ADOPTED RULES An agency may take final action on a section 30 days after a proposal has been published in the Texas Register. The section becomes effective 20 days after the agency files the correct document with the Texas Register, unless a later date is specified or unless a federal statute or regulation requires implementation of the action on shorter notice. If an agency adopts the section without any changes to the proposed text, only the preamble of the notice and statement of legal authority will be published. If an agency adopts the section with changes to the proposed text, the proposal will be republished with the changes. TITLE 4. AGRICULTURE Part III. Texas Feed and Fertilizer Control Service Chapter 61. Commercial Feed Rules General Provisions 4 TAC sec.61.1, sec.61.2 The Office of the Texas State Chemist, Feed and Fertilizer Control Service adopts amendments to sec.61.1 and sec.61.2, without changes to the proposed text as published in the October 3, 1995, issue of the Texas Register (20 TexReg 8041). The amendments are being amended to implement the changes enacted by the 74th Texas Legislature in the Texas Commercial Feed Control Act, such changes to take effect January 1, 1996. No comments were received regarding adoption of the amendments. The amendments are adopted under the Texas Agricultural Code, Chapter 141, sec.141.004, which provides the Feed and Fertilizer Control Service with the authority to adopt rules relating to the distribution of commercial feeds. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in College Station, Texas, on November 29, 1995. TRD-9515324 Dr. George W. Latimer, Jr. State Chemist, Office of the Texas State Chemist Texas Feed and Fertilizer Control Service Effective date: January 1, 1996 Proposal publication date: October 3, 1995 For further information, please call: (409) 845-1121 Licensing 4 TAC sec.61.11 The Office of the Texas State Chemist, Feed and Fertilizer Control Service adopts an amendment to sec.61.11, without changes to the proposed text in sec.61.11(a) and (b) as published in the October 3, 1995, issue of the Texas Register (20 TexReg 8042). Section 61.11(c) is adopted with changes because much of it is subsumed by sec.61.11(a). This rule is being amended to implement the changes enacted by the 74th Texas Legislature in the Texas Commercial Feed Control Act, such changes to take effect January 1, 1996. The names of groups and associations making comments for and against the rule are as follows: For-None; Against-American Feed Industry Association, Texas Grain and Feed Association, Cargill, and Marshall Minerals. Witnesses objected to the inclusion of the phrase "and other information necessary to the conduct of the Service's business" in sec.61.11(a)(1) on the grounds that "this requirement could be an open-ended situation for the Service to request any and all information it desired and the license would not be granted until such information was submitted." Another comment was that the rule needed to be more specific. The Service is clearly entitled under sec.141.021(c) to require a license applicant to provide "other information that the Service by rule requires." Since the Service does not know beforehand what information may be required, it cannot enact a rule which limits its ability to obtain vital information at the time of application or else force it to engage in rule-making each time information not specified in the rule is required. The phrase "necessary for the conduct of the Service's business" allows maximum flexibility to the Service, but also allows a firm to demonstrate that the information requested is not "necessary to the Service's business." Witnesses recommended that "either originally or as amended" be removed from sec.61.11(b) which reads "No facility shall distribute commercial feed until it has received affirmative notification of its licensing either originally or amended." The Commercial Feed Control Act clearly contemplates the need to amend a license (sec.141.023(1)); there are situations, e.g., change in ownership, which have historically required a new license. The rule makes it clear that distribution without affirmative authorization in cases where licenses must be amended is not permitted. Section 61.11(c) has been rewritten to incorporate the witness's comment that the distribution of additional annual products should be accomplished through submission of the Feed Facility Small Package Registration form, thus not creating a need to amend the license. The amendment is adopted under the Texas Agricultural Code, Chapter 141, sec.141.004, which provides the Feed and Fertilizer Control Service with the authority to adopt rules relating to the distribution of commercial feeds. sec.61.11. Application for Licensing. (a) A facility shall not be granted a license unless and until: (1) it has filed a completed application form and other information necessary for the conduct of the Service's business; and (2) paid the appropriate fees. (b) No facility shall distribute commercial feed in Texas until it has received affirmative notification of its licensing either originally or as amended. (c) The Service may require the applicant to submit evidence satisfactory to the Service respecting the safety and efficacy of any of its commercial feeds, including, but not limited to, labels and labeling, prior to approval of a license application: (1) if any feed contains an additive (including drugs, special purpose and/or non-nutritive additives) not previously recognized as safe and effective by the United Stated Food and Drug Administration for its labeled use or does not possess GRAS animal status; or (2) if any feed normally exempt, but adulterated, so special control by the Service is necessary, including, but not limited to, those feeds incorporating mycotoxin-contaminated ingredients, ammoniated ingredients or animal litter. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in College Station, Texas, on November 29, 1995. TRD-9515325 Dr. George W. Latimer, Jr. State Chemist, Office of the Texas State Chemist Texas Feed and Fertilizer Control Service Effective date: January 1, 1996 Proposal publication date: October 3, 1995 For further information, please call: (409) 845-1121 Labeling 4 TAC sec.61.21 The Office of the Texas State Chemist, Feed and Fertilizer Control Service adopts an amendment to sec.61.21, with changes to the proposed text as published in the October 3, 1995, issue of the Texas Register (20 TexReg 8043). The rule is being amended to implement the changes enacted by the 74th Texas Legislature in the Texas Commercial Feed Control Act, such changes to take effect January 1, 1996. No comments were received for or against subsections (a)-(f). However, the Service agrees with comments on sec.61.22 that a portion of (5)(E) was misplaced. Believing the section necessary but agreeing it was misplaced, the Service adds sec.61.21(g), (h) and (i). A possible objection to sec.61.21(i) might