 
charges applicable when a customer shifts to an interconnector's service and 
those applicable when a customer reconfigures its service with the <nl>DCTU <ol> 
[local exchange carrier] must be cost-based. 
   
  (E) The <nl>DCTU<ol> [LEC] shall file initial tariffs to implement the 
provisions of this subsection not later than February 1, 1995, with tariffs 
becoming effective not later than April 1, 1995, unless suspended, <nl>or within 
60 days of being declared a dominant carrier. 
   
  (F) Initial tariff filings in compliance with this subsection shall be filed 
pursuant to the provisions of sec.23.26; provided, however the provisions of 
sec.23.26(c)(6) shall not apply with respect to rates proposed in compliance 
with subparagraphs (A)-(E) of this paragraph if the <nl>DCTU<ol> [local exchange 
carrier] proposes rates that are the same as the rates in effect for the 
carrier's interstate provision of the same, equivalent or substitutable service. 
Tariff revisions filed pursuant to this subsection shall not be combined in a 
single application with any other tariff revision. 
   
  (G)  A <nl>DCTU<ol> [local exchange carrier] shall make, within 15 days of the 
effective date of an interstate tariff providing for expanded interconnection, 
such additional tariff filings as are required to remain in compliance with this 
subsection. The proposed effective date for such additional tariff filings shall 
be not later than 60 days after the filing date, unless suspended. 
       
  (e) Waivers. <nl>A<ol> [an] <nl>DCTU<ol> [LEC] may seek a waiver from the 
requirements of subsections (c) and (d) of this section at a location where the 
opportunity for the application of an FCC waiver does not exist. The request 
shall be granted if the presiding officer of the commission finds that the 
<nl>DCTU<ol> [local exchange carrier] has demonstrated that it is not feasible 
to provide interconnection at a specific location due to lack of space. 
   
  (f) Voluntary Agreements. A <nl>DCTU<ol> [local exchange carrier] and one or 
more interconnectors may agree to alternative interconnection arrangements at a 
specific location that are different from those required by subsections (c) 
and/or (d) of this section, provided such arrangements are tariffed and made 
generally available for that location. Any such agreement shall not modify the 
<nl>DCTU's <ol> [local exchange carrier's] obligations under subsections (c) and 
(d) with respect to any other interconnector that does not elect to subscribe to 
the voluntary arrangement. 
   
  (g) Bona Fide Requests. If a <nl>DCTU<ol> [local exchange carrier] would be 
required to provide expanded interconnection for interstate special access or 
switched transport services at a particular location upon receipt of a bona fide 
request for such interstate interconnection, the <nl>DCTU<ol> [LEC] shall 
provide interconnection for intrastate services as required by subsections (c) 
and (d) of this section upon receipt of a bona fide request for such intrastate 
interconnection at any location not covered by its interstate tariffs, subject 
only to the same conditions and exceptions that would be applicable to a bona 
fide request for interconnection for interstate services. 
   
  (h) Utilization of Collocation Space. A <nl>DCTU <ol> [local exchange 
carrier]shall permit an interconnector to use the same collocation space for 
both interstate and intrastate interconnection services. 
   
  (i) Utilization of Facilities. A <nl>DCTU <ol> [local exchange carrier] shall 
permit an interconnector to use the same facilities for both interstate and 
intrastate switched access traffic. 
   
  <nl>(j)  Reciprocity. 
 
  <nl>(1) Reciprocal Expanded Interconnection. An incumbent local exchange 
carrier is required to provide expanded interconnection to another local 
exchange carrier pursuant to the requirements of subsections (c) and (d) of this 
section only if the second local exchange carrier agrees to provide expanded 
interconnection, in a like manner, to the incumbent local exchange carrier. 
   
  <nl>(2) Implementation. An incumbent LEC that is subject to this section shall 
file initial tariff amendments to implement the provision of paragraph (1) of 
this subsection not later than June 1, 1996 to be effective not later than 
August 1, 1996, unless suspended. 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on September 29, 1995. 
 TRD-9512461 
  Paula Mueller 
 Secretary of the Commission 
 Public Utility Commission of Texas 
    Earliest possible date of adoption: November 6, 1995 
 For further information, please call: (512) 458-0100 
         
                     
  TITLE 19. EDUCATION 
 Part II. Texas Education Agency 
  Chapter 67. State Adoption and Distribution of Instructional Materials 
  
  The Texas Education Agency (TEA) proposes the repeal of  ssec.67.1, 67.4, 
67.7, 67.10, 67.21, 67.24, 67.27, 67.30, 67.33, 67.36, 67.39, 67.42, 67.45, 67. 
48, 67.51, 67.54, 67.57, 67.60, 67.63, 67.66, 67.69, 67.72, 67.75, 67.78, 67. 
81, 67.84, 67.87, 67.90, 67.101, 67.104, 67.107, 67.110, 67.113, 67.121, and 
67.124, concerning state review, adoption, and distribution of instructional 
materials. The repeals are necessary to comply with the sunset review process 
mandated by Senate Bill 1, 74th Texas Legislature, 1995. A new Chapter 67 is 
proposed in a separate submission. 
 Under Senate Bill 1, a rule adopted by the State Board of Education normally 
does not take effect until the beginning of the school year that begins at least 
90 days after the date the rule is adopted. However, the Bill provides that a 
board rule may take effect earlier under certain circumstances. The State Board 
of Education, by an affirmative vote of at least two-thirds of the board 
members, proposes an earlier effective date of January 1, 1996. The earlier date 
is necessary to ensure that new rules are in effect to continue activities to be 
conducted under the call of Proclamation 1994 of the State Board of Education. 
 Geoffrey Fletcher, acting executive deputy commissioner for curriculum, 
assessment and professional development, has determined that for the first five-
year period the repeals are in effect there will be no fiscal implications for 
state or local government or small businesses as a result of enforcing or 
administering the repeals. 
 Mr. Fletcher and Criss Cloudt, associate commissioner for policy planning and 
research, have determined that for each year of the first five years the repeals 
are in effect the public benefit anticipated as a result of enforcing the 
repeals will be that the State Board of Education may adopt new rules regarding 
instructional materials that comply with Senate Bill 1. There is no anticipated 
economic cost to persons who are required to comply with the repeals as 
proposed. 
 Comments on the proposal may be submitted to Criss Cloudt, Policy Planning and 
Research, 1701 North Congress Avenue, Austin, Texas 78701, (512) 463-9701. All 
requests for a public hearing on the proposed repeals submitted under the 
Administrative Procedure Act must be received by the commissioner of education 
not more than 15 calendar days after notice of a proposed change in the rules 
has been published in the Texas Register . 
   
  Subchapter A. General Provisions 
 
  19 TAC sec.sec.67.1, 67.4, 67.7, 67.10 
 
  (Editor's note: The text of the following sections proposed for repeal will 
not be published. The sections may be examined in the offices of the Texas 
Education Agency or in the Texas Register office, Room 245, James Earl Rudder 
Building, 1019 Brazos Street, Austin.) 
   
  The repeals are proposed under Senate Bill 1, sec.7.102, which authorizes the 
State Board of Education to review specified Texas Education Agency rules. 
 The repeals implement Senate Bill 1, sec.7.102. 
 
 
  sec.67.1. Scope of Rules. 
 
   
  sec.67.4. Instructional Materials Not Adopted by the State Board of Education. 
 
   
  sec.67.7. General Content Requirements and Limitations. 
 
   
  sec.67.10. Manufacturing Standards and Specifications. 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on October 2, 1995. 
 TRD-9512479 
  Criss Cloudt 
 Associate Commissioner, Policy Planning and Research 
 Texas Education Agency 
    Earliest possible date of adoption: November 6, 1995 
 For further information, please call: (512) 463-9701 
         
           
  Subchapter B. State Adoption, Acquisition, and Custody of Instructional 
Materials 
 
  19 TAC sec.sec.67.21, 67.24, 67.27, 67.30, 67.33, 67.36, 67.39, 67.42, 67.45, 
67.48, 67.51, 67.54, 67.57, 67.60, 67.63, 67.66, 67.69, 67.72, 67.75, 67.78, 
67.81, 67.84, 67.87, and 67.90 
 
  (Editor's note: The text of the following sections proposed for repeal will 
not be published. The sections may be examined in the offices of the Texas 
Education Agency or in the Texas Register office, Room 245, James Earl Rudder 
Building, 1019 Brazos Street, Austin.) 
   
  The repeals are proposed under Senate Bill 1, sec.7.102, which authorizes the 
State Board of Education to review specified Texas Education Agency rules. 
 The repeals implement Senate Bill 1, sec.7.102. 
 
 
  sec.67.21. Proclamation, Public Notice, and Schedule for Adoption of 
Instructional Materials. 
 
   
  sec.67.24. Budget Cycle. 
 
   
  sec.67.27. Review and Renewal of Contracts. 
 
   
  sec.67.30. Statement of Intent to Bid Instructional Materials. 
 
   
  sec.67.33. Subject Area Committees: Qualifications. 
 
   
  sec.67.36. Subject Area Committees: Appointment. 
 
   
  sec.67.39. Subject Area Committees: Duties and Conduct. 
 
   
  sec.67.42. Subject Area Committees: Expenses. 
 
   
  sec.67.45. Subject Area Committees: Orientation. 
 
   
  sec.67.48. Presentations by Publishers to Subject Area Committees. 
 
   
  sec.67.51. No-Contact Periods. 
 
   
  sec.67.54. Instructional Materials Offered for Purchase by the State. 
 
   
  sec.67.57. Revised or Identical Editions. 
 
   
  sec.67.60. Samples. 
 
   
  sec.67.63. Regional Education Service Centers: Procedures for Handling 
Samples; Public Access to Samples. 
 
   
  sec.67.66. Public Comment on Instructional Materials. 
 
   
  sec.67.69. Report of the Commissioner of Education. 
 
   
  sec.67.72. Consideration and Adoption of Instructional Materials by the State 
Board of Education. 
 
   
  sec.67.75. Requirement for Registers. 
 
   
  sec.67.78. Preparation and Completion of Contract and Bond. 
 
   
  sec.67.81. Expiring and Out-of-Adoption Instructional Materials. 
 
   
  sec.67.84. Availability of Instructional Materials. 
 
   
  sec.67.87. Procedures Governing Violations of the Statutes or the Rules, 
Procedural Irregularities, or Failure to Meet Established Deadlines. 
 
   
  sec.67.90. Penalties. 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on October 2, 1995. 
 TRD-9512480 
  Criss Cloudt 
 Associate Commissioner, Policy Planning and Research 
 Texas Education Agency 
    Earliest possible date of adoption: November 6, 1995 
 For further information, please call: (512) 463-9701 
         
           
  Subchapter C. Local Operations 
 
  19 TAC sec.sec.67.101, 67.104, 67.107, 67.110, 67.113 
 
  (Editor's note: The text of the following sections proposed for repeal will 
not be published. The sections may be examined in the offices of the Texas 
Education Agency or in the Texas Register office, Room 245, James Earl Rudder 
Building, 1019 Brazos Street, Austin.) 
   
  The repeals are proposed under Senate Bill 1, sec.7.102, which authorizes the 
State Board of Education to review specified Texas Education Agency rules. 
 The repeals implement Senate Bill 1, sec.7.102. 
 
 
  sec.67.101. Mandatory Use of Adopted Instructional Materials. 
 
   
  sec.67.104. Sample Copies of Instructional Materials for School Districts. 
 
   
  sec.67.107. Adoption of Instructional Materials by School Districts. 
 
   
  sec.67.110. Local Accountability. 
 
   
  sec.67.113. Depository Status. 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on October 2, 1995. 
 TRD-9512481 
  Criss Cloudt 
 Associate Commissioner, Policy Planning and Research 
 Texas Education Agency 
    Earliest possible date of adoption: November 6, 1995 
 For further information, please call: (512) 463-9701 
         
           
  Subchapter D. Special Instructional Materials 
 
  19 TAC sec.67.121, sec.67.124 
 
  (Editor's note: The text of the following sections proposed for repeal will 
not be published. The sections may be examined in the offices of the Texas 
Education Agency or in the Texas Register office, Room 245, James Earl Rudder 
Building, 1019 Brazos Street, Austin.) 
   
  The repeals are proposed under Senate Bill 1, sec.7.102, which authorizes the 
State Board of Education to review specified Texas Education Agency rules. 
 The repeals implement Senate Bill 1, sec.7.102. 
 
 
  sec.67.121. Special Instructional Materials To Be Made Available. 
 
   
  sec.67.124. Authorization of State Funds. 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on October 2, 1995. 
 TRD-9512482 
  Criss Cloudt 
 Associate Commissioner, Policy Planning and Research 
 Texas Education Agency 
    Earliest possible date of adoption: November 6, 1995 
 For further information, please call: (512) 463-9701 
         
             Chapter 67. State Adoption and Distribution of Instructional 
Materials Adopted under Proclamation 1994 
  
  The Texas Education Agency (TEA) proposes new sec.sec.67.1, 67.4, 67.7, 67. 
10, 67.21, 67.24, 67.27, 67.30, 67.33, 67.36, 67.39, 67.42, 67.45, 67.48, 67. 
51, 67.54, 67.57, 67.60, 67.63, 67.66, 67.69, 67.72, 67.75, 67.78, 67.81, 67. 
84, 67.87, 67.90, 67.101, 67.104, 67.107, 67.110, 67.113, 67.121, and 67.124, 
concerning state review, adoption, and distribution of instructional materials 
adopted under Proclamation 1994. The new rules are proposed as part of the 
sunset review process mandated by Senate Bill 1, 74th Texas Legislature, 1995. 
Current Chapter 67 is proposed for repeal in a separate submission. 
 Senate Bill 1 specifies new requirements concerning the process for state 
review, adoption, and distribution of instructional materials. New rules 
implementing the statutory provisions are currently being developed and will be 
proposed in a future issue of the Texas Register. Section 69 of the conforming 
amendments to Senate Bill 1, however, recognizes that activities initiated under 
Proclamation 1994 must continue under the old statutes and agency rules. New 
Chapter 67 maintains established requirements for instructional materials 
related to content, manufacturing standards, the state adoption process, and 
local operations. 
 The proposed new rules contain three substantive changes to current Chapter 67. 
The first change adds a new subsection (a) to sec.67.1 to clarify that the rules 
in Chapter 67 will expire on May 1, 1997. 
 The second change is contained in sec.67.107. In the past, school districts 
have indicated a need for greater flexibility in the local selection process for 
state-adopted instructional materials. The change to sec.67.107 would allow each 
local board of trustees to determine appropriate local policy for selecting 
instructional materials. Composition and appointment of local committees is no 
longer specified in the rule. 
 The third change adds new subsection (e) to sec.67.113. The state currently 
specifies freight carriers that will deliver shipments of instructional 
materials to schools. The new subsection (e) allows approved textbook 
depositories to contract directly with freight carriers to deliver state-ordered 
instructional materials, since approved depositories have expertise and staff 
available to negotiate the most appropriate and cost-efficient contracts with 
carriers. 
 In addition, the name "Texas Education Agency" is substituted for "Central 
Education Agency" throughout the rules to comply with Senate Bill 1. 
 Under Senate Bill 1, a rule adopted by the State Board of Education normally 
does not take effect until the beginning of the school year that begins at least 
90 days after the date the rule is adopted. However, the Bill provides that a 
board rule may take effect earlier under certain circumstances. The State Board 
of Education, by an affirmative vote of at least two-thirds of the board 
members, proposes an earlier effective date of January 1, 1996. The earlier date 
is necessary to ensure that new rules are in effect to continue activities to be 
conducted under the call of Proclamation 1994 of the State Board of Education. 
 Geoffrey Fletcher, acting executive deputy commissioner for curriculum, 
assessment and professional development, has determined that for the first five-
year period the rules are in effect there will be fiscal implications as a 
result of enforcing or administering the rules. There will be no effect on state 
government or small businesses. The effect on local government (school 
districts) cannot be accurately determined at this time but will depend on 
selection policies set by local boards of trustees. 
 Mr. Fletcher and Criss Cloudt, associate commissioner for policy planning and 
research, have determined that for each year of the first five years the rules 
are in effect the public benefit anticipated as a result of enforcing the rules 
will be that the rules will help ensure that students have access to quality 
instructional materials. There is no anticipated economic cost to persons who 
are required to comply with the rules as proposed. 
 Comments on the proposal may be submitted to Criss Cloudt, Policy Planning and 
Research, 1701 North Congress Avenue, Austin, Texas 78701, (512) 463-9701. All 
requests for a public hearing on the proposed rules submitted under the 
Administrative Procedure Act and the Texas Register Act must be received by the 
commissioner of education not more than 15 calendar days after notice of a 
proposed change in the rules has been published in the Texas Register. 
   
  Subchapter A. General Provisions 
 
  19 TAC sec.sec.67.1, 67.4, 67.7, 67.10 
 
  The new rules are proposed under the Texas Education Code, sec.12.16, as 
continued by sec.69 of the conforming amendments to Senate Bill 1, which 
authorizes the State Board of Education to proceed with the adoption of 
textbooks, whose adoption is in progress, under the Texas Education Code, 
Chapter 12, as that chapter existed on January 1, 1995. 
 The new rules implement the Texas Education Code, sec.12.16, as continued by 
sec.69 of the conforming amendments to Senate Bill 1. 
 
 
  sec.67.1. Scope of Rules. 
 
  (a) The provisions of this Chapter 67, issued under the Texas Education Code, 
Chapter 12, shall expire on May 1, 1997. 
   
  (b) The State Board of Education (SBOE) shall adopt instructional materials 
for use in the public schools of Texas according to the Texas Education Code, 
Chapter 12, and the requirements in this chapter. Instructional materials 
recommended as suitable for use in bilingual education programs shall be adopted 
according to the rules in this chapter for adopting regular instructional 
materials. These rules shall apply to adoption of any combination of the 
following types of materials: 
 
  (1) textbooks, which are bound books in one or more volumes; 
   
  (2) learning systems, which are coordinated systems of instructional materials 
in one or several media designed to enable students to achieve desired outcomes 
for a specific subject or course; 
   
  (3) teacher editions or teacher resource materials; and 
   
  (4) computer software or other technology applications. 
 
       
  sec.67.4. Instructional Materials Not Adopted by the State Board of Education. 
 
  (a) Materials in any medium that a publisher intends to make available for 
sale to schools are not considered part of the publisher's bid and shall not be 
adopted by the State Board of Education (SBOE). Non-adopted materials shall be 
sold at prices consistent with nationally established prices. 
   
  (b) The titles of ancillary items that a publisher intends to make available 
to school districts at no charge shall be filed with the Texas Education Agency 
in accordance with the schedule contained in the proclamation. Ancillary 
materials listed by publishers and made available to school districts at no 
charge to the districts shall be provided to each school district that orders 
the adopted instructional material at the same ratio and for the duration of the 
contract period. Publishers are prohibited from providing school districts with 
ancillary materials not listed. 
 
     
  sec.67.7. General Content Requirements and Limitations. 
 
  (a)  All adopted instructional materials shall meet the following content 
requirements and limitations as appropriate to the category in which the 
materials are adopted. 
 
  (1) Instructional materials shall present the most current factual information 
accurately and objectively without editorial opinion or bias by the authors. 
Theories shall be clearly distinguished from fact and presented in an objective 
educational manner. 
   
  (2)  Instructional materials shall promote citizenship, patriotism, 
understanding of the essentials and benefits of the free enterprise system, 
respect for recognized authority, and respect for individual rights. The 
materials shall not include selections or works that encourage or condone civil 
disorder, social strife, or disregard of the law. Violence, if it appears, shall 
be treated in the context of its cause and consequence. It shall not appear for 
reasons of unwholesome excitement or sensationalism. 
 
  (A) Instructional materials shall present positive aspects of the United 
States and its heritage. 
   
  (B) When significant political or social movements in history generate 
contrasting points of view, instructional materials shall present balanced and 
factual treatment of the positions. 
   
  (C) Free enterprise means an economic system characterized by private or 
corporate ownership of capital goods; investments that are determined by private 
decision rather than by state control; and prices, production, and the 
distribution of goods that are determined in a free market. 
     
  (3)  Instructional materials shall not include blatantly offensive language or 
illustrations. 
   
  (4) Instructional materials shall treat divergent groups fairly without 
stereotyping and reflect the positive contribution of all individuals and groups 
to the American way of life. Illustrations and written materials shall avoid 
bias toward any particular group or individual and present a wide range of goal 
choices. Particular care should be taken in the treatment of ethnic groups, 
issues related to the aging and aged, roles of men and women, the dignity of 
workers, and respect for the work ethic. 
 
  (A) Instructional materials shall not encourage life-styles deviating from 
generally accepted standards of society. 
   
  (B) Instructional materials shall provide an objective view of cultural 
confluence and include information needed to develop mutual understanding and 
respect among all elements of our population. Materials shall reflect an 
awareness that culture and language variation does exist and can be used to 
promote successful learning. 
   
  (C) Instructional materials shall present examples of men and women 
participating in a variety of roles and activities and also shall present the 
economic, political, social, and cultural contributions of men and women, past 
and present. 
   
  (D) Instructional materials that treat aspects of the world of work should 
reflect the positive contributions of all types of careers to the American 
economic system and way of life. People presented should reflect varieties of 
work and be treated without bias toward particular kinds of work. 
   
  (E) Instructional materials shall present traditional and contemporary roles 
of men, women, boys, and girls. 
   
  (F)  Instructional materials shall present balanced treatment of issues 
related to aging and the aged. 
     
  (5) Authors of adopted instructional materials shall have expertise and 
experience that provide authoritative credibility to their work. Publishers may 
not submit instructional materials for adoption that have been authored by an 
employee of the Texas Education Agency. 
   
  (6)  Instructional materials submitted for adoption must undergo a systematic 
and thorough editorial review. Publishers shall verify facts, including 
historical dates, contained in materials submitted for adoption. 
   
  (7)  Illustrations that are informative, closely related to the content, and 
placed where they can be easily used in conjunction with written text shall be 
included where appropriate. 
   
  (8) Content shall be organized to facilitate both teaching and learning. 
     
  (b) Content and suggested readings that violate the requirements and 
limitations in this section shall be deleted from any materials adopted under 
this chapter before the state purchases the materials. 
 
     
  sec.67.10. Manufacturing Standards and Specifications. 
 
  (a)  All student textbooks adopted, including books in systems, shall comply 
with the standards in the latest edition of Manufacturing Standards and 
Specifications for Textbooks approved by the national Advisory Commission on 
Textbook Specifications. 
   
  (b) For each student textbook submitted for adoption, the publisher shall file 
a statement certifying the book will meet minimum manufacturing standards if 
adopted. Each statement must be: on a form provided by the commissioner of 
education, signed by a company official, and filed on or before the deadline 
specified in the schedule for the adoption process. A publisher may file one 
statement for a series of books if all books in the series have been 
manufactured under identical specifications. 
   
  (c)  If, during the contract period, the commissioner of education determines 
that any adopted instructional materials have faulty manufacturing 
characteristics or are made of inferior materials, the materials shall be 
replaced by the publisher without cost to the state. 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on October 2, 1995. 
 TRD-9512483 
  Criss Cloudt 
 Associate Commissioner, Policy Planning and Research 
 Texas Education Agency 
    Earliest possible date of adoption: November 6, 1995 
 For further information, please call: (512) 463-9701 
         
             
  Subchapter B. State Adoption, Acquisition, and Custody of Instructional 
Materials 
 
  19 TAC sec.sec.67.21, 67.24, 67.27, 67.30, 67.33, 67.36, 67.39, 67.42, 67.45, 
67.48, 67.51, 67.54, 67.57, 67.60, 67.63, 67.66, 67.69, 67.72, 67.75, 67.78, 
67.81, 67.84, 67.87, 67.90 
 
  The new rules are proposed under the Texas Education Code, sec.12.16, as 
continued by sec.69 of the conforming amendments to Senate Bill 1, which 
authorizes the State Board of Education to proceed with the adoption of 
textbooks, whose adoption is in progress, under the Texas Education Code, 
Chapter 12, as that chapter existed on January 1, 1995. 
 The new rules implement the Texas Education Code, sec.12.16, as continued by 
sec.69 of the conforming amendments to Senate Bill 1. 
 
 
  sec.67.21. Proclamation, Public Notice, and Schedule for Adoption of 
Instructional Materials. 
 
  (a) The State Board of Education (SBOE) shall issue a proclamation calling for 
new instructional materials according to the six-year budget projection approved 
by the SBOE. The proclamation shall serve as notice to all registered publishers 
and to the public that bids to furnish new materials to the state are being 
invited. The proclamation shall be issued 24 months before the scheduled 
adoption of the new instructional materials by the SBOE. 
   
  (b) In addition to content specified in the Texas Education Code, the 
proclamation shall contain the following: 
 
  (1)  specifications for the content in each category for which bids are being 
invited; 
   
  (2) a maximum cost to the state for adopted student and/or teacher materials 
in each category for which bids are being invited; 
   
  (3)  contract periods specified for each category for which bids are being 
invited; 
   
  (4) an estimated number of units to be purchased during the first contract 
year for each category in the proclamation; 
   
  (5)  specifications for providing computerized files to produce braille 
versions of adopted instructional materials; and 
   
  (6) a schedule for the adoption process, including public hearings and 
meetings of subject area committees. 
     
  (c) The commissioner of education shall determine the number of appointees to 
proclamation advisory committees in the core subject areas of language arts, 
mathematics, science, and social studies. The commissioner shall solicit 
nominations for the appointments from school districts and educational 
organizations in the state. Recommendations may be accepted from any Texas 
resident. 
   
  (d) A draft copy of the proclamation shall be provided to proclamation 
advisory committees and designated representatives of the publishing industry to 
solicit input before the SBOE considers the proclamation. Information and 
comments submitted by proclamation advisory committees and publishers shall 
accompany the initial draft of the proclamation presented by the commissioner of 
education to the SBOE. 
   
  (e) The proclamation shall be considered at three meetings of the board and 
not be adopted before the third meeting. The SBOE shall hold a public hearing on 
the proclamation before adopting it. Testimony at the hearing shall be limited 
to residents of Texas and nonresidents who are official representatives of 
publishing companies who filed written requests to appear at the hearing. 
   
  (f) Under extraordinary circumstances, the board may adopt an emergency, 
supplementary, or revised proclamation without complying with the time lines and 
other requirements of this section. The proclamation shall be issued under the 
Texas Education Code, sec.12.17, and the public shall be given an opportunity to 
submit written comments on the proclamation before the SBOE adopts it. 
 
     
  sec.67.24. Budget Cycle. 
 
  (a) The commissioner of education shall present for board approval a six-year 
budget projection that provides estimated expenditures for instructional 
materials. The budget projection shall include subject areas in which bids for 
new instructional materials will be solicited. The determination to include a 
subject area in the budget projection shall be based on the anticipated 
availability of funds to purchase instructional materials and the need for up-
to-date materials due to changing information, technology, instructional 
strategies, and/or methods of information delivery. The six-year budget 
projection shall also include information related to anticipated costs of 
providing continuing-contract material, braille and large type material, and 
freight charges for delivering materials to school districts. 
   
  (b) Any revisions to the budget projection cycle the commissioner of education 
determines are necessary shall be presented to the State Board of Education 
(SBOE) for approval. 
 
     
  sec.67.27. Review and Renewal of Contracts. 
 
  (a) The commissioner of education shall review contracts for instructional 
materials and recommend which contracts should be renewed for terms not to 
exceed six years and which contracts should not be renewed. 
   
  (b) The State Board of Education (SBOE) shall decide to renew existing 
contracts upon determining that the renewal would be in the best interest of the 
state and after considering the following factors: 
 
  (1) inclusion of subject areas in the six-year budget projection; 
   
  (2) availability of new instructional materials; and 
   
  (3) willingness of publishers to offer materials for readoption and renewal of 
contracts. 
     
  (c) Publishers awarded new contracts shall be prepared to make the adopted 
instructional materials available for at least one extended contract period of 
not more than six years at prices the commissioner of education approves. The 
SBOE may consider refusing to award future contracts to a publisher who, after 
receiving written notice to do so, refuses to rebid instructional materials at 
least one time. Failure of a publisher to negotiate an acceptable price for an 
extended contract shall not be considered failure to rebid instructional 
materials. 
 
     
  sec.67.30. Statement of Intent to Bid Instructional Materials. 
 
  (a) Each publisher who intends to offer instructional materials for adoption 
shall submit a statement of intent to bid on or before the date specified in the 
schedule for the adoption process. The statement of intent shall be accompanied 
by publisher's data submitted in a form approved by the commissioner of 
education. 
   
  (b) A publisher shall specify hardware or special equipment needed to review 
any item included in a student and/or teacher component of an instructional 
materials submission. 
   
  (c) A publisher who wishes to withdraw an instructional materials submission 
after having filed a statement of intent to bid shall notify the commissioner of 
education in writing on or before the date specified in the schedule for the 
adoption process. 
 
     
  sec.67.33. Subject Area Committees: Qualifications. 
 
  (a) A person is not eligible for appointment to a subject area committee if, 
during the two years immediately preceding the appointment, the person: 
 
  (1)  was employed by or received funds from a publishing company or an agent 
representing an author or publishing company; or 
   
  (2) owns or controls, directly or indirectly, any interest in a publishing 
company or an entity receiving funds from a textbook publishing company. 
     
  (b) Before employing an educator to review or sell instructional materials or 
represent a publishing company, the publisher shall notify the person that 
employment or receipt of any remuneration would disqualify him or her from 
serving on a subject area committee for a two-year period following the 
employment or receipt of remuneration. 
   
  (c) A majority of the members of a subject area committee shall be classroom 
teachers of recognized ability in areas appropriate to instructional materials 
the committee will evaluate. All members of a subject area committee shall have 
expertise in areas appropriate to instructional materials being evaluated. 
   
  (d) Each appointee to a subject area committee shall reside and/or teach in 
the State Board of Education (SBOE) district to be represented. 
 
     
  sec.67.36. Subject Area Committees: Appointment. 
 
  (a) The commissioner of education shall determine the number of subject area 
committees needed to review new instructional materials under consideration and 
the number of appointees to each committee. 
   
  (b) The commissioner of education shall solicit recommendations for possible 
appointees to subject area committees from school districts and educational 
organizations in the state. Recommendations may be accepted from any Texas 
resident. 
   
  (c)  Nominations shall not be made by or accepted from any publishers; 
authors; depositories; agents for publishers, authors, or depositories; or any 
person who holds any official position with a publisher, author, depository, or 
agent. Publishers, authors, depositories, agents, or other persons who have any 
relationships or hold any positions with publishers, authors, depositories, or 
agents shall refrain from and shall avoid, either directly or indirectly, 
aiding, abetting, suggesting, recommending, or encouraging either that any other 
person seek to be nominated or appointed, or that any person nominate or appoint 
another person to a subject area committee. 
   
  (d) The commissioner of education shall ensure that all persons recommended 
for appointment to the subject area committees meet State Board of Education 
(SBOE) rule requirements concerning qualifications for membership. 
   
  (e)  Members of a subject area committee may be removed at the discretion of 
SBOE. 
 
     
  sec.67.39. Subject Area Committees: Duties and Conduct. 
 
  (a)  The duties of each subject area committee shall be to: 
 
  (1)  evaluate all instructional materials submitted for adoption in each 
subject area assigned to that committee to ensure that the materials recommended 
for adoption meet the content requirements specified in the proclamation and in 
board rules; 
   
  (2) recommend to the State Board of Education (SBOE) a list of instructional 
materials the committee approves for each subject area, course, or grade level 
assigned to that committee; and 
   
  (3) submit to the commissioner of education a list of any errors of fact 
and/or corrections needed to ensure accuracy in instructional materials 
recommended for adoption. 
     
  (b) Subject area committee members shall not accept meals, entertainment, 
gifts, or gratuities in any form from: publishers, authors, or depositories; 
agents for publishers, authors, or depositories; any person who holds any 
official position with publishers, authors, depositories, or agents; or any 
person or organization interested in influencing the selection of instructional 
materials. 
   
  (c) Each subject area committee member shall make every effort to attend all 
scheduled meetings of the committee. A member who cannot attend a meeting may 
not send a substitute. 
   
  (d) Before scheduled voting by a subject area committee, members shall be 
given an opportunity to discuss instructional materials under consideration for 
adoption. Public testimony shall not be allowed during this meeting. In 
addition, subject area committee members may elect to discuss materials during 
other official meetings of the committee. Representatives of publishing 
companies with instructional materials under consideration shall be present at 
the committee meetings to respond to questions from subject area committee 
members. 
   
  (e) A subject area committee member shall refrain from attempting to influence 
other committee members except during discussion at official meetings. Subject 
area committee members shall not endorse instructional materials under 
consideration to any party. 
   
  (f) In making recommendations, subject area committees shall consider written 
comments, oral testimony, and responses to written and/or oral testimony 
submitted under sec.67.66 of this title (relating to Public Comment on 
Instructional Materials). 
   
  (g) The list of instructional materials recommended by each subject area 
committee shall consist of not less than two or more than eight selections for 
each subject area, course, or grade level. If at least two suitable selections 
are not available in a subject area, course, or grade level, the subject area 
committee may recommend one selection. 
   
  (h) To be included on the list of recommendations, an instructional materials 
submission shall receive supporting votes from at least two-thirds of the total 
membership of the appropriate subject area committee. 
   
  (i)  One or more members of each subject area committee shall be designated to 
be present at the hearing held by the SBOE and/or the SBOE meeting at which 
instructional materials are adopted. 
 
     
  sec.67.42. Subject Area Committees: Expenses. 
 
  (a) Subject area committee members shall be reimbursed for expenses incurred 
in attending official meetings of the committee according to the applicable 
provisions of the General Appropriations Act. 
   
  (b) Expenses shall be paid for designated subject area committee members to 
attend the hearings before the State Board of Education (SBOE) and/or SBOE 
meetings or committee meetings at which instructional materials are considered. 
 
     
  sec.67.45. Subject Area Committees: Orientation. The commissioner of education 
shall ensure members of subject area committees receive an orientation including 
the following: 
 
  (1) the responsibilities of a subject area committee member, including the 
responsibility to ensure that all instructional materials recommended for 
adoption in each subject area assigned to the committee meet the content 
requirements specified in the proclamation and State Board of Education (SBOE) 
rules; 
   
  (2) statutes and SBOE rules pertaining to the state adoption process; 
   
  (3) content requirements and the schedule of adoption procedures in the 
proclamation; 
   
  (4) evaluation of content; 
   
  (5)  contacts with publishers and their representatives; and 
   
  (6)  regulatory requirements affecting the committee, including the Government 
Code, sec.572.051 (relating to Standards of Conduct), and the Texas Penal Code, 
sec.36.02 (relating to Bribery). Copies of the statutes mentioned in this 
section shall be supplied to each subject area committee member. 
 
     
  sec.67.48. Presentations by Publishers to Subject Area Committees.  The Texas 
Education Agency shall schedule a meeting of each subject area committee to 
allow presentations by publishers to the appropriate subject area committee 
members. The Texas Education Agency also shall schedule presentation dates and 
the time allocated to each publisher. The beginning date for publisher hearings 
shall be specified in the schedule for the adoption process. The Texas Education 
Agency shall ensure that publishers, editors, and authors have sufficient time 
to adequately present instructional materials and respond to questions. 
 
   
  sec.67.51. No-Contact Periods. 
 
  (a) Subject area committee members shall observe a no-contact period between 
the dates specified in the schedule for the adoption process. During this no-
contact period, which shall begin with the initial communication regarding 
possible appointment to a subject area committee and end at the close of the 
balloting meeting, members shall not have contact either directly or indirectly 
with any publisher or publishing company, depository, or petitioner. This 
restriction is not intended to prohibit members of subject area committees, 
while in session, from requesting clarification from a petitioner or a 
representative of a publishing company. 
   
  (b) Subject area committee members shall report immediately to the 
commissioner of education any communication or attempted communication by any 
publisher or publishing company, depository, or petitioner or any representative 
or agent of a publisher or publishing company, depository, or petitioner. 
   
  (c) Subject area committee members shall not discuss content of instructional 
materials under consideration with any agency subject area staff member, except 
at the request of the subject area committee during official committee meetings. 
Additional requests for information or clarification shall be directed to the 
commissioner of education or his designee. Copies of all questions from 
individual committee members shall be distributed with responses to all members 
of the appropriate subject area committee. This restriction is not intended to 
prohibit members of the subject area committees from contacting designated staff 
of the Texas Education Agency regarding adoption procedures. 
 
     
  sec.67.54. Instructional Materials Offered for Purchase by the State. 
 
  (a) The official bid price for the student or teacher component of a 
submission shall not exceed the maximum cost to the state for adopted student 
and/or teacher materials established in the proclamation or the price 
information submitted with the official samples. Any discounts offered for 
volume purchases of adopted instructional materials shall be included in price 
information submitted with official samples and in the official bid. 
   
  (b)  The official bid filed by a publisher shall include separate prices for 
each item included in a student and/or teacher component of a submission. The 
publisher shall guarantee that all items included in the student and/or teacher 
component shall be available for state or local purchase at the prices listed 
for the entire contract period. 
   
  (c) Instructional materials submitted for adoption shall be self-sufficient 
for the period of adoption. Nonconsumable components shall be replaced by the 
publisher during the warranty period. Consumable materials included in a student 
or teacher component of a submission shall be clearly marked as consumable. The 
cost of such consumables to the state for the entire contract period shall not 
exceed the maximum cost established in the proclamation. 
 
     
  sec.67.57. Revised or Identical Editions. 
 
  (a) Publishers who offer for adoption instructional materials that are 
revisions or new copyrights of materials currently under contract shall file on 
or before the date specified in the schedule for the adoption process a complete 
list of deletions, additions, and changes in printing, illustrations, 
organization of materials, and format that have been made in the revised 
version. 
   
  (b)  Instructional materials that are identical in content or substantially 
similar in content to materials already adopted shall be purchased only in 
quantities needed to replace worn-out materials or for increased enrollment. 
   
  (c) A publisher may submit a request to the commissioner of education for 
approval to substitute a later edition of instructional materials currently 
under contract. Requests for substitution shall state that there will be no 
additional cost to the state. Requests for substitution shall not be approved 
during the first four years of a contract. 
 
     
  sec.67.60. Samples. 
 
  (a) Two sample copies of the student and/or teacher component of each 
instructional materials submission shall be filed with each of the 20 regional 
education service centers on or before the date specified in the schedule for 
the adoption process. These samples shall be available for public review. Price 
information required by the Texas Education Code and State Board of Education 
(SBOE) rules shall be included in each sample. 
   
  (b) Two official sample copies of each student and/or teacher component of an 
instructional materials submission shall be filed with the commissioner of 
education on or before the date specified in the schedule for the adoption 
process. Price information required by the Texas Education Code, SBOE rules, and 
the Texas Education Agency shall be included in each sample. In addition, the 
publisher shall provide a complete description of all items included in a 
student and/or teacher component of an instructional materials submission, 
including prices for each item. 
   
  (c) One sample copy of each student and/or teacher component of an 
instructional materials submission shall be filed with each member of the 
appropriate subject area committee on or before the date specified in the 
schedule for the adoption process. Price information required by the Texas 
Education Code and SBOE rules shall be included in each sample. If instructional 
materials submitted for consideration have been field tested, written evidence 
from the testing may be provided to subject area committee members. In order to 
ensure that subject area committees' evaluation is limited to student and 
teacher components submitted for adoption, publishers shall not provide 
ancillary materials, supplementary materials, or descriptions of ancillary or 
supplementary materials to subject area committee members. The SBOE reserves the 
authority to require in the proclamation that ancillary or supplementary 
materials be submitted to and received by the subject area committee members. 
   
  (d)  Hardware or special equipment necessary for review of any item included 
in a student and/or teacher component of an instructional materials submission 
shall be provided to the Texas Education Agency and members of the appropriate 
subject area committees on or before the deadlines for submission of samples of 
instructional materials and remain available for the duration of the review 
process. If the appropriate hardware or special equipment is not available in a 
regional education service center, the publisher shall provide the hardware or 
equipment on or before the deadline for submission of samples of instructional 
materials and remain available for the duration of the review process. All such 
hardware or special equipment shall be returned to the publisher after the SBOE 
has completed adopting instructional materials. 
   
  (e) All samples of instructional materials shall be submitted with finished-
format content and binding. 
   
  (f) A publisher shall provide a list of all editorial corrections to be made 
by the publisher to each student and/or teacher component of an instructional 
materials submission. The list must be in a format designated by the 
commissioner of education and filed on or before the deadline specified in the 
schedule for the adoption process. If no editorial corrections are necessary, 
the publisher shall file a letter stating this on or before the deadline in the 
schedule for submission of the list of editorial corrections. On or before the 
deadline for submission of lists of editorial corrections, publishers shall 
submit certification that all instructional materials have been edited for 
accuracy, content, and compliance with requirements of the proclamation and SBOE 
rules. 
   
  (g) If it is determined that good cause exists, the commissioner of education 
may extend the deadline for filing samples with regional education service 
centers. The commissioner shall notify the SBOE of all such extensions. At its 
discretion, the SBOE may remove from consideration any materials proposed for 
adoption that were not properly deposited with the regional education service 
centers, the Texas Education Agency, or members of the appropriate subject area 
committee. 
   
  (h) Two sample copies of each student and/or teacher component of adopted 
instructional materials that incorporate all negotiated corrections and 
corrections noted on the lists of editorial corrections filed in accordance with 
subsection (f) of this section shall be filed with the commissioner of education 
on or before the date specified in the schedule for the adoption process. In 
addition, each publisher shall file an affidavit signed by an official of the 
company verifying that all corrections noted in the list of editorial 
corrections and all corrections required by the commissioner of education and 
SBOE have been made. Corrected samples shall be identical to materials that will 
be provided to school districts after purchase. 
   
  (i) Publishers participating in the adoption process are responsible for all 
expenses incurred by their participation, including provision of sample 
materials and hardware necessary to review electronic materials. The state does 
not guarantee return of sample instructional materials. 
 
     
  sec.67.63. Regional Education Service Centers: Procedures for Handling 
Samples; Public Access to Samples. 
 
  (a) Handling procedures. 
 
  (1)  Each regional education service center (ESC) executive director shall 
designate one person to supervise all shipments of instructional materials. The 
Texas Education Agency shall provide to each designated person forms to be used 
in reporting receipt of sample shipments. 
   