be that it implies the Service could require labeling in a language other than standard commercial English. The Legislature has not mandated such a requirement; thus, the Service does not. If for business reasons a firm wishes to provide a label in a language other than English, it still must provide a label in standard commercial English. The amendment is adopted under the Texas Agricultural Code, Chapter 141, sec.141.004, which provides the Feed and Fertilizer Control Service with the authority to adopt rules relating to the distribution of commercial feeds. sec.61.21. General Label Restrictions. (a) All labeling information required by sec.141.051 or sec.141.052 of the Act or by this title shall appear in its entirety on one side of the label or one side of the feed container, except directions for use or precautionary statements, which shall appear in a prominent place on the label or container, but not necessarily on the same side of such label or container as other required label information. When directions for use or cautionary statements appear on a different side of the label or container than its principal display panel, such principal display panel shall bear a reference to such information (e.g., "See back for directions for use"). (b) No labeling information required by the Act or this title shall be obscured or subordinated by other statements or designs. (c) A trademark or trade name owned by another person may form part of the labeling of a commercial feed provided that: (1) the trademark, in the opinion of the Service, contributes significantly in conveying to the purchaser important information respecting a distinctive characteristic of the product; (2) the display of the trademark or trade name is no more conspicuous than the display of the name of the registrant or guarantor of the product or other required information, i.e., its style, size and color of print makes it no more likely to be read than the accompanying/surrounding word(s), statement(s) or other required information; (3) the user of the trademark has permission from the "owner" to use the trademark. (d) No declaration of content shall appear in the ingredient statement or other part of a proprietary feed unless the declaration is made for each and all ingredients, except: (1) when required by law; or (2) when necessary to conform to good manufacturing or feeding practices. (e) When the label of a commercial feed declares the common name of a component or ingredient or a combination of components or ingredients and emphasis is placed on such ingredients or combinations thereof without reference to a percentage value, the Service may require a showing of scientific data that the ingredient or combination of ingredients is present in sufficient quantities to impart a distinctive characteristic to the product. If reference is made to a percentage value for such ingredient or combination of ingredients, the Service, in addition, may require: (1) that the percentage reference be determinable by accepted laboratory methods; and (2) that the applicant provide, upon request, an analysis of the ingredient or combination of ingredients made by a private laboratory. (f) The labeling of animal feeds and intended use must be consistent with the intended purpose of the product. (g) All guaranteed analyses must be in the same size and style. (h) The name of each and every ingredient must be shown in letters or type of the same size and style. (i) Any and all words or statements or other label information required by the Act shall appear in a size and style easily read by the average person under ordinary conditions. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in College Station, Texas, on November 29, 1995. TRD-9515327 Dr. George W. Latimer, Jr. State Chemist, Office of the Texas State Chemist Texas Feed and Fertilizer Control Service Effective date: January 1, 1996 Proposal publication date: October 3, 1995 For further information, please call: (409) 845-1121 4 TAC sec.61.22 The Office of the Texas State Chemist, Feed and Fertilizer Control Service adopts an amendment to sec.61.22, with changes to the proposed text as published in the October 3, 1995, issue of the Texas Register (20 TexReg 8043). The rule is amended to clarify the Feed and Fertilizer Control Service's responsibilities under the amended Texas Commercial Feed Control Act. The rule functions to clarify the proposed language and to correct editorial errors. Prior to adoption, the Service received comments of an editorial nature from the American Feed Industry Association (AFIA). The Service agrees with those suggested changes and has made those and other editorial changes. Additionally, the comment was made that the phrase in sec.61.22(5)(E) "and all guaranteed analyses must be in the same size and style, but not necessarily in the same size and style as the ingredients. Both ingredients and guarantees must be of a size easily read by the average person under ordinary conditions" is not consistent with AAFCO. The Service agrees that the phrase is misplaced. A phrase similar to this appears in AAFCO's section 6. The Service believes the rule is necessary and has added it as sec.61.21(g)-(i). The amendment is adopted under the Texas Agricultural Code, Chapter 141, sec.141.004, which provides the Feed and Fertilizer Control Service with the authority to adopt rules relating to the distribution of commercial feeds. sec.61.22. Labeling of Commercial Feed. Commercial feed shall be labeled with the information prescribed in the Texas Commercial Feed Control Act (Act) and this chapter on the principal display panel of the product with the following general format, unless otherwise specifically provided. (1) Purpose Statement (A) A statement of purpose shall contain the specific species and animal class(es) for which the feed is intended. The purpose statement may be excluded from the label if the product name includes a description of the species and animal class(es) for which the product is intended. (B) The manufacturer shall have flexibility in describing in more specific and common language the defined animal class, specie and purpose while being consistent with the category of animal class defined in this subparagraph which may include, but is not limited to including, the weight range(s), sex or ages of the animal(s) for which the feed is manufactured. (i) Poultry. (I) Layers-chickens that are grown to produce eggs for food, i.e., table eggs: (-a-) Starting/Growing-from day of hatch to approximately ten weeks of age; (-b-) Finisher-from approximately ten weeks of age to time first egg is produced. (Approximately 20 weeks of age); (-c-) Laying-from time first egg is laid throughout the time of egg production; (-d-) Breeders-chickens that produce fertile eggs for hatch replacement layers to produce eggs for food, table eggs, from time first egg is laid throughout their productive cycle. (II) Broilers-chickens that are grown for human food: (-a-) Starting/Growing-from day of hatch to approximately five weeks of age; (-b-) Finisher-from approximately five weeks of age to market (42 to 52 days); (-c-) Breeders-hybrid strains of chickens whose offspring are grown for human food (broilers), any age and either sex. (III) Broilers, Breeders-chickens whose offspring are grown for human food (broilers): (-a-) Starting/Growing-from day of hatch until approximately ten weeks of age; (-b-) Finishing-from approximately ten weeks of age to time first egg is produced, approximately 20 weeks of age; (-c-) Laying-fertile egg producing chickens (broilers/roasters) from day of first egg throughout the time fertile eggs are produced. (IV) Turkeys: (-a-) Starting/Growing-turkeys that are grown for human food from day of hatch to approximately 13 weeks of age (males); (-b-) Finisher-turkeys that are grown for human food, females from approximately 17 weeks of age; males from 16 weeks of age to 20 weeks of age, (or desired market weight); (-c-) Laying-female turkeys that are producing eggs; from time first egg is produced, throughout the time they are producing eggs; (-d-) Breeder-turkeys that are grown to produce fertile eggs, from day of hatch to time first egg is produced (approximately 30 weeks of age), both sexes. (V) Ducks: (-a-) Starter-0 to 3 weeks of age; (-b-) Grower-3 to 6 weeks of age; (-c-) Finisher-6 weeks to market; (-d-) Breeder Developer-8 to 19 weeks of age; (-e-) Breeder-22 weeks to end of lay. (VI) Geese: (-a-) Starter-0 to 4 weeks of age; (-b-) Grower-4 to 8 weeks of age; (-c-) Finisher-8 weeks to market; (-d-) Breeder Developer-10 to 22 weeks of age; (-e-) Breeder-22 weeks to end of lay. (ii) Swine. (I) Pre-Starter-2 to 11 pounds; (II) Starter-11 to 44 pounds; (III) Grower-44 to 110 pounds; (IV) Finisher-110 to 242 pounds (market); (V) Gilts, Sows and Adult Boars; (VI) Lactating Gilts and Sows. (iii) Beef Cattle. (I) Calves (birth to weaning); (II) Cattle on Pasture (may be specific as to production stage, i.e., stocker, feeder, replacement heifers, brood cows, bulls, etc.); (III) Feedlot Cattle. (iv) Dairy Cattle. (I) Veal Milk Replacer-milk replacer to be fed for veal production; (II) Herd Milk Replacer-milk replacer to be fed for herd replacement; (III) Starter-approximately 3 days to 3 months; (IV) Growing Heifers, Bulls, and Dairy Beef: (-a-) Grower 1-3 months to 12 months of age; (-b-) Grower 2-more than 12 months of age; (V) Lactating Dairy Cattle; (VI) Non-Lactating Dairy Cattle. (v) Fish (Species shall be declared in lieu of class). (I) Trout; (II) Catfish; (III) Species other than trout or catfish. (vi) Rabbit. (I) Grower-4 to 12 weeks of age; (II) Breeder-12 weeks of age and over. (vii) Equine. (I) Foal. (II) Mare; (III) Breeding; (IV) Maintenance. (viii) Goat and Sheep. (I) Starter; (II) Grower; (III) Finisher; (IV) Breeder; (V) Lactating. (C) The indication for animal classes(es) and specie(s) is not required on single ingredient products if the ingredient is not intended, represented, or defined for a specific animal classes(es) or specie(s). (D) A purpose statement of a premix limited to use in the further manufacture of commercial feed may state "For the Manufacture of Commercial Feed" if the nutrients contained in the premix are guaranteed and sufficient for formulation into various animal species feeds. (E) The purpose statement of single purpose ingredient blend limited to use in the further manufacture of commercial feed, such as a blend of animal protein products, milk products, fat products, roughage products or molasses products may state "For Further Manufacturing of Feed" if the label guarantees of the nutrients contained in the single purpose nutrient blend are sufficient to provide for formulation into various animal species feeds. (2) Product name and brand name, if any. (A) The brand and product name shall be appropriate for the intended use of the feed and must not be misleading. If the name indicates the feed is made for a specific use, the character of the feed must conform therewith. (B) The word "protein" shall not be permitted in the product name of a feed that contains non-protein nitrogen. (C) The word "vitamin," or a contraction thereof, or any word suggesting vitamin, shall be used only in the name of a feed which is represented to be a vitamin supplement and which is labeled with the minimum content of each vitamin declared, as specified in paragraph (9)(E) of this section. (D) The term "mineralized" shall not be used in the name of a feed, except for when contained in the expression "trace mineralized salt." When this phrase is displayed on the label, the product must contain significant amounts of trace minerals which are recognized as essential for animal nutrition. (E) The term "meat" or "meat by-products" shall be qualified on the label to designate the type of animal from which the meat or meat by-products are derived unless the meat or meat by-products are from cattle, swine, sheep, and goats. (F) When the product name or brand name of a feed carries a percentage value, it shall be understood to signify the protein and/or equivalent protein of the feed content only, even though such percentage value is not explicitly modified by the word "protein." Other percentage values are permitted in the product name or brand name of a feed if such percentages are followed by a proper description and conform with good labeling practices. (G) Digital numbers shall not be used in the product name or brand name of a feed in such a manner as to be misleading or confusing to a consumer. (H) Unless otherwise specified, single ingredient feeds shall have a product name which comports with the ingredient name assigned to such product by the Association of American Feed Control Officials in its official publication, adopted by reference in sec.61.1 of this title (relating to Definitions), and shall meet the standard of identity and, where required, list the guarantees of that standard. (3) Drug additives, when present. (A) The word "medicated" shall be placed directly following and below the product name in type size no smaller than one-half the size of the product name. (B) The purpose of the medication (claim statement) shall be stated. (C) The label shall state any warning or cautionary statement relating to such drug additive required by paragraph (6) of this section, or reference to where such warning or cautionary statement may be found. (D) The label shall display active drug ingredient statement listing: (i) each drug ingredient by its common or usual name; and (ii) the amount of each ingredient. (4) Guarantees-Crude Protein, Non-Protein Nitrogen, Amino Acids, Crude Fat, Crude Fiber, Acid Detergent Fiber, Calcium, Phosphorus, Salt and Sodium shall be the sequence of nutritional guarantees when such guarantee is stated. Other required and voluntary guarantees should follow in a general format such that the units of measure used to express guarantees (percentage, parts