  (2) On or before the date specified in the schedule for the adoption process, 
each ESC representative shall notify the commissioner of education of all 
irregularities in sample shipments. The appropriate publisher shall be notified 
of any sample shipment irregularities reported by the ESCs. 
     
  (b)  Public access to samples. 
 
  (1) One sample of all instructional materials under consideration for adoption 
shall be retained in the ESCs for review by interested persons until 
notification is received from the Texas Education Agency that school district 
adoptions have been completed. One sample shall be made available to be checked 
out according to rules established by each ESC based on demand. 
   
  (2) Regional education service centers shall ensure reasonable public access 
to sample instructional materials, including access outside of normal working 
hours that shall be scheduled by appointment. 
   
  (3) On or before the date specified in the schedule for the adoption process, 
each ESC shall issue a news release publicizing the date on which sample 
instructional materials will be available for review at the center and shall 
notify all school districts in the region of the schedule. 
 
       
  sec.67.66. Public Comment on Instructional Materials. 
 
  (a)  Written comments. 
 
  (1) Any resident of Texas may submit written comments for, against, or about 
any instructional materials submitted for adoption. 
   
  (2) Written comments shall be submitted to the commissioner of education on or 
before the deadline specified in the schedule for the adoption process. 
   
  (3) Copies of written comments shall be provided to participating publishers, 
regional education service centers (ESCs), members of the appropriate subject 
area committees, and persons who have filed written requests. 
     
  (b) Hearings before subject area committees and the commissioner of education. 
 
  (1) Each subject area committee shall hold hearings if at least five Texas 
residents have submitted written requests to appear before the committee under 
this section. The commissioner of education or the commissioner's designee shall 
chair the hearings. The purposes of the hearings are: 
 
  (A) to provide a public forum for discussion of instructional materials 
offered for adoption; and 
   
  (B) to help develop a full record for use by members of the subject area 
committees, the commissioner of education, and the State Board of Education 
(SBOE). 
     
  (2)  Testimony at the hearing will be accepted only from residents of Texas. 
No written comments shall be accepted for inclusion in the official record after 
the deadline for submission of written comments; however, copies of speeches 
made at the hearing may be distributed to subject area committee members. No 
other written material may be distributed during the hearings. Persons who wish 
to testify must notify the commissioner of education in writing on or before the 
date specified in the schedule for the adoption process. The written notice 
shall identify the subject area and titles of materials about which testimony 
will be presented. Oral responses to testimony at the hearings may be made by 
official representatives of publishing companies who have requested time to 
present responses on or before the date specified in the schedule for the 
adoption process. 
   
  (3) To contain the hearings within the designated dates, the commissioner of 
education may limit the time available for each person to testify. The 
commissioner of education shall establish procedures concerning the hearings at 
least two weeks before the hearings. The procedures may limit the number of 
persons who may speak on behalf of any organization. 
   
  (4) The commissioner of education shall have a complete record of the hearings 
made and transcribed. Transcripts of hearings shall be provided to the 
appropriate subject area committees, ESCs, participating publishers, and persons 
who have filed written requests. The official record shall be held open for 21 
calendar days after the close of the hearings. During this 21-day period any 
person who participated in a hearing before the commissioner and any official 
representative of a publishing company may submit a written response to written 
comments and/or oral testimony presented at the hearing. 
   
  (5) Within 10 days after the record is closed, the commissioner shall send 
copies of responses to written and/or oral testimony to members of the 
appropriate subject area committees, ESCs, participating publishers, and persons 
who have filed written requests. 
     
  (c) Copies of written comments, a transcript of the oral testimony presented 
at public hearings, and responses to written and/or oral testimony shall be 
provided to members of the SBOE. 
 
     
  sec.67.69. Report of the Commissioner of Education. 
 
  (a) The commissioner of education shall review all instructional materials 
recommended for adoption by subject area committees. The commissioner's review 
shall include the following: 
 
  (1) prices of recommended instructional materials; 
   
  (2) manufacturing quality of recommended instructional materials; 
   
  (3) lists of recommended corrections of errors of fact and/or corrections 
identified by subject area committees as necessary to ensure accuracy; and 
   
  (4) whether recommended instructional materials are offered by a publisher who 
refuses to rebid instructional materials according to sec.67.27 of this title 
(relating to Review and Renewal of Contracts). 
     
  (b) The commissioner of education shall submit to the board a final list of 
corrections of errors of fact and corrections necessary to ensure accuracy that, 
in the judgment of the commissioner, should be made in recommended instructional 
materials. The commissioner shall confer with publishers concerning the list of 
recommended corrections to ensure publishers would be willing to make the 
corrections should they be required by the State Board of Education (SBOE). The 
list of recommended corrections shall be sent to affected publishers, regional 
education service centers (ESCs), and other persons, such as braillists, needing 
immediate access to the information. 
   
  (c) The commissioner of education shall report to the SBOE the results of his 
review of recommended instructional materials. 
 
     
  sec.67.72. Consideration and Adoption of Instructional Materials by the State 
Board of Education. 
 
  (a) Two weeks before the State Board of Education (SBOE) is scheduled to adopt 
instructional materials, each publisher participating in the adoption process 
shall file the following documents with the commissioner of education: 
 
  (1) three copies of the official bid; 
   
  (2) a receipt from the state treasurer for a $2,500 deposit filed in cash, 
certified check, or cashier's check as earnest money to produce a valid contract 
if the publisher's recommended materials are adopted; 
   
  (3) a certificate of authority to do business in the State of Texas obtained 
from the Office of the Texas Secretary of State; and 
   
  (4) a publisher's affidavit of eligibility and anti-trust compliance. 
     
  (b) On a date specified in the schedule for the adoption process, the SBOE 
shall hold a hearing on recommended instructional materials that may, at the 
discretion of the SBOE chair, be designated an official meeting of the SBOE. 
 
  (1)  Testimony at the hearing shall be accepted only from residents of Texas 
who submitted official written comments or presented oral testimony at the joint 
hearings conducted by the commissioner of education and the subject area 
committees. In the event no hearing is held before the commissioner of education 
and a subject area committee, residents who had requested to appear before the 
committee may register to appear before the SBOE at the hearing. Persons who 
wish to testify must notify the commissioner of education on or before the date 
specified in the schedule for the adoption process. The notice must identify the 
subject areas and titles about which testimony will be presented. The SBOE may 
limit the time available for each person to testify. 
   
  (2) Oral responses to testimony at the hearing may be made by official 
representatives of publishing companies who have requested time to present 
responses on or before the date specified in the schedule for the adoption 
process. 
   
  (3) The deadline for residents scheduled to speak at the hearing to file 
written materials for consideration by the SBOE shall be 17 calendar days before 
the date specified for the public hearing in the schedule for the adoption 
process. Copies of written materials filed on or before the deadline shall be 
distributed 13 calendar days before the public hearing to the SBOE, members of 
subject area committees as appropriate, publishers participating in the adoption 
process, and residents scheduled to speak at the public hearing. Copies of 
speeches made at the public hearing may be distributed to SBOE members. No other 
written material may be distributed to SBOE members during the public hearing 
before the SBOE. 
   
  (4) Public comment on instructional materials not adopted by the SBOE on the 
date specified in the schedule for the adoption process shall be accepted 
according to the SBOE Operating Rules, sec.2.9 (relating to Public Testimony). 
     
  (c)  At a meeting specified in the schedule for the adoption process the SBOE 
shall consider: 
 
  (1) complaints of violations of the statutes or the rules and procedural 
irregularities; 
   
  (2) written comments, transcripts of hearings before the subject area 
committees, and responses to written and/or oral testimony; 
   
  (3) the report of the subject area committees; and 
   
  (4) the report of the commissioner of education. 
     
  (d) A SBOE committee designated by the SBOE chair shall review the subject 
area committees' and the commissioner's reports concerning instructional 
materials recommended for state adoption. The commissioner of education or the 
commissioner's representative and representatives of the subject area committees 
shall be available to respond to inquiries from the SBOE committee. The 
committee shall report the results of its review to the SBOE. 
   
  (e) The SBOE shall specify which of the corrections of errors of fact and 
corrections necessary to ensure accuracy recommended by the commissioner of 
education shall be required as a condition for adoption of any instructional 
materials. 
   
  (f) The SBOE shall adopt a list of approved instructional materials under the 
Texas Education Code, sec.12.24. 
   
  (g)  If a publisher requests to withdraw from the adoption process after the 
date specified in the proclamation due to price reductions, required 
corrections, or manufacturing specifications required as a condition of adoption 
by the SBOE that the publisher states cannot be met, and if the withdrawal would 
reduce the number of selections recommended by a subject area committee for a 
category to only one selection, the board may, after deliberation and 
consideration of the factors contributing to the request, grant the publisher's 
request to withdraw and adopt the remaining selection in the category. The 
request to withdraw must include a written statement signed by the publisher's 
authorized representative stating the withdrawal is voluntary and not made under 
duress. 
 
     
  sec.67.75. Requirement for Registers. 
 
  (a) A register shall be kept by each member of the State Board of Education 
(SBOE), the commissioner of education, and the Division of Curriculum 
Development and Textbooks of the Texas Education Agency to record all personal 
contacts with publishers, their representatives, agents, authors, consultants, 
editors, depositories, or any other person who has received or expects to 
receive any money, thing of value, or financial benefit for the appearance or 
contact regarding any instructional materials submitted and being considered for 
SBOE approval. 
   
  (b)  Publishers shall file with the commissioner of education, on or before a 
date specified in the schedule for the adoption process, a register indicating 
all visits, meetings, or contacts with SBOE members, including the date, time, 
location, and purpose of the communication. 
 
     
  sec.67.78. Preparation and Completion of Contract and Bond. 
 
  (a)  The state contract form prepared by the Texas attorney general shall not 
be changed or modified. 
   
  (b) Contract forms shall be sent to the publishers for signature. Signed 
contracts returned by the publishers shall be signed by the chair of the State 
Board of Education (SBOE) and attested to by the commissioner of education. 
Properly signed and attested contracts approved by the attorney general shall be 
filed with the secretary of state. 
   
  (c)  The bidder to whom a contract is issued must execute a bond under the 
Texas Education Code, sec.12.26, in the amount of $2,500 for each selection 
adopted by the SBOE. The bond shall be prepared by the commissioner of education 
and sent to the publisher for execution and signature. Properly signed and 
executed bonds returned by the publishers shall be sent to the attorney general 
for approval and signature. The original bond shall be filed with the secretary 
of state. 
 
     
  sec.67.81. Expiring and Out-of-Adoption Instructional Materials. 
 
  (a) School districts may retain out-of-adoption instructional materials as 
needed if they are used by the school for reference, teaching aids, or library 
use. 
   
  (b) The procedures for providing out-of-adoption instructional materials to 
city and county jails, institutions within the Texas Department of Criminal 
Justice, and other organizations are as follows. 
 
  (1) Each school district shall make out-of-adoption instructional materials 
available to libraries maintained by city and county jails, institutions within 
the Texas Department of Criminal Justice, and other state agency institutions. 
   
  (2) School officials may donate out-of-adoption instructional materials to 
students, adult education programs, and nonprofit organizations. Individuals and 
officials making requests for out-of-adoption instructional materials shall be 
responsible for transporting the materials. Out-of-adoption instructional 
materials may not be sold. 
 
       
  sec.67.84. Availability of Instructional Materials. Each publisher is required 
to have adopted instructional materials in stock and available for distribution 
to school districts throughout the entire adoption period. The commissioner of 
education shall report the number of back-ordered materials by publisher to the 
State Board of Education (SBOE). A back order is defined as student or teacher 
material not in stock in the depository when ordered and not available for 
distribution to school districts on the specified shipment date. 
 
   
  sec.67.87. Procedures Governing Violations of the Statutes or the Rules, 
Procedural Irregularities, or Failure to Meet Established Deadlines. 
 
  (a) Official complaints of misconduct, violations of the statutes or the 
rules, or procedural irregularities shall be filed with the commissioner of 
education. The information may not be furnished to members of the subject area 
committees before official recommendations by the committees. Any person 
attempting to furnish this information may be subject, after hearing, to being 
disqualified by the State Board of Education (SBOE) from further participation 
in the adoption process. The commissioner of education may hold preliminary 
fact-finding hearings (formal or informal) on official complaints and may report 
any findings to the SBOE. 
   
  (b) Upon discovering apparent discrepancies regarding failure to meet 
established deadlines, violations of statute or rules, or procedural 
irregularities, the commissioner of education may hold show-cause hearings and 
may report any findings to the SBOE. 
   
  (c)  The SBOE may hold hearings concerning official complaints or discovered 
violations of the statutes, rules, or procedural irregularities. 
   
  (d)  The SBOE may take action it deems appropriate concerning official 
complaints, discovered violations of the statutes, rules, or procedural 
irregularities, including removing publishers from the adoption process, 
requiring publishers to reduce prices, or imposing any penalty deemed 
appropriate for the specific violation. 
   
  (e) Each affected publisher shall issue credit to the Texas Education Agency 
in the amount of any penalty imposed under the provisions of this section. 
 
     
  sec.67.90. Penalties. 
 
  (a) The following words and terms, when used in this section, shall have the 
following meanings, unless the context clearly indicates otherwise. 
 
  (1) Editorial change-A change, agreed to by the Texas Education Agency, in the 
printing of instructional material from what was submitted to the state under 
sec.67.60(f) of this title (relating to Samples) that involves revisions such as 
design, color, placement of material, inclusion of references, style of print, 
size of print, type of print, or any similar non-essential enhancement or 
deletion to the printed page. Editorial changes meeting this definition are not 
subject to penalties. 
   
  (2) Substantial error-A verified error of fact that would interfere with 
student learning. The context, including the intended student audience and grade 
level appropriateness, shall be considered. 
   
  (3) Technical error-A verified error not determined to be substantial. 
     
  (b) An error repeated in a single item or contained in both the student and 
teacher edition of a textbook shall be counted once for the purpose of 
determining penalties. 
   
  (c) Penalties for errors shall be recommended in increments. An error 
identified under this subsection shall not be counted when determining penalties 
if the affected publisher has provided prior notice of the error to the 
commissioner of education. 
 
  (1) The following provisions shall apply for errors identified after the 
publisher has submitted a list of editorial corrections under sec.67.60(f) of 
this title and before the date established in the proclamation by which the 
State Board of Education (SBOE) shall adopt instructional materials. 
 
  (A) A $300 penalty shall be assessed for each substantial error. 
   
  (B) A $100 penalty shall be assessed for each technical error. 
   
  (C) Penalties shall be assessed only if the SBOE adopts the affected 
instructional material. 
     
  (2) The following provisions shall apply for errors identified after the SBOE 
adopts the instructional material but before the deadline established in the 
proclamation by which publishers must have submitted corrected samples of 
adopted instructional materials. 
 
  (A) A $1,000 penalty shall be assessed for each substantial error. 
   
  (B) A $500 penalty shall be assessed for each technical error. 
     
  (3) The following provisions shall apply for errors identified after the 
deadline established in the proclamation by which publishers must have submitted 
corrected samples of adopted instructional materials. 
 
  (A) A $3,000 penalty shall be assessed for each substantial error. 
   
  (B) A $1,000 penalty shall be assessed for each technical error. 
       
  (d) The following provisions shall apply for errors identified in the list of 
editorial corrections submitted by a publisher under sec.67.60(f) of this title 
and errors identified under subsection (c)(1) of this section that are not 
corrected. 
 
  (1) A publisher shall be assessed a $10,000 penalty for each substantial 
error. The publisher shall provide an errata sheet approved by the commissioner 
of education with each teacher component of an adopted title. 
   
  (2) A publisher shall be assessed a $1,000 penalty for each technical error. 
The publisher may be required to provide an errata sheet approved by the 
commissioner of education with each teacher component of an adopted title. 
     
  (e) The commissioner of education may recommend that an instructional 
materials submission not be adopted when 50 or more substantial errors are 
identified in the student textbook, teacher edition, or components thereof. A 
substantial error shall not be counted if the affected publisher has provided 
prior notice of the error to the commissioner of education. This subsection 
applies to errors identified during the following time period: 
 
  (1)  after the publisher has submitted a list of editorial corrections under 
sec.67.60(f) of this title; and 
   
  (2) before the deadline established in the proclamation by which additional 
written comments from persons scheduled to present testimony at the public 
hearing before the SBOE must be filed with the Texas Education Agency. 
     
  (f) Each affected publisher shall issue credit to the Texas Education Agency 
in the amount of any penalty imposed under the provisions of this section. 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on October 2, 1995. 
 TRD-9512484 
  Criss Cloudt 
 Associate Commissioner, Policy Planning and Research 
 Texas Education Agency 
    Earliest possible date of adoption: November 6, 1995 
 For further information, please call: (512) 463-9701 
         
             
  Subchapter C. Local Operations 
 
  19 TAC sec.sec.67.101, 67.104, 67.107, 67.110, 67.113 
 
  The new rules are proposed under the Texas Education Code, sec.12.16, as 
continued by sec.69 of the conforming amendments to Senate Bill 1, which 
authorizes the State Board of Education to proceed with the adoption of 
textbooks, whose adoption is in progress, under the Texas Education Code, 
Chapter 12, as that chapter existed on January 1, 1995. 
 The new rules implement the Texas Education Code, sec.12.16, as continued by 
sec.69 of the conforming amendments to Senate Bill 1. 
 
 
  sec.67.101. Mandatory Use of Adopted Instructional Materials.  The public 
schools of Texas must use instructional materials adopted by the State Board of 
Education (SBOE) as required of district boards of trustees by law. With the 
approval of the district board of trustees, a school district may procure and 
use unadopted instructional materials under the following conditions: 
 
  (1) there are no adopted instructional materials in an approved subject or 
course; 
   
  (2) field testing on a classroom basis is being conducted by the district in 
cooperation with a publisher or an educational institution or association; 
   
  (3) the adopted instructional materials are not appropriate to be used by 
pupils with special needs; 
   
  (4) the method of instruction does not involve the use of adopted 
instructional materials; or 
   
  (5) a waiver allowing use of unadopted instructional materials has been 
granted by the commissioner of education. 
 
     
  sec.67.104. Sample Copies of Instructional Materials for School Districts. 
 
  (a) Upon request by a school district and approval by the Texas Education 
Agency, a publisher shall provide a school district textbook coordinator with 
one complete official sample of adopted instructional materials. Samples of 
electronic, visual, or auditory media may be provided in demonstration or 
representative format, provided that identical samples are provided to each 
school district. Official samples of instructional materials submitted for 
consideration shall not be provided to school districts before the State Board 
of Education (SBOE) adopts the materials. 
   
  (b)  Publishers may provide additional samples to school districts. At the 
discretion of the publisher, additional samples may be demonstration or 
representative samples, provided that identical samples are provided to such 
school districts. 
   
  (c) All samples of instructional materials provided to school districts shall 
be labeled, "Sample Copy - Not for Classroom Use." 
   
  (d) Samples supplied to school districts shall be provided and distributed at 
the expense of the publisher. No state or local funds shall be expended to 
purchase, distribute, or ship sample materials. The state does not guarantee 
return of sample instructional materials. 
 
     
  sec.67.107. Adoption of Instructional Materials by School Districts. 
 
  (a) The jurisdiction for each independent school district rests with the board 
of trustees and the superintendent of schools of the district. 
   
  (b) Each local board of trustees of a school district shall adopt a policy for 
selecting instructional materials. Final selections must be recorded in the 
minutes of the board of trustees. 
   
  (c) A report on instructional materials selected for use in a school district 
shall be transmitted to the Texas Education Agency no later than April 1 each 
year. 
   
  (d) Only instructional materials ratified by the board of trustees shall be 
furnished by the state for use in any school district. Selections certified to 
the Texas Education Agency shall be final and, therefore, shall not be subject 
to reconsideration during the original contract period or readoption contract 
periods covering the instructional materials selected. 
   
  (e) Except as otherwise provided by statute, requisitions submitted before the 
first day of school shall be approved based on the maximum number of students 
enrolled in the district during the previous school year and/or registered to 
attend the district during the next school year. Requisitions submitted after 
the first day of school shall be approved based on the actual number of students 
enrolled in the district when the requisition is submitted. If two or more 
titles are selected from a multiple list, requisitions may be made for a 
combined total of the selected titles. 
   
  (f) Instructional materials requisitioned by and delivered to a school 
district shall be continued in use during the contract period or periods of the 
materials. A school district may not return copies of one title to secure copies 
of another title on the same multiple list. 
   
  (g) High school instructional materials may be distributed to middle school or 
junior high school pupils enrolled in high school classes. 
   
  (h) If a selection was not made from a multiple list in a prior adoption, the 
current local adoption committee may select such instructional materials if the 
subjects are to be taught in the school during the ensuing term. 
   
  (i) Adopted instructional materials shall be supplied to a pupil in special 
education classes as appropriate to the level of the pupil's ability and without 
regard to the grade for which the instructional material is adopted or the grade 
in which the pupil is enrolled. 
   
  (j) School districts shall not be reimbursed from state funds for expenses 
incurred in local handling of textbooks. 
   
  (k) Selection and use of ancillary materials provided by publishers in 
accordance with sec.67.4(b) of this title (relating to Instructional Materials 
Not Adopted by the State Board of Education) is at the discretion of local 
boards of trustees. 
 
     
  sec.67.110. Local Accountability. <ol> Each school district shall conduct an 
annual physical inventory of all currently adopted instructional materials that 
have been requisitioned by and delivered to the district. The results of the 
inventory shall be recorded in the district's files. Reimbursement shall be made 
for all instructional materials determined to be lost during the physical 
inventory. 
 
   
  sec.67.113. Depository Status. 
 
  (a) Under the Texas Education Code, sec.12.31, each publisher of adopted 
instructional materials shall designate one of the depositories approved by the 
State Board of Education (SBOE) in which a stock of the publisher's adopted 
instructional materials shall be kept and from which all shipments of adopted 
instructional materials to school districts shall be made. 
   
  (b) Payments from the Texas Education Agency shall be made directly to the 
publisher or to any agent or trustee designated in writing by the publisher. 
   
  (c) Any publisher, at its discretion and at least 30 days after notifying the 
Texas Education Agency in writing, may change from one depository to another 
depository approved by the SBOE. 
   
  (d) Any request to establish a new depository shall be submitted to the 
commissioner of education by September 1. The effective date for any new 
depository shall be April 1 of the year following approval. Each party 
requesting authority to establish a new depository shall: 
 
  (1)  present evidence of financial viability adequate to ensure performance of 
obligations under all contracts on an annual basis; 
   
  (2) provide specifications for warehouse, equipment, plans for staffing of 
proposed depository, and computer capability to receive and process orders and 
communicate in the automated format specified by the Texas Education Agency; 
   
  (3) submit assurances that a proper stock of instructional materials is 
available; 
   
  (4) request SBOE approval for the location of the depository; 
   
  (5) if the approved location of the depository falls within boundaries 
designated for lot shipments, apply to the Railroad Commission for an amendment 
to Common Carriers' Motor Freight Tariff 25, Item 7023; and 
   
  (6) submit a list of publishers under contract with the request. 
     
  (e) Each approved depository is responsible for determining the most 
economical means for freight shipments of state-ordered instructional materials 
and for contracting with appropriate freight carriers to deliver state-ordered 
adopted instructional materials. Reimbursement from the Texas Education Agency 
for freight charges covering shipments of state-ordered adopted instructional 
materials to school districts or open- enrollment charter schools may be made 
directly to the depository. Depositories may also elect to have their freight 
carriers bill the Texas Education Agency directly for freight charges covering 
state-ordered adopted instructional materials. 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on October 2, 1995. 
 TRD-9512485 
  Criss Cloudt 
 Associate Commissioner, Policy Planning and Research 
 Texas Education Agency 
    Earliest possible date of adoption: November 6, 1995 
 For further information, please call: (512) 463-9701 
         
             
  Subchapter D. Special Instructional Materials 
 
  19 TAC sec.67.121, sec.67.124 
 
  The new rules are proposed under the Texas Education Code, sec.12.16, as 
continued by sec.69 of the conforming amendments to Senate Bill 1, which 
authorizes the State Board of Education to proceed with the adoption of 
textbooks, whose adoption is in progress, under the Texas Education Code, 
Chapter 12, as that chapter existed on January 1, 1995. 
 The new rules implement the Texas Education Code, sec.12.16, as continued by 
sec.69 of the conforming amendments to Senate Bill 1. 
 
 
  sec.67.121. Special Instructional Materials To Be Made Available. 
 
  (a) All laws and rules applying to instructional materials provided to sighted 
pupils that are not in conflict with the Texas Education Code, sec.12. 03 or 
sec.12.35(b), or with rules in these sections, shall apply to the distribution 
and control of braille and large type instructional materials. 
   
  (b) Publishers shall grant permission to the state to have adopted 
instructional materials transcribed into braille, large type, and audiotape 
without penalty or royalty. 
   
  (c) On or before the deadline specified in the schedule for the adoption 
process, each publisher of newly adopted instructional materials shall provide 
computerized files as specified in the proclamation to be used for production of 
braille or other versions of materials to be used by students with disabilities. 
All information contained in adopted instructional materials shall be included 
on the computerized files. 
   
  (d) The state shall make suitable student instructional materials available in 
large type. The commissioner of education shall develop specifications for large 
type instructional materials and notify publishers of student instructional 
materials suitable for production in large type. The publisher may elect to 
supply the large type materials, or the commissioner of education may enter into 
contracts for the production of large type materials. 
   
  (e) Gifts of instructional materials for the education of students who are 
blind or visually impaired tendered by individuals, groups, or school district 
officials may be accepted by the State Board of Education (SBOE) and shall 
become state property and subject to the same regulations as similar items 
purchased with state funds. Gift materials may be shipped freight charges 
collect to the state depository. 
   
  (f) Copies of instructional materials in braille and large type needed by a 
person who is blind or visually impaired to carry out the duties of a teacher in 
the public schools of this state shall be furnished without cost. The materials 
are to be loaned to the public school districts as long as needed and are to be 
returned to the state when they are no longer needed. Materials in the medium 
needed by the teacher may be requisitioned by a textbook coordinator after the 
superintendent of schools has certified to the commissioner of education: 
 
  (1) the name of the teacher; 
   
  (2) the grade or subject taught; and 
   
  (3) the fact of the teacher's visual impairment. 
 
       
  sec.67.124. Authorization of State Funds. 
 
  (a) Money from the state textbook fund may be used to purchase braille and 
large type state-adopted instructional materials listed in the General Catalog 
of Braille and Large Type Publications issued by the American Printing House for 
the Blind and supplements and/or revisions of this publication. 
   
  (b) Large type instructional materials shall meet or exceed the specifications 
in sec.67. 10 of this title (relating to Manufacturing Standards and 
Specifications) and any additional specifications that may be prescribed when 
the call for bids is issued. 
   
  (c) Bids for production of large type materials shall be submitted pursuant to 
a call by the SBOE. Bid prices for production of large type versions of 
instructional materials adopted by the SBOE shall be submitted in two parts as 
follows: 
 
  (1) a cost per page, including the price of the regularly adopted 
instructional materials being enlarged and the cost of page reproduction; and 
   
  (2) a per volume binding cost. 
     
  (d) The bid price shall be in effect for the entire adoption period. 
   
  (e) Contracts shall correspond to those awarded to publishers upon adoption. 
Such contracts shall be subject to readoptions required by the SBOE. A 
performance bond of $10,000 shall be required of the successful bidder. 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on October 2, 1995. 
 TRD-9512486 
  Criss Cloudt 
 Associate Commissioner, Policy Planning and Research 
 Texas Education Agency 
    Earliest possible date of adoption: November 6, 1995 
 For further information, please call: (512) 463-9701 
         
               Chapter 101. Assessment 
  
  The Texas Education Agency (TEA) proposes the repeal of  ssec.101.1-101.6, 
concerning student assessment. The rules establish requirements for assessment, 
including definitions and procedures related to: the purposes of assessment, 
exit level requirements, testing appropriate students, security and 
confidentiality, reporting results, and district achievement testing. The 
repeals are necessary to comply with the sunset review process mandated by 
Senate Bill 1, 74th Texas Legislature, 1995. A new Chapter 101 is proposed in a 
separate submission. 
 Under Senate Bill 1, a rule adopted by the State Board of Education normally 
does not take effect until the beginning of the school year that begins at least 
90 days after the date the rule is adopted. However, the Bill provides that a 
board rule may take effect earlier under certain circumstances. The State Board 
of Education, by an affirmative vote of at least two-thirds of the board 
members, proposes an earlier effective date of January 1, 1996. The earlier date 
is necessary to allow new rules to be adopted that comply with the requirements 
of Senate Bill 1 regarding testing and to ensure consistency in the 
administration of state-developed criterion-referenced tests scheduled for 
spring 1996. A January 1, 1996, effective date will permit test administration 
materials to be developed that reflect the new rules and will provide adequate 
time for local district personnel involved in all phases of the assessment to be 
trained on the new procedures before the administration of the spring 1996 
tests. 
 Geoffrey Fletcher, acting executive deputy commissioner for curriculum, 
assessment and professional development, has determined that for the first five-
year period the repeals are in effect there will be no fiscal implications for 
state or local government or small businesses as a result of enforcing or 
administering the repeals. 
 Mr. Fletcher and Criss Cloudt, associate commissioner for policy planning and 
research, have determined that for each year of the first five years the repeals 
are in effect the public benefit anticipated as a result of enforcing the 
repeals will be that the State Board of Education may adopt new rules regarding 
student testing that comply with Senate Bill 1. There is no anticipated economic 
cost to persons who are required to comply with the repeals as proposed. 
 Comments on the proposal may be submitted to Criss Cloudt, Policy Planning and 
Research, 1701 North Congress Avenue, Austin, Texas 78701, (512) 463-9701. All 
requests for a public hearing on the proposed repeals submitted under the 
Administrative Procedure Act must be received by the commissioner of education 
not more than 15 calendar days after notice of a proposed change in the rules 
has been published in the Texas Register . 
   
  19 TAC sec.sec.101.1-101.6 
 
  (Editor's note: The text of the following sections proposed for repeal will 
not be published. The sections may be examined in the offices of the Texas 
Education Agency or in the Texas Register office, Room 245, James Earl Rudder 
Building, 1019 Brazos Street, Austin.) 
   
  The repeals are proposed under Senate Bill 1, sec.7.102, which authorizes the 
State Board of Education to review specified Texas Education Agency rules. 
 The repeals implement Senate Bill 1, sec.7.102. 
 
 
  sec.101.1. General Provisions. 
 
   
  sec.101.2. Exit Level Requirements. 
 
   
  sec.101.3. Testing Appropriate Students. 
 
   
  sec.101.4. Security and Confidentiality. 
 
   
  sec.101.5. Reporting of Results. 
 
   
  sec.101.6. Local District Achievement Testing. 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on October 2, 1995. 
 TRD-9512487 
  Criss Cloudt 
 Associate Commissioner, Policy Planning and Research 
 Texas Education Agency 
    Earliest possible date of adoption: November 6, 1995 
 For further information, please call: (512) 463-9701 
         
       
  The Texas Education Agency (TEA) proposes new sec.sec.101.1-101.6, concerning 
student assessment. The new rules are proposed as part of the sunset review 
process mandated by Senate Bill 1, 74th Texas Legislature, 1995. Current Chapter 
101 is proposed for repeal in a separate submission. 
 The new rules implement the requirements of Senate Bill 1 that pertain to 
topics associated with student assessment, such as development and 
administration of tests, testing requirements for graduation, testing 
accommodations and exemptions, and test security and confidentiality. Other 
topics include reporting of test results and administering and reporting group-
administered achievement tests. 
 Under Senate Bill 1, a rule adopted by the State Board of Education normally 
does not take effect until the beginning of the school year that begins at least 
90 days after the date the rule is adopted. However, the Bill provides that a 
board rule may take effect earlier under certain circumstances. The State Board 
of Education, by an affirmative vote of at least two-thirds of the board 
members, proposes an earlier effective date of January 1, 1996. The earlier date 
is necessary to comply with the requirements of Senate Bill 1 regarding testing 
and to ensure consistency in the administration of state-developed criterion-
referenced tests scheduled for spring 1996. A January 1, 1996, effective date 
will permit test administration materials to be developed that reflect the new 
rules and will provide adequate time for local district personnel involved in 
all phases of the assessment to be trained on the new procedures before the 
administration of the spring 1996 tests. 
 Geoffrey Fletcher, acting executive deputy commissioner for curriculum, 
assessment and professional development, has determined that for the first five-
year period the rules are in effect there will be fiscal implications as a 
result of enforcing or administering the rules. Funds appropriated by the 74th 
Legislature for the testing program amount to a maximum of $25 million. Of this 
amount, $6 million is designated for costs associated with releasing the tests. 
Testing program costs shall be paid from the compensatory education allotment, 
and school districts shall bear the costs as described in the Texas Education 
Code, sec.42.253. Additional costs to local government include retesting 
students with end-of-course tests, administering alternative assessments to 
exempted students, and reporting results of group-administered achievement tests 
to the Texas Education Agency. There will be no effect on small businesses. 
 Mr. Fletcher and Criss Cloudt, associate commissioner for policy planning and 
research, have determined that for each year of the first five years the rules 
are in effect the public benefit anticipated as a result of enforcing the rules 
will be the following: students will be assessed in the foundation curriculum 
with tests that reflect the essential skills and knowledge; high school students 
will have two paths for fulfilling testing requirements for graduation; private 
schools will no longer be precluded from administering the tests; the public 
will have access to the state-developed tests; and each student will be tested 
unless the measure is deemed inappropriate for the student. There is no 
anticipated economic cost to persons who are required to comply with the rules 
as proposed. 
 Comments on the proposal may be submitted to Criss Cloudt, Policy Planning and 
Research, 1701 North Congress Avenue, Austin, Texas 78701, (512) 463-9701. All 
requests for a public hearing on the proposed rules submitted under the 
Administrative Procedure Act must be received by the commissioner of education 
not more than 15 calendar days after notice of a proposed change in the rules 
has been published in the Texas Register . 
 The new rules are proposed under the Texas Education Code, sec.sec.39.022, 39. 
023, 39.027, 39.029, and 39.032, which authorizes the State Board of Education 
to create and implement a statewide student assessment program. 
 The new rules implement the Texas Education Code, sec. s39.022, 39.023, 39. 
027, 39.029, and 39.032. 
 
 
  sec.101.1. Development and Administration of Tests. 
 
  (a) The State Board of Education (SBOE) shall adopt a plan for assessment that 
complies with the requirements of the Texas Education Code (TEC), Chapter 39, 
Subchapter B. The adopted plan shall remain in effect until legislation mandates 
its revision. 
   
  (b) For each criterion-referenced test developed under the TEC, Chapter 39, 
Subchapter B, SBOE shall approve the essential skills and knowledge on which the 
instrument is based and shall establish the standards for student performance. 
   
  (c) The commissioner of education shall ensure that each criterion-referenced 
test developed under the TEC, Chapter 39, Subchapter B, meets accepted standards 
for educational testing. 
   
  (d) Prior to inclusion on a criterion-referenced test developed under the TEC, 
Chapter 39, Subchapter B, each test item shall be reviewed under secure 
conditions according to accepted standards for educational testing. 
   
  (e) The commissioner of education shall specify a schedule for testing and 
field testing that supports reliable and valid assessments. 
   
  (f) The commissioner of education may provide alternate dates for the 
administration of the exit level and end-of-course tests to students who are 
migratory children, as defined in the TEC, sec.39.029, and who are out of the 
state. 
   
  (g) A public or private school administering the tests required by the TEC, 
Chapter 39, Subchapter B, shall follow procedures specified in the applicable 
test administration materials. Each school shall maintain test security and 
confidentiality as delineated in the TEC, sec.39.030. Each public school shall 
assist with field testing and other activities necessary to implement the 
requirements of the TEC, Chapter 39, Subchapter B. 
   
  (h) The superintendent of each public school district or chief administrative 
officer of each private school administering the tests shall be responsible for 
all testing activities, including the following: 
 
  (1) scheduling testing; 
   
  (2) maintaining security; and 
   
  (3) administering the tests to each eligible student. 
     
  (i) A private school administering tests adopted under the TEC, Chapter 39, 
Subchapter B, shall reimburse the Texas Education Agency (TEA) for each test 
administered. The per-student cost may not exceed the cost of administering the 
same test to a student enrolled in a public school district. 
 
     
  sec.101.2. Testing Requirements for Graduation. 
 
  (a) The superintendent of each school district shall be responsible for the 
following: 
 
  (1) notifying each student and his or her parent or guardian in writing no 
later than the beginning of the student's seventh grade year of the essential 
skills and knowledge to be measured on the exit level and end-of-course tests 
administered under the Texas Education Code (TEC), Chapter 39, Subchapter B; 
   
  (2) notifying each 7th-12th grade student new to the district of the testing 
requirements for graduation, including the essential skills and knowledge to be 
measured; and 
   
  (3) notifying each student required to take the exit level or end-of-course 
tests and out-of-school individuals of the dates, times, and locations of 
testing. 
     
  (b) To be eligible to receive a high school diploma, a nonexempt student must 
demonstrate satisfactory performance, as determined by the State Board of 
Education (SBOE), on either the exit level or end-of-course tests specified in 
the TEC,  s39.025. 
   
  (c) According to procedures specified in the appropriate test administration 
materials, an eligible student or out-of-school individual may retest each time 
the exit level or end-of-course tests are administered. 
   
  (d) On the exit level or end-of-course tests, a student shall not be required 
to demonstrate performance at a standard higher than the one in effect when he 
or she was first eligible to take the test. 
   
  (e) A foreign exchange student who has waived in writing his or her intention 
to receive a Texas public high school diploma may be excused from the exit level 
testing requirement as specified in the TEC, Chapter 39, Subchapter B. 
 
     
  sec.101.3. Testing Accommodations and Exemptions. 
 
  (a) Each nonexempt student shall take the criterion-referenced tests 
administered under the Texas Education Code (TEC), Chapter 39, Subchapter B. 
   
  (b) Testing accommodations are permitted unless they would make a particular 
test invalid as a measure for school accountability. The decision to make a 
testing accommodation shall take into consideration the needs of the student and 
the accommodation in classroom instruction the student routinely receives. 
Permissible testing accommodations shall be described in the appropriate test 
administration materials. 
   
  (c) A student participating in a special education program under the TEC, 
Chapter 29, Subchapter A, shall take the criterion-referenced test unless the 
student's admission, review, and dismissal (ARD) committee determines that it is 
an inappropriate measure of the student's academic progress as outlined in the 
student's individual educational plan (IEP). Each exemption or testing 
accommodation shall be documented in the student's IEP. 
   
  (d) Each exempted special education student shall participate in an 
appropriate alternative assessment, as determined by the student's ARD 
committee. 
   
  (e) A student of limited English proficiency, as defined by the TEC, Chapter 
29, Subchapter B, shall take the criterion-referenced test unless the student's 
language proficiency assessment committee (LPAC) determines that it is an 
inappropriate measure of the student's academic progress based on the student's 
limited language proficiency. 
   
  (f) The LPAC shall select one of the options outlined in paragraphs (1)-(3) of 
this subsection for each limited English proficient (LEP) student. The criteria 
for this determination shall be documented in the student's permanent record 
file and shall conform with required procedures for identification of a limited 
English proficient student. Any combination of the options outlined in paragraph 
(1) and paragraph (2) of this subsection shall not exceed three consecutive 
years. A school district shall make a reasonable effort to determine a student's 
previous exemption and testing history. For students who have been enrolled 
continuously in school beginning at least in the first grade, the LPAC is 
discouraged from selecting a combination of the options outlined in paragraph 
(1) and paragraph (2) of this subsection for more than two years. 
 
  (1) The LEP student may be exempted from the criterion-referenced test. 
   
  (2) The LEP student may be administered the Spanish version criterion-
referenced test. 
   
  (3) The LEP student may be administered the English version criterion-
referenced test. 
     
  (g)  Each exempted student of limited English proficiency shall participate in 
an appropriate alternative assessment, as determined by the student's LPAC. 
   
  (h) No student shall be exempted from an exit level or end-of-course test 
based on limited English proficiency. However, a student who is a recent 
immigrant with limited English proficiency may postpone only one time the 
initial administration of the exit level test. The term "recent immigrant" is 
defined as an immigrant entering the United States no more than 12 months before 
the administration of the exit level test from which the postponement is sought. 
 
     
  sec.101.4. Test Security and Confidentiality. 
 
  (a) Violation of security or confidential integrity of any test required by 
the Texas Education Code (TEC), Chapter 39, Subchapter B, shall be prohibited. 
   
  (b)  A person who engages in conduct prohibited by this section may be subject 
to sanction of credentials. 
   
  (c) Procedures for maintaining the security and confidential integrity of a 
test shall be specified in the appropriate test administration materials. 
Conduct that violates the security or confidential integrity of a test is 
defined as any departure from the test administration procedures established by 
the commissioner of education. Conduct of this nature may include the following 
acts and omissions: 
 
  (1)  duplicating secure examination materials; 
   
  (2) disclosing the contents of any portion of a secure test; 
   
  (3) providing, suggesting, or indicating to an examinee a response or answer 
to a secure test item or prompt; 
   
  (4) changing or altering a response or answer of an examinee to a secure test 
item or prompt; 
   
  (5) aiding or assisting an examinee with a response or answer to a secure test 
item or prompt; 
   
  (6)  encouraging or assisting an individual to engage in the conduct described 
in paragraphs (1)-(5) of this subsection; or 
   
  (7) failing to report to an appropriate authority that an individual has 
engaged in conduct outlined in paragraphs (1)-(6) of this subsection. 
     
  (d) The superintendent of each public school district or chief administrative 
officer of a private school shall develop procedures to ensure the security and 
confidential integrity of the tests specified in the TEC, Chapter 39, Subchapter 
B. The superintendent or chief administrative officer shall be responsible for 
notifying the Texas Education Agency (TEA) in writing of conduct that violates 
the security or confidential integrity of a test administered under the TEC, 
Chapter 39, Subchapter B. Failure to report can subject the person responsible 
to sanction of credentials. 
   
  (e) At the end of each school year, TEA shall release all test items used to 
compute a student's score, answer keys, and written composition scoring guides 
for tests administered under the TEC, Chapter 39, Subchapter B. After a period 
of five years, each test item that has been field-tested but not used on a test 
will be released. 
 
     
  sec.101.5. Reporting of Test Results. 
 
  (a) The superintendent of a public school district shall report all test 
results as required by the Texas Education Code (TEC), sec.39.030, with 
appropriate interpretations, to the school district board of trustees according 
to the schedule in the applicable test administration materials. 
   