per million, International Units, etc.) are listed in a sequence that provides a consistent grouping of the units of measure. (A) Poultry. (i) Chickens and Turkeys -complete feeds and supplements for all animal classes: (I) Minimum percentage of crude protein; (II) Minimum percentage of lysine; (III) Minimum percentage of methionine; (IV) Minimum percentage of crude fat; (V) Maximum percentage of crude fiber; (VI) Minimum and maximum percentage of calcium; (VII) Minimum percentage of phosphorus; (VIII) Minimum and maximum percentage of salt (if added); (IX) Minimum and maximum percentage of total sodium shall be guaranteed only when total sodium exceeds that furnished by the maximum salt guarantee. (ii) Ducks and Geese -complete feeds and supplements for all animal classes: (I) Minimum percentage of crude protein; (II) Minimum percentage of crude fat; (III) Maximum percentage of crude fiber; (IV) Minimum and maximum percentage of calcium; (V) Minimum percentage of phosphorus; (VI) Minimum and maximum percentage of salt (if added); (VII) Minimum and maximum percentage of total sodium shall be guaranteed only when total sodium exceeds that furnished by the maximum salt guarantee. (B) Swine-complete feeds and supplements for all animal classes: (i) Minimum percentage of crude protein; (ii) Minimum percentage of lysine; (iii) Minimum percentage of crude fat; (iv) Maximum percentage of crude fiber; (v) Minimum and maximum percentage of calcium; (vi) Minimum percentage of phosphorus; (vii) Minimum and maximum percentage of salt (if added); (viii) Minimum and maximum percentage of total sodium shall be guaranteed only when total sodium exceeds that furnished by the maximum salt guarantee; (ix) Minimum selenium in parts per million (ppm); (x) Minimum zinc in parts per million (ppm). (C) Beef Cattle. (i) Complete Feeds and Supplements-all animal classes: (I) Minimum percentage of crude protein; (II) Maximum percentage of equivalent crude protein from non-protein nitrogen (NPN) when added; (III) Minimum percentage of crude fat; (IV) Maximum percentage of crude fiber; (V) Minimum and maximum percentage of calcium; (VI) Minimum percentage of phosphorus; (VII) Minimum and maximum percentage of salt (if added); (VIII) Minimum and maximum percentage of total sodium shall be guaranteed only when total sodium exceeds that furnished by the maximum salt guarantee; (IX) Minimum percentage of potassium; (X) Minimum vitamin A, other than precursors of vitamin A, in international units per pound (if added). (ii) Mineral Feeds (if added): (I) Minimum and maximum percentage of calcium; (II) Minimum percentage of phosphorus; (III) Minimum and maximum percentage of salt; (IV) Minimum and maximum percentage of total sodium shall be guaranteed only when total sodium exceeds that furnished by the maximum salt guarantee; (V) Minimum percentage of magnesium; (VI) Minimum percentage of potassium; (VII) Minimum copper in parts per million (ppm); (VIII) Minimum selenium in parts per million (ppm); (IX) Minimum zinc in parts per million (ppm); (X) Minimum vitamin A, other than precursors of vitamin A, in international units per pound. (D) Dairy Cattle. (i) Complete Feeds and Supplements-all animal classes: (I) Minimum percentage of crude protein; (II) Maximum percentage of equivalent crude protein from non-protein nitrogen (NPN) when added; (III) Minimum percentage of crude fat; (IV) Maximum percentage of crude fiber; (V) Maximum percentage of acid detergent fiber (ADF); (VI) Minimum and maximum percentage of calcium; (VII) Minimum percentage of phosphorus; (VIII) Minimum selenium in parts per million (ppm); (IX) Minimum vitamin A, other than precursors of vitamin A, in international units per pound (if added). (ii) Mixing and Pasture Mineral Feeds (if added): (I) Minimum and maximum percentage of calcium; (II) Minimum percentage of phosphorus; (III) Minimum and maximum percentage of salt; (IV) Minimum and maximum percentage of total sodium shall be guaranteed only when total sodium exceeds that furnished by the maximum salt guarantee; (V) Minimum percentage of magnesium; (VI) Minimum percentage of potassium; (VII) Minimum selenium in parts per million (ppm); (VIII) Minimum vitamin A, other than precursors of vitamin A, in international units per pound. (E) Veal & Herd Replacement Milk Replacer. (i) Minimum percentage of crude protein; (ii) Minimum percentage of crude fat; (iii) Maximum percentage of crude fiber; (iv) Minimum and maximum percentage of calcium; (v) Minimum percentage of phosphorus; (vi) Minimum vitamin A, other than precursors of vitamin A, in international units per pound (if added). (F) Fish Complete Feeds and Supplements. (i) Minimum percentage of crude protein; (ii) Minimum percentage of crude fat; (iii) Maximum percentage of crude fiber; (iv) Minimum percentage of phosphorus. (G) Rabbit Complete Feeds and Supplements-all animal classes: (i) Minimum percentage of crude protein; (ii) Minimum percentage of crude fat; (iii) Minimum and maximum percentage of crude fiber (the maximum crude fiber shall not exceed the minimum by more than 5.0 percentage units); (iv) Minimum and maximum percentage of calcium; (v) Minimum percentage of phosphorus; (vi) Minimum and maximum percentage of salt (if added); (vii) Minimum and maximum percentage of total sodium shall be guaranteed only when total sodium exceeds that furnished by the maximum salt guarantee; (viii) Minimum vitamin A, other than precursors of vitamin A, in international units per pound (if added). (H) Equine. (i) Complete Feeds and Supplements-all animal classes: (I) Minimum percentage of crude protein; (II) Minimum percentage of crude fat; (III) Maximum percentage of crude fiber; (IV) Minimum and maximum percentage of calcium; (V) Minimum percentage of phosphorus; (VI) Minimum copper in parts per million (ppm); (VII) Minimum selenium in parts per million (ppm); (VIII) Minimum zinc in parts per million (ppm); (IX) Minimum vitamin A, other than precursors of vitamin A, in international units per pound (if added). (ii) Mineral-all animal classes: (I) Minimum and maximum percentage of calcium; (II) Minimum percentage of phosphorus; (III) Minimum and maximum percentage of salt (if added); (IV) Minimum and maximum percentage of sodium (guaranteed only when total sodium exceeds that furnished by the maximum salt guarantee); (V) Minimum copper in parts per million (ppm); (VI) Minimum selenium in parts per million (ppm); (VII) Minimum zinc in parts per million (ppm); (VIII) Minimum vitamin A, other than precursors of vitamin A, in international units per pound (if added). (I) Goat and Sheep Complete Feeds and Supplements-all animal classes: (i) Minimum percentage of crude protein; (ii) Maximum percentage of equivalent crude protein from non-protein nitrogen (NPN) when added; (iii) Minimum percentage of crude fat; (iv) Maximum percentage of crude fiber; (v) Minimum and maximum percentage of calcium; (vi) Minimum percentage of phosphorus; (vii) Minimum