  (b) A public school district or private school that administers criterion-
referenced tests under the TEC, Chapter 39, Subchapter B, shall notify each of 
its students and his or her parent or guardian of test results, observing 
confidentiality requirements in the TEC, sec.39.030. 
   
  (c) All test results shall be included in each student's academic achievement 
record and on the official transcript and shall be furnished for each student 
transferring to another public school district or private school. 
 
     
  sec.101.6. Administering and Reporting of Group-Administered Achievement 
Tests. 
 
  (a) An assessment instrument required under the Texas Education Code (TEC), 
sec.39.032, is defined as a nationally normed achievement test that is group 
administered and reported publicly in the aggregate. A test given for a special 
purpose, such as program placement or individual evaluation, is not included in 
this definition. 
   
  (b) A company or organization scoring a test defined in subsection (a) of this 
section shall send test results to the district for verification. The district 
shall have 90 days to verify the accuracy of the data and report the results to 
TEA. Data shall include the name, level, and form of the test, the year in which 
the test was normed, and the mean normal curve equivalent aggregated for each 
subject area by grade, campus, and district. State norms shall be provided if 
available. 
   
  (c) A company or organization that reports results using national norms that 
do not comply with the TEC, sec.39.032(c), is liable for damages as stated in 
the TEC, sec.39.032(d). 
   
  (d) To maintain the security and confidential integrity of group-administered 
achievement tests, school districts shall follow the procedures for test 
security and confidentiality delineated in sec.101.4 of this title (relating to 
Test Security and Confidentiality). 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on October 2, 1995. 
 TRD-9512488 
  Criss Cloudt 
 Associate Commissioner, Policy Planning and Research 
 Texas Education Agency 
    Earliest possible date of adoption: November 6, 1995 
 For further information, please call: (512) 463-9701 
         
             Chapter 129. Student Attendance 
  
  The Texas Education Agency (TEA) proposes the repeal of  ssec.129.1, 129. 21, 
and 129.22, concerning student attendance. The rules establish requirements for 
attendance, including definitions and procedures related to: free attendance in 
general, student attendance accounting for state funding purposes, and 
attendance of court- related students. The repeals are necessary to comply with 
the sunset review process mandated by Senate Bill 1, 74th Texas Legislature, 
1995. New Subchapters A and B of Chapter 129 implementing provisions of Senate 
Bill 1 related to attendance are proposed in a separate submission. 
 Davide Anderson, chief counsel, has determined that for the first five-year 
period the repeals are in effect there will be no fiscal implications for state 
or local government or small businesses as a result of enforcing or 
administering the repeals. 
 Mr. Anderson and Criss Cloudt, associate commissioner for policy planning and 
research, have determined that for each year of the first five years the repeals 
are in effect the public benefit anticipated as a result of enforcing the 
repeals will be that the State Board of Education may adopt new rules regarding 
student attendance that comply with Senate Bill 1. There is no anticipated 
economic cost to persons who are required to comply with the repeals as 
proposed. 
 Comments on the proposal may be submitted to Criss Cloudt, Policy Planning and 
Research, 1701 North Congress Avenue, Austin, Texas 78701, (512) 463-9701. All 
requests for a public hearing on the proposed repeals submitted under the 
Administrative Procedure Act must be received by the commissioner of education 
not more than 15 calendar days after notice of a proposed change in the rules 
has been published in the Texas Register . 
   
  Subchapter A. Student Attendance Allowed 
 
  19 TAC sec.129.1 
 
  (Editor's note: The text of the following section proposed for repeal will not 
be published. The section may be examined in the offices of the Texas Education 
Agency or in the Texas Register office, Room 245, James Earl Rudder Building, 
1019 Brazos Street, Austin.) 
   
  The repeal is proposed under the Texas Education Code,  s7.102, which 
authorizes the State Board of Education to review specified Texas Education 
Agency rules. 
 The repeal implements the Texas Education Code, sec.7.102. 
 
 
  sec.129.1. Free Attendance in General. 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on October 2, 1995. 
 TRD-9512489 
  Criss Cloudt 
 Associate Commissioner, Policy Planning and Research 
 Texas Education Agency 
    Earliest possible date of adoption: November 6, 1995 
 For further information, please call: (512) 463-9701 
         
           
  Subchapter B. Student Attendance Accounting 
 
  19 TAC sec.129.21, sec.129.22 
 
  (Editor's note: The text of the following sections proposed for repeal will 
not be published. The sections may be examined in the offices of the Texas 
Education Agency or in the Texas Register office, Room 245, James Earl Rudder 
Building, 1019 Brazos Street, Austin.) 
   
  The repeals are proposed under the Texas Education Code,  s7.102, which 
authorizes the State Board of Education to review specified Texas Education 
Agency rules. 
 The repeals implement the Texas Education Code, sec.7.102. 
 
 
  sec.129.21. Requirements for Student Attendance Accounting for State Funding 
Purposes. 
 
   
  sec.129.22. Court-Related Students. 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on October 2, 1995. 
 TRD-9512490 
  Criss Cloudt 
 Associate Commissioner, Policy Planning and Research 
 Texas Education Agency 
    Earliest possible date of adoption: November 6, 1995 
 For further information, please call: (512) 463-9701 
         
           
  Subchapter A. Student Attendance Allowed 
 
  The Texas Education Agency (TEA) proposes new sec.sec.129.1, 129.21, and 
129.22, concerning student attendance. The new rules are proposed as part of the 
sunset review process mandated by Senate Bill 1, 74th Texas Legislature, 1995. 
The rules establish requirements for attendance, including definitions and 
procedures related to: free attendance in general, student attendance accounting 
for state funding purposes, and attendance of court- related students. The rules 
are necessary to comply with Senate Bill 1, 74th Texas Legislature, 1995. 
Current Subchapters A and B of Chapter 129 are proposed for repeal in a separate 
submission. 
 The proposed new rules introduce two changes to the rules currently in Chapter 
129, Subchapters A and B, to comply with Senate Bill 1. First, current 
sec.129.21(n), pertaining to guidelines for accounting for late afternoon and 
evening schools, is deleted. Second, the name "Texas Education Agency" is 
substituted for "Central Education Agency" throughout the rules. 
 Davide Anderson, chief counsel, has determined that for the first five-year 
period the rules are in effect there will be no fiscal implications for state or 
local government or small businesses as a result of enforcing or administering 
the rules. 
 Mr. Anderson and Criss Cloudt, associate commissioner for policy planning and 
research, have determined that for each year of the first five years the rules 
are in effect the public benefit anticipated as a result of enforcing the rules 
will be the establishment of a well-defined and structured methodology of 
accounting for students for attendance and state funding purposes. There is no 
anticipated economic cost to persons who are required to comply with the rules 
as proposed. 
 Comments on the proposal may be submitted to Criss Cloudt, Policy Planning and 
Research, 1701 North Congress Avenue, Austin, Texas 78701, (512) 463-9701. All 
requests for a public hearing on the proposed rules submitted under the 
Administrative Procedure Act and the Texas Register Act must be received by the 
commissioner of education not more than 15 calendar days after notice of a 
proposed change in the rules has been published in the Texas Register. 
   
  19 TAC sec.129.1 
 
  The new rule is proposed under the Texas Education Code,  s42.004, which 
authorizes the State Board of Education to promulgate rules concerning the 
Foundation School Program. 
 The new rule implements the Texas Education Code, sec.42.004. 
 
 
  sec.129.1. Free Attendance in General. 
 
  (a) Definitions. Identification is required within 30 days of a child's 
enrollment in a Texas school, in accordance with the Texas Education Code, 
sec.21.0313. For the purposes of identification, the following words and terms, 
when used in this subchapter, shall have the following meanings, unless the 
context clearly indicates otherwise: 
 
  (1) Documents that are suitable for identification - Shall be defined by the 
commissioner of education. 
   
  (2)  The child's records - Include a minimum set of data and documentation 
established by the commissioner of education. The minimum set of data will 
include the child's social security number or a state-approved alternative 
identification number as assigned by the Public Education Information Management 
System (PEIMS). 
     
  (b) Children shall not be denied enrollment or be removed solely because they 
fail to meet the requirements of subsection (a) of this section. 
   
  (c) Students in this country under a bona fide exchange program are eligible 
to attend school in the designated district of residence. 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on October 2, 1995. 
 TRD-9512491 
  Criss Cloudt 
 Associate Commissioner, Policy Planning and Research 
 Texas Education Agency 
    Earliest possible date of adoption: November 6, 1995 
 For further information, please call: (512) 463-9701 
         
             
  Subchapter B. Student Attendance Accounting 
 
  19 TAC sec.129.21, sec.129.22 
 
  The new rules are proposed under the Texas Education Code, sec.42.004, which 
authorizes the State Board of Education to promulgate rules concerning the 
Foundation School Program. 
 The new rules implement the Texas Education Code, sec.42.004. 
 
 
  sec.129.21. Requirements for Student Attendance Accounting for State Funding 
Purposes. 
 
  (a) All public schools in Texas shall maintain records to reflect the average 
daily attendance (ADA) for the allocation of Foundation School Program funds and 
other funds allocated by the Texas Education Agency. Superintendents, 
principals, and teachers shall be responsible to their school boards and to the 
state to maintain accurate, current attendance records. 
   
  (b) The commissioner of education shall be responsible for providing 
guidelines for attendance accounting in accordance with state law. 
   
  (c) The commissioner of education shall be responsible for providing all the 
necessary records and procedures required of school districts in preparation of 
a daily attendance register. 
   
  (d)  Districts shall maintain records and make reports concerning student 
attendance and participation in special programs as required by the commissioner 
of education. 
   
  (e) If a school district chooses to use a locally developed record or 
automated system, it must contain the minimum information required by the 
commissioner of education. 
   
  (f) The commissioner of education shall provide for special circumstances 
regarding attendance accounting in accord with the provisions of law. 
   
  (g) When classroom instruction is organized on a departmentalized basis, a 
central attendance accounting system must be used. 
   
  (h) A student must be enrolled for at least two hours to be considered in 
membership for half-day, and for at least four hours to be considered in 
membership for one full day. 
   
  (i) Attendance for all grades shall be determined by the absences recorded in 
the second or fifth period of the day, unless permission has been obtained from 
the Texas Education Agency for an alternate period to record absences. 
 
  (1) Students enrolled on a half-day basis may earn only half-day of attendance 
each school day. Attendance is determined for these pupils by recording absences 
in a period during the half-day that they are scheduled to be present. 
   
  (2) The established period in which absences are recorded may not be changed 
during the school year. 
   
  (3) Students absent at the time the attendance roll is taken, during the daily 
period selected, are counted absent for the entire day. Students present at the 
time the attendance roll is taken, during the daily period selected, are counted 
present for the entire day. 
     
  (j) A student who is not actually in school at the time attendance is taken 
shall not be counted in attendance for Foundation School Program funding 
purposes unless the student is participating in an activity which meets the 
conditions set out in subsection (k) of this section. 
   
  (k) A student not actually on campus at the time attendance is taken may be 
considered in attendance for Foundation School Program purposes under the 
following conditions. 
 
  (1) The student is participating in an activity which is approved by the local 
board of school trustees and is under the direction of a member of the 
professional staff of the school district, or an adjunct staff member who: 
 
  (A) has a minimum of a bachelor's degree; and 
   
  (B) is eligible for participation in the Teacher Retirement System of Texas. 
     
  (2) The student is a Medicaid-eligible child participating in the Early and 
Periodic Screening, Diagnosis, and Treatment Program (EPSDT) implemented by the 
Texas Department of Human Services with contractual cooperation of the Texas 
Department of Health. Such students may be excused for up to one day at any time 
without loss of ADA. 
   
  (3) Excused days for travel under the Texas Education Code, sec.21.035(f), 
shall be limited to not more than one day for travel to and one day for travel 
from the site where the student will observe the holy days. 
     
  (l) In accordance with the Texas Education Code, sec.21.035, students may be 
excused for medical, dental, and psychological appointments; for special 
education assessment procedures; and for special education related services. 
However, if such students are absent when attendance is taken, they shall not be 
counted present for Foundation School Program purposes. 
   
  (m)  The superintendent of schools is responsible for the safekeeping of all 
attendance records and reports. The superintendent of schools may determine 
whether the properly certified attendance records or reports for the school year 
are to be filed in the central office or properly stored on the respective 
school campuses of the district. Regardless of where such records are filed or 
stored, they must be readily available for audit by the Division of Audits of 
the Texas Education Agency. 
 
     
  sec.129.22. Court-Related Students. 
 
  (a) Any student referred to a juvenile court for delinquent conduct or conduct 
indicating a need for supervision shall receive excused absences for any missed 
class when: 
 
  (1)  the juvenile judge or probation officer assigned has detained the student 
or required the student to participate in activities related to the student's 
referral; 
   
  (2) detention or participation in such activities resulted in an absence from 
class; 
   
  (3) the cause of such absence is communicated in writing by the probation 
officer to school district personnel; and 
   
  (4) the student successfully completes all missed assignments as required by 
the school district. 
     
  (b) Any student referred to the Texas Department of Human Services or a county 
or local welfare unit on the basis that he or she is abused or neglected shall 
receive excused absences for any missed class when: 
 
  (1) the caseworker assigned has required the student to participate in 
activities related to the student's referral; 
   
  (2) participation in such activities resulted in an absence from class; 
   
  (3) the cause of such absence is communicated in writing by the caseworker to 
school district personnel; and 
   
  (4) the student successfully completes all missed assignments as required by 
the school district. 
     
  (c) It is the responsibility of the liaison officer appointed in accordance 
with the Texas Education Code, sec.21.908, to assist students and teachers to 
ensure that students are provided the opportunity to complete all missed 
assignments. 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on October 2, 1995. 
 TRD-9512492 
  Criss Cloudt 
 Associate Commissioner, Policy Planning and Research 
 Texas Education Agency 
    Earliest possible date of adoption: November 6, 1995 
 For further information, please call: (512) 463-9701 
         
               Chapter 157. Hearings and Appeals 
  
  Subchapter A. Hearings Concerning Students with Disabilities under the 
Individuals with Disabilities Education Act 
 
  19 TAC sec.sec.157.1-157.9 
 
  (Editor's note: The text of the following sections proposed for repeal will 
not be published. The sections may be examined in the offices of the Texas 
Education Agency or in the Texas Register office, Room 245, James Earl Rudder 
Building, 1019 Brazos Street, Austin.) 
   
  The Texas Education Agency (TEA) proposes the repeal of  ssec.157.1-157.9, 
concerning hearings related to students with disabilities under the Individuals 
with Disabilities Education Act. The rules establish requirements for such 
hearings, including definitions and procedures related to: applicability, 
requesting a hearing, hearing officers, hearing rights, prehearings, hearings, 
and student status during proceedings. The repeals are necessary to comply with 
the sunset review process mandated by Senate Bill 1, 74th Texas Legislature, 
1995. 
 David Anderson, chief counsel, has determined that for the first five-year 
period the repeals are in effect there will be no fiscal implications for state 
or local government or small businesses as a result of enforcing or 
administering the repeals. 
 Mr. Anderson and Criss Cloudt, associate commissioner for policy planning and 
research, have determined that for each year of the first five years the repeals 
are in effect the public benefit anticipated as a result of enforcing the 
repeals will be compliance with Senate Bill 1. There is no anticipated economic 
cost to persons who are required to comply with the repeals as proposed. 
 Comments on the proposal may be submitted to Criss Cloudt, Policy Planning and 
Research, 1701 North Congress Avenue, Austin, Texas 78701, (512) 463-9701. All 
requests for a public hearing on the proposed repeals submitted under the 
Administrative Procedure Act must be received by the commissioner of education 
not more than 15 calendar days after notice of a proposed change in the rules 
has been published in the Texas Register . 
 The repeals are proposed under the Texas Education Code,  s7.102, which 
authorizes the State Board of Education to review specified Texas Education 
Agency rules. 
 The repeals implement the Texas Education Code, sec.7.102. 
 
 
  sec.157.1. Purpose. 
 
   
  sec.157.2. Definitions. 
 
   
  sec.157.3. Applicability. 
 
   
  sec.157.4. Request for Hearing. 
 
   
  sec.157.5. Impartial Hearing Officer. 
 
   
  sec.157.6. Hearing Rights. 
 
   
  sec.157.7. Prehearing Procedures. 
 
   
  sec.157.8. Hearing. 
 
   
  sec.157.9. Student's Status during Proceedings. 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on October 2, 1995. 
 TRD-9512493 
  Criss Cloudt 
 Associate Commissioner, Policy Planning and Research 
 Texas Education Agency 
    Earliest possible date of adoption: November 6, 1995 
 For further information, please call: (512) 463-9701 
         
           
  Subchapter C. Hearings Held under the Texas Driver and Traffic Safety 
Education Act 
 
  19 TAC sec.157.26 
 
  (Editor's note: The text of the following section proposed for repeal will not 
be published. The section may be examined in the offices of the Texas Education 
Agency or in the Texas Register office, Room 245, James Earl Rudder Building, 
1019 Brazos Street, Austin.) 
   
  The Texas Education Agency (TEA) proposes the repeal of  s157.26, concerning 
hearings held under the Texas Driver and Traffic Safety Education Act. The rule 
establishes hearing rules for commercial driver training schools and driver 
training instructors regulated under the Texas Driver and Traffic Safety 
Education Act. The repeal is necessary to comply with the sunset review process 
mandated by Senate Bill 1, 74th Texas Legislature, 1995. A new section 
(sec.157.31) that implements new legislative provisions concerning such hearings 
is proposed in a separate submission. 
 Under Senate Bill 1, a rule adopted by the State Board of Education normally 
does not take effect until the beginning of the school year that begins at least 
90 days after the date the rule is adopted. However, the Bill provides that a 
board rule may take effect earlier under certain circumstances. The State Board 
of Education, by an affirmative vote of at least two-thirds of the board 
members, proposes an earlier effective date of December 15, 1996. Because the 
State Board of Education is proposing an earlier effective date of December 15, 
1996, for new sec.157.31, the earlier effective date proposed for the repeal of 
current sec.157.26 must be the same to avoid regulatory overlap. 
 David Anderson, chief counsel, has determined that for the first five-year 
period the repeal is in effect there will be no fiscal implications for state or 
local government or small businesses as a result of enforcing or administering 
the repeal. 
 Mr. Anderson and Criss Cloudt, associate commissioner for policy planning and 
research, have determined that for each year of the first five years the repeal 
is in effect the public benefit anticipated as a result of enforcing the repeal 
will be that the State Board of Education may adopt new rules regarding hearings 
held under the Texas Driver and Traffic Safety Education Act that comply with 
current statute. There is no anticipated economic cost to persons who are 
required to comply with the repeal as proposed. 
 Comments on the proposal may be submitted to Criss Cloudt, Policy Planning and 
Research, 1701 North Congress Avenue, Austin, Texas 78701, (512) 463-9701. All 
requests for a public hearing on the proposed repeal submitted under the 
Administrative Procedure Act must be received by the commissioner of education 
not more than 15 calendar days after notice of a proposed change in the rule has 
been published in the Texas Register . 
 The repeal is proposed under the Texas Education Code,  s7.102, which 
authorizes the State Board of Education to review specified Texas Education 
Agency rules. 
 The repeal implements the Texas Education Code, sec.7.102. 
 
 
  sec.157.26. Hearings Held under the Texas Driver and Traffic Safety Education 
Act. 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on October 2, 1995. 
 TRD-9512494 
  Criss Cloudt 
 Associate Commissioner, Policy Planning and Research 
 Texas Education Agency 
    Earliest possible date of adoption: November 6, 1995 
 For further information, please call: (512) 463-9701 
         
         
  19 TAC sec.157.31 
 
  The Texas Education Agency (TEA) proposes new sec.157.31, concerning hearings 
held under the Texas Driver and Traffic Safety Education Act. The new rule is 
proposed as part of the sunset review process mandated by Senate Bill 1, 74th 
Texas Legislature, 1995. The rule establishes hearing rules for commercial 
driver training schools and driver training instructors regulated under the 
Texas Driver and Traffic Safety Education Act. It also implements changes in law 
adopted under Senate Bill 964, 74th Texas Legislature, 1995. The repeal of 
current sec.157.26, which pertains to such hearings, is proposed in a separate 
submission. 
 Under Senate Bill 1, a rule adopted by the State Board of Education normally 
does not take effect until the beginning of the school year that begins at least 
90 days after the date the rule is adopted. However, the Bill provides that a 
board rule may take effect earlier under certain circumstances. The State Board 
of Education, by an affirmative vote of at least two-thirds of the board 
members, proposes an earlier effective date of December 15, 1996. The earlier 
effective date is necessary to implement Senate Bill 964, which has an effective 
date of September 1, 1995. 
 David Anderson, chief counsel, has determined that for the first five-year 
period the rule is in effect there will be no fiscal implications for state or 
local government or small businesses as a result of enforcing or administering 
the rule. 
 Mr. Anderson and Criss Cloudt, associate commissioner for policy planning and 
research, have determined that for each year of the first five years the rule is 
in effect the public benefit anticipated as a result of enforcing the rule will 
be timely and efficient resolution of driver training school and driver training 
instructor license appeals. There is no anticipated economic cost to persons who 
are required to comply with the rule as proposed. 
 Comments on the proposal may be submitted to Criss Cloudt, Policy Planning and 
Research, 1701 North Congress Avenue, Austin, Texas 78701, (512) 463-9701. All 
requests for a public hearing on the proposed rule submitted under the 
Administrative Procedure Act must be received by the commissioner of education 
not more than 15 calendar days after notice of a proposed change in the rule has 
been published in the Texas Register . 
 The new rule is proposed under Texas Civil Statutes, Article 4413(29c), 
sec.4(a), which authorize the State Board of Education to adopt rules necessary 
to carry out the Texas Driver and Traffic Safety Education Act. 
 The new rule implements Texas Civil Statutes, Article 4413(29c), sec.4(a). 
 
 
  sec.157.31. Rules of Procedure. 
 
  (a) Applicability. This section applies to all hearings and appeals brought 
under the Texas Driver and Traffic Safety Education Act (TDTSEA), Texas Civil 
Statutes, Article 4413(29c). Hearings under this section are also governed by 
Subchapter AA of this chapter for the administration of all appeals before the 
state commissioner of education. If this section conflicts with Subchapter AA of 
this chapter or any other rule governing hearings, the requirements of this 
section prevail for all hearings conducted under TDTSEA unless expressly 
provided otherwise. 
   
  (b) Definitions. The following words and terms, when used in this subchapter, 
shall have the following meanings, unless the context clearly indicates 
otherwise. 
 
  (1) Adverse action-Written notification that: 
 
  (A) denies, suspends, revokes, assesses a penalty against, or otherwise 
imposes conditions on a license or other form of approval held or sought by an 
applicant or licensee; and 
   
  (B) specifically provides the applicant or licensee with an opportunity for an 
adjudicative hearing under TDTSEA. 
     
  (2) Applicant-A party seeking a license or other permission under TDTSEA. 
   
  (3) Commissioner-The state commissioner of education or other person 
designated by the commissioner to render a decision under TDTSEA. 
   
  (4) Licensee-A party holding a license or similar form of permission required 
under TDTSEA. 
   
  (5) Party-A person or state agency named or admitted as a party to an appeal. 
   
  (6) Party representative-A lawyer or non-lawyer who acts on behalf of himself 
or herself or on behalf of another person during an adjudicative hearing. 
   
  (7) TDTSEA-The Texas Driver and Traffic Safety Education Act, Texas Civil 
Statutes, Article 4413(29c). 
     
  (c) Grounds for hearing. An applicant or licensee may request a hearing before 
the commissioner upon receiving notice of an adverse action. 
   
  (d) Procedures to schedule hearing. 
 
  (1) To obtain a hearing, an applicant or licensee shall submit a written 
request for a hearing to the agency representative identified in the written 
notice of adverse action. The written request shall be submitted not later than 
the 15th day after the date the notice of an adverse action is received. The 
written request shall be submitted in person, by courier receipted delivery, or 
by certified or registered mail. 
   
  (2) A request for hearing shall include a specific statement of each issue the 
applicant or licensee intends to raise in the hearing to contest the adverse 
action. An applicant or licensee may be denied the opportunity to present 
evidence on issues that should reasonably have been raised in the written 
request for hearing. 
   
  (3) The agency representative shall forward the request for hearing and the 
notice of adverse action to the division of hearings for scheduling. A hearing 
shall be held within 30 days after the date the written request for a hearing is 
received unless all parties agree to a later date for the hearing. 
   
  (4) A licensee who is issued a summary suspension under TDTSEA, sec.25, shall 
be scheduled for a hearing on the suspension on an expedited basis. 
   
  (5) Petitions for review, answers, exceptions, and replies to exceptions need 
not be filed unless directed by a hearings examiner. 
     
  (e) Amendments. A notice of adverse action or request for hearing may be 
amended or supplemented at any time up to 10 calendar days before the hearing 
and thereafter with approval of the hearings examiner. Amendments and 
supplements shall be submitted to the division of hearings in the manner 
prescribed for the service of pleadings, pleas, and motions. 
   
  (f) Classification of parties. 
 
  (1) An applicant or licensee issued a notice of adverse action that denies an 
initial license or renewal license shall be classified as a petitioner, and the 
agency shall be classified as a respondent. 
   
  (2) A licensee issued a notice of adverse action that revokes an existing 
license, imposes conditions on a license, or assesses a penalty, shall be 
classified as a respondent, and the agency shall be classified as petitioner. 
     
  (g) Motions for continuance. 
 
  (1)  Continuances may be granted by the hearings examiner under TDTSEA, 
Subchapter AA of this chapter, and all other applicable law. 
   
  (2) If a continuance is sought by an applicant or licensee who is entitled to 
a hearing within 30 days, the motion may be construed by the hearings examiner 
as a waiver of the right to the hearing within the statutory 30-day time line. 
The party representative for the agency may request, and the hearings examiner 
may grant, a waiver of the 30-day time line absent an objection by the applicant 
or licensee. 
     
  (h) Service of documents. 
 
  (1) Every pleading, plea, or motion filed with the division of hearings shall 
be served by delivering a copy to all party representatives of record in person, 
by agent, by courier receipted delivery, or by certified or registered mail, to 
the party's current address of record, or by facsimile to the recipient's 
current telecopier number of record. 
   
  (2) All other communications not specified in subsection (h)(1) of this 
section that are filed with the division of hearings may be served by first 
class mail. 
   
  (3) Service by mail shall be complete upon deposit of the paper, enclosed in a 
postpaid, properly addressed wrapper, in a post office or official depository 
under the care and custody of the United States Postal Service. 
   
  (4) Service by facsimile completed after midnight local time of the recipient 
shall be deemed served on the following day. 
   
  (5) A party representative shall serve all party representatives by the same 
method as the document was filed with the division of hearings. Service by 
facsimile may be substituted for personal service. If one of the parties to be 
served does not have the ability to receive service by facsimile, service by 
certified mail shall be an adequate substitute for personal service. 
   
  (6) The party representative shall certify compliance with this rule in 
writing over the signature of the party representative on the filed document. 
The following form of certification shall be sufficient. "I certify that on this 
______ day of _______, 19___, I served copies of the foregoing pleading upon all 
other parties to this proceeding by (state the manner of service). Signature." 
   
  (7) If a filing does not contain a required certificate of service or 
otherwise show service on all other parties, the division of hearings may: 
 
  (A)  return the document to the filing party; 
   
  (B) send a notice to all parties that the filing does not show service on all 
parties and will not be considered unless the division is notified that all 
parties have been served with the filing; or 
   
  (C) in the interest of economy of effort, send a copy of the filing to all 
parties. 
       
  (i) Stipulations. 
 
  (1) By stipulation, the parties may agree to any substantive or procedural 
matter. 
   
  (2) A stipulation may be filed in writing or entered on the record at the 
hearing. 
   
  (3) The hearings examiner may permit or require additional development of 
stipulated matters if needed to evaluate the issues presented on appeal. 
     
  (j) Decision. 
 
  (1) The hearings examiner shall prepare a decision that shall contain findings 
of fact and conclusions of law, separately stated. If deemed warranted, the 
hearings examiner may direct a party to draft and submit a proposal, which shall 
include proposed findings of fact and a concise and explicit statement of the 
underlying facts supporting such proposed findings. 
   
  (2) The commissioner or his designee shall issue a decision on the appeal 
within 10 days after the hearing unless the parties agree to a later date. 
     
  (k) Motion for rehearing. As a prerequisite to judicial appeal, a party may 
file a motion for rehearing. The motion shall satisfy all applicable 
requirements of law and Subchapter AA of this chapter. 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on October 2, 1995. 
 TRD-9512495 
  Criss Cloudt 
 Associate Commissioner, Policy Planning and Research 
 Texas Education Agency 
    Earliest possible date of adoption: November 6, 1995 
 For further information, please call: (512) 463-9701 
         
             
  Subchapter D. Independent Hearing Examiners 
 
  19 TAC sec.157.41 
 
  The Texas Education Agency (TEA) proposes new sec.157.41, concerning 
certification criteria for independent hearing examiners. The rule is necessary 
to certify examiners who will hear cases involving the proposed termination of 
teachers by a school district. The rule provides that hearings will be conducted 
at the district or the education service center. 
 David Anderson, chief counsel, has determined that for the first five-year 
period the rule is in effect there will be fiscal implications as a result of 
enforcing or administering the rule. The effect on state government will be a 
reduction in the amount of fees paid for court reporting services for hearings 
that, under the current system, would be held anew at the state level. A 
potential reduction in personnel costs may be achieved, depending on the number 
of appeals to the commissioner of education. The state may incur additional 
costs: in creating a hearing examiner assignment system for use by the 
commissioner that complies with statutory mandates; or in indexing the 
recommendations of the examiners. 
 The effect on local government (school districts) will be that districts will 
be responsible for paying for the services of the independent hearing examiners 
at rates set by the commissioner. There will be no effect on small businesses. 
 Mr. Anderson and Criss Cloudt, associate commissioner for policy planning and 
research, have determined that for each year of the first five years the rule is 
in effect the public benefit anticipated as a result of enforcing the rule will 
be that district employees will no longer be required to travel to Austin to 
attend employee hearings as witnesses or representatives. There is no 
anticipated economic cost to persons who are required to comply with the rule as 
proposed. 
 Comments on the proposal may be submitted to Criss Cloudt, Policy Planning and 
Research, 1701 North Congress Avenue, Austin, Texas 78701, (512) 463-9701. All 
requests for a public hearing on the proposed rule submitted under the 
Administrative Procedure Act must be received by the commissioner of education 
not more than 15 calendar days after notice of a proposed change in the rule has 
been published in the Texas Register . 
 The new rule is proposed under the Texas Education Code,  s21.252, which 
authorizes the State Board of Education to adopt criteria for the certification 
of independent hearing examiners in consultation with the State Office of 
Administrative Hearings. 
 The new rule implements the Texas Education Code, sec.21.252. 
 
 
  sec.157.41. Certification Criteria for Independent Hearing Examiners. 
 
  (a) License required. An individual who is certified as an independent hearing 
examiner, hereafter referred to as a "certified examiner," must be licensed to 
practice law in the State of Texas. 
   
  (b) Representations prohibited. A certified examiner, and the law firm with 
which the examiner is associated, must not serve as an agent or representative 
of: 
 
  (1) a school district; 
   
  (2) a teacher in any dispute with a school district; or 
   
  (3) an organization of school employees, school administrators, or school 
boards. 
     
  (c) Moral character. A certified examiner must: 
 
  (1) possess good moral character; and 
   
  (2) not have been convicted, given probation (whether through deferred 
adjudication or otherwise) , or fined for: 
 
  (A) a felony; 
   
  (B) a crime of moral turpitude; or 
   
  (C) a crime that directly relates to the duties of an independent hearing 
examiner in a public school setting. 
       
  (d) Status as a licensed attorney. A certified examiner must: 
 
  (1) currently be a member in good standing of the State Bar of Texas; 
   
  (2) within the last five years, not have had the examiner's bar license: 
 
  (A) reprimanded, either privately or publicly; 
   
  (B) suspended, either probated or otherwise; or 
   
  (C) revoked; 
     
  (3) have been licensed to practice law in the State of Texas or any other 
state for at least five years prior to application; and 
   
  (4) have engaged in the actual practice of law on a full-time basis, as 
defined by the Texas Board of Legal Specialization, for at least five years. 
     
  (e) Experience. During the three years immediately preceding certification, a 
certified examiner must have devoted a minimum of 50% of the examiner's time 
practicing law in some combination of the following areas, with a total of at 
least one-fifth or 20% of the examiner's practice involving personal 
participation in contested evidentiary proceedings: 
 
  (1) civil litigation; 
   
  (2)  administrative law; 
   
  (3) school law; or 
   
  (4) labor law. 
     
  (f) Continuing education. A certified examiner must receive credit for 10 
hours of continuing legal education in the area of school law during the period 
January 1 to December 31 of each year of certification. 
   
  (g)  Sworn application. In order to be certified as an independent hearing 
examiner, an applicant must submit a sworn application to the commissioner of 
education. The application shall contain the following acknowledgments, waivers, 
and releases. 
 
  (1) The applicant agrees to authorize appropriate institutions to furnish 
relevant documents and information necessary in the investigation of the 
application, including information regarding grievances maintained by the State 
Bar of Texas. 
   
  (2) If selected as a certified examiner, the applicant has the continuing duty 
to disclose grievance matters under subsection (d)(2) of this section at any 
time during the certification period. Failure to report these matters 
constitutes grounds for rejecting an application or removal as a certified 
examiner. 
   
  (3) If selected as a certified examiner, the applicant has the continuing duty 
to disclose criminal matters under subsection (d)(2) of this section at any time 
during the certification period. Failure to report these matters constitutes 
grounds for rejecting an application or removal as a certified examiner. 
     
  (h) Assurances as to position requirements. In the sworn application, the 
applicant must: 
 
  (1) demonstrate that the applicant currently maintains an office or offices 
within the State of Texas; 
   
  (2) designate the office locations from which the applicant will accept 
appointments; 
   
  (3) demonstrate that the applicant provides telephone messaging and facsimile 
services during regular business hours; 
   
  (4) demonstrate that the applicant possesses a personal computer capable of 
producing text in the format specified by the commissioner; 
   
  (5) agree to attend meetings of independent hearing examiners in Austin, 
Texas, at the examiner's expense; and 
   
  (6) agree to comply with all reporting and procedural requirements established 
by the commissioner. 
     
  (i) Insufficient examiners in a region. In the event that insufficient numbers 
of examiners are certified for any geographic area of the state, the 
commissioner shall review all applicants for the affected area and shall 
provisionally certify a sufficient number of applicants who most closely meet 
the certification criteria. 
   
  (j) Annual recertification. Certification of examiners expires on December 31 
of each calendar year. All examiners seeking recertification shall reapply. 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on October 2, 1995. 
 TRD-9512496 
  Criss Cloudt 
 Associate Commissioner, Policy Planning and Research 
 Texas Education Agency 
    Earliest possible date of adoption: November 6, 1995 
 For further information, please call: (512) 463-9701 
         
               Chapter 169. Relationship with University Interscholastic League 
  
  19 TAC sec.169.1 
 
  (Editor's note: The text of the following section proposed for repeal will not 
be published. The section may be examined in the offices of the Texas Education 
Agency or in the Texas Register office, Room 245, James Earl Rudder Building, 
1019 Brazos Street, Austin.) 
   
  The Texas Education Agency (TEA) proposes the repeal of  s169.1, concerning 
the University Interscholastic League (UIL). The rule requires the UIL to submit 
all rules and procedures to the State Board of Education for approval, 
disapproval, or modification. The repeal is necessary to comply with Senate Bill 
1, 74th Texas Legislature, 1995, which mandates a sunset review process for 
specified TEA rules and, at the same time, eliminates State Board of Education 
rulemaking authority in this area. Senate Bill 1, sec.33.083, however, continues 
to require the UIL to submit all rules and procedures to the State Board of 
Education. 
 Geoffrey Fletcher, acting executive deputy commissioner for curriculum, 
assessment and professional development, has determined that for the first five-
year period the repeal is in effect there will be no fiscal implications for 
state or local government or small businesses as a result of enforcing or 
administering the repeal. 
 Mr. Fletcher and Criss Cloudt, associate commissioner for policy planning and 
research, have determined that for each year of the first five years the repeal 
is in effect the public benefit anticipated as a result of enforcing the repeal 
will be compliance with Senate Bill 1. There is no anticipated economic cost to 
persons who are required to comply with the repeal as proposed. 
 Comments on the proposal may be submitted to Criss Cloudt, Policy Planning and 
Research, 1701 North Congress Avenue, Austin, Texas 78701, (512) 463-9701. All 
requests for a public hearing on the proposed repeal submitted under the 
Administrative Procedure Act must be received by the commissioner of education 
not more than 15 calendar days after notice of a proposed change in the rule has 
been published in the Texas Register . 
 The repeal is proposed under the Texas Education Code,  s7.102, which 
authorizes the State Board of Education to review specified Texas Education 
Agency rules. 
 The repeal implements the Texas Education Code, sec.7.102. 
 
 
  sec.169.1. Review and Implementation of Rules Relating to Extracurricular 
Activities. 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on October 2, 1995. 
 TRD-9512497 
  Criss Cloudt 
 Associate Commissioner, Policy Planning and Research 
 Texas Education Agency 
    Earliest possible date of adoption: November 6, 1995 
 For further information, please call: (512) 463-9701 
         
               
  TITLE 22 EXAMINING BOARDS 
 Part XV. Texas State Board of Pharmacy 
  Chapter 291. Pharmacies 
  
  Community Pharmacy (Class A) 
 
  22 TAC sec.sec.291.31, 291.32, 291.33, 291.34, 291.36 
 
  The Texas State Board of Pharmacy proposes amendments to  ssec.291.31, 291.32, 
291.33, 291.34, and 291.36 concerning Definitions, Personnel, Operational 
Standards, and Records in a Community Pharmacy (Class A) and Class A Pharmacies 
Compounding Sterile Pharmaceuticals. 
 The amendments, if adopted, will implement the recommendation of the Board 
appointed Task Force on Pharmacy Technicians, by specifying the minimum 
qualifications and training requirements for supportive personnel in Class A 
Pharmacies. In addition, the amendments to these sections will prohibit an 
animal from being kept within a pharmacy and from immediately adjacent areas 
under the control of the pharmacy, remove references to the Class F Pharmacy 
license which was eliminated by House Bill 1408 passed by the 74th Texas 
Legislature, clarify the requirements for dispensing a dosage form other than 
that prescribed by the practitioner, and specify procedures for electronic 
transmission of prescriptions from practitioners to pharmacies. 
 Fred S. Brinkley, Jr., R.Ph., M.B.A., has determined that for the first five-
year period the sections are in effect there will be no fiscal implications for 
state or local government as a result of enforcing or administering the 
sections. 
 Mr. Brinkley also has determined that for each year of the first five-year 
period the sections are in effect the public benefit anticipated as a result of 
enforcing the sections will be the protection of the health and safety of the 
public through minimum qualifications and training requirements for supportive 
personnel in Class A pharmacies and through the establishment of standards for 
the operation of pharmacies in this state. 
 The effect on small and large business should be the same and the cost involved 
will vary greatly depending upon the level of training already in place for 
supportive personnel at the pharmacy. Facilities that already have very 
extensive training programs may incur no costs while those that have no training 
in place may incur costs to set up a training manual and procedures. The actual 
amount of this cost is hard to determine but it is anticipated that it would not 
be more than $500. The requirement for certification of personnel by 2001 would 
also require and expenditure of $95 for each employee to take the exam and a $25 
certification renewal fee every 2 years. The cost for individuals to comply with 
these proposed regulation would be the same as for businesses. 
 A public hearing on the proposed rules will be held at 1:30 p.m., November 14, 
1995 at 1812 Centre Creek Drive, Room 203, Austin, Texas. Written comments on 
the proposal may be submitted to Gay Dodson, Director of Compliance, 8505 Cross 
Park Drive, Suite 110, Austin, Texas 78754. 
 The new rule is proposed under the Texas Pharmacy Act (Article 4542-1, Texas 
Civil Statutes) sec.4 which specifies that the purpose of the Act is to protect 
the public through the effective control and regulation of the practice of 
pharmacy; 16(a) which gives the Board the authority to adopt rules for the 
proper administration and enforcement of the Act; sec.17(b)(2) which gives the 
Board the authority to specify minimum standards for professional environment, 
technical equipment, and security in the prescription dispensing area; 
sec.17(b)(3) which gives the Board the authority to specify minimum standards 
for drug storage, maintenance of prescription drug records and procedures for 
the delivery, dispensing in a suitable container appropriately labeled, 
providing of prescription drugs or devices, monitoring of drug therapy, and 
counseling of patients on proper use of prescription drugs and devices within 
the practice of pharmacy; sec.17(b)(4) which specifies that the Board has the 
responsibility for the adoption of rules regulating a prescription drug or 
medication order transmitted by electronic means; sec.17(o) which gives the 
Board the authority to establish rules for the use of supportive personnel and 
the duties of those personnel in pharmacies licensed by the Board; sec.40(d) 
which allows a pharmacist to dispense a dosage form of a drug product different 
from that prescribed; and House Bill 1408 as passed by the 74th Legislature 
which eliminates the Class F Pharmacy license. 
 The statutes affected by this rule: Texas Civil Statutes, Article 4542a-1. 
 
 
  sec.291.31. Definitions.  The following words and terms, when used in this 
subchapter, shall have the following meanings, unless the context clearly 
indicates otherwise. 
   
  <nl>   Data communication device-An electronic device that receives electronic 
information from one source and transmits or routes it to another (e.g., bridge, 
router, switch or gateway). 
   
  <nl>   Electronic<ol> [Facsimile (FAX)] prescription drug order-A prescription 
drug order which is transmitted by an electronic device [which sends an exact 
image] to the receiver (pharmacy) over telephone lines. 
   
  <nl>   Original prescription -The: 
 
  <nl>(A) original written prescription drug order; or 
   
  <nl>(B) original verbal or electronic prescription drug order reduced to 
writing either manually or electronically by the pharmacist. 
     
   Supportive personnel <nl>/Pharmacy technician  -Those individuals utilized in 
pharmacies whose responsibility it shall be to provide technical services that 
do not require professional judgment concerned with the preparation and 
distribution of drugs under the direct supervision of and responsible to a 
pharmacist. 
   
  <nl>   Written protocol -A physician's order, standing medical order, standing 
delegation order, or other order or protocol as defined by rule of the Texas 
State Board of Medical Examiners under the Texas Medical Practice Act, (Vernon's 
Civil Statutes, Article 4495b). 
 
   
  sec.291.32. Personnel. 
 
  (a) (No change.) 
   
  (b)  Pharmacists. 
 
  (1) General. 
 
  (A)-(B) (No change.) 
   
  (C) Pharmacists are solely responsible for the direct supervision of 
supportive personnel and for designating and delegating duties, other than those 
listed in paragraph (2) of this subsection, to supportive personnel. Each 
pharmacist shall be responsible for any delegated act performed by supportive 
personnel under his or her supervision. <nl>No employer or supervisor may 
interfere with or impair the proper exercise of a pharmacist professional 
judgement in designating and delegating duties to supportive personnel. 
   
  (D) (No change.) 
     
  (2) Duties. Duties which may only be performed by a pharmacist are as follows: 
 
  (A)-(C) (No change.) 
   
  (D) [interpreting patient medication records; 
   
  [(E) affixing the label to the prescription container and] performing the 
final check of the dispensed prescription before delivery to the patient <nl>to 
ensure that the prescription has been dispensed accurately as prescribed; 
   
  <nl>(E)<ol>[(F)] communicating to the patient or patient's agent information 
about the prescription drug or device which in the exercise of the pharmacist's 
professional judgement, the pharmacist deems significant, as specified in 
sec.291.33(c) of this title (relating to Operational Standards); 
   
  <nl>(F)et>>[(G)] communicating to the patient or the patient's agent on his or 
her request information concerning any prescription drugs dispensed to the 
patient by the pharmacy; 
   
  <nl>(G)<ol>[(H)] assuring that a reasonable effort is made to obtain, record, 
and maintain patient medication records; [and] 
   
  <nl>(H) <ol>[(I)] interpreting patient medication records and performing drug 
regimen reviews <nl>; and. 
   
  <nl>(I) performing a specific act of drug therapy management for a patient 
delegated to a pharmacist by a written protocol from a physician licensed in 
this state in compliance with the Medical Practice Act (Texas Civil Statutes, 
Article 4495b). 
     
  (3) (No change.) 
     
  (c) Supportive personnel<nl>/pharmacy technician. 
 
  (1)  Qualifications. 
 
  (A) <nl>All Supportive personnel shall: 
 
  <nl>(i)<nl> have a high school or equivalent education; and 
   
  <nl>(ii)<nl> complete a structured site specific didactic and experiential 
training program at this pharmacy, which provides instruction and experience in 
the areas listed in paragraph (4) of this subsection. 
     
  <nl>(B) Supportive personnel employed in a pharmacy before August 1, 1995 are 
not required to comply with the provisions of subparagraph (A)(i) of this 
paragraph but must complete the training program specified in subparagraph 
(A)(ii) of this paragraph by January 1, 1997 or cease performing the duties of a 
supportive person. 
   
  <nl>(C) All supportive personnel employed in a pharmacy on or after August 1, 
1995 must meet the education requirements listed in subparagraph (A)(i) of this 
paragraph and complete the training program specified in subparagraph (A)(ii) of 
this paragraph by January 1, 1997 or cease performing the duties of a supportive 
person. 
   
  <nl>(D) Effective January 1, 2001, all supportive personnel must be have taken 
and passed the National Pharmacy Technician Certification Exam. 
   
  <nl>(E) For the purpose of this section, supportive personnel are those 
persons who perform nonjudgmental technical duties associated with the 
dispensing of a prescription drug order. [Supportive personnel shall possess the 
education and training necessary to carry out their responsibilities. 
   
  [(B) Supportive personnel shall be qualified to perform the tasks assigned to 
them.] 
     
  (2) Duties. 
 
  (A)-(B) (No change.) 
   
  <nl>(C) A pharmacist may not delegate the act of affixing a label to a 
prescription container until the supportive person has completed the training 
outlined in paragraph (4) of this subsection. 
     
  (3) (No change.) 
   
  (4) Training. 
 
  (A)  Supportive personnel shall complete initial training as outlined by the 
pharmacist-in-charge <nl>in a training manual, prior to the regular performance 
of their duties. Such training shall include site-specific training and 
experience as outlined in paragraph (5) of this subsection.<ol> [which includes 
on-the-job and related education commensurate with the tasks they are to 
perform, prior to the regular performance of those tasks.] 
   
  (B)-(C) (No change.) 
     
  <nl>(5) Training program. Supportive personnel training shall be outlined in a 
training manual and cover, at a minimum, the following areas. 
 
  <nl>(A) Orientation: 
 
  <nl>(i)<nl> Chain of command; 
   
  <nl>(ii)<nl> Policy and procedure manual, if applicable; 
   
  <nl>(iii)<nl> Confidentiality of patient information; 
   
  <nl>(iv)<nl> Prescription department layout/work areas; 
   
  <nl>(v)<nl> Reference sources; 
   
  <nl>(vi)<nl> Dress code and name tags; 
     
  <nl>(B) Job descriptions; 
 
  <nl>(i) <nl> Role of pharmacists; 
   
  <nl>(ii)<nl> Role of supportive personnel/pharmacy technicians; 
   
  <nl>(iii)<nl> Pharmacy technician interrelations with pharmacists, patients, 
physicians, nurses, and medical office staff. 
     
  <nl>(C) Communication techniques: 
 
  <nl>(i) <nl> Patient interaction and protocol; 
   
  <nl>(ii)<nl> Telephone etiquette; 
     
  <nl>(D) Laws and rules: 
 
  <nl>(i)<nl> Texas Dangerous Drug Act; 
 
  <nl>(I) Legend or prescription drugs; 
   
  <nl>(II) Over-the-counter drugs; 
     
  <nl>(ii)<nl> Controlled substances; 
 
  <nl>(I) Schedules of controlled substances and identification of schedules; 
   
  <nl>(II) Inventory and accountability; 
   
  <nl>(III) Storage of controlled substances; 
   
  <nl>(IV) Triplicate prescription requirements; 
     
  <nl>(iii)<nl> Poison Prevention Packaging Act (child-resistant containers); 
   
  <nl>(iv)<nl> Texas Pharmacy Act and Rules relating to pharmacy technicians; 
 
  <nl>(I) Duties which pharmacy technicians may perform; 
   
  <nl>(II)  Duties which must be performed by a pharmacists; 
     
  <nl>(v) <nl> Role of the Texas State Board of Pharmacy; 
     
  <nl>(E) Security and safety: 
 
  <nl>(i)<nl> Prescription department security; 
   
  <nl>(ii)<nl> Operation of equipment; 
   
  <nl>(iii)<nl> Waste management; 
   
  <nl>(iv)<nl> Fire safety procedures; 
   
  <nl>(v)<nl> Emergency procedures; 
     
  <nl>(F)  Prescription drugs: 
 
  <nl>(i)<nl> Names; 
 
  <nl>(I)  Chemical names; 
   
  <nl>(II) Generic names; 
   
  <nl>(III)  Brand or trademarked names; 
   
  <nl>(IV) Synonyms; 
     
  <nl>(ii) <nl> Dosage forms; 
 
  <nl>(I) Oral solid dosage forms; 
 
  <nl>(-a-) Capsules; 
   
  <nl>(-b-) Tablets; 
   
  <nl>(-c-) Controlled release; 
     
  <nl>(II) Oral liquid dosage forms; 
 
  <nl>(-a-) Solutions; 
   
  <nl>(-b-) Suspensions; 
   
  <nl>(-c-)Reconstituting powders to liquids; 
   
  <nl>(-d-) Elixirs; 
   
  <nl>(-e-) Fluid extracts and tinctures; 
   
  <nl>(-f-) Spirits or essences; 
   
  <nl>(-g-) Syrups; 
   
  <nl>(-h-) Emulsions; 
     
  <nl>(III) Topical dosage forms; 
 
  <nl>(-a-) Ointments; 
   
  <nl>(-b-) Creams; 
   
  <nl>(-c-) Lotions; 
   
  <nl>(-d-) Liniments; 
   
  <nl>(-e-) Gels; 
   
  <nl>(-f-) Collodions; 
   
  <nl>(-g-) Transdermal patches; 
   
  <nl>(-h-) Suppositories; 
   
  <nl>(-i-) Vaginal tablets; 
   
  <nl>(-j-) Otic and ophthalmic preparations; 
     
  <nl>(IV) Miscellaneous dosage forms; 
 
  <nl>(-a-) Aerosols; 
   
  <nl>(-b-) Chewing gum; 
   
  <nl>(-c-) Parenteral; 
         
  <nl>(G) Prescription drug orders; 
 
  <nl>(i)<nl> Prescribers; 
   
  <nl>(ii)<nl> Directions for use; 
   
  <nl>(iii)<nl> Commonly-used abbreviations and symbols; 
 
  <nl>(I) Abbreviations; 
 
  <nl>(-a-) General; 
   
  <nl>(-b-) Pharmaceutical; 
   
  <nl>(-c-) Medical; 
   
  <nl>(-d-) English; 
   
  <nl>(-e-) Latin; 
   
  <nl>(-f-) Metric; 
     
  <nl>(II) Symbols; 
 
  <nl>(-a-) Common chemical; 
   
  <nl>(-b-) Apothecary symbols; 
       
  <nl>(iv)<nl> Number of dosage units (roman numerals); 
   
  <nl>(v)<nl> Strength and systems of measurement; 
 
  <nl>(I)  Apothecary system; 
   
  <nl>(II) Metric system; 
   
  <nl>(III)  Avoirdupois; 
   
  <nl>(IV) Common household measurements; 
   
  <nl>(V) Decimals; 
   
  <nl>(VI) Fractions; 
   
  <nl>(VII)  Percentages; 
   
  <nl>(VIII) Ratios; 
   
  <nl>(IX) Calculations; 
     
  <nl>(vi)<nl> Route of administration; 
 
  <nl>(I) Oral; 
   
  <nl>(II) Parenteral; 
   
  <nl>(III) Topical; 
   
  <nl>(IV) Inhalation; 
   
  <nl>(V)  Sublingual and buccal; 
   
  <nl>(VI) Rectal; 
   
  <nl>(VII)  Vaginal; 
     
  <nl>(vii)<nl> Frequency of administration; 
   
  <nl>(viii)<nl> Interpreting directions for use; 
     
  <nl>(H)  Prescription drug order preparation: 
 
  <nl>(i)<nl> Creating or updating patient medication records; 
   
  <nl>(ii)<nl> Entering prescription drug order information into the computer or 
typing the label in a manual system; 
   
  <nl>(iii) <nl> Selecting the correct stock bottle; 
   
  <nl>(iv) <nl> Accurately counting or pouring the appropriate quantity of drug 
product; 
   
  <nl>(v)<nl> Selecting the proper container; 
   
  <nl>(vi) <nl> Affixing the prescription label; 
   
  <nl>(vii)<nl> Affixing auxiliary labels, if indicated; 
   
  <nl>(viii)<nl> Preparing the finished product for inspection and final check 
by pharmacists; 
     
  <nl>(I)  Non-dispensing functions; 
 
  <nl>(i)<nl> Ordering of drugs; 
   
  <nl>(ii)<nl> Receipt of drugs; 
   
  <nl>(iii) <nl> Accountability for drugs; 
   
  <nl>(iv)<nl> Storage of drugs; 
   
  <nl>(v)<nl> Types of drug containers and packages; 
   
  <nl>(vi) <nl> Label requirements for manufactured drugs; 
   
  <nl>(vii) <nl> Lot numbers; 
   
  <nl>(viii)<nl> Expiration dates; 
   
  <nl>(ix)<nl> Inventory control; 
     
  <nl>(J) Drug product prepackaging: 
 
  <nl>(i)<nl> Use of equipment; 
   
  <nl>(ii) <nl> Maintenance of equipment; 
   
  <nl>(iii)<nl> Control and record keeping; 
   
  <nl>(iv)<nl> Storage and inventory control; 
     
  <nl>(K)  Compounding of non-sterile pharmaceuticals: 
       
  (d) (No change.) 
 
     
  sec.291.33. Operational Standards. 
 
  (a) Licensing requirements. 
 
  (1)-(9) (No change.) 
   
  [(10) A Class A Pharmacy, licensed under the provisions of the Act, 
sec.29(b)(1), which would otherwise be required to be licensed under the Act, 
sec.29(b)(6) (concerning Class F Pharmacy), is not required to secure a license 
for such other type of pharmacy provided, however: 
 
  [(A) such licensee is required to comply with the provisions of sec.291.111 of 
this title (relating to Purpose), sec.291.112 of this title (relating to 
Definitions), sec.291.113 of this title (relating to Personnel), sec.291.114 of 
this title (relating to Operational Standards), and sec.291.115 of this title 
(relating to Records), contained in Home and Community Support Services Pharmacy 
(Class F), to the extent such rules are applicable to the operation of the 
pharmacy; 
   
  [(B) the Class A Pharmacy and the Home and Community Support Services Agency 
licensed under Health and Safety Code, Chapter 142, whose patients the Class F 
Pharmacy provides services are at the same location and under common control and 
ownership; and 
   
  [(C) the pre-labeled drugs for the Class F Pharmacy are maintained in such a 
manner that a person accessing these pre-labeled drugs does not have access to 
other drugs in the Class A Pharmacy.] 
       
  (b)  Environment. 
 
  (1) General requirements. 
 
  (A)-(F) (No change.) 
   
  <nl>(G) Animals, including birds and reptiles, shall not be kept within the 
pharmacy and from immediately adjacent areas under the control of the pharmacy. 
This exclusion does not apply to fish in aquariums, or guide dogs accompanying 
disabled persons. 
     
  (2)-(3) (No change.) 
     
  (c)-(i)  (No change.) 
 
     
  sec.291.34. Records. 
 
  (a) (No change.) 
   
  (b)  Prescriptions. 
 
  (1)-(3) (No change.) 
   
  (4)  <nl>Electronic<ol> [Facsimile (FAX)] prescription drug orders. For the 
purpose of this subsection, <nl>electronic<ol> [FAX] prescription drug orders 
shall be considered the same as verbal prescription drug orders communicated by 
telephone. 
 
  (A) <nl>An electronic prescription drug order may be transmitted by a 
practitioner or a practitioner's designated agent: 
 
  <nl>(i)<nl> directly to a pharmacy; or 
   
  <nl>(ii) <nl> through the use of a data communication device provided: 
 
  <nl>(I) the prescription information is not altered during transmission; and 
   
  <nl>(II) confidential patient information is not accessed or maintained by the 
operator of the data communication device unless the operator is authorized to 
receive the confidential information as specified in subsection (k) of this 
section.<ol> [A FAX prescription drug order may only be transmitted by a 
practitioner or a practitioner's designated agent directly to a pharmacy.] 
       
  (B) A practitioner shall designate in writing the name of each agent 
authorized by the practitioner to <nl>electronically transmit<ol> [FAX] 
prescriptions for the practitioner. The practitioner shall maintain at the 
practitioner's usual place of business a list of the designated agents. The 
practitioner shall provide a pharmacist with a copy of the practitioner's 
written authorization for a specific agent on the pharmacist's request. 
   
  (C) [A FAX prescription drug order may be initially dispensed only by the 
pharmacy indicated on the face of the prescription as being the pharmacy to 
which the prescription drug order was transmitted.] 
   
  [(D)] A pharmacist may not dispense <nl>an electronic <ol>[a FAX] prescription 
drug order for a: 
 
  (i) Schedule II controlled substance; 
   
  (ii) Schedule III, IV, or V controlled substance issued by a practitioner 
licensed in another state unless the practitioner is also registered under the 
Texas Controlled Substances Act; or 
   
  (iii) dangerous drug or controlled substance issued by a practitioner licensed 
in the Dominion of Canada or the United Mexican States unless the practitioner 
is also licensed in Texas. 
     
  <nl>(D)<ol>[(E)]  The practitioner or practitioner's agent shall note any 
substitution instructions on the <nl>electronic<ol> [FAX] prescription drug 
order. Such <nl> electronic<ol> [FAX] prescription drug order may follow the 
two-line format indicated in paragraph (2)(B) of this subsection, or any other 
format that clearly indicates <nl>the subsection, or any other format that 
clearly indicates the<ol> substitution instructions. 
     
  (5) Authorization for substitution. 
 
  (A) Generic substitution. 
 
  (i) A pharmacist may dispense a generically equivalent drug product if: 
 
  (I)-(III) (No change.) 
   
  (IV) the practitioner or practitioner's agent does not clearly indicate that 
the verbal or <nl>electronic <ol>[FAX] prescription drug order shall be 
dispensed as ordered. 
     
  (ii)-(iv) (No change.) 
     
  (B) Substitution of dosage form. 
 
  (i)<nl> A pharmacist may dispense[, with the patient's consent and 
notification to the practitioner,] a dosage form of a drug product different 
from that prescribed, such as a tablet instead of a capsule or liquid instead of 
tablets, provided; 
 
  <nl>(I) the patient consents to the dosage form substitution; 
   
  <nl>(II) the pharmacist notifies the practitioner of the dosage form 
substitution; and 
   
  <nl>(III) the dosage form so dispensed: 
 
  <nl>(-a-)<ol>[(i)] contains the identical amount of the active ingredients as 
the dosage prescribed for the patient; 
   
  (-b-)<ol>[(ii)] is not an enteric-coated or time release product; and 
   
  (-c-)<ol>[(iii)] does not alter desired clinical outcomes; 
       
  <nl>(ii)<nl> Substitution of dosage form may not include the substitution of a 
product that has been compounded by the pharmacist unless the pharmacist 
contacts the practitioner prior to dispensing and obtains permission to dispense 
the compounded product. 
       
  (6) Original prescription drug order records. 
 
  (A) [The term "original prescriptions" as used in this and any other 
subsections, are the: 
 
  [(i)  original written prescription drug orders; 
   
  [(ii) original FAX prescription drug orders; or 
   
  [(iii) original verbal prescription drug orders reduced to writing either 
manually or electronically by the pharmacist. 
     
  [(B)] Original prescriptions shall be maintained by the pharmacy in numerical 
order and remain legible for a period of two years from the date of filling or 
the date of the last refill dispensed. [If original FAX prescription drug orders 
are reproduced on standard paper, the original FAX prescription drug order must 
be attached to the reproduced copy.] 
   
  <nl>(B)<ol>[(C)] If an original prescription drug order is changed, such 
prescription order shall be invalid and of no further force and effect; if 
additional drugs are to be dispensed, a new prescription drug order with a new 
and separate number is required. 
   
  <nl>(C)<ol>[(D)] Original prescriptions shall be maintained in three separate 
files as follows: 
 
  (i)  prescriptions for controlled substances listed in Schedule II; 
   
  (ii) prescriptions for controlled substances listed in Schedule III-V; and 
   
  (iii) prescriptions for dangerous drugs and nonprescription drugs. 
     
  <nl>(D)<ol>[(E)] Original prescription records other than triplicate 
prescriptions may be stored on microfilm, microfiche, or other system which is 
capable of producing a direct image of the original prescription record, e.g., 
digitalized imaging system. If original prescription records are stored in a 
direct imaging system, the following is applicable: 
 
  (i) the record of refills recorded on the original prescription must also be 
stored in this system; 
   
  (ii)  the original prescription records must be maintained in numerical order 
and separated in three files as specified in subparagraph (D) of this paragraph; 
and 
   
  (iii) the pharmacy must provide immediate access to equipment necessary to 
render the records easily readable. 
       
  (7)  Prescription drug order information. 
 
  (A) All original prescriptions [issued by practitioners] shall bear: 
 
  (i)-(v) (No change.) 
   
  (vi) directions for use; [and] 
   
  (vii) <nl> intended use for the drug unless the practitioner determines the 
furnishing of this information is not in the best interest of the patient; and 
   
  <nl>(viii)<nl> date of issuance. 
     
  (B) All original <nl>electronic<ol> [FAX] prescription drug orders shall bear: 
 
  (i)-(vi)  (No change.) 
   
  (vii) <nl>indications for use, unless the practitioner determines the 
furnishing of this information is not in the best interest of the patient; 
   
  <nl>(viii) date of issuance; [and] 
   
  <nl>(ix)<nl> a statement which indicates that the prescription has been 
electronically transmitted, (e.g., FAXed to or electronically transmitted to:); 
   
  <nl>(x)<nl> name, address, and electronic access number of the pharmacy to 
which the prescription was transmitted; 
   
  <nl>(xi)<nl> telephone number of the prescribing practitioner; 
   
  <nl>(xii)<nl> date the prescription drug order was electronically transmitted 
to the pharmacy, if different from the date of issuance of the prescription; and 
   
  <nl>(xiii)<nl> if transmitted by a designated agent, the full name of the 
designated agent. 
   
  [(viii) the following information, placed on the face of the prescription drug 
order by the practitioner or practitioner's agent prior to transmission: 
 
  [(I) a statement which indicates that the prescription has been faxed, (e.g., 
faxed to:); 
   
  [(II)  name, address, and FAX number of the pharmacy to which the prescription 
was transmitted; 
   
  [(III) telephone number of the prescribing practitioner; 
   
  [(IV) date the prescription drug order was faxed to the pharmacy if different 
from the date of issuance of the prescription; and 
   
  [(V) if transmitted by a designated agent, the full name of the designated 
agent.] 
       
  (C)-(D) (No change.) 
     
  (8) (No change.) 
     
  (c)-(j) (No change.) 
   
  (k) Confidentiality. 
 
  (1) A pharmacist shall provide adequate security of prescription drug orders, 
and patient medication records to prevent indiscriminate or unauthorized access 
to confidential health information.  <nl>If prescription drug orders, requests 
for refill authorization, or other confidential health information are not 
transmitted directly between a pharmacy and a physician but are transmitted 
through a data communication device, confidential health information may not be 
accessed or maintained by the operator of the data communication device unless 
specifically authorized to obtain the confidential information by this 
subsection. 
   
  (2) (No change.) 
 
       
  sec.291.36. Class A Pharmacies Compounding Sterile Pharmaceuticals. 
 
  (a) (No change.) 
   
  (b) Definitions. The following words and terms, when used in this section, 
shall have the following meanings, unless the context clearly indicates 
otherwise. 
 
  (1)-(19) (No change.) 
   
  (20) <nl>Data communication device -An electronic device that receives 
electronic information from one source and transmits or routes it to another 
(e.g., bridge, router, switch or gateway). 
   
  <nl>(21) Deliver or delivery-The actual, constructive, or attempted transfer 
of a prescription drug or device or controlled substance from one person to 
another, whether or not for a consideration. 
   
  <nl>(22)<ol>[(21)] Designated agent- 
 
  (A) a licensed nurse, physician assistant, pharmacist, or other individual 
designated by a practitioner, and for whom the practitioner assumes legal 
responsibility, who communicates prescription drug orders to a pharmacist; 
   
  (B) a licensed nurse, physician assistant, or pharmacist employed in a health 
care facility to whom the practitioner communicates a prescription drug order; 
or 
   
  (C)  a registered nurse or physician assistant authorized by a practitioner to 
carry out a prescription drug order for dangerous drugs under Medical Practice 
Act, Article 4459b,  s3.06(d)(5). 
     
  <nl>(23)<ol>[(22)] Device-An instrument, apparatus, implement, machine, 
contrivance, implant, in vitro reagent, or other similar or related article, 
including any component part or accessory, that is required under federal or 
state law to be ordered or prescribed by a practitioner. 
   
  <nl>(24)<ol>[(23)] Dispense-Preparing, packaging, compounding, or labeling for 
delivery a prescription drug or device in the course of professional practice to 
an ultimate user or his agent by or pursuant to the lawful order of a 
practitioner. 
   
  <nl>(25)<ol>[(24)] Distribute-The delivery of a prescription drug or device 
other than by administering or dispensing. 
   
  <nl>(26)<ol>[(25)] Downtime-Period of time during which a data processing 
system is not operable. 
   
  <nl>(27)<ol>[(26)] Drug regimen review-An evaluation of prescription drug or 
medication orders and patient medication records for: 
 
  (A)  known allergies; 
   
  (B) rational therapy-contraindications; 
   
  (C) reasonable dose and route of administration; 
   
  (D)  reasonable directions for use; 
   
  (E) duplication of therapy; 
   
  (F) drug-drug interactions; 
   
  (G) drug-food interactions; 
   
  (H) drug-disease interactions; 
   
  (I) adverse drug reactions; and 
   
  (J) proper utilization, including overutilization or underutilization. 
     
  <nl>(28) Electronic prescription drug order-A prescription drug order which is 
transmitted by an electronic device to the receiver (pharmacy) over telephone 
lines. 
   
  <nl>(29)<ol>[(27)] Expiration date-The date (and time, when applicable) beyond 
which a product should not be used. 
   
  [(28) Facsimile (FAX) prescription drug order-A prescription drug order which 
is transmitted by an electronic device which sends an exact image to the 
receiver (pharmacy) over telephone lines.] 
   
  <nl>(30)<ol>[(29)] Full-time pharmacist -A pharmacist who works in a pharmacy 
from 30 to 40 hours per week or if the pharmacy is open less than 60 hours per 
week, one-half of the time the pharmacy is open. 
   
  <nl>(31)<ol>[(30)] Hard copy -A physical document that is readable without the 
use of a special device (i.e., cathode ray tube (CRT), microfiche reader, etc). 
   
  <nl>(32)<ol>[(31)] Medical Practice Act-The Texas Medical Practice Act, Texas 
Civil Statutes, Article 4495b, as amended. 
   
  <nl>(33)<ol>[(32)] New prescription drug order-A prescription drug order for a 
drug not previously self-administered by the patient. A new prescription 
includes a discharge prescription drug order but not a furlough prescription 
drug order. 
   
  <nl>(34)<ol>[(33)] Original prescription -The: 
 
  (A) original written prescription drug orders;<nl> or 
   
  (B) [original FAX prescription drug orders; or 
   
  [(C)] original verbal<nl> or electronic <ol>prescription drug orders reduced 
to writing either manually or electronically by the pharmacist. 
     
  <nl>(35)<ol>[(34)] Part-time pharmacist -A pharmacist who works less than 
full-time. 
   
  <nl>(36)<ol>[(35)] Patient counseling -Communication by the pharmacist of 
information to the patient or patient's agent, in order to improve therapy by 
ensuring proper use of drugs and devices. 
   
  <nl>(37)<ol>[(36)] Pharmacist-in-charge -The pharmacist designated on a 
pharmacy license as the pharmacist who has the authority or responsibility for a 
pharmacy's compliance with laws and rules pertaining to the practice of 
pharmacy. 
   
  <nl>(38)<ol>[(37)] Pharmaceutical care-The provision of drug therapy and other 
pharmaceutical services intended to assist in the cure or prevention of a 
disease, elimination or reduction of a patient's symptoms, or arresting or 
slowing of a disease process. 
   
  <nl>(39)<ol>[(38)] Physician assistant -A physician assistant recognized by 
the Texas State Board of Medical Examiners as having the specialized education 
and training required under the Medical Practice Act, sec.3.06(d), and issued an 
identification number by the Texas State Board of Medical Examiners. 
   
  <nl>(40)<ol>[(39)] Practitioner- 
 
  (A) a physician, dentist, podiatrist, veterinarian, or other person licensed 
or registered to prescribe, distribute, administer, or dispense a prescription 
drug or device in the course of professional practice in this state; 
   
  (B) a person licensed by another state in a health field in which, under Texas 
law, licensees in this state may legally prescribe dangerous drugs or a person 
practicing in another state and licensed by another state as a physician, 
dentist, veterinarian, or podiatrist, having a current federal Drug Enforcement 
Administration registration number, and who may legally prescribe Schedule II, 
III, IV, or V controlled substances in such other state; or 
   
  (C) a person licensed in the Dominion of Canada or the United Mexican States 
in a health field in which, under the laws of this state, a licensee may legally 
prescribe dangerous drugs; 
   
  (D) does not include a person licensed under the Texas Pharmacy Act. 
     
  <nl>(41)<ol>[(40)] Prepackaging-The act of repackaging and relabeling 
quantities of drug products from a manufacturer's original commercial container 
into a prescription container for dispensing by a pharmacist to the ultimate 
consumer. 
   
  <nl>(42)<ol>[(41)] Prescription drug- 
 
  (A) a substance for which federal or state law requires a prescription before 
it may be legally dispensed to the public; 
   
  (B) a drug or device that under federal law is required, prior to being 
dispensed or delivered, to be labeled with either of the following statements: 
 
  (i) "Caution: federal law prohibits dispensing without prescription"; or 
   
  (ii) "Caution: federal law restricts this drug to use by or on order of a 
licensed veterinarian"; or 
     
  (C) a drug or device that is required by any applicable federal or state law 
or regulation to be dispensed on prescription only or is restricted to use by a 
practitioner only. 
     
  <nl>(43)<ol>[(42)] Prescription drug order- 
 
  (A) An order from a practitioner or a practitioner's designated agent to a 
pharmacist for a drug or device to be dispensed; or 
   
  (B) An order pursuant to the Medical Practice Act,  s3.06(d)(5). 
     
  <nl>(44)<ol>[(43)] Process validation -Documented evidence providing a high 
degree of assurance that a specific process will consistently produce a product 
meeting its predetermined specifications and quality attributes. 
   
  <nl>(45)<ol>[(44)] Quality assurance -The set of activities used to assure 
that the process used in the preparation of sterile drug products lead to 
products that meet predetermined standards of quality. 
   
  <nl>(46)<ol>[(45)] Quality control -The set of testing activities used to 
determine that the ingredients, components (e.g., containers), and final sterile 
pharmaceuticals prepared meet predetermined requirements with respect to 
identity, purity, non-pyrogenicity, and sterility. 
   
  <nl>(47)<ol>[(46)] Registered nurse-A registered nurse recognized by the Texas 
State Board of Nurse Examiners as having the specialized education and training 
necessary to carry out a prescription drug order and issued an identification 
number by the Texas State Board of Nurse Examiners. 
   
  <nl>(48)<ol>[(47)] Sample-A prescription drug which is not intended to be sold 
and is intended to promote the sale of the drug. 
   
  <nl>(49)<ol>[(48)] Sterile pharmaceutical -A dosage form free from living 
micro-organisms. 
   
  <nl>(50)<ol>[(49)] Supportive personnel<nl>/Pharmacy technician <ol>-Those 
individuals utilized in pharmacies whose responsibility it shall be to provide 
technical services that do not require professional judgment concerned with the 
preparation and distribution of drugs under the direct supervision of and 
responsible to a pharmacist. 
   
  <nl>(51)<ol>[(50)] Texas Controlled Substances Act-The Texas Controlled 
Substances Act, Health and Safety Code, Chapter 481, as amended. 
   
  <nl>(52)<ol>[(51)] Unit-dose packaging -The ordered amount of drug in a dosage 
form ready for administration to a particular patient, by the prescribed route 
at the prescribed time, and properly labeled with name, strength, and expiration 
date of the drug. 
   
  <nl>(53)<ol>[(52)] Unusable drugs -Drugs or devices that are unusable for 
reasons such as they are adulterated, misbranded, expired, defective, or 
recalled. 
   
  <nl>(54) Written protocol-a physicians order, standing medical order, standing 
delegation order, or other order or protocol as defined by rule of the Texas 
State Board of Medical Examiners under the Texas Medical Practice Act, (Article 
4495b, Vernon's Civil Statutes). 
     
  (c) Personnel. 
 
  (1) (No change.) 
   
  (2) Pharmacists. 
 
  (A) General. 
 
  (i)-(ii) (No change.) 
   
  (iii) Pharmacists are solely responsible for the direct supervision of 
supportive personnel and for designating and delegating duties, other than those 
listed in subparagraph (B) of this paragraph, to supportive personnel. Each 
pharmacist shall be responsible for any delegated act performed by supportive 
personnel under his or her supervision. <nl>No employer or supervisor may 
interfere with or impair the proper exercise of a pharmacist professional 
judgement in designating and delegating duties to supportive personnel. 
   
  (iv)-(v)  (No change.) 
     
  (B) Duties. Duties which may only be performed by a pharmacist are as follows: 
 
  (i)-(iii) (No change.) 
   
  (iv)  <nl>interpreting patient medication records and  <ol>performing drug 
regimen reviews; 
   
  (v) [affixing the label to the prescription container and] performing the 
final check of the dispensed prescription before delivery to the patient <nl>to 
ensure that the prescription has been dispensed accurately as prescribed; 
   
  (vi) (No change.) 
   
  (vii)  communicating to the patient or the patient's agent on his or her 
request, information concerning any prescription drugs dispensed to the patient 
by the pharmacy; [and] 
   
  (viii) assuring that a reasonable effort is made to obtain, record, and 
maintain patient medication records <nl>; and 
   
  <nl>(ix)<nl> performing a specific act of drug therapy management for a 
patient delegated to a pharmacist by a written protocol from a physician 
licensed in this state in compliance with the Medical Practice Act (Article 
4495b, Vernon's Texas Civil Statutes). 
       
  (3) Supportive personnel<nl>/Pharmacy technicians. 
 
  (A) Qualifications. 
 
  <nl>(i)<nl> All Supportive personnel shall: 
 
  <nl>(I) have a high school or equivalent education; and 
   
  <nl>(II) complete a structured site specific didactic and experiential 
training program at this pharmacy, which provides instruction and experience in 
the areas listed in subparagraph (E) of this paragraph. 
     
  <nl>(ii)<nl> Supportive personnel employed in a pharmacy before August 1, 1995 
are not required to comply with the provisions of clause (i)(I) of this 
subparagraph but must complete the training program specified in clause (i)(II) 
of this subparagraph by January 1, 1997 or cease performing the duties of a 
supportive person. 
   
  <nl>(iii)<nl> All supportive personnel employed in a pharmacy on or after 
August 1, 1995 must meet the education requirements listed in clause (i) (II) of 
this subparagraph and complete the training program specified in clause (i)(II) 
of this subparagraph by January 1, 1997 or cease performing the duties of a 
supportive person. 
   
  <nl>(iv)<nl> Effective January 1, 2001, all supportive personnel must be 
certified. 
   
  <nl>(v)<nl> For the purpose of this section, supportive personnel are those 
persons who perform nonjudgmental technical duties associated with the 
dispensing of a prescription drug order. <ol>[ Supportive personnel shall 
possess the education and training necessary to carry out their responsibilities 
and shall be qualified to perform the tasks assigned to them. 
     
  (B) Duties. 
 
  (i)-(ii) (No change.) 
   
  <nl>(iii)<nl> A pharmacist may not delegate the act of affixing a label to a 
prescription container until the supportive person has completed the training 
outlined in paragraph (4) of this subsection. 
     
  (C) (No change.) 
   
  (D) Training. 
 
  (i)  Supportive personnel shall complete initial training as outlined by the 
pharmacist-in-charge in a training manual which includes <nl>site-specific 
training and experience as outlined in subparagraph (e) of this paragraph prior 
to the regular performance of their duties.<ol> [, on-the-job and related 
education commensurate with the tasks they are to perform, prior to the regular 
performance of those tasks.] 
   
  (ii)-(iii)  (No change.) 
     
  <nl>(E) Training program. Supportive personnel training shall be outlined in a 
training manual and cover, at a minimum, the following areas. 
 
  <nl>(i)<nl> Orientation; 
 
  <nl>(I) Chain of command; 
   
  <nl>(II) Policy and procedure manual; 
   
  <nl>(III)  Confidentiality of patient information; 
   
  <nl>(IV) Prescription department layout/work areas; 
   
  <nl>(V) Reference sources; 
   
  <nl>(VI) Dress code and name tags; 
     
  <nl>(ii)<nl> Job descriptions; 
 
  <nl>(I) Role of pharmacists; 
   
  <nl>(II) Role of supportive personnel/pharmacy technicians; 
   
  <nl>(III) Pharmacy technician interrelations with pharmacists, patients, 
physicians, nurses, and medical office staff; 
     
  <nl>(iii)<nl> Communication techniques; 
 
  <nl>(I) Patient interaction and protocol; 
   
  <nl>(II) Telephone etiquette; 
     
  <nl>(iv)<nl> Laws and rules; 
 
  <nl>(I) Texas Dangerous Drug Act 
 
  <nl>(-a-) Legend or prescription drugs; 
   
  <nl>(-b-) Over-the-counter drugs; 
     
  <nl>(II) Controlled substances 
 
  <nl>(-a-) Schedules of controlled substances and identification of schedules; 
   
  <nl>(-b-) Inventory and accountability; 
   
  <nl>(-c-) Storage of controlled substances; 
   
  <nl>(-d-) Triplicate prescription requirements; 
     
  <nl>(III)  Poison Prevention Packaging Act (child-resistant containers); 
   
  <nl>(IV) Texas Pharmacy Act and Rules relating to pharmacy technicians 
 
  <nl>(-a-) Duties which pharmacy technicians may perform; 
   
  <nl>(-b-) Duties which must be performed by a pharmacists; 
     
  <nl>(V) Role of the Texas State Board of Pharmacy; 
     
  <nl>(v) <nl> Security and safety; 
 
  <nl>(I) Prescription department security; 
   
  <nl>(II) Operation of equipment; 
   
  <nl>(III) Waste management; 
   
  <nl>(IV) Fire safety procedures; 
   
  <nl>(V)  Emergency procedures; 
     
  <nl>(vi)<nl> Prescription drugs; 
 
  <nl>(I) Names; 
 
  <nl>(-a-) Chemical names; 
   
  <nl>(-b-) Generic names; 
   
  <nl>(-c-) Brand or trademarked names; 
   
  <nl>(-d-) Synonyms; 
     
  <nl>(II) Dosage forms; 
 
  <nl>(-a-) Oral solid dosage forms; 
 
 </vsh> <nl>(-1-) Capsules; 
 </vsb> </vsec> 
 </vsh> <nl>(-2-) Tablets; 
 </vsb> </vsec> 
 </vsh> <nl>(-3-) Controlled release; 
 </vsb> </vsec>   
  <nl>(-b-) Oral liquid dosage forms; 
 
 </vsh> <nl>(-1-) Solutions; 
 </vsb> </vsec> 
 </vsh> <nl>(-2-) Suspensions; 
 </vsb> </vsec> 
 </vsh> <nl>(-3-) Reconstituting powders to liquids; 
 </vsb> </vsec> 
 </vsh> <nl>(-4-) Elixirs; 
 </vsb> </vsec> 
 </vsh> <nl>(-5-) Fluid extracts and tinctures; 
 </vsb> </vsec> 
 </vsh> <nl>(-6-) Spirits or essences; 
 </vsb> </vsec> 
 </vsh> <nl>(-7-) Syrups; 
 </vsb> </vsec> 
 </vsh> <nl>(-8-) Emulsions; 
 </vsb> </vsec>   
  <nl>(-c-) Topical dosage forms; 
 
 </vsh> <nl>(-1-) Ointments; 
 </vsb> </vsec> 
 </vsh> <nl>(-2-) Creams; 
 </vsb> </vsec> 
 </vsh> <nl>(-3-) Lotions; 
 </vsb> </vsec> 
 </vsh> <nl>(-4-) Liniments; 
 </vsb> </vsec> 
 </vsh> <nl>(-5-) Gels; 
 </vsb> </vsec> 
 </vsh> <nl>(-6-) Collodions; 
 </vsb> </vsec> 
 </vsh> <nl>(-7-) Transdermal patches; 
 </vsb> </vsec> 
 </vsh> <nl>(-8-) Suppositories; 
 </vsb> </vsec> 
 </vsh> <nl>(-9-) Vaginal tablets; 
 </vsb> </vsec> 
 </vsh> <nl>(-10-) Otic and ophthalmic preparations; 
 </vsb> </vsec>   
  <nl>(-d-) Miscellaneous dosage forms; 
 
 </vsh> <nl>(-1-) Aerosols; 
 </vsb> </vsec> 
 </vsh> <nl>(-2-)Chewing gum; 
 </vsb> </vsec> 
 </vsh> <nl>(-3-) Parenteral; 
 </vsb> </vsec>       
  <nl>(vii)<nl> Prescription drug orders; 
 
  <nl>(I) Prescribers; 
   
  <nl>(II) Directions for use; 
   
  <nl>(III) Commonly-used abbreviations and symbols; 
 
  <nl>(-a-) Abbreviations; 
 
 </vsh> <nl>(-1-) General; 
 </vsb> </vsec> 
 </vsh> <nl>(-2-) Pharmaceutical; 
 </vsb> </vsec> 
 </vsh> <nl>(-3-) Medical; 
 </vsb> </vsec> 
 </vsh> <nl>(-4-) English; 
 </vsb> </vsec> 
 </vsh> <nl>(-5-) Latin; 
 </vsb> </vsec> 
 </vsh> <nl>(-6-) Metric; 
 </vsb> </vsec>   
  <nl>(-b-) Symbols; 
 
 </vsh> <nl>(-1-) Common chemical; 
 </vsb> </vsec> 
 </vsh> <nl>(-2-) Apothecary symbols; 
 </vsb> </vsec>     
  <nl>(IV) Number of dosage units (roman numerals); 
   
  <nl>(V)  Strength and systems of measurement; 
 
  <nl>(-a-) Apothecary system; 
   
  <nl>(-b-) Metric system; 
   
  <nl>(-c-) Avoirdupois; 
   
  <nl>(-d-) Common household measurements; 
   
  <nl>(-e-) Decimals; 
   
  <nl>(-f-) Fractions; 
   
  <nl>(-g-) Percentages; 
   
  <nl>(-h-) Ratios; 
   
  <nl>(-i-) Calculations; 
     
  <nl>(VI) Route of administration; 
 
  <nl>(-a-) Oral; 
   
  <nl>(-b-) Parenteral; 
   
  <nl>(-c-) Topical; 
   
  <nl>(-d-) Inhalation; 
   
  <nl>(-e-) Sublingual and buccal; 
   
  <nl>(-f-) Rectal; 
   
  <nl>(-g-) Vaginal; 
     
  <nl>(VII) Frequency of administration; 
   
  <nl>(VIII) Interpreting directions for use; 
     
  <nl>(viii) <nl> Prescription drug order preparation; 
 
  <nl>(I) Creating or updating patient medication records; 
   
  <nl>(II) Entering prescription drug order information into the computer or 
typing the label in a manual system; 
   
  <nl>(III) Selecting the correct stock bottle; 
   
  <nl>(IV)  Accurately counting or pouring the appropriate quantity of drug 
product; 
   
  <nl>(V) Selecting the proper container; 
   
  <nl>(VI) Affixing the prescription label; 
   
  <nl>(VII) Affixing auxiliary labels, if indicated; 
   
  <nl>(VIII) Preparing the finished product for inspection and final check by 
pharmacists; 
     
  <nl>(ix)<nl> Non-dispensing functions; 
 
  <nl>(I) Ordering of drugs; 
   
  <nl>(II) Receipt of drugs; 
   
  <nl>(III) Accountability for drugs; 
   
  <nl>(IV) Storage of drugs; 
   
  <nl>(V) Types of drug containers and packages; 
   
  <nl>(VI)  Label requirements for manufactured drugs; 
   
  <nl>(VII) Lot numbers; 
   
  <nl>(VIII) Expiration dates; 
   
  <ol>(IX) Inventory control; 
     
  <nl>(x)<nl> Drug product prepackaging; 
 
  <nl>(I) Use of equipment; 
   
  <nl>(II) Maintenance of equipment; 
   
  <nl>(III)  Control and record keeping; 
   
  <nl>(IV) Storage and inventory control; 
     
  <nl>(xi)<nl> Compounding of non-sterile pharmaceuticals. 
       