and maximum percentage of salt (if added); (viii) Minimum and maximum percentage of total sodium shall be guaranteed only when total sodium exceeds that furnished by the maximum salt guarantee; (ix) Minimum and maximum copper in parts per million (ppm) (if added, or if total copper exceeds 20 ppm); (x) Minimum selenium in parts per million (ppm); (xi) Minimum vitamin A, other than precursors of vitamin A, in international units per pound (if added). (J) Feeds for Other Animal Classes and Species not specifically mentioned above: (i) Minimum percentage of crude protein; (ii) Maximum percentage of equivalent crude protein from non-protein nitrogen (NPN) when added; (iii) Minimum percentage of crude fat; (iv) Maximum percentage of crude fiber; (v) Minimum and maximum percentage of calcium; (vi) Minimum percentage of phosphorus; (vii) Minimum and maximum percentage of salt (if added); (viii) Minimum and maximum percentage of total sodium shall be guaranteed when total sodium exceeds that furnished by the maximum salt guarantee; (ix) Other Minerals; (x) Vitamins; (xi) Total sugars as invert; (xii) Microorganisms. (K) Grain Mixtures with or without Molasses. (i) Minimum percentage of crude protein; (ii) Minimum percentage of crude fat; (iii) Maximum percentage of crude fiber; (iv) Total sugars as invert. (L) A commercial feed (e.g., vitamin/mineral premix, base mix, etc.) intended to provide a specialized nutritional source for use in the manufacture of other feeds, must state its intended purpose and guarantee those nutrients relevant to such stated purpose. (5) Feed ingredients. (A) The feed ingredients statement for a commercial feed shall include the name of each ingredient in the feed or the collective term for each grouping of feed ingredients contained in the feed, unless exempted under subparagraph (I) of this paragraph. (B) The name of each ingredient or grouping of ingredients listed shall be: (i) the official term for the ingredient or grouping of ingredients adopted by the Association of American Feed Control Officials in its official publication, adopted by reference in sec.61.1 of this title (relating to Definitions); (ii) the common or usual name for the ingredient; or (iii) a name approved by the Service. (C) When a collective term for a group of ingredients is used on the label of a feed: (i) individual ingredients within that group shall not be listed on the label; and (ii) the Service may require the manufacturer to provide a listing of the individual ingredients within the group that are or have been used in the product as distributed in this state. (D) Tentative definitions for feed ingredients shall not be used until adopted as an official definition by the Association of American Feed Control Officials, unless no official definition exists or the ingredient has a commonly accepted name that requires no definition (e.g., sugar). (E) The sources of added vitamins may be stated in the ingredients statement. (F) No reference to quality or grade of an ingredient shall appear in the ingredients statement. (G) The term "dehydrated" may precede the name of any product that has been artificially dried. (H) When the term "iodized" is used in connection with a feed ingredient, the ingredient shall contain not less than 0.007% iodine uniformly distributed. (I) Exemptions: (i) Carrier ingredients in products used solely as drug and vitamin premixes need not be named in the ingredients statement if: (I) any changes in the carrier will not affect the purposes of the premix; (II) the carrier ingredient is recognized by the Service as being safe; (III) the carrier will not affect the safety, potency or efficacy of the finished product. (ii) Single ingredient feeds are not required to have an ingredient statement. (6) Directions for use and cautionary statements. (A) All feeds containing additives (including drugs, special purpose additives, or non-nutritive additives) shall have included on their label directions for use and cautionary statements which shall: (i) be adequate to enable safe and effective use of the product for its intended purposes by users with no special knowledge of the purposes and use of such articles; and (ii) include, but not limited to, all information prescribed by the Code of Federal Regulations, Title 21. (B) All feeds supplying particular dietary needs or for supplementing or fortifying the diet or ration with any vitamin, mineral, or other dietary nutrient or compound shall have included on their label adequate directions for use and any cautionary statement necessary for their safe and effective use. (i) All mixed feeds containing urea or other non-protein nitrogen products shall have included on their label: (I) the statement "Warning: (or "Caution:") Use as Directed" followed by adequate directions for the safe use of the feed if the equivalent protein from non-protein nitrogen in the feed exceeds one-third of the total crude protein, or more than 8.75% of the equivalent protein is from non-protein nitrogen; and (II) a separate maximum guarantee for non-protein nitrogen originating from the addition of a mineral. (ii) Premixes, concentrates or supplements containing more than 1.25% equivalent crude protein from all forms of non-protein nitrogen, added as such, must contain adequate directions for use and a prominent statement: "WARNING: This feed must be used only in accordance with directions furnished on the label." (iii) All directions for use required by this subparagraph shall be printed in a size of type such that the directions will be read and understood by ordinary persons under customary conditions of purchase and use. (iv) This subparagraph shall apply to all invoiced, labeled customer-formula and labeled feeds. (v) Feeds, such as medicated feeds, which are required to be labeled with adequate feeding directions and cautionary statements irrespective of the provisions of this subparagraph, shall not be required to bear duplicate feeding directions or cautionary statements on their labels if such statements as are otherwise required are sufficient to ensure the safe and effective use of the product due to the presence of non-protein nitrogen. (C) Fluorine bearing phosphatic materials shall have included on their label the statement: "Caution-Mix at the rate to not raise the fluorine content in a total ration (exclusive of roughage) above the following levels: (i) 0.004% for breeding and dairy cattle; (ii) 0.009% for slaughter cattle; (iii) 0.006% for sheep; (iv) 0.01% for lambs; (v) 0.015% for swine; and (vi) 0.03% for poultry." (7) The name and principal mailing address of the person responsible for distributing the feed. (A) The principal mailing address shall include the street address, city, state, and zip code; provided, however, that the street address may be omitted if the address is listed in a current city directory or telephone directory. (B) The labeling may bear the name of the purchaser as well as the