  (4)  Special education, training, and evaluation requirements for pharmacy 
personnel compounding or responsible for the direct supervision of pharmacy 
personnel compounding sterile pharmaceuticals. 
 
  (A)-(B) (No change.) 
   
  (C) Supportive personnel.<nl> In addition to the qualifications and training 
outlined in paragraph 3 of this subsection, all<ol> [All] supportive personnel 
who compound sterile pharmaceuticals shall[: 
 
  [(i) have a high school or equivalent education; and 
   
  [(ii)] either: 
   
  <nl>(i)<ol>[(I)] complete a minimum of 40 hours of instruction and experience 
in the areas listed in subparagraph (A) of this paragraph. Such training may be 
obtained through the: 
 
  <nl>(I)<ol>[(-a-)] completion of a structured on-the-job didactic and 
experiential training program at this pharmacy (not transferable to another 
pharmacy) which provides 40 hours of instruction and experience in the areas 
listed in subparagraph (A) of this paragraph; or 
   
  <nl>(II)<ol>[(-b-)] completion of a course sponsored by an ACPE approved 
provider which provides 40 hours of instruction and experience in the areas 
listed in subparagraph (A) of this paragraph; or 
     
  <nl>(ii)<ol>[(II)] <nl>complete [completion of] a training program which is 
accredited by the American Society of Health-System Pharmacists (formerly the 
American Society of Hospital Pharmacists). 
     
  (D)  (No change.) 
     
  (5) (No change.) 
     
  (d) Operational standards. 
 
  (1) Licensing requirements. 
 
  (A)-(I) (No change.) 
   
  [(J)  A Class A Pharmacy, licensed under the provisions of the Act, 
sec.29(b)(1), which would otherwise be required to be licensed under the Act, 
sec.29(b)(6) (concerning Class F Pharmacy), is not required to secure a license 
for such other type of pharmacy; provided, however: 
 
  [(i) such licensee is required to comply with the provisions of sec.291.111 of 
this title (relating to Purpose), sec.291.112 of this title (relating to 
Definitions), sec.291.113 of this title (relating to Personnel), sec.291.114 of 
this title (relating to Operational Standards), and sec.291.115 of this title 
(relating to Records), contained in Home and Community Support Services Pharmacy 
(Class F), to the extent such rules are applicable to the operation of the 
pharmacy; and 
   
  [(ii) the Class A Pharmacy and the Home and Community Support Services Agency 
licensed under Health and Safety Code, Chapter 142, whose patients the Class F 
Pharmacy provides services are at the same location and under common control and 
ownership; 
   
  [(iii) the pre-labeled drugs for the Class F Pharmacy are maintained in such a 
manner that a person accessing these pre-labeled drugs does not have access to 
other drugs in the Class A Pharmacy.] 
       
  (2) Environment. 
 
  (A) General requirements. 
 
  (i)-(vii) (No change.) 
   
  <nl>(viii)<nl> Animals, including birds, and reptiles, shall not be kept 
within the pharmacy and from immediately adjacent areas under the control of the 
pharmacy. This exclusion does not apply to fish in aquariums, or guide dogs 
accompanying disabled persons. 
     
  (B)-(C) (No change.) 
     
  (3)-(9) (No change.) 
     
  (e)  Records. 
 
  (1) (No change.) 
   
  (2) Prescriptions. 
 
  (A) -(C) (No change.) 
   
  (D) <nl>Electronic<ol> [Facsimile (FAX)] prescription drug orders. For the 
purpose of this subparagraph, <nl>electronic<ol> [FAX] prescription drug orders 
shall be considered the same as verbal prescription drug orders communicated by 
telephone. 
 
  (i) <nl> An electronic prescription drug order may be transmitted by a 
practitioner or a practitioner's designated agent: 
 
  <nl>(I) directly to a pharmacy; or 
   
  <nl>(II) through the use of a data communication device provided: 
 
  <nl>(-a-) the prescription information is not altered during transmission; and 
   
  <nl>(-b-) confidential patient information is not accessed or maintained by 
the operator of the data communication device unless the operator is authorized 
to receive the confidential information as specified in subsection (k) of this 
section.<ol> [A FAX prescription drug order may only be transmitted by a 
practitioner or a practitioner's designated agent directly to a pharmacy.] 
       
  (ii) A practitioner shall designate in writing the name of each agent 
authorized by the practitioner to <nl>electronically transmit<ol> [FAX] 
prescriptions for the practitioner. The practitioner shall maintain at the 
practitioner's usual place of business a list of the designated agents. The 
practitioner shall provide a pharmacist with a copy of the practitioner's 
written authorization for a specific agent on the pharmacist's request. 
   
  (iii) [A FAX prescription drug order may be initially dispensed only by the 
pharmacy indicated on the face of the prescription as being the pharmacy to 
which the prescription drug order was transmitted. 
   
  [(iv)] A pharmacist may not dispense <nl>an electronic <ol> [a FAX] 
prescription drug order for a: 
 
  (I) Schedule II controlled substance; 
   
  (II) Schedule III, IV, or V controlled substance issued by a practitioner 
licensed in another state unless the practitioner is also registered under the 
Texas Controlled Substances Act; or 
   
  (III) dangerous drug or controlled substance issued by a practitioner licensed 
in the Dominion of Canada or the United Mexican States unless the practitioner 
is also licensed in Texas. 
     
  <nl>(iv)<ol>[(v)] The practitioner or practitioner's agent shall note any 
substitution instructions on the <nl>electronic <ol>[FAX] prescription drug 
order. Such <nl>electronic <ol>[FAX] prescription drug order may follow the two-
line format indicated in subparagraph (B)(ii) of this paragraph or any other 
format that clearly indicated the substitution instructions. 
     
  (E) Authorization for generic substitution. 
 
  (i) A pharmacist may dispense a generically equivalent drug product if: 
 
  (I)-(III) (No change.) 
   
  (IV) the practitioner or practitioner's agent does not clearly indicate that 
the verbal or <nl>electronic <ol> [FAX] prescription drug order shall be 
dispensed as ordered. 
     
  (ii)-(iv) (No change.) 
     
  (F) Substitution of dosage form. 
 
  <nl>(i) A pharmacist may dispense[, with the patient's consent and 
notification to the practitioner,] a dosage form of a drug product different 
from that prescribed, such as a tablet instead of a capsule or liquid instead of 
tablets, provided<nl>: 
 
  <nl>(I) the patient consents to the dosage form substitution; 
   
  <nl>(II) the pharmacist notifies the practitioner of the dosage form 
substitution; and 
   
  <nl>(III) the dosage form so dispensed: 
 
  <nl>(-a-)<ol>[(i)] contains the identical amount of the active ingredients as 
the dosage prescribed for the patient; 
   
  <nl>(-b-)<ol>[(ii)] is not an enteric-coated or time release product; and 
   
  <nl>(-c-)<ol>[(iii)] does not alter desired clinical outcomes. 
       
  <nl>(ii)<nl> Substitution of dosage form may not include the substitution of a 
product that has been compounded by the pharmacist unless the pharmacist 
contacts the practitioner prior to dispensing and obtains permission to dispense 
the compounded product. 
     
  (G) Original prescription drug order records. 
 
  (i) Original prescriptions shall be maintained by the pharmacy in numerical 
order and remain legible for a period of two years from the date of filling or 
the date of the last refill dispensed. [If original FAX prescription drug orders 
are reproduced on standard paper, the original FAX prescription drug order must 
be attached to the reproduced copy.] 
   
  (ii)-(iv) (No change.) 
     
  (H)  Prescription drug order information. 
 
  (i) All original prescriptions shall bear: 
 
  (I)-(V) (No change.) 
   
  (VI)  directions for use; 
   
  (VII) <nl>intended use for the drug unless the practitioner determines the 
furnishing of this information is not in the best interest of the patient; 
   
  <nl>(VIII) date of issuance; and 
   
  <nl>(IX)<ol>[(VIII)] if telephoned to the pharmacist by a designated agent, 
the full name of the designated agent. 
     
  (ii) (No change.) 
   
  (iii) All original  <nl>electronic<ol> [FAX] prescription drug orders shall 
bear: 
 
  (I)-(V) (No change.) 
   
  (VI) <nl>intended use for the drug unless the practitioner determines the 
furnishing of this information is not in the best interest of the patient; 
   
  <nl>(VII) date of issuance; [and] 
   
  <nl>(VIII) a statement which indicates that the prescription has been 
electronically transmitted, (e.g., FAXed to or electronically transmitted to:); 
   
  <nl>(IX) name, address, and electronic access number of the pharmacy to which 
the prescription was transmitted; 
   
  <nl>(X)  telephone number of the prescribing practitioner; 
   
  <nl>(XI) date the prescription drug order was electronically transmitted to 
the pharmacy, if different from the date of issuance of the prescription; and 
   
  <nl>(XII) if transmitted by a designated agent, the full name of the 
designated agent. 
   
  [(VII) the following information, placed on the face of the prescription drug 
order by the practitioner or practitioner's agent prior to transmission: 
 
  [(-a-) a statement which indicates that the prescription has been FAXed, 
(e.g., "FAXed to:"); 
   
  [(-b-) name, address, and FAX number of the pharmacy to which the prescription 
was transmitted; 
   
  [(-c-) telephone number of the prescribing practitioner; 
   
  [(-d-) date the prescription drug order was FAXed to the pharmacy if different 
from the date of issuance of the prescription; and 
   
  [(-e-) if transmitted by a designated agent, the full name of the designated 
agent.] 
       
  (iv) (No change.) 
     
  (I) (No change.) 
     
  (3)-(10) (No change.) 
   
  (11) Confidentiality. 
 
  (A) A pharmacist shall provide adequate security of prescription drug order 
and patient medication records to prevent indiscriminate or unauthorized access 
to confidential health information.  <nl>If prescription drug orders, requests 
for refill authorization, or other confidential health information are not 
transmitted directly between a pharmacy and a physician but are transmitted 
through a data communication device, confidential health information may not be 
accessed or maintained by the operator of the data communication device unless 
specifically authorized to obtain the confidential information by this 
subsection. 
   
  (B) (No change.) 
       
  (f) (No change.) 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on September 25, 1995. 
 TRD-9512300 
  Fred S. Brinkley, Jr., R.Ph., M.B.A. 
 Executive Director/Secretary 
 Texas State Board of Pharmacy 
    Proposed date of adoption: February 6, 1996 
 For further information, please call: (512) 832-0661 
         
             
  Institutional Pharmacy (Class C) 
 
  22 TAC sec.sec.291.72-291.74 
 
  The Texas State Board of Pharmacy proposes amendments to  ssec.291.72-291. 74, 
concerning Definitions, Personnel, and Operational Standards. The amendments, if 
adopted, will specify the minimum qualifications and training requirements for 
supportive personnel in Class C Pharmacies and implement the recommendations of 
the Board appointed Task Force on Pharmacy Technicians. The amendments will also 
remove references to the Class F Pharmacy license which was eliminated by House 
Bill 1408 passed by the 74th Texas Legislature. 
 Fred S. Brinkley, Jr., R.Ph., M.B.A., has determined that for the first five-
year period the sections are in effect there will be no fiscal implications for 
state or local government as a result of enforcing or administering the 
sections. 
 Mr. Brinkley also has determined that for each year of the first five years the 
sections are in effect the public benefit anticipated as a result of enforcing 
the sections will be the protection of the health and safety of the public 
through minimum qualifications and training requirements for supportive 
personnel in Class C Pharmacies and through the establishment of standards for 
the operation of pharmacies in this state. 
 The effect on small and large business should be the same and the cost involved 
will vary greatly depending upon the level of training already in place for 
supportive personnel at the pharmacy. Facilities that already have very 
extensive training programs may incur no costs while those that have no training 
in place may incur costs to set up a training manual and procedures. The actual 
amount of this cost is hard to determine but it is anticipated that it would not 
be more than $500. The requirement for certification of personnel by 2001 would 
also require an expenditure of $95 for each employee to take the exam and a $25 
certification renewal fee every two years. The cost for persons to comply with 
the proposed regulation would be the same as for businesses. 
 A public hearing on the proposed rules will be held at 1:30 p.m., November 14, 
1995, at 1812 Centre Creek Drive, Room 203, Austin, Texas. Written comments on 
the proposal may be submitted to Gay Dodson, Director of Compliance, 8505 Cross 
Park Drive, Suite 110, Austin, Texas 78754. 
 The amendments are proposed under the Texas Pharmacy Act (Texas Civil Statutes, 
Article 4542a-1), sec.4, which specifies that the purpose of the Act is to 
protect the public through the effective control and regulation of the practice 
of pharmacy; sec.16(a), which gives the Board the authority to adopt rules for 
the proper administration and enforcement of the Act; sec.17(b)(3), which gives 
the Board the authority to specify minimum standards for drug storage, 
maintenance of prescription drug records and procedures for the delivery, 
dispensing in a suitable container appropriately labeled, providing of 
prescription drugs or devices, monitoring of drug therapy, and counseling of 
patients on proper use of prescription drugs and devices within the practice of 
pharmacy; sec.17(o), which gives the Board the authority to establish rules for 
the use of supportive personnel and the duties of those personnel in pharmacies 
licensed by the Board; and House Bill 1408 as passed by the 74th Legislature 
which eliminates the Class F Pharmacy license. 
 The statute affected by these amendments: Texas Civil Statutes, Article 4542a-
1. 
 
 
  sec.291.72. Definitions.  The following words and terms, when used in these 
sections, shall have the following meanings, unless the context clearly 
indicates otherwise. 
   
  <nl>   Written protocol -A physician's order, standing medical order, standing 
delegation order, or other order or protocol as defined by rule of the Texas 
State Board of Medical Examiners under the Texas Medical Practice Act (Texas 
Civil Statutes, Article 4495b). 
 
   
  sec.291.73. Personnel. 
 
  (a)-(c) (No change.) 
   
  (d)  Pharmacists. 
 
  (1) General. 
 
  (A)-(B) (No change.) 
   
  (C)  <nl>Pharmacists are solely responsible for the direct supervision of 
supportive personnel and for designating and delegating duties, other than those 
listed in subsection (b)(2) of this section, to supportive personnel. No 
employer or supervisor may interfere with or impair the proper exercise of a 
pharmacist professional judgement in designating and delegating duties to 
supportive personnel. Each pharmacist<ol> [all pharmacists] shall be responsible 
for any delegated act performed by supportive personnel under his or her 
supervision. 
   
  (D) (No change.) 
     
  (2) Duties. Duties of the pharmacist-in-charge and all other pharmacists shall 
include, but need not be limited to the following: 
 
  (A)-(C) (No change.) 
   
  <nl>(D)  performing a specific act of drug therapy management for a patient 
delegated to a pharmacist by a written protocol from a physician licensed in 
this state in compliance with the Medical Practice Act (Texas Civil Statutes, 
Article 4495b). 
   
  <nl>(E)<ol>[(D)] accepting the responsibility for: 
 
  (i) distributing drugs and devices pursuant to medication orders; 
   
  (ii) compounding and labeling of drugs and devices; 
   
  (iii) proper and safe storage of drugs and devices; and 
   
  (iv) maintaining proper records for drugs and devices. 
         
  (e) Supportive personnel<nl>/Pharmacy technicians. 
 
  (1)  Qualifications. 
 
  <nl>(A) All supportive personnel shall: 
 
  <nl>(i)<nl> have a high school or equivalent education; and 
   
  <nl>(ii)<nl> complete a structured site specific didactic and experiential 
training program at this pharmacy which provides instruction and experience in 
the areas listed in paragraph (4) of this subsection. 
     
  <nl>(B) Supportive personnel employed in a pharmacy before August 1, 1995 are 
not required to comply with the provisions of subparagraph (A)(i) of this 
paragraph but must complete the training program specified in subparagraph 
(A)(ii) of this paragraph by January 1, 1997 or cease performing the duties of a 
supportive person. 
   
  <nl>(C) All supportive personnel employed in a pharmacy on or after August 1, 
1995 must meet the education requirements listed in subparagraph (A)(i) of this 
paragraph and complete the training program specified in subparagraph (A)(ii) of 
this paragraph by January 1, 1997 or cease performing the duties of a supportive 
person. 
   
  <nl>(D) Effective January 1, 2001, all supportive personnel must have taken 
and passed the National Pharmacy Technician Certification Exam. 
   
  <nl>(E) For the purpose of this section, supportive personnel are those 
persons who perform nonjudgmental technical duties associated with the 
distribution of a medication drug order. 
   
  [(A) Supportive personnel shall possess the education and training necessary 
to carry out their responsibilities.] 
   
  [(B) Supportive personnel must be qualified to perform the tasks assigned to 
them.] 
     
  (2)-(3) (No change.) 
   
  (4)  Training. 
 
  (A) Supportive personnel shall complete initial training as outlined by the 
pharmacist-in-charge and described in the policy and procedure manual or 
training manual which includes <nl>site-specific training and experience as 
outlined in paragraph (5) of this subsection<ol> [on-the-job training and 
related education commensurate with the tasks they are to perform], prior to the 
regular performance of those tasks. 
   
  (B)-(C)  (No change.) 
     
  <nl>(5) Training program. Supportive personnel training shall be outlined in a 
training manual and cover, at a minimum, the following areas. 
 
  <nl>(A) Orientation: 
 
  <nl>(i)<nl> chain of command; 
   
  <nl>(ii)<nl> policy and procedure manual; 
   
  <nl>(iii) <nl> confidentiality of patient information; 
   
  <nl>(iv) <nl> prescription department layout/work areas; 
   
  <nl>(v) <nl> reference sources; 
   
  <nl>(vi)<nl> dress code and name tags. 
     
  <nl>(B) Job descriptions: 
 
  <nl>(i)<nl> role of pharmacists; 
   
  <nl>(ii)<nl> role of supportive personnel/pharmacy technicians; 
   
  <nl>(iii)<nl> pharmacy technician interrelations with pharmacists, patients, 
physicians, nurses, and hospital staff. 
     
  <nl>(C)  Communication techniques: 
 
  <nl>(i)<nl> patient interaction and protocol; 
   
  <nl>(ii)<nl> telephone etiquette; 
     
  <nl>(D) Laws and rules: 
 
  <nl>(i)<nl> Texas Dangerous Drug Act: 
 
  <nl>(I)  legend or prescription drugs; 
   
  <nl>(II) over-the-counter drugs; 
     
  <nl>(ii)<nl> Controlled substances: 
 
  <nl>(I) schedules of controlled substances and identification of schedules; 
   
  <nl>(II)  inventory and accountability; 
   
  <nl>(III) storage of controlled substances. 
     
  <nl>(iii)<nl> Texas Pharmacy Act and rules relating to pharmacy technicians: 
 
  <nl>(I) duties which pharmacy technicians may perform; 
   
  <nl>(II) duties which must be performed by a pharmacists. 
     
  <nl>(iv)<nl> Role of the Texas State Board of Pharmacy. 
     
  <nl>(E)  Security and safety: 
 
  <nl>(i)<nl> prescription department security; 
   
  <nl>(ii)<nl> operation of equipment; 
   
  <nl>(iii) <nl> waste management; 
   
  <nl>(iv)<nl> fire safety procedures; 
   
  <nl>(v)<nl> emergency procedures. 
     
  <nl>(F) Prescription drugs: 
 
  <nl>(i)<nl> Names: 
 
  <nl>(I) chemical names; 
   
  <nl>(II) generic names; 
   
  <nl>(III) brand or trademarked names; 
   
  <nl>(IV) synonyms; 
     
  <nl>(ii)<nl> Dosage forms: 
 
  <nl>(I) Oral solid dosage forms: 
 
  <nl>(-a-) capsules; 
   
  <nl>(-b-) tablets; 
   
  <nl>(-c-) controlled release; 
     
  <nl>(II) Oral liquid dosage forms: 
 
  <nl>(-a-) solutions; 
   
  <nl>(-b-) suspensions; 
   
  <nl>(-c-) reconstituting powders to liquids; 
   
  <nl>(-d-) elixirs; 
   
  <nl>(-e-) fluid extracts and tinctures; 
   
  <nl>(-f-) spirits or essences; 
   
  <nl>(-g-) syrups; 
   
  <nl>(-h-) emulsions; 
     
  <nl>(III) Topical dosage forms: 
 
  <nl>(-a-) ointments; 
   
  <nl>(-b-) creams; 
   
  <nl>(-c-) lotions; 
   
  <nl>(-d-) liniments; 
   
  <nl>(-e-) gels; 
   
  <nl>(-f-) collodions; 
   
  <nl>(-g-) transdermal patches; 
   
  <nl>(-h-) suppositories; 
   
  <nl>(-i-) vaginal tablets; 
   
  <nl>(-j-) otic and ophthalmic preparations; 
     
  <nl>(IV) Miscellaneous dosage forms: 
 
  <nl>(-a-) aerosols; 
   
  <nl>(-b-) chewing gum; 
   
  <nl>(-c-) parenteral. 
         
  <nl>(G) Medication drug orders: 
 
  <nl>(i)<nl> prescribers; 
   
  <nl>(ii)<nl> directions for use; 
   
  <nl>(iii)<nl> Commonly-used abbreviations and symbols: 
 
  <nl>(I)  Abbreviations: 
 
  <nl>(-a-) general; 
   
  <nl>(-b-) pharmaceutical; 
   
  <nl>(-c-) medical; 
   
  <nl>(-d-) English; 
   
  <nl>(-e-) Latin; 
   
  <nl>(-f-) metric; 
     
  <nl>(II) Symbols: 
 
  <nl>(-a-) common chemical; 
   
  <nl>(-b-) apothecary symbols; 
       
  <nl>(iv)<nl> number of dosage units (Roman numerals); 
   
  <nl>(v)<nl> Strength and systems of measurement: 
 
  <nl>(I) apothecary system; 
   
  <nl>(II) metric system; 
   
  <nl>(III) avoirdupois; 
   
  <nl>(IV) common household measurements; 
   
  <nl>(V) decimals; 
   
  <nl>(VI) fractions; 
   
  <nl>(VII) percentages; 
   
  <nl>(VIII) ratios; 
   
  <nl>(IX) calculations; 
     
  <nl>(vi) <nl> Route of administration: 
 
  <nl>(I) oral; 
   
  <nl>(II)  parenteral; 
   
  <nl>(III) topical; 
   
  <nl>(IV) inhalation; 
   
  <nl>(V) sublingual and buccal; 
   
  <nl>(VI) rectal; 
   
  <nl>(VII) vaginal; 
     
  <nl>(vii)<nl> frequency of administration; 
   
  <nl>(viii)<nl> interpreting directions for use. 
     
  <nl>(H) Medication drug order preparation: 
 
  <nl>(i) <nl> creating or updating patient medication records; 
   
  <nl>(ii) <nl> entering medication drug order information into the computer or 
typing the label in a manual system; 
   
  <nl>(iii)<nl> selecting the correct stock bottle; 
   
  <nl>(iv)<nl> accurately counting or pouring the appropriate quantity of drug 
product; 
   
  <nl>(v)<nl> selecting the proper container; 
   
  <nl>(vi)<nl> affixing the prescription label; 
   
  <nl>(vii)<nl> affixing auxiliary labels, if indicated; 
   
  <nl>(viii)<nl> preparing the finished product for inspection and final check 
by pharmacists. 
     
  <nl>(I) Non-dispensing functions: 
 
  <nl>(i)<nl> ordering of drugs; 
   
  <nl>(ii)<nl> receipt of drugs; 
   
  <nl>(iii)<nl> accountability for drugs; 
   
  <nl>(iv) <nl> storage of drugs; 
   
  <nl>(v)<nl> types of drug containers and packages; 
   
  <nl>(vi)<nl> label requirements for manufactured drugs; 
   
  <nl>(vii)<nl> lot numbers; 
   
  <nl>(viii)<nl> expiration dates; 
   
  <nl>(ix)<nl> inventory control. 
     
  <nl>(J) Drug product prepackaging: 
 
  <nl>(i)<nl> use of equipment; 
   
  <nl>(ii) <nl> maintenance of equipment; 
   
  <nl>(iii)<nl> control and record keeping; 
   
  <nl>(iv)<nl> storage and inventory control. 
     
  <nl>(K)  Compounding of non-sterile pharmaceuticals<ol>. 
       
  (f) Special education, training, and evaluation requirements for pharmacy 
personnel compounding or responsible for the direct supervision of pharmacy 
personnel compounding sterile pharmaceuticals. 
 
  (1)-(2) (No change.) 
   
  (3)  Supportive personnel. <nl>In addition to the qualifications and training 
outlined in subsection (e) of this section,<ol> all supportive personnel who 
compound sterile pharmaceuticals shall[:] 
 
  [(A) have a high school or equivalent education; and] 
   
  [(B)] either: 
   
  <nl>(A)<ol>[(i)]  complete a minimum of 40 hours of instruction and experience 
in the areas listed in paragraph (1) of this subsection. Such training may be 
obtained through the: 
 
  <nl>(i)<ol>[(I)] completion of a structured on-the-job didactic and 
experiential training program at this pharmacy (not transferable to another 
pharmacy) which provides 40 hours of instruction and experience in the areas 
listed in paragraph (1) of this subsection; or 
   
  <nl>(ii) <ol>[(II)] completion of a course sponsored by an ACPE approved 
provider which provides 40 hours of instruction and experience in the areas 
listed in paragraph (1) of this subsection; or 
     
  <nl>(B)<ol>[(ii)] complete a training program which is accredited by the 
American Society of Health-System Pharmacists (formerly American Society of 
Hospital Pharmacists). 
   
  (C)  (No change.) 
     
  (4) (No change.) 
     
  (g) (No change.) 
 
     
  sec.291.74. Operational Standards. 
 
  (a) Licensing requirements. 
 
  (1)-(10) (No change.) 
   
  [(11) A Class C Pharmacy, licensed under the provisions of the Act, 
sec.29(b)(3) which would otherwise be required to be licensed under the Act, 
sec.29(b)(6) (relating to Class F Pharmacy), is not required to secure a license 
for such other type of pharmacy provided, however: 
 
  [(A) such licensee is required to comply with the provisions of sec.291. 111 
of this title (relating to Purpose), sec.291.112 of this title (relating to 
Definitions), sec.291.113 of this title (relating to Personnel), sec.291.114 of 
this title (relating to Operational Standards), and sec.291.115 of this title 
(relating to Records), contained in Home and Community Support Services Pharmacy 
(Class F), to the extent such rules are applicable to the operation of the 
pharmacy; 
   
  [(B) the Class C Pharmacy and the Home and Community Support Services Agency 
licensed under Health and Safety Code, Chapter 142, whose patients the Class F 
Pharmacy provides services are at the same location and under common control and 
ownership; and 
   
  [(C) the pre-labeled drugs for the Class F Pharmacy are maintained in such a 
manner that a person accessing these pre-labeled drugs does not have access to 
other drugs in the Class C Pharmacy.] 
       
  (b)-(i) (No change.) 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on September 25, 1995. 
 TRD-9512416 
  Fred S. Brinkley, Jr., R.Ph., M.B.A. 
 Executive Director 
 Texas State Board of Pharmacy 
    Proposed date of adoption: February 6, 1996 
 For further information, please call: (512) 832-0661 
         
                   
  TITLE 25. HEALTH SERVICES 
 Part I. Texas Department of Health 
  Chapter 29. Purchased Health Services 
  
  Subchapter B. <nl>Medicaid Vision Care Program<ol> [Medicaid Eyeglass Program] 
 
  25 TAC sec.29.105 
 
  On behalf of the State Medicaid Director, the Texas Department of Health 
(department) submits a proposed amendment to sec.29.105, concerning optometrist 
services. Specifically the amendment allows reimbursement to therapeutic 
optometrists for treatment provided to Medicaid clients for services within the 
scope of practice of therapeutic optometrists. 
 This amendment will expand coverage of optometrist services reimbursed within 
the Vision Care program. Services must be within the scope of practice of the 
therapeutic optometrists. 
 Gary Bego, Health Care Financing Budget Director, has determined that for the 
first five-year period the proposed amendment will be in effect there will be no 
net fiscal impact to state or local governments as a result of enforcing or 
administering the section because the scope of Medicaid benefits will not be 
expanded. 
 Mr. Bego also has determined that for each year of the first five years the 
section is in effect, the public benefit anticipated as a result of enforcing 
the section as proposed will be greater access to medically necessary treatment 
services. There is no anticipated economic cost to small or large businesses or 
persons who are required to comply with the proposed section. There is no 
anticipated effect on local employment. 
 Comments on the proposal may be sent to Everett Daniel, Health Care Financing, 
Texas Department of Health, 1100 West 49th Street, Austin, Texas 78756, (512) 
338-6971. Comments will be accepted for 30 days following publication of this 
proposal in the  Texas Register. 
 This amendment is proposed under the Human Resources Code, sec.32.021 and Texas 
Civil Statutes, Article 4413 (502),  s16, which provides the Health and Human 
Services Commission with the authority to adopt rules to administer the state's 
medical assistance program and is submitted to the Texas Department of Health 
under its agreement with the Health and Human Services Commission to operate the 
purchased health services program and as authorized under Chapter 15, sec.1.07, 
Acts of the 72nd Legislature, First Called Session (1991). 
 This amendment affects Chapter 32 of the Human Resources Code. 
 
 
  sec.29.105. Optometrist Services. 
 
  (a) In addition to those services described in sec.29.101 and sec.33.402 of 
this title (both relating to Benefits and Limitations) and subject to the 
specifications, conditions, limitations, and requirements established by the 
Texas Department of Health (department) or its designee, diagnostic <nl>and 
treatment<ol> services provided by an optometrist are covered by the Texas 
Medical Assistance Program. 
   
  (b) To be covered, the services <nl>shall <ol> [must] be: 
 
  (1) -(3) (No change.) 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on September 27, 1995. 
 TRD-9512362 
  Susan K. Steeg 
 General Counsel 
 Texas Department of Health 
    Earliest possible date of adoption: November 6, 1995 
 For further information, please call: (512) 458-7236 
         
                 Chapter 33. Early and Periodic Screening, Diagnosis, and 
Treatment 
  
  Subchapter E. Medical Phase Amendment 
 
  25 TAC sec.33.140 
 
  On behalf of the State Medicaid Director, the Texas Department of Health 
(department) proposes amendments to sec.33.140 concerning providers in the Early 
and Periodic Screening, Diagnosis, and Treatment-Comprehensive Care Program 
(EPSDT-CCP). Providers of durable medical equipment are reimbursed according to 
the lowest charge calculated by any of the four methodologies listed. The 
amendment clarifies one of the four alternate methodologies, upon which the 
department's maximum allowable fee schedule is based. The amendment also 
clarifies that comprehensive outpatient rehabilitation facilities (CORFs) and 
outpatient rehabilitation facilities (ORFs) are EPSDT-CCP providers, and shall 
be reimbursed according to Medicare methodology. 
 Debra C. Stabeno, Deputy Associate Commissioner for Health Care Delivery, and 
Gary Bego, Bureau Chief, Management Support Services, Texas Department of 
Health, have determined that for the first five-year period during which this 
section as proposed is in effect, there will be no fiscal implications to state 
or local government as a result of administering the section as proposed. 
 Ms. Stabeno and Mr. Bego have also have determined that for each year of the 
first five years that the section will be in effect, the public benefit will be 
clarification of the appropriate reimbursement methodology for Medicaid 
providers. There will be no effect on small businesses to comply with this 
section. There are no anticipated economic costs to persons who are required to 
comply with the section as proposed. There is no anticipated impact on local 
employment. 
 Comments on the proposed amendment may be submitted to Dr. Susan Penfield, 
Director, Children's Health Division, Texas Department of Health, 1100 West 49th 
Street, Austin, Texas, 78756, (512) 458-7111, extension 3104. Public comments 
will be accepted for 30 days following publication of the proposal in the Texas 
Register. A public hearing will be held on Tuesday, October 10, 1995 from 9:00 
a.m.-Noon, in Room G-102 at the Texas Department of Health, 1100 West 49th 
Street, Austin, Texas, 78756. 
 The amendment is proposed under the Human Resources Code, sec.32.021, and Texas 
Civil Statutes, Article 4413 (502),  s16, which provides the Health and Human 
Services Commission with the authority to adopt rules to administer the state's 
medical assistance program and are submitted to the Texas Department of Health 
under its agreement with the Health and Human Services Commission to operate the 
Early and Periodic Screening, Diagnosis and Treatment-Comprehensive Care Program 
(EPSDT-CCP) and as authorized under Chapter 15, sec.1.07, Acts of the 72nd 
Legislature, First Called Session (1991). 
 The amendment will affect Human Resources Code, Chapter 32. 
 
 
  sec.33.140. Early and Periodic Screening, Diagnosis, Treatment-Comprehensive 
Care Program Providers (EPSDT-CCP). The following are approved EPSDT-CCP 
provider types and the approved Texas Medical Assistance (Medicaid) Program 
reimbursement methodology for each provider type. 
 
  (1)-(4) (No change.) 
   
  (5) Reimbursement for durable medical equipment. 
 
  (A) Direct vendor payments. The department or its designee makes direct vendor 
payments to providers of durable medical equipment participating in the Medicaid 
program. Participating providers are reimbursed within the limits of the maximum 
allowable fee schedule established by the department. The maximum allowable fee 
schedule for durable medical equipment is based on the lesser of the following: 
 
  (i)-(iii) (No change.) 
   
  (iv) [if no discount is provided,] the incurred cost to the dealer plus a 
percentage to be determined by the department. 
     
  (B)-(C) (No change.) 
     
  (6)-(14) (No change.) 
   
  <nl>(15) Comprehensive outpatient rehabilitation facility/outpatient 
rehabilitation facility. A comprehensive outpatient rehabilitation facility or 
outpatient rehabilitation facility must be enrolled and participating in 
Medicare. The department or its designee will reimburse comprehensive outpatient 
rehabilitation facilities and outpatient rehabilitation facilities according to 
Medicare reimbursement methodology. 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on September 27, 1995. 
 TRD-9512361 
  Susan K. Steeg 
 General Counsel 
 Texas Department of Health 
    Earliest possible date of adoption: November 6, 1995 
 For further information, please call: (512) 458-7236 
         
                   
  TITLE 30. ENVIRONMENTAL QUALITY 
 Part I. Texas Natural Resource Conservation Commission 
  Chapter 116. Control of Air Pollution by Permits for New Construction or 
Modification 
  
  Subchapter F. Standard Permits 
 
  30 TAC sec.sec.116.610, 116.617, 116.620, 116.621 
 
  The Texas Natural Resource Conservation Commission (TNRCC or commission) 
proposes amendments to sec.116.610, concerning Applicability, and sec.116.617, 
concerning Standard Permit List. In addition, the TNRCC proposes new sec.116. 
620, concerning Installation and/or Modification of Oil and Gas Facilities, and 
new sec.116.621, concerning Municipal Solid Waste Landfill. 
 The proposed amendments involve the deletion of subsections (d)-(g) of 
sec.116.610. These subsections are repeated as paragraphs in sec.116.615, 
concerning General Conditions. In addition, the proposed amendments involve the 
deletion of sec.116.617(3), relating to Installation and/or Modification of Oil 
and Gas Facilities. This paragraph is proposed for renumbering as the new 
sec.116.620. 
 The proposal is intended to increase efficiency in proposing new standard 
permit provisions. With the existing structure, the TNRCC is experiencing delays 
in proposing new standard permits. The proposed renumbering of the subsections 
in the existing standard permit rules to complete sections would enable more 
timely consideration of new standard permit provisions. No substantive change is 
intended by this renumbering. Comment is specifically solicited on  s116.621, 
concerning Municipal Solid Waste Landfill. 
 New sec.116.621 would establish criteria for obtaining a standard permit for a 
Municipal Solid Waste Landfill (MSWLF) with new, amended, or modified municipal 
solid waste permits. The MSWLF standard permit would provide an alternative to 
the New Source Review permit process of Chapter 116, Subchapter B, sec.116.110, 
concerning Applicability, if it is demonstrated that the applicant satisfies 
provisions in sec.116.610, concerning Applicability; and sec.116.615, concerning 
General Conditions. The standard permit is not a new requirement, but provides 
an alternative to the New Source Review permit review process that specifies 
operating and control requirements. The standard permit does not require 
modeling or a health effects review. 
 The proposed rule states that nonmethane organic compounds (NMOC) emission 
rates for MSWLF units with a design capacity exceeding 100,000 megagrams (Mg) in 
an ozone nonattainment area or a design capacity exceeding 2,500,000 Mg in an 
ozone attainment area shall be calculated using the United States Environmental 
Protection Agency (EPA) procedures in 40 Code of Federal Regulations (CFR), 
sec.60.753 of the proposed federal rules published in the May 30, 1991, issue of 
the Federal Register  (56 FR 24468) with minor modifications. 
 Proposed sec.116.621(3) requires that owner(s) or operator(s) of a MSWLF 
include the calculated maximum expected NMOC emission rate for the MSWLF units. 
 Proposed sec.116.621(4) establishes requirements for MSWLFs if the calculated 
NMOC emission rate exceeds the threshold level. The threshold level is defined 
as the lower of either the federal standard for the NMOC emission rate which 
requires the installation of an active gas collection and control system or 150 
Mg per year; or the amount constituting the major source definition for MSWLFs 
and Municipal Solid Waste Facilities (MSW facilities) (as defined in 30 TAC 
sec.101.1, concerning Definitions) located in ozone nonattainment areas (as 
defined in 30 TAC sec.116.10, concerning General Definitions). The TNRCC staff 
has reviewed the EPA's Standards of Performance for New Stationary Sources and 
recognized a need to incorporate the federal standard for the NMOC emission rate 
or establish a threshold value of 150 Mg per year. The federal standard is 
currently proposed as 50 Mg per year. The 50 Mg per year standard is undergoing 
review by the United States Office of Management and Budget. Upon promulgation 
of a federal standard, the TNRCC would address any discrepancies between the 
federal and state standard. In the event that the federal rule is not enacted by 
the date of adoption of MSWLF standard permit provisions, the 150 Mg NMOC 
emission rate will be incorporated. For background information, refer to the  
Federal Register dated Thursday, May 30, 1991, Standards of Performance for New 
Stationary Sources and Guidelines for Control of Existing Sources: Municipal 
Solid Waste Landfills; Proposed Rule, Guideline and Notice of Public Hearing. 
 For MSWLFs and MSW facilities exceeding the threshold level, the proposed 
sec.116.621(4)(A) provides the option to submit site-specific NMOC Concentration 
and/or site-specific landfill gas Generation Rate Constant to demonstrate that 
the NMOC emission rate is less than the threshold value. Proposed 
sec.116.621(4)(B) provides the option to submit plans for an active gas 
collection and control system (GCCS). 
 Proposed sec.116.621(5) requires owner(s) or operator(s) of an MSW facility 
whose calculated NMOC emission rate exceeds the threshold level to install, 
within one year, an active gas collection and control system (GCCS) to control 
NMOC gas emissions by routing the total collected gas to a control device. 
 Proposed sec.116.621(6) establishes the conditions for capping or removing an 
active GCCS; and references 30 TAC sec.sec.330.250-330.256, concerning Closure 
and Post-Closure. 
 Proposed sec.116.621(7) identifies the test methods that may be utilized for 
measurements to determine compliance. This paragraph allows for testing 
alternatives or modifications that may be approved by the TNRCC in advance of 
the measurements. The testing methods allow for the determination for 
compliance, collection efficiency, and the integrity of the MSWLF cap. 
 The proposed sec.116.621(8) requires MSWLF unit owner(s) and operator(s) to 
monitor and control particulate matter by minimizing any fugitive particulate 
matter emissions associated with material handling and transport; and 
maintaining all roads and areas on the property subject to vehicle traffic by 
watering, treating with dust-suppressant chemicals, or paving and cleaning as 
necessary to achieve maximum control of dust emissions. 
 Proposed sec.116.621(9) describes the procedures for developing a monitoring 
plan for high volume air sampling and references the TNRCC Office of Air Quality 
Management Plan, Appendix I (EPA Requirements for Quality Assurance Project 
Plans, dated February 1995) and the TNRCC "Sampling Procedures Manual, " Chapter 
11 (particulate matter, dated January 1983 and revised July 1983). 
 The proposed sec.116.621(10) describes the inspection and maintenance protocols 
for MSWLF unit surface leaks; and defines a leak as a sustained reading for a 
minimum of one minute of 500 parts per million by volume (ppmv) total organic 
compounds (including methane and ethane) measured as methane, propane, or 
hexane. The paragraph states that leak testing shall be performed at least once 
each quarter using an instrument that meets the apparatus specifications of EPA 
Test Method 21 (40 CFR 60, Appendix A). The area of the leaks shall be 
identified with orange fluorescent paint and a readily visible marker. Leaks 
shall be repaired within 15 days upon detection of the leak, unless the repair 
requires excavation. Excavation requires a plan for approval by the TNRCC 
executive director. The velocity of the probe mentioned in  s116. 621(10)(C) 
shall not exceed the limitations of the equipment, including travel speeds. 
 Proposed sec.116.621(11) describes the inspection and maintenance protocols for 
active GCCS organic compound leaks from compressor seals, pipeline valves, 
pressure relief valves in gaseous service, and pump seals for MSWLF units. 
Emissions from all compressor seals, pipeline valves, pressure relief valves in 
gaseous service, and pump seals shall be measured quarterly with a hydrocarbon 
gas analyzer and with all technically feasible repairs to be made within 15 days 
of detecting the leak. 
 The proposed sec.116.621(12) requires the owner(s) or operator(s) of each MSWLF 
unit to maintain records sufficient to readily determine if compliance with the 
requirements of this paragraph was maintained. Monitoring, recordkeeping, and 
reporting requirements are defined. The intent of the requirements is to obtain 
data that is compatible to link this chapter to 30 TAC Chapter 330, concerning 
Municipal Solid Waste Division, and establish consistency between the two 
chapters. 
 Stephen Minick, Strategic Planning and Appropriations Division, has determined 
that for the first five-year period the sections are in effect there will be no 
significant fiscal implications for state government as a result of enforcing or 
administering the sections. There will be costs associated with installing a 
GCCS. The EPA has estimated a cost effectiveness factor of $500 to $2,000 per 
ton of NMOC reduced with variability depending upon such factors as the type of 
refuse, MSW facility location, and MSW facility size. The costs will be incurred 
under the requirements of the New Source Review Subchapter B permit and the 
standard permit provisions. However, local governments that own and operate new 
or modified MSWLFs may experience a cost savings with regard to permit fees as a 
result of receiving approval for a standard permit. 
 Mr. Minick also has determined that for each year of the first five years the 
section is in effect the public benefit anticipated as a result of enforcing the 
sections will be the possibility of improved health due to emission reductions 
achieved through the installation of GCCS. The TNRCC anticipates that small 
businesses may experience a cost savings, since the MSWLF standard permit is an 
alternative to the New Source Review permit procedures. The 2.5 million Mg 
capacity exemption is also beneficial for small businesses located in ozone 
attainment areas. There is no anticipated economic cost to persons who are 
required to comply with the sections as proposed. The MSWLF standard permit is 
an alternative that is expected to result in a cost savings to the state and the 
regulated community. 
 A public hearing on the proposal will be held November 6, 1995, at 10:00 a. m. 
in Room 254S of TNRCC Building E, located at 12118 North IH-35, Park 35 
Technology Center, Austin. The hearing is structured for the receipt of oral or 
written comments by interested persons. Individuals may present oral statements 
when called upon in order of registration. Open discussion within the audience 
will not occur during the hearing; however, a TNRCC staff member will be 
available to discuss the proposal 30 minutes prior to the hearing. 
 Written comments not presented at the hearing may be submitted to the TNRCC 
central office in Austin. The deadline for submission of written comments will 
be 30 days after the date of publication of the proposal in the Texas Register . 
Material received by the TNRCC Office of Policy and Regulatory Development by 
4:00 p.m. on that date will be considered by the commission prior to any final 
action on the proposal. Please mail comments to the attention of Lisa Martin, 
Office of Policy and Regulatory Development, MC202, P.O. Box 13087, Austin, 
Texas 78711-3087, and reference Rules Tracking Log #95103-116-AI. Please fax 
comments to (512) 239-5687. Copies of the revisions are available at the central 
office of the TNRCC, Air Policy and Regulations Division, located at 12118 North 
IH-35, Park 35 Technology Center, Building E, Austin, and at all TNRCC regional 
offices. For further information, please contact Monica Pesek at (512) 239-1971. 
 Persons with disabilities who have special communication or other accommodation 
needs who are planning to attend the hearing should contact the agency at (512) 
239-4900. Requests should be made as far in advance as possible. 
 The amendments and new sections are proposed 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. 
 The proposed amendments and new sections implement the Texas Health and Safety 
Code, sec.382.017, concerning Rules. 
 
 
  sec.116.610. Applicability. 
 
  (a) Pursuant to the Texas Clean Air Act (TCAA), sec.382.051, projects 
involving the types of facilities or physical or operational changes to 
facilities which meet the requirements for a standard permit listed in <nl>this 
subchapter<ol> [sec.116.617 of this title (relating to Standard Permit List)] 
are hereby entitled to the standard permit; provided however, that: 
 
  (1) (No change.) 
   
  (2) construction or operation of the project shall be commenced prior to the 
effective date of a revision to <nl>this subchapter<ol> [sec.116.617 of this 
title] under which the project would no longer meet the requirements for a 
standard permit; 
   
  (3)-(5) (No change.) 
     
  (b) Any project which constitutes a new major source, or major modification 
under the new source review requirements of Part C (Prevention of Significant 
Deterioration Review) or Part D (Nonattainment Review) of the FCAA and 
regulations promulgated thereunder shall be subject to the requirements of 
sec.116.110 of this title (relating to Applicability) rather than this 
subchapter. 
   
  (c) (No change.) 
   
  [(d)  The emissions from the facility shall comply with all applicable rules 
and regulations of the TNRCC 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 and all emissions control 
equipment shall be maintained in good condition and operated properly during 
operation of the facility. 
   
  [(e) 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 conditions 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. The owner or operator of 
the facility must notify the TNRCC of any other 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 
emission 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. 
   
  [(f) All records relating to the applicability of and compliance with the 
terms of a standard permit shall be maintained by the permittee for at least a 
two-year rolling retention basis, and made available for review by authorized 
representatives of the TNRCC, the United States Environmental Protection Agency, 
or local air pollution control agencies. 
   
  [(g) All changes authorized by standard permit to a facility previously 
permitted pursuant to sec.116.110 of this title shall be administratively 
incorporated into that facility's permit at such time as the permit is amended 
or renewed.] 
 
     
  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) <nl>and sec.116.615 of this title (relating to General 
Conditions)<ol>. 
 
  (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 <ol>), 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<ol>) 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]2<ol>S) or SO [sub]2 <ol> 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]2<ol>S or SO point=4.52p  
[sub]2<ol> process fugitive emissions unless the equipment is inspected and 
repaired according to subparagraph (C)(iii) of this paragraph or unless the H 
[sub]2<ol>S or SO [sub]2 <ol> 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 this 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]2<ol>S 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]2<ol>S or 30 grains total sulfur 
compounds per 100 scdf, the operator shall maintain records, including at least 
quarterly measurements of fuel H [sub]2<ol>S and total sulfur content, which 
demonstrate that the annual SO  [sub]2<ol> 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)<ol>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 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. 
     
  [(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<ol> and H [sub]2<ol>S 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  s60.485(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]2<ol>S 
property line monitors to comply with (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]2<ol>S 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]2<ol>S and SO [sub]2<ol> 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.] 
 
         
  sec.116.620. Installation and/or Modification of Oil and Gas Facilities. 
 
  (a) Emission specifications. 
 
  (1) Venting or flaring more than 0.3 long tons per day of total sulfur shall 
not be allowed. 
   
  (2) No facility shall be allowed to emit total uncontrolled emissions of 
sulfur compounds, except sulfur dioxide (SO point=4.52p  [sub]2<ol>), 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. 
   
  (3) 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 SO  [sub]2<ol> shall be at least 20 feet above ground 
level. 
   
  (4) 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). 
   
  (5) 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 subsection (b)(2) of this section. 
   
  (6)  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 per million Btu. 
   
  (7) 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 10 tpy, but less than 25 tpy, unless the equipment is 
inspected and repaired according to subsection (c)(1) of this section. 
   
  (8) 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 
subsection (c)(1) of this section. 
   
  (9) 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 subsection (c) (2) of this section. 
   
  (10) 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 subsection (c)(2) of this section. 
   
  (11) 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]2 
<ol>S) or SO [sub]2<ol> process fugitive emissions unless the equipment is 
inspected and repaired according to subsection (c)(3) of this section. 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]2<ol>S or SO point=4.52p  
[sub]2<ol> process fugitive emissions unless the equipment is inspected and 
repaired according to subsection (c)(3) of this section or unless the H 
[sub]2<ol>S or SO [sub]2 <ol> emissions are monitored with ambient property line 
monitors according to subsection (e)(1) of this section. 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. 
   
  (12) Flares shall be designed and operated in accordance with 40 Code of 
Federal Regulations (CFR), Part 60.18 or equivalent standard approved by the 
Texas Natural Resource Conservation Commission (TNRCC), 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. 
   
  (13) Appropriate documentation shall be submitted to demonstrate that 
compliance with the Prevention of Significant Deterioration (PSD) and 
nonattainment new source review provisions of the Federal Clean Air Act, 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 this 
chapter (relating to New Source Review Permits) instead of this subchapter if a 
PSD or nonattainment permit is required. 
   
  (14) 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) . 
   
  (15) New and increased emissions shall not cause or contribute to a violation 
of any National Ambient Air Quality Standard 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 [sub]2 <ol>S 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. 
   
  (16) 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]2 <ol>S or 30 grains total sulfur 
compounds per 100 scdf, the operator shall maintain records, including at least 
quarterly measurements of fuel H [sub]2 <ol>S and total sulfur content, which 
demonstrate that the annual SO [sub]2<ol> 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. 
 
  (1)  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. 
 
  (A) For internal floating roofs, mechanical shoe primary seal or liquid-
mounted primary seal or a vapor-mounted primary with rim-mounted secondary seal 
shall be used. 
   
  (B) 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. 
   
  (C) All floating roof tanks shall comply with the requirements under 
sec.115.112(a)(2)(A)-(F) of this title (relating to Control Requirements). 
   
  (D) In lieu of a floating roof, tank emissions may be routed to: 
 
  (i) a destruction device such that a minimum VOC destruction efficiency of 98% 
is achieved; or 
   
  (ii) a vapor recovery system such that a minimum VOC recovery efficiency of 
95% is achieved. 
     
  (E) Independent of the exemptions listed in this paragraph, 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 
subparagraph (D) of this paragraph. 
     
  (2) The VOC emissions from a natural gas glycol dehydration unit shall be 
controlled as follows. 
 
  (A) If total uncontrolled VOC emissions are equal to or greater than ten tpy, 
but less than 50 tpy, 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. 
   
  (B) If total uncontrolled VOC emissions are equal to or greater than 50 tpy, a 
minimum of: 
 
  (i) 98% by weight minimum destruction efficiency shall be achieved by a 
destruction device or equivalent; or 
   
  (ii) 95% by weight minimum control efficiency shall be achieved by a vapor 
recovery system or equivalent. 
         
  (c) Inspection requirements. 
 
  (1) Owners or operators who are subject to subsection (a)(7) or (8) of this 
section shall comply with the following requirements. 
 
  (A) 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 the TNRCC representatives, the United States 
Environmental Protection Agency (EPA), or any other air pollution agency having 
jurisdiction. All piping and valves two inches nominal size and smaller, unless 
subject to Federal NSPS 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. 
   
  (B) 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. 
   
  (C)  New and reworked underground process pipelines containing VOCs shall 
contain no buried valves such that process fugitive emission inspection and 
repair is rendered impractical. 
   
  (D) 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. 
   
  (E) 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. 
   
  (F) 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. 
   
  (G) 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. 
   
  (H)  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. 
   
  (I) All other pump and compressor seals emitting VOC shall be monitored with 
an approved gas analyzer at least quarterly. 
   
  (J) 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. 
 
  (i) 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. 
   
  (ii)  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. 
       
  (2) Owners or operators who are subject to subsection (a)(9) or (10) of this 
section shall comply with the following requirements. 
 
  (A) 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. 
   
  (B) 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. 
   
  (C) New and reworked underground process pipelines containing VOCs shall 
contain no buried valves such that process fugitive emission inspection and 
repair is rendered impractical. 
   
  (D) 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. 
   
  (E) 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. 
   
  (F) 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. 
   
  (G)  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. 
   
  (H) 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. 
   
  (I) All other pump and compressor seals emitting VOC shall be monitored with 
an approved gas analyzer at least quarterly. 
   
  (J) 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. 
 
  (i) 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. 
   
  (ii)  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. 
     
  (K) 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. 
     
  (3) For owners and operators who are subject to the applicable parts of 
subsection (a)(11) of this section, auditory and visual checks for SO [sub]2 
<ol> and H [sub]2<ol>S 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: 
 
  (A) isolate the leak; and 
   
  (B) commence repair or replacement of the leaking component; or 
   
  (C) 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. 
 
  (1) An approved gas analyzer used for the VOC fugitive inspection and repair 
requirement in subsection (c) of this section, shall conform to requirements 
listed in 40 CFR 60.485(a) and (b) (2). 
   
  (2) Tutweiler analysis or equivalent shall be used to determine the hydrogen 
sulfide content as required under subsections (a) and (e) of this section. 
   
  (3) Proper operation of any condenser used as a VOC emissions control device 
to comply with subsection (a)(5) of this section 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. 
 
  (1) If the operator elects to install and maintain ambient H [sub]2<ol>S 
property line monitors to comply with subsection (a)(11) of this section, 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]2<ol>S 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 subsection (c)(3)(A)-(C) 
of this section within eight hours of detection of a leak. 
   
  (2) 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: 
 
  (A) appropriate dates; 
   
  (B)  test methods; 
   
  (C) instrument readings; 
   
  (D) repair results; and 
   
  (E) corrective actions. Records of flange inspections are not required unless 
a leak is detected. 
     
  (3) Records for repairs and replacements made due to inspections of H [sub]2 
<ol>S and SO [sub]2<ol> components shall be maintained. 
   
  (4) 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: 
 
  (A) tank battery identification or storage tank identification, if not located 
at a tank battery; 
   
  (B) compound stored; 
   
  (C)  monthly throughput in barrels/month; and 
   
  (D) cumulative annual throughput, barrels/year. 
     
  (5) A plan shall be submitted to show how ongoing compliance will be 
demonstrated for the efficiency requirements listed in subsection (b)(1)(D) of 
this section. The demonstration may include, but is not limited to, monitoring 
flowrates, temperatures, or other operating parameters. 
   
  (6) 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. 
   
  (7) 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. 
   
  (8) All required records shall be made available to representatives of the 
TNRCC, the 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. 
 
       
  sec.116.621. Municipal Solid Waste Landfill. Operation of a Municipal Solid 
Waste Landfill (MSWLF) as defined in sec.101.1 of this title (relating to 
Definitions), including, but not limited to, the installation of emission 
control equipment or implementation of control techniques for Type I, Type 1-AE, 
Type II, Type III, Type IV, Type IV-AE, Type VI, and Type IX sites as defined in  
s330.42 of this title (relating to Types of Municipal Solid Waste Sites). 
 
  (1) The MSWLF and associated waste acceptance and handling facilities that 
comply with sec.116.610 of this title (relating to Applicability) and 
sec.116.615 of this title (relating to General Conditions) except sec.116.610(1) 
of this title; that comply with sec.116.611 of this title (relating to 
Registration Requirements); and that comply with sec.116.614 of this title 
(relating to Standard Permit Fees) may be issued a standard permit. 
   
  (2) Separate permit authorization must be obtained for the following: 
 
  (A) industrial solid waste solidification/ stabilization facilities; 
   
  (B) outdoor burning; 
   
  (C) waste incineration other than that used to control landfill gas emissions; 
and 
   
  (D) landfill cells in which any regulated quantities of hazardous waste will 
be placed. 
     
  (3)  Registration for an MSWLF located in an ozone nonattainment area, as 
defined in sec.116.10 of this title (relating to General Definitions), and 
having a total design capacity equal to or greater than 100,000 megagrams (Mg) 
or an MSWLF located in an ozone attainment area and having a total design 
capacity equal to or greater than 2,500,000 Mg shall include, in addition to 
sec.116.611 of this title, concerning Registration Requirements, the maximum 
expected nonmethane organic compounds (NMOC) emission rate for the MSWLF units 
calculated by using the procedures provided in 40 Code of Federal Regulations 
(CFR), sec.60.753 of the proposed federal rules published in the May 30, 1991, 
issue of the Federal Register<ol> (56 FR 24468). In the absence of site-specific 
data, the NMOC emission rate shall be calculated based upon the maximum design 
capacity of the MSWLF and using the following default values: Generation Rate 
Constant, K = 0.04 one/year; and Generation Potential, L point=4.52p  [sub]O<ol> 
= 125 m[sup]3 <ol>Mg. The MSWLFs that codispose industrial solid waste with 
municipal solid waste shall use a default value for NMOC Concentration (C 
point=4.52p  [sub]NMOC<ol>) of C [sub]NMOC <ol> = 4400 parts per million by 
volume (ppmv); other MSWLFs shall use a default value of C point=4.52p  
[sub]NMOC<ol> = 1170 ppmv. 
   
  (4) The permit holder shall annually calculate the NMOC emission rate for the 
MSWLF units based upon the actual waste managed in the MSWLF unit to determine 
if the emission rate exceeds the threshold level. For all MSWLFs and Municipal 
Solid Waste Facilities (MSW facilities) (as defined in sec.101.1 of this title) 
located in an ozone nonattainment area, the threshold level shall be the lower 
of either the NMOC emission rate specified in the new source performance 
standard regarding landfills which requires the installation of an active gas 
collection and control system (GCCS) or 150 Mg (165 tons) per year; or the 
amount constituting the major source as defined for that area in sec.116.12 of 
this title (relating to Nonattainment Review Definitions) in Table I (concerning 
Major Source/Major Modification Emission Thresholds). For all MSWLFs located in 
an ozone attainment area, the threshold level shall be the NMOC emission rate 
specified in the new source performance standard regarding landfills which 
requires the installation of an active gas collection and control system or 150 
Mg (165 tons) per year. Owner(s) and operator(s) of contiguous MSWLF units under 
related control shall calculate the NMOC emission rate for the MSW facility in 
the aggregate for all the MSWLF units therein. If the calculations show that the 
NMOC emission rate is greater than the threshold level, within 90 days after the 
date that the calculated emission rate first exceeded the threshold value, the 
owner(s) or operator(s) shall either: 
 
  (A) determine and submit site-specific NMOC Concentration (C [sub]NMOC<ol>) 
and/or site-specific landfill gas Generation Rate Constant (K) in accordance 
with the procedures of 40 CFR, sec.61.753 of the proposed federal rules 
published in the May 30, 1991, issue of the Federal Register <ol> (56 FR 24468) 
to demonstrate that the NMOC emission rate is less than the threshold value; or 
   
  (B) submit plans for an active GCCS to effectively capture the gas that is 
generated within the MSWLF. The GCCS shall: 
 
  (i) be designed to handle the maximum expected gas flowrate over the lifetime 
of the GCCS from the entire area of the MSWLF that warrants control over the 
equipment lifetime; 
   
  (ii) collect gas from each area, cell, or group of cells in the MSWLF, which 
is either covered by final cover or in which refuse has been placed for a period 
of five years or more; 
   
  (iii) collect gas at sufficient extraction rate; 
   
  (iv) control NMOC gas emissions in one or more of the following ways: 
 
  (I) the total collected gas is routed to an open flare with a minimum height 
of 30 feet and that is designed, operated, and inspected in accordance with 40 
CFR, sec.60.18. If necessary to ensure adequate combustion, natural 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; 
   
  (II)  the total collected gas is routed to a control device with a minimum 
vent release height of 30 feet and that reduces the total collected NMOC gas 
emissions by 98% or to less than 20 ppmv; 
   
  (III) the total collected gas is routed to a gas treatment system that 
processes the collected gas for subsequent use or sale. The sum of all emissions 
from any atmospheric vent from the gas treatment system shall be subject to the 
requirements of subclause (II) of this clause; 
   
  (IV) the total collected gas is routed to gas or liquid fuel-fired stationary 
internal combustion reciprocating engines or gas turbines that satisfy all the 
requirements of sec.116.211 of this title (relating to Standard Exemption List), 
Standard Exemption Number 6, except that registration using Form PI-7 or PI-8 
shall not be required. Actual emissions from engines or turbines shall be 
limited to the amounts specified in sec.116.211(a)(1) of this title; or 
   
  (V) the total collected gas is routed to boilers, heaters, or other combustion 
units, but not including stationary internal combustion engines or turbines, 
that satisfy all of the requirements of Standard Exemption Number 7. Emissions 
from these combustion units shall be limited to the amounts found in 
sec.116.211(a)(1) of this title. 
         
  (5) The owner(s) or operator(s) of an municipal solid waste facility whose 
calculated NMOC emission rate exceeds the threshold level shall within one year 
of submitting plans specified in paragraph (4)(B) of this section: 
 
  (A) install the active GCCS; and 
   
  (B) operate the GCCS in compliance with 40 CFR, sec.60.754 of the proposed 
federal rules published in the May 30, 1991, issue of the Federal Register<ol> 
(56 FR 24468). 
     
  (6) The active GCCS may be capped or removed only if all of the following 
conditions are met: 
 
  (A) the MSWLF unit shall not have accepted waste at any time during the 
previous six consecutive years and shall be permanently closed pursuant to 
sec.sec.330.250-330.256 of this title (relating to Closure and Post-Closure); 
   
  (B) the active GCCS shall have been in continuous operation for at least 15 
years; and 
   
  (C) the calculated NMOC emission rate shall be less than the threshold value 
on three successive test dates. The test dates shall be no closer than three 
months apart, and no longer than six months apart. 
     
  (7) All measurements to determine compliance with this paragraph shall be 
conducted by applying the following test methods, as appropriate: 
 
  (A) Test Methods 1-4 (40 CFR 60, Appendix A) for determining flow rate, oxygen 
concentration, or moisture, as necessary; 
   
  (B) Test Method 2E as described in proposed 40 CFR 60, Appendix A, published 
in the May 30, 1991, issue of the  Federal Register<ol> (56 FR 24468) for 
measuring the landfill gas production flow rate and designing the area of 
influence of the active GCCS; 
   
  (C) Test Method 3C as described in proposed 40 CFR 60, Appendix A, published 
in the May 30, 1991, issue of the  Federal Register<ol> (56 FR 24468) for 
measuring the concentration of nitrogen in the landfill gas; 
   
  (D) Test Method 18 (40 CFR 60, Appendix A) for determining gaseous organic 
compound emissions by gas chromatography; 
   
  (E) Test Method 21 (40 CFR 60, Appendix A) for determining volatile organic 
compound (VOC) leaks; 
   
  (F) Test Method 25 (40 CFR 60, Appendix A) for determination of total gaseous 
nonmethane organic emissions as carbon; 
   
  (G) Test Methods 25A or 25B (40 CFR 60, Appendix A) for determining total 
gaseous organic concentrations using flame ionization or nondispersive infrared 
analysis; 
   
  (H) Test Method 25C as described in proposed 40 CFR 60, Appendix A, published 
in the May 30, 1991, issue of the  Federal Register<ol> (56 FR 24468) for 
determining NMOC in landfill gases; and 
   
  (I) alternatives or modifications, approved in advance by the Texas Natural 
Resource Conservation Commission (TNRCC) executive director or a designated 
representative, to the test methods in subparagraphs (A)-(H) of this paragraph. 
Requests for alternative or modified test methods shall be submitted to the 
TNRCC Office of Air Quality, New Source Review Program in Austin. Alternative 
test method proposals for New Source Performance Standard testing shall be 
submitted to the TNRCC Office of Air Quality, Monitoring Operations Division, 
Source and Mobile Monitoring Section in Austin. 
     
  (8)  MSWLF unit owner(s) and operator(s) shall monitor and control particulate 
matter as follows. 
 
  (A) All material handling and transport operations shall be conducted in a 
manner so as to minimize any fugitive particulate matter emissions. 
   
  (B) All roads and areas on the property subject to vehicle traffic, including 
MSWLF cells during excavation, shall be watered, treated with dust-suppressant 
chemicals, or paved and cleaned as necessary to achieve maximum control of dust 
emissions with care given to prevent oversaturated conditions which would cause 
outgoing trucks to track mud onto public roads and/or streets. 
     
  (9) High volume air sampling, one- and/or three-hour tests, for net ground 
level concentrations of total particulate matter shall be performed upon request 
of the TNRCC executive director or a designated representative. Each test shall 
consist of at least one upwind and one downwind sample taken simultaneously. The 
tests shall be performed during normal operations. A monitoring plan for high 
volume sampling shall be developed in accordance with the TNRCC Office of Air 
Quality Management Plan, Appendix I (United States Environmental Protection 
Agency (EPA) Requirements for Quality Assurance Project Plans, dated February 
1995) and the TNRCC "Sampling Procedures Manual," Chapter 11 (particulate 
matter, dated January 1983 and revised July 1983), and shall require approval by 
the TNRCC executive director or a designated representative prior to sampling. 
The TNRCC executive director or a designated representative shall be afforded 
the opportunity to observe all such sampling equipment and records upon request. 
   
  (10) Inspection and maintenance protocols for MSWLF unit surface leaks shall 
be as follows. 
 
  (A) A leak is defined as a sustained reading for a minimum of one minute of 
500 ppmv total organic compounds (including methane and ethane) measured as 
methane, propane, or hexane. The owner(s) or operator(s) of the MSWLF unit at 
least once each quarter shall perform leak testing on all locations on the 
surface of the MSWLF unit covered by final cover and all locations on the 
surface of the MSWLF unit which have been covered by intermediate cover for over 
six months. The TNRCC executive director or designated representative shall be 
afforded the opportunity to observe all such sampling equipment and records upon 
request. 
   
  (B)  Surface leak testing shall be performed using an instrument that meets 
the apparatus specifications of EPA Test Method 21 (40 CFR 60, Appendix A). The 
instrument shall be calibrated before and after each test using zero air and the 
methane standard calibration gas in accordance with the instrument 
manufacturer's recommendations. 
   
  (C) Surface leak testing shall be performed by holding the detector probe two 
inches from the MSWLF cell surface while traversing a pattern of parallel paths 
not more than 50 feet apart over all applicable surface areas. In areas where 
vegetation prevents surface monitoring in accordance with this paragraph, the 
detector probe shall be held as close as possible to the MSWLF cell surface 
without necessitating the removal or cutting the vegetation. Cracks, holes, and 
other breaches in the surface as well as areas where buried waste interfaces 
with undisturbed native soil shall also be tested. 
   
  (D) Surface leak testing shall be performed only when the wind speed is less 
than five miles per hour (mph) and instantaneous wind speed is less than 10 mph, 
unless the TNRCC executive director or a designated representative approves 
alternate wind speed limits. Surface leak testing shall be performed only when 
the landfill has received less than 0.1 inches of rain in the last 72 hours. 
   
  (E) The owner(s) or operator(s) of a MSWLF unit, upon detection of a leak, 
shall identify the area of the leak with orange fluorescent paint and a readily 
visible marker that contains the identification number and the date the leak was 
detected. The marker shall not penetrate the surface and shall stand 48 inches 
above the surface. The marker and fluorescent paint shall remain in place until 
the leak is repaired. 
   
  (F) Leaks shall be repaired within 15 days upon detection of the leak, unless 
the repair requires excavation. For repairs that require excavation, the TNRCC 
executive director or a designated representative may require coordination with 
the TNRCC Office of Waste Management, Municipal Solid Waste Division. The owner 
or operator shall demonstrate that repairs will be made promptly and specify the 
expected date of completion. Leak repair methods shall reduce the total organic 
compound emissions to under 500 ppmv and include, but are not limited to: 
 
  (i)  increasing the collection rate of existing wells; 
   
  (ii)  repairing the landfill cover; and 
   
  (iii) installing additional collection wells. 
       
  (11) Inspection and maintenance protocols for active GCCS organic compound 
leaks from compressor seals, pipeline valves, pressure relief valves in gaseous 
service, flanges, and pump seals (hereafter called components) for MSWLF units 
shall be as follows. 
 
  (A) A leak is defined as escape of gas with a total organic compound 
concentration greater than or equal to 10,000 ppmv above background methane, 
propane, or hexane; or the dripping or exuding of process fluid detected by 
sight, smell, or sound. Emissions from all compressor seals, pipeline valves, 
pressure relief valves in gaseous service, and pump seals shall be measured 
quarterly with a hydrocarbon gas analyzer. Flanges in organic compound service 
shall be inspected by visual, olfactory, and/or audible means by operating 
personnel. 
   
  (B) All technically feasible repairs to a leaking component shall be made 
within 15 days of detecting the leak. 
   
  (C) All leaking components which cannot be repaired within 15 days shall be 
identified with a readily visible weatherproof tag that contains an 
identification number and the date the leak was detected. This tag shall remain 
in place until the leaking component is repaired. The TNRCC executive director 
or a designated representative, at his discretion, may require appropriate 
action based on the number and severity of tagged leaks. 
   
  (D) Except for safety pressure relief valves, no valves shall be installed or 
operated at the end of a pipe or line containing organic compounds unless the 
pipe or line is sealed with a second relief/closed valve, a blind flange, a 
plug, or a cap. The sealing device may be removed only while a sample is being 
taken or during maintenance operations. When closing the line, the upstream 
valve shall be closed first. 
   
  (E) New and reworked underground pipelines containing organic compounds shall 
contain no buried valves. 
   
  (F) New and reworked valves and piping connections in organic compound service 
shall be so located to be accessible for leak-checking. 
   
  (G) New and reworked piping connections in organic compound 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 of new or reworked connections, the 
owner(s) or operator(s) shall conduct gas-testing or hydraulic-testing at no 
less than normal operating pressure and make any adjustments to obtain leak-free 
performance. 
   
  (H)  Valves equipped with rupture discs shall require the installation of a 
pressure gauge between the relief valve and rupture disc to monitor disc 
integrity. All leaking discs shall be replaced no later than the next quarterly 
monitoring. 
   
  (I) Test Method 21 (40 CFR 60, Appendix A) shall be utilized for determining 
VOC leaks by instrument. The leak detection equipment may be calibrated with 
methane, propane, or hexane, but the meter readout shall be parts per million 
methane. 
   
  (J) The components identified in clauses (i)-(x) of this subparagraph are 
exempt from the inspection and maintenance protocols for active GCCS organic 
compound leaks, provided that the components are identified in a list maintained 
on-site that is made available upon request by the TNRCC representatives, the 
EPA, or any other pollution control agency having jurisdiction: 
 
  (i)  components at an MSWLF where the total of all estimated uncontrolled 
fugitive emissions from all components is less than ten tons per year; 
   
  (ii) components which contact gas or liquid where the VOC emissions have an 
aggregate partial pressure or vapor pressure of less than 0. 5 pounds per square 
inch (psi) area at 100 degrees Fahrenheit; 
   
  (iii)  components which are in a continuous vacuum service where vacuum is 
defined as at least five kilopascals (approximately 0.725 psi) below ambient 
pressure; 
   
  (iv) piping and valves which are two inches nominal size and smaller; 
   
  (v) valves which are elevated more than two meters above a support surface; 
   
  (vi) sealless and leakless valves (including, but not limited to, welded 
bonnet bellows and diaphragm valves) and pressure relief devices which are 
equipped with a rupture disc upstream or routed to a control device; 
   
  (vii) valves which are not externally regulated, such as in-line check valves; 
   
  (viii) pressure relief valves which are downstream of an intact rupture disc; 
   
  (ix)  reciprocating compressors which are equipped with degassing vents and 
vent control systems; and 
   
  (x) dual pump seals which maintain barrier fluid at a pressure higher than 
process pressure; seals which are degassed to vent control systems; or seals 
which are 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). 
     
  (K) After completion of the required quarterly inspections for a period of two 
consecutive years, the owner(s) or operator(s) may request in writing to the 
TNRCC, Office of Air Quality, New Source Review Program, that the monitoring 
schedule be revised based on the percent of valves leaking. The percent of 
valves leaking shall be determined by dividing by the total number of valves 
subject to the monitoring requirements into the sum of the valves leaking during 
the current monitoring and the valves for which repair has been delayed. This 
request shall include all data developed to justify the following modifications 
in the monitoring schedule. 
 
  (i)  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 skip one 
of the quarterly leak detection periods for the valves in gas/vapor and light 
liquid service. 
   
  (ii) 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 skip 
three of the quarterly leak detection periods for the valves in gas/vapor and 
light liquid service. 
       
  (12)  The owner(s) or operator(s) of each MSWLF unit shall maintain complete 
and up-to-date records sufficient to readily determine if continuous compliance 
with the requirements of this paragraph for the previous two years of operation 
have been maintained. Monitoring, recordkeeping, and reporting requirements 
shall be as follows. 
 
  (A) All records required by this paragraph shall be maintained at the MSWLF 
site and shall be available for review upon request by TNRCC representatives or 
any local air pollution agency having jurisdiction. 
   
  (B) A leaking components log shall be maintained. This log shall contain at a 
minimum, the following data: 
 
  (i) the location, type (e.g., valve or seal), and tag identification number of 
the component; 
   
  (ii) the date and instrument reading of the initial check procedure upon 
discovery of the leaking component; 
   
  (iii)  the date of the leaking component repair; 
   
  (iv) the date and instrument reading of the recheck procedure upon repair of 
the leaking component; 
   
  (v) a calibration record for the monitoring instrument; 
   
  (vi) an identification of leaks that cannot be repaired within 15 days and 
justification for the delay in making necessary repairs; and 
   
  (vii) the total number of components checked and the total number of leaking 
components discovered. 
     
  (C) The owner(s) or operator(s) of each MSWLF unit shall maintain a surface 
cap integrity leak log. This log shall contain, at a minimum, the following 
data: 
 
  (i) the location and description of the leak; 
   
  (ii) the date and instrument reading of the initial check procedure upon 
discovery of the leak; 
   
  (iii)  the steps taken to repair the leak; 
   
  (iv) the date of the leak repair; 
   
  (v) the date and instrument reading of the recheck procedure upon repair of 
the leak; 
   
  (vi) a calibration record for the monitoring instrument; and 
   
  (vii) an identification of leaks that cannot be repaired within 15 days and 
justification for the delay in making necessary repairs. 
     
  (D) The owner(s) or operator(s) of an MSWLF unit not required to install a 
GCCS shall maintain complete and up-to-date records of the data used for the 
annual calculation of the NMOC emissions rate, including, but not limited to: 
 
  (i) the annual calculation of the NMOC emission rate; and 
   
  (ii) the test results used to determine site-specific K and C [sub]NMOC <ol> 
factors as described in 40 CFR, sec.60. 753 of the proposed federal rules 
published in the May 30, 1991, issue of the Federal Register <ol> (56 FR 24468). 
     
  (E) The owner(s) or operator(s) of an MSWLF unit that has installed an active 
GCCS shall: 
 
  (i)  simultaneously with the GCCS installation, install a sampling port at 
each gas collection well in the gas collection header; 
   
  (ii)  measure and record the gauge pressure at each well in the gas collection 
header at the point where each well is connected to the gas collection header 
pipe on a monthly basis; 
   
  (iii) sample and analyze for the methane, oxygen, and nitrogen concentrations 
of the landfill gas at each well in the gas collection header on a monthly 
basis; 
   
  (iv)  simultaneously with the GCCS installation, install a flow indicator 
(mass flowmeter) that automatically provides a continuous record of gas flow to 
the control device; 
   
  (v) simultaneously with the GCCS installation, install, maintain, and operate 
a temperature monitoring device equipped with a continuous recorder to monitor 
the exhaust gas temperature immediately downstream for any direct-flame 
incinerator or enclosed flare; and 
   
  (vi) simultaneously with the GCCS installation, install, maintain, and operate 
a temperature monitoring device equipped with a continuous recorder to monitor 
the gas temperature immediately upstream and downstream for any catalytic 
incinerator or chiller. 
     
  (F) The owner(s) or operator(s) of an MSWLF unit shall maintain up-to-date 
records of landfill design and operation. These records shall include: 
 
  (i) maximum design capacity; 
   
  (ii) current refuse in place; 
   
  (iii)  year-by-year refuse acceptance rate; 
   
  (iv) a map or plot of the MSW facility providing the size and location, and 
identifying all areas where waste may be landfilled, where waste has been 
placed, and areas with intermediate cover and final cover, including the date 
the cover was placed; 
   
  (v) any changes in landfill design capacity, including, but not limited to, 
area and depth of waste disposal, and changes to landfill operating procedures 
since the initial landfill design; 
   
  (vi)  calculated maximum expected gas generation flowrate to the combustion 
device using Method 2E; and 
   
  (vii) calculated radius of influence (in meters) of the extraction wells. 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on September 27, 1995. 
 TRD-9512422 
  Kevin McCalla 
 Director, Legal Services Division 
 Texas Natural Resources Conservation Commission 
    Proposed date of adoption: December 27, 1995 
 For further information, please call: (512) 239-1966 
         
                   Chapter 277. Use <nl>Determination<ol> [Determination] for 
Tax Exemptions for Pollution Control Property 
  
  30 TAC sec.sec.277.10, 277.12, 277.20 
 
  The Texas Natural Resource Conservation Commission (TNRCC or commission) 
proposes amendments to sec.277.10, concerning Application for Use Determination, 
sec.277.12, concerning Application Review Schedule, and sec.277.20, concerning 
Application Fees. The proposed change to sec.277.10 will extend the application 
deadline by 31 days. The proposed change to sec.277.12 will clarify the 
requirements for notifying an applicant of deficiencies. The proposed change to 
sec.277.20 will revise the application fees for Tier I, Tier II, and Tier III 
applications. 
 The proposed change to sec.277.10 will extend the application deadline from 
December 31 of the tax year for which the use determination is being sought to 
January 31 of the following year. This extra 31 days will allow applicants to 
include year-end expenditures in their use determination applications. 
 The proposed change to sec.277.12 will clarify the requirements for the TNRCC 
to send a deficiency notice to an applicant. In practice, a letter is mailed to 
the applicant stating whether the application is administratively complete and 
listing any items that have been omitted from the application. The technical 
review does not begin until the application is declared administratively 
complete. During the technical review of the application, it may be determined 
that additional information is needed before a final determination can be made. 
Within 60 days of receiving an administratively complete application, a 
technical deficiency letter may be sent to the applicant requesting whatever 
additional information is needed to complete the review. The rule language is 
being revised to clarify that the administrative and technical deficiencies are 
two separate determinations made by TNRCC staff. 
 The proposed change to sec.277.20 will revise the fee structure for all levels 
of the application fee. The revisions are based on the staff's evaluation of the 
first year of operating the Proposition 2 program. The fee for Tier I 
applications will be reduced from $100 to $50 per application. Internal staff 
processing of these applications averaged about one hour. The new fee will more 
accurately reflect actual use of agency resources. Conversely, the Tier II and 
Tier III fees must be raised because the average review time for these 
applications was much higher than originally anticipated. The Tier II fee will 
be raised from $500 to $1,000 and the Tier III fee will be raised from $1,000 to 
$2,500. The new fee structure will generate adequate funding to fully staff the 
program in order to ensure timely review of use determination applications. 
 A total of 786 applications for use determination were received for tax year 
1994. Of this total, 84% were Tier I applications, 10% were Tier II, and 6.0% 
were Tier III. The fee revenues are broken down as follows: 44% of the fees were 
assessed to Tier I, 26% to Tier II, and 30% to Tier III. 
 Stephen Minick, Strategic Planning and Appropriations Division, has determined 
that for the first five-year period the sections as proposed are in effect there 
will be fiscal implications for state government as a result of enforcing or 
administering the sections. The effect on state government will be a change in 
the fee rates assessed for review of applications for certificates of tax 
exemption. No significant increase in total revenues from applications fees is 
anticipated; however, the changes in rates will result in increased fees for 
Tier II and Tier III applicants. Fees for Tier I applicants will be reduced. The 
revised rate structure will shift a greater proportion of the program funding to 
those applications that require the most time and agency resources to process. 
There are no significant effects on local governments. The changes proposed are 
not anticipated to affect the determinations for qualification of pollution 
control equipment or the value of any potential property exemptions arising from 
such determination. 
 Mr. Minick also has determined that for each year of the first five years the 
sections are in effect the public benefit anticipated as a result of enforcing 
the sections as proposed will be more cost-effective processing of applications 
for certification of pollution control equipment and the more equitable 
distribution of the costs of agency programs. Cost implications for affected 
persons, facilities, and businesses will range from a decrease of $50 to an 
increase of $1,500. The effects on small businesses will be equivalent to those 
for larger concerns and will be based on the types of applications submitted and 
the equipment to be certified. The lower fees proposed for Tier I applications 
should encourage greater participation in the program by small businesses. 
Participation in this program is voluntary and the fees will only be incurred by 
companies or persons that seek a tax exemption for pollution control equipment. 
Based on a review of 1994 tax exemption applications, the anticipated reduction 
in tax liabilities for the first year after a tax exemption is obtained will 
significantly exceed any increases in application fees or other costs associated 
with these rules. Other than the fiscal implications identified, there are no 
additional costs to persons who are required to comply with the sections as 
proposed. 
 Written comments may be submitted to the TNRCC Central Office in Austin. The 
deadline for submission of written comments will be 30 days after the date of 
publication of this proposal in the Texas Register. Material received by the 
TNRCC Office of Policy and Regulatory Development by 4:00 p.m. on that date will 
be considered by the commission prior to any final action on the proposal. 
Please mail comments to Lisa Martin, Office of Policy and Regulatory 
Development, MC 205, P.O. Box 13087, Austin, Texas 78711-3087. Please fax 
comments to (512) 239-5687. Copies of the proposed rules are available at the 
central office of the TNRCC located at 12118 North IH-35, Park 35 Technology 
Center, Building E, Austin, and at all TNRCC regional offices. For further 
information, contact Gary McArthur at (512) 239-1917 or Sam Wells at (512) 239-
1441. 
 Persons with disabilities who have special communication or other accommodation 
needs who are planning to attend the hearings should contact the agency at (512) 
239-4900. Requests should be made as far in advance as possible. 
 The amendments are proposed under the Texas Water Code,  s5.103, and the Tax 
Code, sec.11.31, which provides the TNRCC with the authority to adopt rules 
necessary to carry out its powers, duties, and policies. 
 The proposed amendments implement the Texas Water Code,  s5.103, and the Tax 
Code, sec.11.31. 
 
 
  sec.277.10. Application for Use Determination. In applying for a use 
determination under this chapter, a person or political subdivision shall 
present an official Texas Natural Resource Conservation Commission (TNRCC) 
application form or a similar reproduction, accompanied by the appropriate fee, 
pursuant to sec.277.20 of this title (relating to Application Fees) to the 
executive director of the TNRCC. An application must be submitted for each unit 
of pollution control property or for each facility consisting of a group of 
integrated units which have been, or will be, installed for a common purpose. 
Delivery of the application by the United States Postal Service, Certified Mail 
Receipt, is acceptable. If the applicant, other than a political subdivision, 
desires to apply for a use determination for a specific tax year, the 
application must be postmarked no later than <nl>January 31 of the following<ol> 
[December 31 of the previous tax] year. [Political subdivisions must submit an 
application by May 1 of the year that the use determination is being applied 
for.] Applications <nl>postmarked<ol> [received] after <nl>this date<ol> [these 
dates] will <nl>not be processed until after review of all applications 
postmarked by the due date is completed <ol> [begin to be processed in the order 
in which they are received] and without regard for any appraisal district 
deadlines. The application form shall contain at least the following: 
 
  (1)-(8) (No change.) 
 
     
  sec.277.12. Application Review Schedule. Following submission of the 
information required by sec.277.10 of this title (relating to Application for 
Use Determination), the executive director of the Texas Natural Resource 
Conservation Commission (TNRCC) shall determine whether the pollution control 
property is used wholly or partly as a facility, device, or method for the 
control of air, water, or land pollution. If the determination is that the 
property is used partly for pollution control then the executive director shall 
determine the proportion of the property used for pollution control. 
 