manufacturer, provided the product is for in-plant use and not for resale. (C) The labeling may bear the name of the distributor as well as the manufacturer, provided that the guarantor of the product is specifically stated. (8) Quantity Statement (A) Net weight and/or net liquid volume must be expressed both in English and in SI units: (i) when the quantity statement is expressed in net pounds, the corresponding SI units shall be in kilograms and vice-versa; (ii) when the quantity statement is expressed in net quarts or gallons, the corresponding SI unit shall be in liters and vice-versa; (iii) when the quantity statement is expressed in net avoirdupois ounces or net fluid ounces, the corresponding SI units shall be in grams and milliliters respectively and vice-versa; (iv) any fractional number which arises expressing the net weight in both systems shall be limited to two decimal places and the number rounded down. (B) All dry and liquid bulk shipments shall declare net weight only. (C) Net contents other than net weight or net volume shall be expressed as the sum total of the smallest individual unit in the container going to the final customer. (D) Measurement. (i) Net weights of packages dry and liquid bulk shall be determined directly from scales or for bulk liquids only as calculated from volume and specific gravity/density. (ii) Conformance to weight guarantee shall be judged solely by use of certified scale defined in accordance with Texas Department of Agriculture standards. (iii) Dip-sticks, uncertified/uncalibrated meters or sight gauges shall not be used to estimate volume. Scales not certified in accordance with the Texas Department of Agriculture standards shall not be used for net weights. (iv) Net weights shall meet both the English and SI statements on the label. (v) Conformance to guarantee of number shall be judged by count of intact individual units. (9) Expression of Guarantees (A) The guarantees for crude protein, amino acids and crude fat shall be in terms of minimum percentage. (B) The guarantees for crude fiber and acid detergent fiber shall be in terms of maximum percentage. (C) The percentage of equivalent protein from non-protein nitrogen shall be guaranteed as follows: (i) In feeds designated for ruminants- (I) Complete feeds, supplements, and concentrates containing more than 5.0% protein from natural sources shall bear the following statement of guarantee: "Crude protein, minimum ___% (This includes not more than ___% equivalent protein from non-protein nitrogen.)" (II) Mixed feed concentrates and supplements containing less than 5.0% protein from natural sources may bear the following statement of guarantee: "Equivalent crude protein from non-protein nitrogen, minimum ___%." (III) Ingredient sources of non-protein nitrogen, such as urea, diammonium phosphate, ammonium polyphosphate solution, ammoniated rice hulls, or any other basic non-protein nitrogen ingredient shall bear the following statement of guarantee: "Nitrogen, minimum ___%. Equivalent crude protein from non-protein nitrogen, minimum ___%." (IV) Liquid feed supplements shall bear the following statement of guarantee: "Crude protein not less than ___% (This includes not more than ___% equivalent protein from non-protein nitrogen.)" (ii) Feeds distributed to non-ruminant animals as a source of nutrients other than equivalent crude protein containing urea or other non-protein nitrogen products shall be labeled as follows: Complete feeds, supplements and concentrates containing crude protein from all forms of non-protein nitrogen, added as such. Crude protein, minimum ___%. (This includes not more than ___% equivalent crude protein which is not nutritionally available to ________________ (species of animal for which feed is intended)). (D) The guarantees for minerals shall be expressed as follows. (i) Commercial feeds containing calcium, phosphorus and/or salt shall include a guaranteed analysis of the following minerals in the following order: (I) minimum and maximum percentage of calcium (Ca); (II) minimum percentage of phosphorus (P); (III) minimum and maximum percentages of salt (NaCl), when required; and (IV) such other minerals as may be required by clause (ii) in this subparagraph. (ii) Other minerals shall be expressed as follows: (I) If the quantity statement is by weight: (-a-) guarantees for minimum potassium, magnesium and maximum fluoride when used shall be stated in terms of percentage. (-b-) Other minimum mineral guarantees shall be stated in percentage when used when the concentration is 1.00% (10,000 ppm) or greater; below 10, 000 ppm these guarantees shall be expressed in ppm. (II) If the quantity statement is in tablet, capsules, granules, liquids or boluses, then the guarantee is in mg per unit consistent with quantity statement and directions for use. (III) When calcium, salt and sodium guarantees are given in the guaranteed analysis, such guarantees shall conform to the following. (-a-) When the minimum is 5.0% or less, the maximum shall not exceed the minimum by more than one percentage point. (-b-) When the minimum is above 5.0%, the maximum shall not exceed the minimum by more than 20% and in no case shall the maximum exceed the minimum by more than five percentage points. (IV) Naturally occurring mineral phosphatic materials for feeding purposes shall be labeled with a guaranteed analysis of the minimum and maximum percentage of calcium (when present), the minimum percentage of phosphorus, and the maximum percentage of fluorine. (E) If made, the guarantees for vitamins shall be expressed as follows. (i) The minimum vitamin content of commercial feeds and feed supplements shall be stated on the label in milligrams per pound or units consistent with the quantity statement and with the directions for use, except that: (I) vitamin A, other than precursors of vitamin A, shall be stated in international units per pound; (II) vitamin D3, in products offered for poultry feeding, shall be stated in international chick units per pound; (III) vitamin D, for other uses, shall be stated in terms of international units per pound; (IV) vitamin E shall be stated in international units per pound; (V) vitamin B12 shall be stated in milligrams or micrograms per pound; (VI) oils and premixes containing vitamins A, D and/or E may be labeled to show vitamin content in terms of units per gram. (ii) Guarantees for vitamin content on the label of a commercial feed shall state the guarantees as menadione, riboflavin, d-pantothenic acid, thiamine, niacin, vitamin B6, folic acid, choline, biotin, inositol, p-amino benzoic acid, ascorbic acid and/or carotene. (F) The guarantees for antibiotics shall be expressed in terms of percent by weight, except that: (i) antibiotics present at less than 2,000 grams per ton (total) of commercial feed shall be stated in grams per ton (total) of commercial feed; (ii) antibiotics present at more than 2,000 grams per ton (total) of commercial feed shall be