  (1) (No change.) 
   
  <nl>(2) Unless the application is not timely received as discussed in 
sec.227.10 of this title, within 30 days of receipt of an application for use 
determination, the executive director shall mail written notification informing 
the applicant that the application is administratively complete or that it is 
deficient. If the application is deficient, the notification shall specify the 
deficiencies, and allow the applicant 30 days to provide the requested 
information. If the applicant does not submit an adequate response, then the 
application will be returned without prejudice. Additional technical information 
may be requested within 60 days of issuance of an administrative completeness 
letter. If the applicant does not provide the requested technical information 
within 30 days, the application will be returned. The applicant may refile the 
application<ol>. 
   
  [(2) If the application is determined to be administratively incomplete, the 
Executive Director shall send a notice of deficiency to the applicant within 30 
calendar days of receipt of the initial application. The letter will specify the 
deficiencies and the additional information that is required. Within 30 calendar 
days of receipt of a notice of deficiency, the applicant shall submit to TNRCC 
the information necessary to complete the application. If the response to the 
notice of deficiency does not result in a complete application, the application 
will be returned without prejudice.] 
   
  (3) (No change.) 
 
     
  sec.277.20. Application Fees. 
 
  (a) Fees shall be remitted with each application for use determination in an 
amount based on the following. 
 
  (1) Tier I-The fee for an application for property that has been granted a 
predetermination as pollution control, either partial or 100%, and the 
application seeks no variance from that determination, shall be <nl>$50<ol> 
[$100]. 
   
  (2) Tier II-The fee for an application for property that is used wholly (100%) 
for the control of air, water, and/or land pollution, but not designated as 
eligible for predetermination, shall be <nl>$1,000<ol> [$500]. 
   
  (3) Tier III-The fee for an application for property used partially (greater 
than 100%) for the control of air, water, and/or land pollution shall be 
<nl>$2,500<ol> [$1,000]. 
     
  (b) (No change.) 
   
  (c) All fees shall be remitted in the form of a check or money order made 
payable to the Texas Natural Resource Conservation Commission (TNRCC) 
<nl>"Proposition 2" <ol> ["Use Determination"] and delivered with the 
application to the TNRCC <nl>Proposition 2 Section<ol> [-Use Determination] at 
the address listed on the application form. 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on September 27, 1995. 
 TRD-9512400 
  Kevin McCalla 
 Director, Legal Services Division 
 Texas Natural Resource Conservation Commission 
    Proposed date of adoption: December 6, 1995 
 For further information, please call: (512) 239-1966 
         
                 
  TITLE 40. SOCIAL SERVICES AND ASSISTANCE 
 Part I. Texas Department of Human Services 
  Chapter 3. Income Assistance Services 
  
  The Texas Department of Human Services (DHS) proposes amendments to sec.sec.3. 
202, 3.3202, 3.3502, 3.5001, and 3.5002 in its Income Assistance Services rule 
chapter. The purpose of the amendments is to define businesses that may 
participate in processing Electronic Benefit Transfer of Aid to Families with 
Dependent Children (AFDC) benefits; to define the term "entertainment;" and to 
change the United States Department of Agriculture's division that administers 
the Food Stamp program to Food and Consumer Services. 
 Burton F. Raiford, commissioner, has determined that for the first five-year 
period the sections are in effect there will be no fiscal implications for state 
or local government as a result of enforcing or administering the sections. 
 Mr. Raiford also has determined that for each year of the first five years the 
sections are in effect the public benefit anticipated as a result of enforcing 
the sections will be that AFDC clients will have more flexibility and 
opportunity in cashing benefits without negative public image. There will be no 
effect on small businesses. There is no anticipated economic cost to persons who 
are required to comply with the sections as proposed. 
 Questions about the content of the proposal may be directed to Rita King at 
(512) 450-4148 in DHS's Client Self-Support Services Department. Written 
comments on the proposal may be submitted to Nancy Murphy, Agency Liaison, Media 
and Policy Support-017, Texas Department of Human Services E-205, P.O. Box 
149030, Austin, Texas 78714-9030, within 30 days of publication in the Texas 
Register. 
   
  Subchapter B. Administration 
 
  40 TAC sec.3.202 
 
  The amendment is proposed under the Human Resources Code, Title 2, Chapters 22 
and 33, which provides the department with the authority to administer public 
and nutritional assistance programs. 
 The amendment implements the Human Resources Code, sec.22.001 and sec.33.002. 
 
 
  sec.3.202. Food Stamp Program Administration. The Food Stamp Program is a 
joint operation of the United States Department of Agriculture (USDA), Food and 
<nl>Consumer Services (FCS)<ol> [Nutrition Service (FNS)] and the Texas 
Department of Human Services (DHS). DHS is responsible for the certification and 
issuance of food stamps. The USDA, <nl>FCS<ol> [FNS] provides guidelines and 
approval for the Food Stamp Program State Plan of Operation and is responsible 
for authorization and supervision of participating retailers, participating 
institutions, and meal delivery services. Program funding is federal except for 
administrative costs paid for by the state. 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on September 28, 1995. 
 TRD-9512408 
  Nancy Murphy 
 Section Manager, Media and Policy Services 
 Texas Department of Human Services 
    Proposed date of adoption: December 1, 1995 
 For further information, please call: (512) 438-3765 
         
           
  Subchapter FF. Civil Rights 
 
  40 TAC sec.3.3202 
 
  The amendment is proposed under the Human Resources Code, Title 2, Chapters 22 
and 33, which provides the department with the authority to administer public 
and nutritional assistance programs. 
 The amendment implements the Human Resources Code, sec.22.001 and sec.33.002. 
 
 
  sec.3.3202. Discrimination Complaints. <ol> Food stamp clients who believe 
they have been subject to discrimination may file a complaint with the United 
States Department of Agriculture, Food and <nl>Consumer Services (FCS) <ol> 
[Nutrition Service (FNS)] and with <nl>the Texas Department of Human Services 
(DHS)<ol> [DHS]. [The] DHS must explain both the <nl>FCS<ol> [FNS] and DHS 
complaint procedures to each client who expresses interest in filing a 
discrimination complaint and must advise them of their right to file a complaint 
in either or both systems. A complaint must be filed within 180 days of the 
alleged discriminatory action. 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on September 28, 1995. 
 TRD-9512409 
  Nancy Murphy 
 Section Manager, Media and Policy Services 
 Texas Department of Human Services 
    Proposed date of adoption: December 1, 1995 
 For further information, please call: (512) 438-3765 
         
           
  Subchapter II. Redemption Procedures 
 
  40 TAC sec.3.3502 
 
  The amendment is proposed under the Human Resources Code, Title 2, Chapters 22 
and 33, which provides the department with the authority to administer public 
and nutritional assistance programs. 
 The amendment implements the Human Resources Code, sec.22.001 and sec.33.002. 
 
 
  sec.3.3502. Redemption of Food Stamps. 
 
  (a) (No change.) 
   
  (b) Clients may redeem food stamps at retail food stores authorized by the 
United States Department of Agriculture (USDA), Food and <nl>Consumer Services 
(FCS) <ol> [Nutrition Service (FNS)], according to requirements stipulated in 7 
Code of Federal Regulations, sec.274.10. 
   
  (c) (No change.) 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on September 28, 1995. 
 TRD-9512410 
  Nancy Murphy 
 Section Manager, Media and Policy Services 
 Texas Department of Human Services 
    Proposed date of adoption: December 1, 1995 
 For further information, please call: (512) 438-3765 
         
             
  Subchapter OO. Electronic Benefit Transfer (EBT) Retailer Requirements 
 
  40 TAC sec.3.5001, sec.3.5002 
 
  The amendments are proposed under the Human Resources Code, Title 2, Chapters 
22 and 33, which provides the department with the authority to administer public 
and nutritional assistance programs. 
 The amendments implement the Human Resources Code, sec.22.001 and sec.33.002. 
 
 
  sec.3.5001. Definitions.  The following words and terms, when used in this 
subchapter, shall have the following meanings, unless the context clearly 
indicates otherwise. 
   
  <nl>   Entertainment-The sale of alcoholic beverages, legalized games of 
chance, sexually oriented material, coin-operated amusement machines, or 
amusement services as defined by the State Comptroller of Public Accounts for 
tax purposes in Title 34 Texas Administrative Code,  s3.298. 
   
  <nl>   FCS-Food and Consumer Services. 
   
   [Food and Nutrition Service (FNS)]-<nl>The<ol> Division of the United States 
Department of Agriculture responsible for administering the Food Stamp Program. 
   
   Food stamps-The federal food assistance program administered by <nl>FCS <ol> 
[FNS]. 
 
   
  sec.3.5002. Qualifications for Retailers and Third-Party Processors. 
 
  (a) (No change.) 
   
  (b) A retailer must be either: 
 
  (1)  currently authorized by the Food and <nl>Consumer Services (FCS)<ol> 
[Nutrition Service (FNS)] to participate in the Food Stamp program; or 
   
  (2) a <nl>non-food (non-FCS-certified) <ol> [non-FNS-certified] retailer that 
has executed a written agreement with the primary EBT contractor to provide Aid 
to Families with Dependent Children (AFDC) cash-back. <nl>To be a non-food (non-
FCS-certified) retailer no more than 10% of the retailer's gross revenue may be 
derived from entertainment. 
     
  (c)-(f) (No change.) 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on September 28, 1995. 
 TRD-9512411 
  Nancy Murphy 
 Section Manager, Media and Policy Services 
 Texas Department of Human Services 
    Proposed date of adoption: December 1, 1995 
 For further information, please call: (512) 438-3765 
         
               Chapter 47. Primary Home Care 
  
  The Texas Department of Human Services (DHS) proposes amendments to 
sec.sec.47.1901, 47.4901, and 47.4902, concerning definitions, contracting, and 
geographic boundaries, in its Primary Home Care chapter. The purpose of the 
amendments is to revise the type of license required to comply with amendments 
to the Health and Safety Code, Chapter 142, which require that agencies 
providing personal assistance services be licensed by the Texas Department of 
Health and change the name of those agencies to home and community support 
services agencies. 
 Burton F. Raiford, commissioner, has determined that for the first five-year 
period the sections are in effect there will be no fiscal implications for state 
or local government as a result of enforcing or administering the sections. 
 Mr. Raiford also has determined that for each year of the first five years the 
sections are in effect the public benefit anticipated as a result of enforcing 
the sections will be that the department's rules on primary home care will 
follow the licensing law for home and community support services. There will be 
no effect on small businesses. There is no anticipated economic cost to persons 
who are required to comply with the sections as proposed. 
 Questions about the content of the proposal may be directed to Maria Montoya at 
(512) 450-3155 in DHS's Long Term Care department. Written comments on the 
proposal may be submitted to Nancy Murphy, Agency Liaison, Media and Policy 
Services-006, Texas Department of Human Services E-205, P.O. Box 149030, Austin, 
Texas 78714-9030, within 30 days of publication in the Texas Register. 
   
  General Provisions and Services 
 
  40 TAC sec.47.1901 
 
  The amendment is proposed under the Human Resources Code, Title 2, Chapters 22 
and 32, which provides the department with the authority to administer public 
and medical assistance programs; and under Texas Civil Statutes, Article 
4413(502), sec.16, which provide the Health and Human Services Commission with 
the authority to administer federal medical assistance funds. 
 The amendment implements the Human Resources Code, sec. s22.001-22.024 and 
sec.sec.32.001-32.041. 
 
 
  sec.47.1901. Definitions.  The following words and terms, when used in this 
chapter, shall have the following meanings, unless the context clearly indicates 
otherwise. 
   
   Provider agency -A home <nl>and community support services<ol> [health] 
agency that has a contract with the department to <nl>provide<ol> [deliver] 
primary home care. 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on September 28, 1995. 
 TRD-9512412 
  Nancy Murphy 
 Section Manager, Media and Policy Services 
 Texas Department of Human Services 
    Proposed date of adoption: December 1, 1995 
 For further information, please call: (512) 438-3765 
         
           
  Provider Contracts 
 
  40 TAC sec.47.4901, sec.47.4902 
 
  The amendments are proposed under the Human Resources Code, Title 2, Chapters 
22 and 32, which provides the department with the authority to administer public 
and medical assistance programs; and under Texas Civil Statutes, Article 
4413(502), sec.16, which provide the Health and Human Services Commission with 
the authority to administer federal medical assistance funds. 
 The amendments implement the Human Resources Code, sec. s22.001-22.024 and 
sec.sec.32.001-32.041. 
 
 
  sec.47.4901. Contracting. 
 
  (a) To contract with the <nl>Texas Department of Human Services<ol> 
[department] <nl>for the primary home care program <ol> [to provide primary home 
care services], a legal entity or one of its divisions must: 
 
  (1) be licensed by the <nl>Texas Department of Health (TDH)<ol> [TDH] as a 
<nl>home and community support services agency (HCSSA)<ol> [Class A home health 
agency and be authorized to do business in the State of Texas (if an out-of-
state corporation) by the secretary of state]; and 
   
  (2) be <nl>authorized to do business in the State of Texas (if an out-of-state 
corporation) by the secretary of state<ol> [certified for reimbursement under 
Titles XVIII and XIX of the Social Security Act]. 
     
  (b)  (No change.) 
 
     
  sec.47.4902. Geographic Boundaries. 
 
  (a) Any <nl>provider<ol> [home health] agency that has a contract with the  
<nl>Texas Department of Human Services (DHS)<ol> [department] must provide 
services in the county in which the parent [agency, sub-unit,] or branch office 
is located. 
   
  (b)  A <nl>provider<ol> [contracted home health] agency may request that 
<nl>DHS<ol> [the department] amend the agency's contract to add counties, if the 
following conditions exist<nl>:<ol>[.] 
 
  (1) Additional counties served by the <nl>provider <ol> [home health] agency 
<nl>are<ol> [must be] contiguous to a county already covered in the agency's 
contract with  <nl>DHS<ol> [the department]; <nl>and 
   
  (2) The <nl>provider<ol> [home health] agency <nl>has <ol> [must have] a 
contract with <nl>DHS<ol> [the department] for each Department of Human Services 
region served<nl>. <ol>[; and 
   
  [(3) The contracted home health agency must be available to provide Title 
XVIII and Title XIX skilled-nursing home health services in the area covered by 
the agency's PHC contract. The agency must assure the department, in writing, 
that these services are available.] 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on September 28, 1995. 
 TRD-9512413 
  Nancy Murphy 
 Section Manager, Media and Policy Services 
 Texas Department of Human Services 
    Proposed date of adoption: December 1, 1995 
 For further information, please call: (512) 438-3765 
         
                 Chapter 48. Community Care for Aged and Disabled 
  
  The Texas Department of Human Services (DHS) proposes amendments to sec.48. 
2601 and sec.48.9302, concerning program services and additional standards 
applicable to contracted agencies providing services in a 24-hour attendant 
service setting or day care facility, in its Community Care for Aged and 
Disabled chapter. The purpose of the proposal is to add license requirements to 
comply with amendments to the Health and Safety Code, Chapter 142, which require 
that agencies providing personal assistance services be licensed by the Texas 
Department of Health and change the name of those agencies to home and community 
support services agencies. 
 Burton F. Raiford, commissioner, has determined that for the first five-year 
period the sections are in effect there will be no fiscal implications for state 
or local government as a result of enforcing or administering the sections. 
 Mr. Raiford also has determined that for each year of the first five years the 
sections are in effect the public benefit anticipated as a result of enforcing 
the sections will be that previously unlicensed agencies will have an 
opportunity to provide home and community support services. Also, the 
department's rule will follow the licensing law for home and community support 
services agencies. There will be no effect on small businesses. There is no 
anticipated economic cost to persons who are required to comply with the 
sections as proposed. 
 Questions about the content of the proposal may be directed to Maria Montoya at 
(512) 450-3155 in DHS's Long Term Care department. Written comments on the 
proposal may be submitted to Nancy Murphy, Agency Liaison, Media and Policy 
Services-006, Texas Department of Human Services E-205, P.O. Box 149030, Austin, 
Texas 78714-9030, within 30 days of publication in the Texas Register. 
   
  Client-Managed Attendant Services 
 
  40 TAC sec.48.2601 
 
  The amendment is proposed under the Human Resources Code, Title 2, Chapter 22, 
which provides the department with the authority to administer public assistance 
programs. 
 The amendment implements the Human Resources Code, sec. s22.001-22.024. 
 
 
  sec.48.2601. Program Services. 
 
  (a)-(b) (No change.) 
   
  <nl>(c) To contract with DHS to provide client-managed attendant services, a 
legal entity or one of its divisions must: 
 
  <nl>(1) be licensed by the Texas Department of Health as a home and community 
support services agency; and 
   
  <nl>(2) if an out-of-state corporation, be authorized to do business in the 
State of Texas by the secretary of state. 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on September 28, 1995. 
 TRD-9512414 
  Nancy Murphy 
 Section Manager, Media and Policy Services 
 Texas Department of Human Services 
    Proposed date of adoption: December 1, 1995 
 For further information, please call: (512) 438-3765 
         
               
  Minimum Standards for Agencies Contracted to Provide Special Services to 
Persons with Disabilities 
 
  40 TAC sec.48.9302 
 
  The amendment is proposed under the Human Resources Code, Title 2, Chapter 22, 
which provides the department with the authority to administer public assistance 
programs. 
 The amendment implements the Human Resources Code, sec. s22.001-22.024. 
 
 
  sec.48.9302. Additional Standards Applicable to Contracted Agencies Providing 
Services in a 24-hour Attendant Service Setting or Day Care Facility. 
 
  (a) Twenty-four-hour attendant service setting. The  <nl>legal entity or one 
of its divisions<ol> [contracted agency] must: 
 
  (1)-(7) (No change.) 
   
  <nl>(8) comply with the following: 
 
  <nl>(A) be licensed by the Texas Department of Health as a home and community 
support services agency; and 
   
  <nl>(B) if an out-of-state corporation, be authorized to do business in the 
State of Texas by the secretary of state. 
       
  (b) (No change.) 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on September 28, 1995. 
 TRD-9512415 
  Nancy Murphy 
 Section Manager, Media and Policy Services 
 Texas Department of Human Services 
    Proposed date of adoption: December 1, 1995 
 For further information, please call: (512) 438-3765 
         
                   
  TITLE 43. TRANSPORTATION 
 Part I. Texas Department of Transportation 
  Chapter 1. Management 
  
  Conditional Grant Program 
 
  43 TAC sec.sec.1.400-1.410 
 
  (Editor's note: The text of the following sections proposed for repeal will 
not be published. The sections may be examined in the offices of the Texas 
Department of Transportation or in the Texas Register office, Room 245, James 
Earl Rudder Building, 1019 Brazos Street, Austin.) 
   
  The Texas Department of Transportation proposes the repeal of sec.sec.1.400-1. 
410 concerning the department's conditional grant program. 
 Education Code, Chapter 56, Subchapter I, as amended, authorizes the department 
to establish a conditional grant program to provide financial assistance for 
eligible minority and female students who intend to work for the department in 
civil engineering or any other profession identified by the department as having 
a significant statistical underrepresentation of minorities or women in the 
department's workforce. 
 The sections are proposed for repeal to provide ease of access to all rules 
relating to employment practices. Repeal of these sections is necessary because 
the subject matter of these sections falls within Chapter 4, Employment 
Practices. The subject matter will be reenacted in an amended form as amendments 
to sec. s4.20-4.21 and new sec.4.25, concerning the department's conditional 
grant program, which are being contemporaneously proposed for adoption. 
 Cathy J. Williams, Director, Human Resources Division, has determined that for 
the first five-year period the repeals are in effect there will be no fiscal 
implications for state or local government as a result of enforcing or 
administering the proposed repeals. 
 Ms. Williams has certified that there will be no significant impact on local 
economies or overall employment as a result of enforcing or administering the 
proposed repeals. 
 Ms. Williams also has determined that for each year of the first five years the 
repeals are in effect the public benefit anticipated as a result of implementing 
the repeals will be to provide ease of access for all rules related to 
employment practices. There will be no effect on small businesses. There is no 
anticipated economic cost to persons who are required to comply with the repeals 
as proposed. 
 Pursuant to the Administrative Procedure Act, Government Code, Chapter 2001, 
the Texas Department of Transportation will conduct a public hearing to receive 
comments concerning the proposed sections. A public hearing will be held at 9:00 
a.m. on Wednesday, November 1, 1995, in the first floor hearing room of the 
Dewitt C. Greer State Highway Building, 125 East 11th Street, Austin, Texas, and 
will be conducted in accordance with the procedures specified in 43 TAC sec.1.5. 
Those desiring to make comments or presentations may register starting at 8:30 
a.m. Any interested person may appear and offer comments, either orally or in 
writing, however, questioning of those making presentations will be reserved 
exclusively to the presiding officer as may be necessary to ensure a complete 
record. While any person with pertinent comments will be granted an opportunity 
to present them during the course of the hearing, the presiding officer reserves 
the right to restrict testimony in terms of time and repetitive content. 
Organizations, associations, or groups are encouraged to present their commonly 
held views and identical or similar comments through a representative member 
where possible. Comments on the proposed test should include appropriate 
citations to sections, subsections, paragraphs, etc., for proper reference. Any 
suggestions or requests for alternative language or other revisions in the 
proposed text should be submitted in written form. Presentations must remain 
pertinent to the issues being discussed. A person may not assign a portion of 
his or her time to another speaker. A person who disrupts a public hearing must 
leave the hearing room if ordered to do so by the presiding officer. Persons 
with disabilities who plan to attend this meeting and who may need auxiliary 
aids or services such as interpreters for persons who are deaf or hearing-
impaired, readers, large print or braille, are requested to contact Eloise 
Lundgren, Director of Public Information Office, at 125 East 11th Street, 
Austin, Texas 78701-2483, (512) 463-8588 at least two working days prior to the 
hearing so that appropriate arrangements can be made. 
 Written comments on the proposed rules may be submitted to Cathy J. Williams, 
Director, Human Resources Division, Texas Department of Transportation, 125 East 
11th Street, Austin, Texas 78701-2483. The deadline for receipt of written 
comments will be 5:00 p.m. on November 7, 1995. 
 The repeals are proposed under Transportation Code, sec.201.101, which provides 
the Texas Transportation Commission with the authority to establish rules for 
the conduct of the work of the Texas Department of Transportation and Education 
Code, Chapter 56, Subchapter I, as amended, which authorizes the department to 
establish a conditional grant program. 
 No statutes, articles, or codes are affected by this proposed repeal. 
 
 
  sec.1.400. Purpose. 
 
   
  sec.1.401. Program. 
 
   
  sec.1.402. Definitions. 
 
   
  sec.1.403. Eligibility. 
 
   
  sec.1.404. Application. 
 
   
  sec.1.405. Grant Agreement. 
 
   
  sec.1.406. Conditional Grant. 
 
   
  sec.1.407. Stipend. 
 
   
  sec.1.408. Default. 
 
   
  sec.1.409. Repayment. 
 
   
  sec.1.410. Child Support Statement. 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on October 2, 1995. 
 TRD-9512505 
  Robert E. Shaddock 
 General Counsel 
 Texas Department of Transportation 
    Earliest possible date of adoption: November 6, 1995 
 For further information, please call: (512) 463-8630 
         
             Chapter 4. Employment Practices 
  
  Subchapter C. Employment and Education Programs 
 
  43 TAC sec.sec.4.20, 4.21, 4.25 
 
  The Texas Department of Transportation proposes amendments to sec.4.20, 
sec.4.21 and new sec.4.25 concerning the department's conditional grant program. 
 Education Code, Chapter 56, Subchapter I authorized the department to establish 
a conditional grant program to provide financial assistance for eligible 
minority students who intended to work for the department in civil engineering. 
Senate Bill 1154, 74th Legislature, 1995, amended Education Code, Chapter 56, 
Subchapter I, extending the program to assist eligible minority and female 
students who intend to work for the department in civil engineering or any other 
profession identified by the department as having a significant statistical 
underrepresentation of minorities or women in the department's workforce. 
 Adoption of the amendments and new section are necessary to implement Senate 
Bill 1154, 74th Legislature, 1995, and to replace, in an amended form, the 
provisions of sec.sec.1.400-1.410, concerning the department's conditional grant 
program. sec. s1.400-1.410 are being contemporaneously proposed for repeal 
because the subject matter of these sections fall within Chapter 4, Employment 
Practices. 
 Section 4.20 is amended to add the purpose and scope of the conditional grant 
program. 
 Section 4.21 is ended to provide definitions applicable to the conditional 
grant program. 
 New sec.4.25 defines the purpose of and the authority for the program; explains 
that the department may provide financial assistance to eligible minority and 
female students; describes eligibility requirements for the program, the 
procedure for applying for a conditional grant, the grant agreement; requires 
the department to send written notice to applicants selected to receive a 
conditional grant; describes the amount of a conditional grant and the 
circumstances under which the department will declare the student in default; 
and requires the department to establish a repayment schedule for a student who 
defaults; and prohibits a child support obligor who is 30 or more days 
delinquent in paying child support from receiving conditional grant funds and 
requires a student to provide a signed, sworn statement affirming that the 
student is not delinquent. 
 Cathy J. Williams, Director, Human Resources Division, has determined that 
there will be fiscal implications to state government as a result of enforcing 
or administering these sections. The effect on state government for the first 
five-year period the amendments and new section are in effect will be an 
estimated additional cost of $200,000 per year. There will be no effect on local 
governments as a result of enforcing or administering these sections. 
 Ms. Williams has certified that there will be no significant impact on local 
economies or overall employment as a result of enforcing or administering the 
proposed amendments and new section. 
 Ms. Williams also has determined that for each year of the first five years the 
sections are in effect, the public benefit anticipated as a result of 
implementing these sections will be to provide financial assistance to minority 
and female college students who desire to work for the department, provide 
employment after graduation to students who participate in the program, and 
create a more qualified and diverse workforce at the department in order to 
provide quality services to the public. There will be no effect on small 
businesses. There is no anticipated economic cost to persons who are required to 
comply with these sections as proposed. 
 Pursuant to the Administrative Procedure Act, Government Code, Chapter 2001, 
the Texas Department of Transportation will conduct a public hearing to receive 
comments concerning the proposed sections. A public hearing will be held at 9:00 
a.m. on Wednesday, November 1, 1995, in the first floor hearing room of the 
Dewitt C. Greer State Highway Building, 125 East 11th Street, Austin, Texas, and 
will be conducted in accordance with the procedures specified in 43 TAC sec.1.5. 
Those desiring to make comments or presentations may register starting at 8:30 
a.m. Any interested person may appear and offer comments, either orally or in 
writing, however, questioning of those making presentations will be reserved 
exclusively to the presiding officer as may be necessary to ensure a complete 
record. While any person with pertinent comments will be granted an opportunity 
to present them during the course of the hearing, the presiding officer reserves 
the right to restrict testimony in terms of time and repetitive content. 
Organizations, associations, or groups are encouraged to present their commonly 
held views and identical or similar comments through a representative member 
where possible. Comments on the proposed test should include appropriate 
citations to sections, subsections, paragraphs, etc., for proper reference. Any 
suggestions or requests for alternative language or other revisions in the 
proposed text should be submitted in written form. Presentations must remain 
pertinent to the issues being discussed. A person may not assign a portion of 
his or her time to another speaker. A person who disrupts a public hearing must 
leave the hearing room if ordered to do so by the presiding officer. Persons 
with disabilities who plan to attend this meeting and who may need auxiliary 
aids or services such as interpreters for persons who are deaf or hearing-
impaired, readers, large print or braille, are requested to contact Eloise 
Lundgren, Director of Public Information Office, at 125 East 11th Street, 
Austin, Texas 78701-2483, (512) 463-8588 at least two working days prior to the 
hearing so that appropriate arrangements can be made. 
 Written comments on the proposed rules may be submitted to Cathy J. Williams, 
Director, Human Resources Division, Texas Department of Transportation, 125 East 
11th Street, Austin, Texas 78701-2483. The deadline for receipt of written 
comments will be 5:00 p.m. on November 7, 1995. 
 The amendments and new section are proposed under Transportation Code, 
sec.201.101, which provides the Texas Transportation Commission with the 
authority to establish rules for the conduct of the work of the Texas Department 
of Transportation and Education Code, Chapter 56, Subchapter I, as amended, 
which authorizes the department to establish a conditional grant program. 
 No statutes, articles, or codes are affected by these proposed amendments or 
new sections. 
 
 
  sec.4.20. Purpose and Scope. It is the policy and practice of the Texas 
Department of Transportation to integrate academic studies with supervised work 
experience by providing employment in cooperative education and internship 
programs. These programs increase a student's job potential, while assisting the 
student financially and bringing new educational methods to the workplace. The 
programs enrich secondary institutions' and universities' curricula and help the 
institutions retain students. <nl>It is also the policy of the department to 
provide financial assistance to eligible minority and female students who intend 
to work for the department in professions identified by the department as having 
a significant statistical underrepresentation of minorities or women in the 
department's workforce. <ol> The programs provide the department's managers with 
a recruiting source for professional, ethnic and workforce diversity for long-
range staffing goals by building an understanding of the department's career 
opportunities. In keeping with these policies and with the requirements of Texas 
Civil Statutes, Articles 6668a, 6668b, [and] 6669a, <nl>and Education Code, 
Chapter 56, Subchapter I, <ol> this subchapter prescribes the policies and 
procedures by which the department selects students to participate in these 
programs. 
 
   
  sec.4.21. Definitions.  The following words and terms, when used in this 
subchapter, shall have the following meanings, unless the context clearly 
indicates otherwise. 
   
  <nl>   Available grants -The number of grants, based on available funding, the 
conditional grant coordinator determines may be awarded in an academic year. 
   
  <nl>   Conditional grant -Financial assistance awarded to an eligible student. 
   
  <nl>   Declaration of intent-A signed and notarized document stating that the 
student intends to work for the department in an eligible profession for two 
academic years immediately following the date of the student's receipt of an 
eligible degree. 
   
  <nl>   Eligible degree -A baccalaureate degree from an accredited public 
institution in the State of Texas in a field of study which satisfies the 
department's minimum education requirement for an eligible profession. 
   
  <nl>   Eligible professions -Professions which have been identified by the 
department as having a significant statistical underrepresentation of minorities 
or women in the department's work force. 
   
  <nl>   Institution-Any public senior (four-year) college or university of 
higher education as certified by the Coordinating Board, Texas College and 
University System in accordance with the Education Code, sec.61.003. 
   
  <nl>   Minority student -A person who has racial or ethnic identification with 
one of the following groups: 
 
  (A) Black-All persons having origins in any of the black racial groups of 
Africa (not of Hispanic origin). 
   
  (B) Hispanic-All persons of Mexican, Puerto Rican, Cuban, Central or South 
American, or Spanish culture or origin, regardless of race. 
   
  (C) Asian or Pacific Islander-All persons having origins in any of the 
original peoples of the Far East, Southeast Asia, the Indian subcontinent, or 
the Pacific Islands. This area includes, for example, China, Japan, Korea, the 
Philippine Islands, and Samoa. 
   
  (D) American Indian/Alaskan Native-All persons having origins in any of the 
original peoples of North America, and who maintain cultural identification 
through tribal affiliation or community recognition. 
     
  <nl>   Stipend-A monthly amount of financial assistance based on financial 
need which is determined by the financial aid or scholarship office at the 
student's educational institution. 
   
  <nl>   Texas resident -A person qualifying as a Texas resident as defined by 
Texas Higher Education Coordinating Board rule. 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on October 2, 1995. 
 TRD-9512506 
  Robert E. Shaddock 
 General Counsel 
 Texas Department of Transportation 
    Earliest possible date of adoption: November 6, 1995 
 For further information, please call: (512) 463-8630 
         
         
  43 TAC sec.4.25 
 
  The new section is proposed under Transportation Code,  s201.101, which 
provides the Texas Transportation Commission with the authority to establish 
rules for the conduct of the work of the Texas Department of Transportation and 
Education Code, Chapter 56, Subchapter I, as amended, which authorizes the 
department to establish a conditional grant program. 
 No statutes, articles, or codes are affected by this new section. 
 
 
  sec.4.25. Conditional Grant Program. 
 
  (a) Purpose. This section establishes procedures for the administration of a 
conditional grant program which will provide financial assistance to eligible 
minority and female students who intend to work for the department in civil 
engineering or any other profession identified by the department as having a 
significant statistical underrepresentation of minorities or women in the 
department's workforce. Authority for the creation of the conditional grant 
program is contained in Education Code, Chapter 56, Subchapter I. 
   
  (b) Program. Upon determination by the executive director or his designee, the 
department may provide financial assistance to eligible minority and female 
students who: 
 
  (1) declare an intent to seek a baccalaureate degree from an institution in 
the State of Texas in a field of study that satisfies the department's minimum 
education requirement for an eligible profession; 
   
  (2) intend to work for the department for the two academic years immediately 
following the date of the student's receipt of an eligible degree from an 
institution in the State of Texas; and 
   
  (3) exhibit a high level of academic performance. 
     
  (c) Eligibility. 
 
  (1) To be initially eligible for a conditional grant, a student must: 
 
  (A)  complete and file with the department, on forms prescribed by the 
department, a conditional grant application and a declaration of intent to 
become a member of an eligible profession and work for the department for the 
two academic years immediately following the date of the student's receipt of an 
eligible degree; 
   
  (B) enroll in an institution; 
   
  (C) be a Texas resident as defined by the Texas Higher Education Coordinating 
Board; and 
   
  (D) be a minority or a female; and 
   
  (E) have complied with any other requirements adopted by the department. 
     
  (2) In order to maintain eligibility, a student must be enrolled each semester 
in an institution in a course of instruction leading toward a degree in an 
eligible profession and, except as provided in paragraph (4) of this subsection, 
must: 
 
  (A) maintain an overall institutional grade point average of at least 2.50 on 
a four-point scale; and 
   
  (B) receive credit for not fewer than 12 hours each semester toward the 
student's degree program. 
     
  (3) If, during not more than one semester, a student fails to meet the grade 
point or credit hour requirements of this subsection, he or she will continue to 
maintain eligibility. Students who fail to meet the grade point requirement must 
receive credit for not fewer than 12 hours each semester and attain a semester 
grade point average of 2.50 during all semesters thereafter until the student 
graduates. 
   
  (4) The department may waive, upon approval of the executive director, the 
requirement that a student receive credit for not fewer than 12 hours each 
semester if a student demonstrates hardship. Hardship may involve serious 
illness, family emergency, or other extraordinary circumstances beyond the 
control of the student. 
     
  (d) Application. 
 
  (1) To apply for a conditional grant, a student must submit to the department: 
 
  (A) a completed application in a form prescribed by the department; and 
   
  (B) a declaration of intent. 
     
  (2) The application will require information and documentation relating to 
residency status, secondary school performance or college performance, the 
current or intended enrollment institution, the sworn statement as required by 
subsection (j) of this section, and such other information the department deems 
necessary to determine eligibility pursuant to subsection (c) of this section. 
   
  (3)  An application must be submitted by March 1st of each year for the 
subsequent fall and spring semesters admission. 
   
  (4) The department will review applications for eligibility and will rank 
applicants according to the following selection criteria: 
 
  (A) secondary school or college grade point average; 
   
  (B) SAT or ACT score; 
   
  (C) honors and awards from, and participation in, technical, or academic 
organizations such as Texas Alliance for Minorities in Engineering, National 
Honor Society, Debate Team, Dean's List; 
   
  (D) vocational education; and, 
   
  (E)  work experience. 
       
  (e) Grant agreement. 
 
  (1) The department will send written notice to applicants selected to receive 
a grant informing them of the amount to be awarded for the conditional grant as 
certified by their educational institution. 
   
  (2) Each selected student will be required to execute a grant agreement prior 
to receiving a conditional grant. The grant agreement will be in a form 
prescribed by the department and will set forth the terms and conditions of the 
grant, including, but not limited to, the amount of the grant and the 
requirements of continued eligibility pursuant to subsection (c) of this 
section. 
     
  (f) Conditional grant. 
 
  (1) The amount of a conditional grant is the sum of: 
 
  (A) the amount of tuition and fees for the student, as certified by the 
institution; and 
   
  (B) a stipend based upon financial need as provided by subsection (g) of this 
section. 
     
  (2) Each semester the department will distribute a conditional grant for each 
eligible student on receipt of an enrollment report and certification of the 
amount of tuition, fees, and stipend (if any) for the student from the 
institution. 
   
  (3) The total amount of any one conditional grant may not exceed $2,500 per 
academic semester based on financial need. 
   
  (4) If the amount appropriated to the department for conditional grants is 
less than the estimated amount of all unpaid conditional grants, the department 
will proportionally reduce each unpaid conditional grant. 
     
  (g) Stipend. 
 
  (1) A student desiring to receive a stipend must: 
 
  (A) sign a financial information release statement; and 
   
  (B) complete the required financial need forms at the institution. 
     
  (2) The department will award a stipend to the student upon certification by 
the institution of the student's certified financial need. 
     
  (h) Default. The department will declare a student to be in default of the 
grant agreement and will require the student to repay all conditional grant 
funds received from the department if the student: 
 
  (1)  withdraws from the institution; or 
   
  (2) fails to comply with one or more requirements of the grant agreement. 
     
  (i) Repayment. 
 
  (1)  If a student is required to repay funds pursuant to subsection (h) of 
this section, the department will establish a repayment schedule of 120 equal 
monthly installments; provided, however, that the minimum installment shall be 
$20, and further provided that, at the option of the student, repayments may be 
made in fewer than 120 installments. 
   
  (2) A student will not be required to begin payments until six months 
subsequent to the determination of default. 
   
  (3) The department may temporarily reduce or defer the required payments 
and/or extend the prescribed repayment period, upon approval of the executive 
director, if a student demonstrates his or her inability to pay due to 
catastrophic illness or family emergency. Any reduction, deferral, or extension 
will not relieve a student of his or her responsibility to repay all funds. 
     
  (j) Child support statement. 
 
  (1) In accordance with the Family Code, Chapter 14,  s14.52, a child support 
obligor who is 30 or more days delinquent in paying child support is not 
eligible to receive funds under this subchapter. 
   
  (2) A student shall provide along with the application submitted as required 
by subsection (c) of this section a signed, sworn statement, in a form and 
manner prescribed by the department, affirming that the student is not 30 or 
more days delinquent in providing child support under a court order or a written 
repayment agreement. 
   
  (3)  A student who is ineligible under this section shall remain ineligible to 
receive funds under this subchapter until: 
 
  (A) all arrearages have been paid; or 
   
  (B) the student is in compliance with a written repayment agreement or court 
order as to any existing delinquency. 
     
  (4)  A student who is found to have submitted a falsely sworn statement under 
this section shall, upon demand, remit to the department all funds received 
while ineligible under paragraph (1) of this subsection. 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on October 2, 1995. 
 TRD-9512507 
  Robert E. Shaddock 
 General Counsel 
 Texas Department of Transportation 
    Earliest possible date of adoption: November 6, 1995 
 For further information, please call: (512) 463-8630 
         
                 Chapter 11. Design Division 
  
  Statewide Transportation Enhancement Program 
 
  43 TAC sec.sec.11.201-11.205 
 
  The Texas Department of Transportation proposes amendments to sec.sec.11. 201-
11.205 concerning the department's statewide transportation enhancement program. 
 Title 23, United States Code, sec.133(d)(2), sec.160(e)(2), and sec.1015(d)(2) 
of the Intermodal Surface Transportation Efficiency Act of 1991 (Public Law 102-
240), require that 10% of certain funds apportioned to Texas pursuant to 23, 
United States Code, sec.104(b)(3) and administered by the department be used for 
transportation enhancement activities as defined in Title 23, United States Code 
sec.101(a). 
 The amendments are necessary to clarify, simplify, and streamline the 
nomination and selection process; further emphasize the tie of statewide 
transportation enhancement projects to the multimodal transportation system 
consistent with the intent of the Intermodal Surface Transportation Efficiency 
Act of 1991; and prevent the loss of federal funds. 
 Amended sec.11.201 adds definitions for executive director, the Federal Highway 
Administration, jurisdiction of a city, jurisdiction of a county, local 
agreement, project area, and the Transportation Enhancement Project Evaluation 
Committee. The definition of state is broadened to include the state of Texas or 
any of its political subdivisions. The definition of a statewide project is 
eliminated and the term nominating entity is modified to include a commitment to 
the project from that entity. 
 Amended sec.11.202 provides that the executive director may eliminate a project 
upon a determination that federal funding may be lost due to time delays. The 
amendments exclude consideration of projects that will require the acquisition 
of property through the exercise of eminent domain by any entity from 
participation in the program. 
 Amended sec.11.203 provides clarification and simplifies candidate project 
nomination requirements. Statewide projects are also eliminated. The amendments 
require that the budget submitted in a project nomination indicate that an 
appropriate amount has been included to cover design, engineering, 
contingencies, department administrative expenses, and other costs associated 
with the project. The amendments provide that if the candidate project proposes 
restoration or rehabilitation work for a historic property, the plan must 
include current and proposed floor plans for the property, and the floor plan 
must indicate the proposed function to be served by each room. The amendments 
require a resolution of support from at least one of the governing bodies of any 
city and county with jurisdiction over the area in which the project will be 
implemented. For candidate projects proposing the acquisition, restoration, or 
rehabilitation of historic sites or properties, documentary evidence that the 
property or site is listed in or eligible for listing in The National Register 
of Historic Places is required. The amendments require that complete nomination 
packages must be received no later than the deadline published in the Texas 
Register and that nominations for candidate projects that are not complete may 
be determined ineligible for the program. The requirement that a nominating 
entity rank candidate projects is removed. However, a nominating entity may 
submit a written statement of the relative priority ranking assigned to a 
candidate project among all candidate projects nominated by that entity for 
consideration in response to the current call for project nominations. All 
candidate project nomination packages become the property of the department and 
will be returned to the nominating entity only when requested. 
 Amended sec.11.204 provides that the department will notify the nominating 
entity of each ineligible candidate project by certified mail. The amendments 
require the notification to include a statement explaining the candidate 
project's ineligibility and prohibits candidate projects from being resubmitted 
without revision during subsequent program calls. The amendments provide that a 
candidate project will be eliminated from participation if at any time prior to 
the execution of the local agreement, any municipality or county in which 
project activities are proposed notifies the department of its opposition to the 
project. The amendments provide that the Transportation Enhancement Project 
Evaluation Committee will no longer score each project on economic, social and 
environmental benefit, but will instead evaluate the potential benefit of each 
candidate project based on the quality of the project, the geographic scope of 
the project's benefits and the project's transportation enhancement value, and 
prepare recommendations. The amendments eliminate the benefit-cost ratio as a 
criterion for consideration in choosing candidate projects for funding, and the 
requirement for a statement of the consistency of a candidate project with the 
statewide long-range transportation plan and any local, metropolitan or regional 
long-range transportation plan, benefit-cost ratios, and evaluation of impacts 
on local economics. Candidate projects that are not selected will no longer be 
retained by the department, but may be resubmitted during subsequent program 
calls. 
 Amended sec.11.205 provides that all selected projects must be developed to 
standards and specifications established or recognized by the federal government 
and the department. The amendments provide that the executive director may 
eliminate a project or a portion of a project from participation if the project 
sponsor fails to satisfy any requirement specified in the rules, implementation 
of the project would involve significant deviation from the activities as 
proposed in the candidate project's nomination, or the project's sponsor or 
nominating entity withdraws from participation in the project. 
 Mr. Robert L. Wilson, P.E., Director, Design Division, has determined that for 
the first five-year period the rules are in effect there will be fiscal 
implications as a result of enforcing or administering the sections. The effect 
on state government will be an estimated reduction in cost of approximately 
$10,000 for each year of the first five years the amendments are in effect. 
 Mr. Wilson has certified that there will be no significant impact on local 
economies or overall employment as a result of these amendments. There will be 
no additional and subsequent costs to public and private entities who elect to 
sponsor projects and who thereby are required to comply with the sections as 
proposed. Project sponsors will not incur additional costs in developing and 
submitting proposals. 
 Mr. Wilson also has determined that for each year of the first five years the 
sections are in effect, the public benefit anticipated as a result of 
implementing these sections will be a simplification of the project nomination 
and selection process, the encouragement of stronger transportation ties, and 
the prevention of loss of federal funds. There will be no effect on small 
businesses. There is no anticipated economic cost to persons who are required to 
comply with these sections as proposed. 
 Pursuant to the Administrative Procedure Act, the Government Code, Chapter 
2001, the Texas Department of Transportation will conduct a public hearing to 
receive comments concerning the proposed adoption. A public hearing will be held 
at 7:00 p.m. on Wednesday, October 18, 1995, in the first floor hearing room of 
the Dewitt C. Greer State Highway Building, 125 East 11th Street, Austin, Texas, 
and will be conducted in accordance with the procedures specified in 43 TAC 
sec.1.5. Those desiring to make comments or presentations may register starting 
at 6:30 p.m. Any interested person may appear and offer comments, either orally 
or in writing; however, questioning of those making presentations will be 
reserved exclusively to the presiding officer as may be necessary to ensure a 
complete record. While any person with pertinent comments will be granted an 
opportunity to present them during the course of the hearing, the presiding 
officer reserves the right to restrict testimony in terms of time and repetitive 
content. Organizations, associations or groups are encouraged to present their 
commonly held views, and same or similar comments, through a representative 
member when possible. Comments on the proposed text should include appropriate 
citations to sections, subsections, paragraphs, etc., for proper reference. Any 
suggestions or requests for alternative language or other revisions in the 
proposed text should be submitted in written form. Presentations must remain 
pertinent to the issue being discussed. A person may not assign a portion of his 
or her time to another speaker. A person who disrupts a public hearing must 
leave the hearing room if ordered to do so by the presiding officer. Persons 
with disabilities who have special communication or accommodation needs and who 
plan to attend the hearing and who may need auxiliary aids or services, such as 
interpreters for persons who are deaf or hearing impaired, readers, large print 
or braille, are requested to contact Eloise Lundgren, director of the Public 
Information Office, at 125 East 11th Street, Austin, Texas 78701-2483, (512) 
463-8588 at least two days prior to the hearing so that appropriate arrangements 
can be made. 
 Written comments on the proposed amendments may be submitted to Robert L. 
Wilson, P.E., Director of the Design Division, Texas Department of 
Transportation, 125 East 11th Street, Austin, Texas 78701-2483. The deadline for 
receipt of written comments will be 5:00 p.m. on November 7, 1995. 
 The amendments are proposed under Transportation Code,  s201.101, which 
provides the Texas Transportation Commission with the authority to promulgate 
rules for the conduct of the work of the Texas Department of Transportation. 
 No statutes, articles, or codes are affected by these proposed amendments. 
 
 
  sec.11.201. Definitions.  The following words and terms, when used in this 
section, shall have the following meanings, unless the context clearly indicates 
otherwise: 
   
   Candidate project -A project recommended to the department by a nominating 
entity for the commission's consideration as a project included in the 
[Statewide Transportation Enhancement] Program. 
   
  <nl>   Executive director -The executive director of the Texas Department of 
Transportation. 
   
  <nl>   FHWA-Federal Highway Administration. 
   
  <nl>   Jurisdiction-For a city, the area within the incorporated city limits, 
not including a city's extraterritorial jurisdiction. For a county, any area 
within the boundaries of the county, excluding incorporated areas. 
   
  <nl>   Local agreement -An agreement between the nominating entity, project 
sponsor, and the department which includes a commitment for the required local 
funding, describes the total scope and course of project activities, and 
outlines the responsibilities and duties of the participants. 
   
   Nominating entity -The state agency, agency of the state, MPO, councils of 
governments, city, county, or local transit operator which nominates a 
particular candidate project for consideration by the department, [and which] 
exercises jurisdiction over the geographic area in which that project is 
located<nl>, and commits with the project sponsor to the project's development, 
implementation, construction, maintenance, management, and financing<ol>. 
   
   Operational income -Net income received by the owner of a facility 
constructed or enhanced using funds received through the [Statewide 
Transportation Enhancement] Program after deducting the costs incident to the 
generation of that income. The term includes, but is not limited to, income from 
fees for services performed, use or rental of real or personal property, or sale 
of commodities. Taxes, license fees, fines, royalties, and other such revenues 
received by the facility owner or paid within the facility are not considered 
income. 
   
  <nl>   Program-The Statewide Transportation Enhancement Program. 
   
  <nl>   Project area-The location in which project activities will take place. 
   
   Selected project -A project which the commission has elected to include in 
the [Statewide Transportation Enhancement] Program. 
   
   Sponsor-One or more individuals, partnerships, associations, private 
corporations, or public authorities recommending a particular project and 
committed to its development, implementation, construction, maintenance, 
management, <nl>and<ol> [or] financing. 
   
   State-The State of Texas <nl>or any of its political subdivisions. 
   
   [Statewide long-range transportation plan-The plan required by Title 23, 
United States Code, Section 135(e).] 
   
   [Statewide project -A project benefitting the entire state but without 
activities related to the intermodal transportation system in any specific 
metropolitan area, city, or county.] 
   
  <nl>   TEPEC-Transportation Enhancement Project Evaluation Committee. 
   
   [USDOT-Either the Secretary of Transportation for the United States of 
America, the United States Department of Transportation, or the appropriate 
agency within that department.] 
 
   
  sec.11.202. Project Eligibility. 
 
  (a) To be eligible for consideration for inclusion in the [Statewide 
Transportation Enhancement] Program, a candidate project must: 
 
  (1)-(5) (No change.) 
     
  (b) Whether proposed as an independent project or as an element of a larger 
transportation project, the candidate project must be limited to a logical unit 
of work and must be capable of being <nl>implemented and<ol> completed within a 
reasonable time, as determined by the department in consultation with the 
nominating entity. In the absence of information suggesting that a shorter or 
longer period is appropriate, three years or less will be presumed to be a 
reasonable time. <nl>The executive director may eliminate a project from the 
Program upon a determination that federal funding may be lost due to the project 
not being implemented and completed within a reasonable amount of time. 
   
  <nl>(c) Projects which will require the acquisition of property through the 
exercise of eminent domain by any entity are not eligible for participation in 
the Program. 
 
     
  sec.11.203. Project Nomination. 
 
  (a) Call for nominations. The department will call for nominations of 
candidate projects [annually] by publication in the Texas Register<ol>. The 
department will also provide notice of the call for candidate projects to all 
Metropolitan Planning Organizations (MPOs), all councils of governments (COGs), 
and all local transit operators in the state. 
   
  (b) Who may nominate. 
 
  (1)  The department will receive and consider for funding only candidate 
project nominations from specific nominating entities, depending on the location 
of the candidate project, as outlined in the following chart: 
       
  <ol>Figure 1: 43 TAC sec.11.203(b)(1) 
 
  (2) (No change.) 
   
  (3) When the nominating entity for a candidate project [(other than a 
statewide project)] is not itself the MPO, city, or county designated by Title 
23, United States Code, sec.134 or sec.135, to select Surface Transportation 
Program projects in any area in which activities would take place, the 
nominating entity must provide documentary evidence that the MPO, city, or 
county designated by sec.134 or sec.135, to select such projects in that area 
has authorized it to nominate the project. 
   
  (c) How to nominate a project. 
 
  (1) To nominate a candidate project, the eligible nominating entity must file 
its nomination, in the form prescribed by the department, with the district 
engineer of the district office responsible for the area in which the proposed 
enhancement would be implemented. The nomination form for a single project in 
multiple jurisdictions may be filed with the district engineer of the district 
office responsible for any of the areas in which the proposed enhancement would 
be implemented. The nomination shall consist of information necessary for 
project evaluation, and shall include to the maximum extent practicable: 
 
  (A) (No change.) 
   
  (B) an implementation plan for the candidate project, including both a 
schedule of project activities and <nl>an itemized<ol> budget. (The schedule of 
activities must indicate any circumstances known to the nominating entity that 
are likely to affect commencement of work on the candidate project or the time 
required to complete it, including environmental and historic issues likely to 
affect commencement of the work. The budget must describe all proposed local 
financing of allowable project costs and be accompanied by documentary evidence 
of the commitment of project sponsors to pay those costs and of their ability to 
do so. If federal funds will be used for the locally provided share of project 
costs, a copy of the statutory or regulatory authority for that use must be 
attached. <nl>The budget shall indicate that an appropriate amount has been 
included to cover design, engineering, contingencies, department administrative 
expenses, and other costs associated with development and implementation if the 
project is selected for funding) <ol>; 
   
  (C)-(D) (No change.) 
   
  (E) a site plan of the proposed construction and illustrations of the proposed 
work. <nl>(If the candidate project is proposing restoration or rehabilitation 
work for a historic property, the site plan must include current and proposed 
floor plans for the property; the floor plan must indicate the proposed function 
to be served by each room) <ol>; 
   
  (F)-(G)  (No change.) 
   
  (H) a description of <nl>all<ol> [the] expected benefits from the proposed 
enhancement<nl>, particularly those benefits pertaining to the intermodal 
transportation system.<ol> (The description must include expected use of any 
facilities involved, and must compare current and projected demand for use of 
those facilities); 
   
  (I) appropriate documentary evidence of community involvement in development 
of the proposed enhancement and public support for it. (At a minimum, evidence 
submitted must include a description of any opportunities for public 
participation that were included in the process of selecting candidate projects 
and a resolution or other official document from <nl>at least one of<ol> the 
governing <nl>bodies<ol> [body] of <nl>any<ol> [each] city and county with 
jurisdiction over <nl>the<ol> [any] area in which <nl>the project would be 
implemented <ol> [activities associated with the project and related to the 
area's intermodal transportation system would take place]. <nl>The supporting 
<ol> [That] document should state the governing body's support for the 
implementation of the proposed project, its recommendation that it be considered 
for funding, and (when appropriate) its commitment to provide a share of 
allowable project costs. For activities in metropolitan areas, one of these 
documents must be from the governing body of the MPO for that area); 
   
  (J) (No change.) 
   
  (K) documentary evidence that the environmental consequences of the proposed 
enhancement have been fully considered, and that the proposed enhancement will 
comply with all applicable local, state, and federal environmental laws, 
regulations, and requirements. (The evidence required should include sufficient 
facts to allow the department to determine the necessity for environmental 
studies according to <nl>sec.sec.2.40-2.51<ol> [sec.sec.11.80-11.90] of this 
title (relating to Environmental <nl>Review<ol> and Public Involvement for 
<nl>Transportation <ol> [Highway Improvement] Projects)) ; 
   
  (L) (No change.) 
   
  [(M) a written statement of the relative priority ranking assigned by the 
nominating entity to that candidate project among all candidate projects 
nominated by that entity for consideration in response to the current call for 
project nominations; and] 
   
  <nl>(M)<ol>[(N)] for any enhancement activity that would be implemented within 
a metropolitan area, a letter from the MPO stating that, should funding for the 
candidate project be made available, the MPO will include the candidate project 
in the TIP for that area if the candidate project has not yet been included<nl>; 
and 
   
  <nl>(N)  for projects proposing the acquisition, restoration, or 
rehabilitation of historic sites or properties, documentary evidence that the 
property or site is listed in or eligible for listing in the National Register 
of Historic Places<ol>. 
     
  (2) <nl>Complete nomination packages <ol> [Nominations] must be received by 
the department no later than <nl>the specified deadline published in the Texas 
Register<ol> [90 days after publication of the call for candidate project 
nominations in the Texas Register<ol>]. 
   
  (3)  (No change.) 
   
  <nl>(4) A nominating entity may submit a written statement of the relative 
priority ranking assigned by the nominating entity to that candidate project 
among all candidate projects nominated by that entity for consideration in 
response to the current call for project nominations. 
     
  <nl>(d) All candidate project nomination packages become the property of the 
department. Nomination packages will be returned to the nominating entity only 
in cases where the nominating entity requests the return in writing after the 
completion of the project selection process for the current call for 
nominations. 
 
     
  sec.11.204. Selection of Projects for Funding. 
 
  (a)  Eligibility and technical screening. 
 
  (1) The department will review each candidate project to determine eligibility 
for funding according to federal and state law and to determine that each 
candidate project will meet technical standards established by applicable law 
and accepted professional practice. In determining eligibility, the department 
will coordinate with the <nl>FHWA<ol> [United States Department of 
Transportation]. In determining technical sufficiency, the department will 
coordinate with appropriate state and federal agencies. Eligible candidate 
projects, together with the results of the technical review, will be submitted 
to the <nl>TEPEC <ol> [Transportation Enhancement Project Evaluation Committee] 
as described in subsection (b)(1) of this section for evaluation of potential 
benefits. 
   
  (2) <nl>The department will by certified mail, return receipt requested, 
notify the nominating entity of each <ol> [Each] ineligible candidate project 
proposal <nl>that the project has been found ineligible.<ol> [will be returned 
to the nominating entity by certified mail, return receipt requested,]  <nl>This 
notification will include <ol> [with] a statement explaining <nl>the candidate 
project's<ol> [its] ineligibility. A request for reconsideration of a finding of 
ineligibility may be initiated only by a letter from the nominating entity to 
the executive director setting forth reasons in support of a finding of 
eligibility. The letter requesting reconsideration must be received by the 
department no later than 15 days after the nominating entity received the 
<nl>department's notification<ol> [returned proposal], as established by the 
return receipt. The determination of the executive director in response to the 
request for reconsideration will be final. <nl>Ineligible candidate projects may 
not be resubmitted without revision for subsequent program calls. 
   
  <nl>(3) A candidate project will be eliminated from participation in the 
Program if at any time prior to the execution of the local agreement any 
municipality or county in which project activities are proposed notifies the 
department of its opposition to the project. Notification of opposition must be 
in the form of a resolution or other official document from the duly constituted 
governing body of the entity opposing the project. Jurisdiction for the purposes 
of support or opposition to a candidate project does not extend to a 
municipality's extraterritorial jurisdiction. 
     
  (b) Evaluation of project benefits. 
 
  (1) Transportation Enhancement Project Evaluation Committee. 
 
  (A) The potential benefit of each eligible candidate project will be evaluated 
by an advisory committee, to be known as the Transportation Enhancement Project 
Evaluation Committee. The members of the Transportation Enhancement Project 
Evaluation Committee shall be: 
 
  (i)-(ii) (No change.) 
   
  (iii) the executive director, or designee, of each of the following state 
agencies: the Texas Department of Commerce, the Texas Historical Commission; the 
Texas Parks and Wildlife Department; and the <nl>Texas Natural Resource 
Conservation Commission <ol> [Texas Water Commission]. 
     
  (B) The transportation enhancement project evaluation committee will meet [at 
least once annually] at the call of the chair to consider and discuss the 
potential benefit of eligible candidate projects [(including all previously 
submitted candidate projects not selected for funding and retained by the 
department pursuant to subsection (c)(5) of this section)]. After discussing the 
candidate projects, the committee will evaluate the potential benefit of each 
project based on the quality <nl>of the project, the geographic scope of the 
project's benefits, and the project's transportation enhancement value <ol> [and 
scope of the project in three areas: economic benefit, environmental benefit, 
and social benefit]. [In evaluating each benefit area, the committee will 
consider both the quality of the benefit and the scope of that benefit, and will 
assign a score to each according to subsection (b)(2).] The committee will 
prepare <nl>recommendations as to which projects are worthy of funding and<ol> 
[a list of all candidate projects with their respectively assigned scores, and 
will by resolution] provide <nl>these recommendations <ol> [the project list and 
scores] to the department. [The resolution may also include comments or 
recommendations concerning the potential benefit of any listed project.] 
   
  (C) <nl>The TEPEC will serve to advise the department of the benefit and 
worthiness of candidate projects only and its decisions will in no way be 
binding on the ability of the commission to select from among all eligible 
candidate projects those projects approved for funding.<ol> [Except as provided 
in this subsection, the operations and procedures of the Evaluation Committee 
are governed by sec.sec.1. 80-1.84 of this title (relating to Advisory 
Committees). 
     
  [(2) Project scoring. The transportation enhancement project evaluation 
committee will score each project as follows. 
 
  [(A) The committee will evaluate the benefit of each candidate project in each 
of the three areas (economic benefit, environmental benefit, and social benefit) 
described in subsection (b)(1)(B) of this section. For purposes of this 
evaluation: 
 
  [(i) economic benefit refers to the project's enhancement of the local, 
regional, or statewide economy by, for example, increased tourism, enhancement 
of property values, enhancement of tax base, or reduction of economic loss due 
to injury; 
   
  [(ii) environmental benefit refers to the project's improvement of some aspect 
of the natural, historic, or prehistoric environment by, for example, improving 
or protecting air or water quality, vegetation, wildlife habitat, historic or 
archaeological resources, or the quality of human life; and 
   
  [(iii) social benefit refers to the project's enhancement of some aspect of 
human life, including cultural aspects, visual or aesthetic aspects, 
recreational aspects, or historic aspects, whether locally, regionally, or 
statewide. 
     
  (B) For each benefit area, the committee will score the benefit on a scale of 
one to 100, with 100 being the most beneficial of the candidate projects being 
considered and one being the least beneficial. The committee will consider both 
factors of quality and scope in assigning scores in the three areas. Quality 
relates to the technical quality or the measurable or identifiable benefits of 
the project. Scope relates to the magnitude of the benefit of the project as 
measured by the geographical extent, population served, and duration of the 
benefit (long-term or short-term). 
   
  [(C) The score for a candidate project is the sum of the committee's scores in 
each of the three benefit areas.] 
       
  (c) Selection. 
 
  (1) The department will recommend for consideration by the commission a 
program of candidate projects. To assist the commission in its decisions 
concerning selection and funding, the department will, in addition to department 
staff recommendations, provide to the commission: 
 
  (A)  the list of all eligible candidate projects  <nl>and any comments and 
recommendations from the TEPEC <ol>[and scores provided by the transportation 
enhancement project evaluation committee, together with any comments or 
recommendations included in the committee's resolution]; 
   
  (B) any other comments relevant to consideration of any candidate project for 
funding, including: 
 
  (i) any policy matters; 
   
  [(ii) consistency of the candidate project with the statewide long-range 
transportation plan and any local, metropolitan, or regional long-range 
transportation plans; 
   
  [(iii) the candidate project's benefit-cost ratio, calculated by dividing the 
project score by the project's estimated cost; 
   
  [(iv)  the priority ranking assigned the candidate project by the nominating 
entity;] 
   
  <nl>(ii)<ol>[(v)] evidence of [public] support <nl>and opposition<ol> for the 
candidate project; 
   
  <nl>(iii)<ol>[(vi)]  evidence of the commitment of project sponsors to provide 
more than the minimum required non-federal share of allowable project costs and 
their ability to do so; 
   
  <nl>(iv)<ol>[(vii)] an evaluation of proposed projects indicating the extent 
to which each project will meet accepted standards as established by applicable 
law and by accepted professional practice; [and] 
   
  <nl>(v)<ol>[(viii)] the views, comments, and certifications, if any, of an MPO 
or a governing body of a city or county<nl>; and 
   
  <nl>(vi) all other project specific information as appropriate. 
       
  (2) The commission will select from among all eligible candidate projects 
those projects, if any, approved for funding. In selecting an eligible candidate 
project for funding, the commission will consider: 
 
  (A) all information provided under paragraph (1)(A) and (B) of this 
subsection; <nl>and 
   
  (B) the potential benefit to the state of the candidate project[; and 
   
  [(C) the impact of the candidate project on the economies of each county in 
which the project is to be located, and of the municipalities within those 
counties]. 
     
  (3) In evaluating the potential benefit to the state of the candidate project, 
the commission will consider, but is not bound by, <nl>recommendations and <ol> 
[project scores and other] comments <nl>from the TEPEC<ol> [included in the 
resolution of the transportation enhancement project evaluation committee]. 
   
  (4)  The commission will, by written order, designate the selected projects 
and specify [for each] the rationale for selection. 
   
  (5) <nl>Candidate projects which are not selected must be resubmitted to 
receive consideration during subsequent program calls.<ol> [The department will 
retain eligible candidate project proposals not selected for funding. After 
subsequent calls for candidate project nominations, all unselected candidate 
projects will be resubmitted to the Transportation Enhancement Project 
Evaluation Committee with any new eligible candidate projects. Prior to 
resubmitting unselected candidate projects to the evaluation committee, however, 
the department may require the nominating entity for the project to update the 
nomination information and to renew the evidence of public support and to re-
evaluate the priority ranking of the project as required by sec.11.203(c)(1)(I) 
and (L) of this title (relating to Project Nomination).] 
 
       
  sec.11.205. Project Administration. 
 
  (a)-(c) (No change.) 
   
  (d) All selected projects must be developed to standards and specifications 
established or recognized by the <nl>federal government and the<ol> department. 
The department may allow project plans to be developed by other public 
authorities or by sponsors, provided those plans are reviewed by the department 
and determined to have been developed according to department standards and 
specifications. The department will coordinate with other state and federal 
agencies as required by state or federal law or applicable policy. 
   
  (e)-(f) (No change.) 
   
  (g) Except for the fair market value of land <nl>donated to the state or any 
of its political subdivisions from private ownership and <ol> incorporated into 
the project [and donated to the state] pursuant to Title 23, United States Code, 
sec.323, <nl>the <ol> locally provided share of allowable project costs must be 
in dollars provided to the project by a public authority. Funds from other 
federal programs may be used only when specifically authorized by federal 
statute or regulation. Unless otherwise allowed by FHWA, private [Private] cash 
donations, contributions of services, and other in-kind contributions only 
reduce the allowable costs of the project. Except where specifically permitted 
under federal law <nl>or by FHWA <ol>, the value of an activity accomplished 
away from the project and not directly chargeable to the project ("soft match") 
is not allowed as credit toward the non-federal share of allowable project 
costs. 
   
  (h) (No change.) 
   
  (i) The department will submit all requests to <nl>FHWA <ol> [USDOT] for 
reimbursement of allowable costs. When the department implements appropriate 
projects through or in cooperation with other entities, those entities will 
request reimbursement of allowable costs they incur from the department using 
the forms and procedures specified by the department. 
   
  <nl>(j) The executive director may eliminate a project or a portion of a 
project from participation in the Program if at any time: 
 
  <nl>(1)  the project sponsor fails to satisfy any requirement of this 
undesignated head; 
   
  <nl>(2) implementation of the project would involve significant deviation from 
the activities as proposed in the nomination package; or 
   
  <nl>(3) the project's sponsor or nominating entity withdraws from 
participation in the project. 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on October 2, 1995. 
 TRD-9512510 
  Robert E. Shaddock 
 General Counsel 
 Texas Department of Transportation 
    Earliest possible date of adoption: November 6, 1995 
 For further information, please call: (512) 463-8630 
         
                 Chapter 17. Vehicle Title and Registration 
  
  Motor Vehicle Registration 
 
  The Texas Department of Transportation proposes the repeal of existing 
sec.17.23, concerning temporary or additional weight permits, and the 
simultaneously proposed adoption of new sec.17.23, concerning temporary 
registration permits. The repeal and new sections are necessary to ensure the 
department's proper administration of the laws concerning the issuance of 
temporary motor vehicle registration. 
 Transportation Code, Chapter 502, Subchapter G, authorizes the department to 
carry out the provisions of those laws governing the issuance of temporary motor 
vehicle registration including: additional weight permits for transporting the 
owner's seasonal agricultural products; 72-hour permits and 144-hour permits for 
the movement of commercial motor vehicles, trailers, semitrailers, and motor 
buses owned by the residents of the United States or Canada; 30-day temporary 
nonresident registration permits to move agricultural products produced in 
Texas; 30-day nonresident registration permits to nonresidents to move or 
harvest farm products produced outside of Texas; one-trip permits for unladen 
vehicles; and 30-day temporary registration permits for unladen vehicles. 
 Transportation Code, sec.502.354 provides that the executive director may enter 
into a reciprocal agreement with an authorized officer of a state, province, 
territory, or possession of a foreign country to provide for the exemption from 
payment of registration fees by nonresidents. 
 Senate Bill 981, 74th Legislature, 1995, amended Texas Civil Statutes, Article 
6675a-6c, now codified as Transportation Code, sec.502.353, to authorize the 
department to issue annual registration permits to be recognized as legal 
vehicle registration for the movement of foreign commercial vehicles on Texas 
highways. Senate Bill 1420, 74th Legislature, 1995, amended Texas Civil Statutes 
6675-6d, now codified as Transportation Code, sec.502.352, to authorize the 
department to issue 72/144-hour temporary permits for commercial vehicles owned 
by residents of Mexico. 
 Existing sec.17.23 provides that temporary agricultural permits or additional 
weight permits may not be issued to farm licensed trailers or semi-trailers. 
 New sec.17.23 establishes the department's policies and procedures for the 
application and issuance of all temporary registration permits that will be 
recognized as legal registration for the movement of motor vehicles not 
authorized to travel on Texas public highways for lack of registration or for 
lack of registration reciprocity, including temporary agricultural permits or 
additional weight permits, annual registration, 72-hour registration, 144-hour 
registration, one-trip registration, and 30-day registration. 
 Mr. Jerry L. Dike, Director, Vehicle Titles and Registration Division, has 
determined that for the first five-year period the repeal is in effect there 
will be no fiscal implications for state or local government as a result of 
enforcing or administrating the rule. There will be no effect on small 
businesses. There are no anticipated economic costs to persons who are required 
to comply with the repeal as proposed. Mr. Dike also has determined that for the 
first five-year period the proposed new section is in effect there will be 
fiscal implications to the state as a result of enforcing or administering the 
section. The anticipated cost to the state to comply with this newly enacted 
legislation is approximately $47,500 for the first year and $1,000 each year 
thereafter for the first five years the section is in effect. It is estimated 
that revenues resulting from the collection of statutory fees will result in 
approximately $2,100,000 for year each of the first five years the section is in 
effect. There will be an effect on local governments as a result of enforcing 
and administering this section. It is anticipated that 254 counties will 
experience a total loss in revenue of approximately $8,000 per year for each 
year of the five-year period the section will be in effect. 
 There will be no significant impact on small businesses, local economies, or 
overall employment as a result of enforcing or administering the proposed 
sections unless the executive director and Mexico do not enter into reciprocal 
agreements which provide for the exemption from payment of registration fees. If 
agreements are not reached, the impact cannot be determined because the 
department cannot estimate the number of: Mexican commercial vehicles crossing 
the Texas-Mexico border; expanded routes within the agreement area; 
transportation brokers (such as warehouse operators); shippers; Mexican trailers 
subject to the drayage transport industry; and insurance policies issued to 
Mexican vehicles. The impact from the varied size and weights of Mexican 
commercial vehicles, increased volume of goods imported from Mexico, varied 
costs of insurance policies based on time/coverage, and the increase in 
resources to be dedicated to local law enforcement efforts also cannot be 
estimated. 
 Mr. Dike also has determined that for each of the first five years the repeal 
and new section are in effect the public benefit anticipated as a result of 
enforcing the section will be to provide the motoring public with shared 
financial security and responsibility because under this section all applicants 
applying for temporary registration will be required to secure liability 
insurance issued by companies authorized to write insurance in Texas. There will 
be an anticipated economic cost to persons who are required to comply with the 
new section as proposed. The economic cost will range from $175 to $9,340.30 per 
vehicle, based on the type of vehicle to be permitted and the amount of 
insurance coverage. 
 Written comments on the proposal may be submitted to Jerry L. Dike, Director, 
Vehicle Titles and Registration, Texas Department of Transportation, 125 East 
11th Street, Austin, Texas 78701. The deadline for receipt of written comments 
will be 5:00 p.m. on November 7, 1995. 
     
  Motor Vehicle Registration 
 
  43 TAC sec.17.23 
 
  (Editor's note: The text of the following section proposed for repeal will not 
be published. The section may be examined in the offices of the Texas Department 
of Transportation or in the Texas Register office, Room 245, James Earl Rudder 
Building, 1019 Brazos Street, Austin.) 
   
  The repeal is proposed under Transportation Code, sec.201.101, which provides 
the Texas Transportation Commission with the authority to establish rules for 
the conduct of the work of the Texas Department of Transportation, and more 
specifically Transportation Code, Chapter 502, Subchapter G, which authorizes 
the department to adopt rules to administer the issuance temporary permits. 
 No statutes, articles, or codes are affected by the proposed repeal. 
 
 
  sec.17.23. Temporary or Additional Weight Permits. 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on October 2, 1995. 
 TRD-9512509 
  Robert E. Shaddock 
 General Counsel 
 Texas Department of Transportation 
    Earliest possible date of adoption: November 6, 1995 
 For further information, please call: (512) 463-8630 
         
       
  The new section is proposed under Transportation Code,  s201.101, which 
provides the Texas Transportation Commission with the authority to establish 
rules for the conduct of the work of the Texas Department of Transportation, and 
more specifically Transportation Code, Chapter 502, Subchapter G, which 
authorizes the department to adopt rules to administer the issuance temporary 
permits. 
 No statutes, articles, or codes are affected by the proposed new section. 
 
 
  sec.17.23. Temporary Registration Permits. 
 
  (a) Purpose and scope. Transportation Code, Chapter 502, Subchapter G, charges 
the department with the responsibility of issuing temporary registration permits 
which shall be recognized as legal registration for the movement of motor 
vehicles not authorized to travel on Texas public highways for lack of 
registration or for lack of reciprocity with the state or country in which the 
vehicles are registered. In order for the department to efficiently and 
effectively perform these duties, this section prescribes the policies and 
procedures for the application and the issuance of temporary registration 
permits. 
   
  (b)  Permit categories. The department will issue the following categories of 
temporary registration permits. 
 
  (1) Additional weight permits. The owner of a truck, truck tractor, trailer, 
or semitrailer may purchase temporary additional weight permits for the purpose 
of transporting the owner's own seasonal agricultural products to market or 
other points for sale or processing in accordance with Transportation Code, 
sec.502.351. In addition, such vehicles may be used for the transportation 
without charge of seasonal laborers from their place of residence, and 
materials, tools, equipment, and supplies from the place of purchase or storage, 
to a farm or ranch exclusively for use on such farm or ranch. 
 
  (A) Additional weight permits are valid for a limited period of less than one 
year. 
   
  (B) An additional weight permit will not be issued for a period of less than 
one month or extend beyond the expiration of a license plate issued under 
Transportation Code, Chapter 502. 
   
  (C) The statutory fee for an additional weight permit is based on a percentage 
of the difference between the owner's regular annual registration fee and the 
annual fee for the desired tonnage computed as follows: 
 
  (i) one-month (or 30 consecutive days)-10% 
   
  (ii)  one-quarter (three consecutive months)-30% 
   
  (iii)  two-quarters (six consecutive months)-60% 
   
  (iv)  three-quarters (nine consecutive months)-90% 
     
  (D) Additional weight permits are issued for calendar quarters with the first 
quarter to begin on April 1st of each year. 
   
  (E) A permit will not be issued unless the registration fee for hauling the 
larger tonnage has been paid prior to the actual hauling. 
   
  (F) Additional weight permits may not be issued to farm licensed trailers or 
semitrailers. 
     
  (2) Annual permits. 
 
  (A) Texas Civil Statutes, Article 6675a-6c, authorizes the department to issue 
annual permits to provide for the movement of foreign commercial vehicles that 
are not authorized to travel on Texas highways for lack of registration or for 
lack of reciprocity with the state or country in which the vehicles are 
registered. The department will issue annual permits: 
 
  (i)  for a 12-month period designated by the department which begins on the 
first day of a calendar month and expires on the last day of the last calendar 
month in that annual registration period; and 
   
  (ii) to each vehicle or combination of vehicles for the registration fee 
prescribed by weight classification in Transportation Code,  s502.162 and 
sec.502.167. 
     
  (B) The department will not issue annual permits for the importation of citrus 
fruit into Texas from a foreign country except for foreign export or processing 
for foreign export. 
   
  (C) The following exemptions apply to vehicles displaying annual permits. 
 
  (i) Registered foreign semitrailers having gross weights in excess of 6,000 
pounds used or to be used in combination with truck tractors or commercial motor 
vehicles with manufacturer's rated carrying capacities in excess of one ton are 
exempted from the requirement to pay the token fee and display the associated 
distinguishing license plate provided for in Transportation Code,  s502.167. An 
annual permit is required for the power unit only. 
   
  (ii)  Vehicles registered with annual permits are not subject to the optional 
county registration fee under Transportation Code, sec.502.172 or the optional 
registration fee for child safety under Transportation Code,  s502. 173. 
       
  (3) 72-hour permits and 144-hour permits. 
 
  (A) In accordance with Transportation Code, sec.502.352, as amended, the 
department will issue a permit valid for 72 hours or 144 hours for the movement 
of commercial motor vehicles, trailers, semitrailers, and motor buses owned by 
residents of the United States, Mexico, or Canada. 
   
  (B) A 72-hour permit or a 144-hour permit is valid for the period of time 
stated on the permit beginning with the effective day and time as shown on the 
permit registration receipt. 
   
  (C) Vehicles displaying 72-hour permits or 144-hour permits are subject to 
vehicle safety inspection in accordance with Transportation Code, sec.548.051, 
except for: 
 
  (i) vehicles currently registered in another state of the United States, 
Mexico, or Canada; and 
   
  (ii) mobile drilling and servicing equipment used in the production of gas, 
crude petroleum, or oil, including, but not limited to, mobile cranes and 
hoisting equipment, mobile lift equipment, forklifts, and tugs. 
     
  (D) The department will not issue a 72-hour permit or a 144-hour permit to a 
commercial motor vehicle, trailer, semitrailer, or motor bus apprehended for 
violation of Texas registration laws. Apprehended vehicles must be registered 
under Transportation Code, Chapter 502. 
     
  (4)  Temporary agricultural permits. 
 
  (A) Transportation Code, sec.502. 354, authorizes the department to issue a 
30-day temporary nonresident registration permit to a nonresident for any truck, 
truck tractor, trailer, or semitrailer to be used in the movement of all 
agriculture products produced in Texas: 
 
  (i) from the place of production to market, storage, or railhead not more than 
75 miles distant from the place of production; or 
   
  (ii) to be used in the movement of machinery used to harvest Texas-produced 
agricultural products. 
     
  (B) The department will issue a 30-day temporary nonresident registration 
permit to a nonresident for any truck, truck tractor, trailer, or semitrailer 
used to move or harvest farm products, produced outside of Texas, but: 
 
  (i) marketed or processed in Texas; or 
   
  (ii) moved to points in Texas for shipment from the point of entry into Texas 
to market, storage, processing plant, railhead or seaport not more than 80 miles 
distant from such point of entry into Texas. 
     
  (C) The statutory fee for temporary agricultural permits is one-twelfth of the 
annual Texas registration fee prescribed for the vehicle for which the permit is 
issued. 
   
  (D) The department will issue a temporary agricultural permit only when the 
vehicle is legally registered in the nonresident's home state or country for the 
current registration year. 
   
  (E) The number of temporary agricultural permits is limited to three permits 
per nonresident owner during any one vehicle registration year. 
   
  (F) Temporary agricultural permits may not be issued to farm licensed trailers 
or semi-trailers. 
     
  (5) One-trip permits. Transportation Code, sec.502.354, authorizes the 
department to temporarily register any unladen vehicle upon application to 
provide for the movement of the vehicle for one trip, when the vehicle is 
subject to Texas registration and not authorized to travel on the public 
roadways for lack of registration or lack of registration reciprocity. 
 
  (A) Upon receipt of the $5.00 fee, registration will be valid for one trip 
only between the points of origin and destination and intermediate points as may 
be set forth in the application and registration receipt. 
   
  (B) The department will issue a one-trip permit to a bus which is not covered 
by a reciprocity agreement with the state or country in which it is registered 
to allow for the transit of the vehicle only. The vehicle should not be used for 
the transportation of any passenger or property, for compensation or otherwise, 
unless such bus is operating under charter from another state or country. 
   
  (C) A one-trip permit is valid for a period up to 15 days from the effective 
date of registration. 
   
  (D) A one-trip permit may not be issued for a trip which both originates and 
terminates outside Texas. 
   
  (E) A laden motor vehicle or a laden commercial vehicle cannot display a one-
trip permit. If the vehicle is unregistered, it must operate with a 72-hour or 
144-hour permit. 
     
  (6)  30-day temporary registration permits. Transportation Code, sec.502.354, 
authorizes the department to issue a temporary registration permit valid for 30 
days for a $25 fee. A vehicle operated on a 30-day temporary permit is not 
restricted to a specific route. The permit is available for: 
 
  (A)  passenger vehicles; 
   
  (B) motorcycles; 
   
  (C) private buses; 
   
  (D) trailers and semitrailers with a gross weight not exceeding 10,000 pounds; 
   
  (E) light commercial vehicles not exceeding a manufacturer's rated carrying 
capacity of one ton; and, 
   
  (F) a commercial vehicle exceeding one ton, provided the vehicle is operated 
unladen. 
       
  (c)  Application process. 
 
  (1) Procedure. An owner who wishes to apply for a temporary registration 
permit for a vehicle which is otherwise required to be registered in accordance 
with sec.17.22 of this title (relating to Motor Vehicle Registration), must do 
so on a form prescribed by the director. 
   
  (2) Form requirements. The application form will at a minimum require: 
 
  (A) the signature of the owner; 
   
  (B) the name and complete address of the applicant; and 
   
  (C) the vehicle description. 
     
  (3)  Fees and documentation. The application must be accompanied by: 
 
  (A)  statutorily prescribed fees; 
   
  (B) evidence of financial responsibility as required by Transportation Code, 
Chapter 502, Subchapter G, provided that all policies written for the operation 
of motor vehicles must be issued by an insurance company or surety company 
authorized to write motor vehicle liability insurance in Texas; and, 
   
  (C) any other documents or fees required by law. 
     
  (4) Place of application. 
 
  (A) All applications for annual permits must be submitted directly to the 
department for processing and issuance. 
   
  (B) Additional weight permits and temporary agricultural permits may be 
obtained by making application with the department through the county tax 
assessor-collectors' offices. 
   
  (C)  72-hour and 144-hour permits, one-trip permits, and 30-day temporary 
registration permits may be obtained by making application either with the 
department or the county tax assessor-collectors' offices. 
       
  (d)  Display of registration insignia. The department will issue a specially 
designed cardboard tag or windshield validation sticker, upon receipt of a 
complete application for a permit. 
 
  (1) Cardboard tags shall be displayed in a manner that is clearly visible and 
legible when viewed from outside of the vehicle. The tag shall be attached to or 
displayed in the vehicle to allow ready inspection. 
   
  (2) Windshield validation stickers shall be displayed on the inside of the 
front windshield in the lower left corner. 
   
  (3) A receipt will be issued for each registration insignia as evidence of 
registration to be carried in the vehicle during the time the permit is valid. 
If the receipt is lost or destroyed, the owner must obtain a duplicate from the 
department or from the county office who issued the original receipt. The fee 
for the duplicate receipt is the same as the fee required by Transportation 
Code, sec.502.179. 
     
  (e) Transfer of temporary registration permits. 
 
  (1) Temporary registration permits are non-transferable between vehicles 
and/or owners. 
   
  (2) If the owner of a vehicle displaying a temporary registration permit 
disposes of the vehicle during the time the permit is valid, the permit must be 
returned to the department immediately. 
     
  (f) Replacement permits. Vehicle owners displaying annual permits may obtain 
replacement permits if an annual permit is lost, stolen, or mutilated. 
 
  (1) The fee for a replacement annual permit is the same as for a replacement 
number plate, symbol, tab, or other device as provided by Transportation Code, 
sec.502.184, as amended. 
   
  (2)  The owner shall apply directly to the department in writing for the 
issuance of a replacement annual permit. Such request should include a copy of 
the registration receipt and replacement fee. 
     
  (g) Agreements with other jurisdictions. In accordance with Transportation 
Code, sec.502.054, the executive director of the department may enter into a 
written agreement with an authorized officer of a state, province, territory, or 
possession of a foreign country to provide for the exemption from payment of 
registration fees by nonresidents if residents of this state are granted 
reciprocal exemptions. The executive director may enter into such agreement only 
upon: 
 
  (1)  the approval of the governor; and 
   
  (2) making a determination that the economic benefits to the state outweigh 
all other factors considered. 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on October 2, 1995. 
 TRD-9512508 
  Robert E. Shaddock 
 General Counsel 
 Texas Department of Transportation 
    Earliest possible date of adoption: November 6, 1995 
 For further information, please call: (512) 463-8630