stated in grams per pound of commercial feed; (iii) labels for commercial feeds containing growth promotion and feed efficiency levels of antibiotics which are to be fed continuously as the sole ration are not required to make quantitative guarantees, except as specifically noted in the Code of Federal Regulations (CFR), Title 21; (iv) the amount of a drug or antibiotic may be expressed in terms of milligrams per pound where the dosage given in the feeding directions is given in milligrams. (G) The analysis shall include the minimum percentage total sugars as invert on products being sold for their molasses content or products containing more than 16% sugars. (H) The analysis shall include the maximum percent moisture on liquid feed supplements and liquid ingredients containing more than 20% moisture. (I) Microorganisms need not be guaranteed when the commercial feed is intended for a purpose other than to furnish these substances and no other specific label claims are made. When guaranteed, the units shall be colony forming units (CFU) per gram if directions for use are in grams or in CFU per pound when directions for use are in pounds. A parenthetical statement following the guarantee shall list each species in order of predominance. (J) Other required and voluntary guarantees should follow in a general format such that the units of measure used to express guarantees (percentage, parts per million, international units, etc.) are listed in a sequence which provides a consistent grouping of the units of measure. (K) The sliding scale method of expressing guarantees (e.g., "protein is 15- 18%, etc.") is prohibited. (L) Unless otherwise provided by this section, guarantees for crude protein, equivalent protein from non-protein nitrogen, crude fat, and crude fiber will be in terms of percentage by weight. (M) Commercial, registered brand, or trade names are not permitted for use in a statement of guarantee, unless followed by a parenthetical statement giving the technical name of the ingredient. (N) Exemptions are as follows. (i) Guarantees for vitamins are not required for commercial feed which is neither formulated nor in any manner represented as a vitamin supplement. (ii) Guarantees for crude protein, crude fat, and crude fiber are not required for commercial feed not intended to furnish these substances, or for feeds in which these substances are of minor significance to the primary purpose of the product (e.g., drug premixes, mineral or vitamin supplements, or molasses). (iii) Liquid ingredients need not be guaranteed to show maximum moisture content when moisture is the difference between the guarantee element and 100% or when the moisture content of the ingredient is less than 20%. (iv) Whole feed-grain, unprocessed in any manner save mechanical blending or mixing with other batches of the same whole kernel feed-grade grain, need not provide guarantees for protein, fat, and fiber. (v) A mineral guarantee is not required: (I) when the feed or feed ingredient is intended for non-food producing animals and contains less than 6.5% total minerals; and (II) when the feed or feed ingredient is not represented nor does it serve as a principle source of that mineral to the animal. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in College Station, Texas, on November 29, 1995. TRD-9515391 Dr. George W. Latimer, Jr. State Chemist, Office of the Texas State Chemist Texas Feed and Fertilizer Control Service Effective date: January 1, 1996 Proposal publication date: October 3, 1995 For further information, please call: (409) 845-1121 4 TAC sec.61.23 The Office of the Texas State Chemist, Feed and Fertilizer Control Service adopts an amendment to sec.61.23, without changes to the proposed text as published in the October 3, 1995, issue of the Texas Register (20 TexReg 8053). The rule is being amended to implement the changes enacted by the 74th Legislature to the Texas Commercial Feed Control Act, such changes to take effect January 1, 1996. No comments were received regarding adoption of the amendment. The amendment is adopted under the Texas Agricultural Code, Chapter 141, sec.141.004, which provides the Feed and Fertilizer Control Service with the authority to adopt rules relating to the distribution of commercial feeds. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in College Station, Texas, on November 29, 1995. TRD-9515328 Dr. George W. Latimer, Jr. State Chemist, Office of the Texas State Chemist Texas Feed and Fertilizer Control Service Effective date: January 1, 1996 Proposal publication date: October 3, 1995 For further information, please call: (409) 845-1121 Changes in Licensing 4 TAC sec.61.25 The Office of the Texas State Chemist, Feed and Fertilizer Control Service adopts an amendment to sec.61.25, concerning changes in licensing with changes to the proposed text as published in the October 3, 1995, issue of the Texas Register (20 TexReg 8053). The rule is being amended to implement the changes enacted by the 74th Legislature in the Texas Commercial Feed Control Act, such changes to take effect January 1, 1996. There were no comments received in favor of the amendment. Comments against the amendment were from the American Feed Industry Association, Texas Grain and Feed Association, Cargill, Inc., and Marshall Minerals. The following comments were received: sec.61.25(a)(1) appears to link licensing with annual product registration. The Service agrees. That paragraph has been deleted and sec.61.25(b) reworded. With this change sec.61.25(c) and (d) have been amended and sec.61.25(c)(1), (2) and 61.25(e) are not adopted. These changes are editorial and done to make the paragraph coherent after the changes in sec.61.25(a)(1). Another comment was that sec.61.25(a)(2) could require that firms submit data for safety and efficacy to the Service which had already been approved by FDA/AAFCO. The Service agrees; that paragraph has been reworded. The amendment is adopted under the Texas Agricultural Code, Chapter 141, sec.141.004, which provides the Feed and Fertilizer Control Service with the authority to adopt rules relating to the distribution of commercial feeds. sec.61.25. Redesignation of Facility. (a) A facility shall notify the Service to amend its license if, after licensing, it wishes: (1) to distribute an ingredient or commercial feed not previously distributed in the state for which safety and efficacy data have not previously been approved by FDA, AAFCO or the Service; (2) to distribute products normally exempt, but subject to control by the Service, including, but not limited to, aflatoxin-containing corn above 20 ppb; products incorporating poultry litter; (3) to change ownership; (4) to change physical location; or (5) to change name. (b) Facilities distributing new annual products must complete the Small Package Registration form provided by the Service for products before distribution, but do not need an amended license. (c) Facilities subject to subsection (a)(1) and (2) of this section must provide a copy of the label. (d) The Service will amend the license and may require the licensee to verify corrections and provide additional information: (1) at no additional license fee to those subject to subsection (a)(1) -(2) of this section if response is received within 30 calendar days of the notification by the Service; (2) at $75: (A) for those subject to subsection (a)(1)-(2) and (b) if response is more than 31 calendar days after notification by the Service; (B) for those subject to subsection (a)(3)-(5) of this section. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in College Station, Texas, on November 29, 1995. TRD-9515329 Dr. George W. Latimer, Jr. State Chemist, Office of the Texas State Chemist Texas Feed and Fertilizer Control Service Effective date: January 1, 1996 Proposal publication date: October 3, 1995 For further information, please call: (409) 845-1121 Label Review 4 TAC sec.61.29 The Office of the Texas State Chemist, Feed and Fertilizer Control Service adopts new sec.61.29, without changes to the proposed text as published in the October 3, 1995, issue of the Texas Register (20 TexReg 8054). The new rule is necessary to implement the changes enacted by the 74th Legislature in the Texas Commercial Feed Control Act, such changes to take effect January 1, 1996. No comments were received regarding adoption of the new section. The new section is adopted under the Texas Agricultural Code, Chapter 141, sec.141.004, which provides the Feed and Fertilizer Control Service with the authority to adopt rules relating to the distribution of commercial feeds. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in College Station, Texas, on November 29, 1995. TRD-9515330 Dr. George W. Latimer, Jr. State Chemist, Office of the Texas State Chemist Texas Feed and Fertilizer Control Service Effective date: January 1, 1996 Proposal publication date: October 3, 1995 For further information, please call: (409) 845-1121 Adulterants 4 TAC sec.61.61 The Office of the Texas State Chemist, Feed and Fertilizer Control Service adopts an amendment to sec.61.61, with changes to the proposed text as published in the October 3, 1995, issue of the Texas Register (20 TexReg 8054). The rule is amended to clarify the Feed and Fertilizer Control Service's responsibilities under the Texas Commercial Feed Control Act. Prior to adoption, the Service received adverse comments on this subsection from the American Feed Industry Association and the Texas Grain and Feed Association. Witnesses noted that, as written, this paragraph could "allow the Service to request and judge data previously submitted to FDA" or would allow the Service to require additional evidence above that required by the FDA. While it was not the Service's intent to require credible evidence beyond that normally expected for safety and efficacy, the wordings suggested by witnesses are not sufficiently flexible nor inclusive. The Service, therefore, adopts an alternate language which appears in the text in sec.61.61(d). The amendment is adopted under the Texas Agricultural Code, Chapter 141, sec.141.004, which provides the Feed and Fertilizer Control Service with the authority to adopt rules relating to the distribution of commercial feeds. sec.61.61. Poisonous or Deleterious Substances. (a)-(c) (No change.) (d) The Service may require evidence satisfactory to the Service of: (1) the safety of any commercial feed if such feed includes ingredients not approved either by the FDA or AAFCO (the Association of American Feed Control Officials); or (2) the efficacy of any commercial feed when such feeds do not meet minimum standards of nutrition for the targeted animal as set forth by recognized authorities on animal nutrition. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in College Station, Texas, on November 29, 1995. TRD-9515332 Dr. George W. Latimer, Jr. State Chemist, Office of the Texas State Chemist Texas Feed and Fertilizer Control Service Effective date: January 1, 1996 Proposal publication date: October 3, 1995 For further information, please call: (409) 845-1121 Appeals and Rehearings 4 TAC sec.61.85 The Office of the Texas State Chemist, Feed and Fertilizer Control Service adopts the repeal of sec.61.85, concerning Appeals and Rehearings, without changes to the proposed text as published in the October 3, 1995, issue of the Texas Register (20 TexReg 8055). The rule is being repealed as it is unnecessary because it repeats a section of the Texas Commercial Feed Control Act. No comments were received regarding adoption of the repeal. The repeal is adopted under the Texas Agricultural Code, Chapter 141, sec.141.004, which provides the Feed and Fertilizer Control Service with the authority to adopt rules relating to the distribution of commercial feeds. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in College Station, Texas, on November 29, 1995. TRD-9515333 Dr. George W. Latimer, Jr. State Chemist, Office of the Texas State Chemist Texas Feed and Fertilizer Control Service Effective date: January 1, 1996 Proposal publication date: October 3, 1995 For further information, please call: (409) 845-1121 Good Manufacturing Practices 4 TAC sec.61.86 The Office of the Texas State Chemist, Feed and Fertilizer Control Service adopts sec.61.86, without changes to the proposed text as published in the October 3, 1995, issue of the Texas Register (20 TexReg 8055). This new rule is being adopted to implement the changes enacted by the 74th Legislature, such changes to take effect January 1, 1996. No written comments were received. One witness at the open meeting on November 1 (American Feed Industry Association) commented in favor of the rule. None were against. The new section is adopted under Texas Agriculture Code, Chapter 141, sec.141.004 which provides the Feed and Fertilizer Control Service with the authority to adopt rules relating to the distribution of commercial feeds. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in College Station, Texas, on November 29, 1995. TRD-9515334 Dr. George W. Latimer, Jr. State Chemist, Office of the Texas State Chemist Texas Feed and Fertilizer Control Service Effective date: January 1, 1996 Proposal publication date: October 3, 1995 For further information, please call: (409) 845-1121 TITLE 22. EXAMINING BOARDS Part XI. Board of Nurse Examiners Chapter 215. Nurse Education 22 TAC sec.215.2 The Board of Nurse Examiners adopts an amendment to sec.215.2, concerning Definitions, without changes to the proposed text as published in the October 20, 1995, issue of the Texas Register (20 TexReg 8556). During the 73rd Legislative Session, changes were made in the Nursing Practice Act by Senate Bill 519 which amended Article 4525a by adding language to require the reporting of students in professional nursing programs that may be impaired by chemical dependency. The language further states that in lieu of reporting the student to the board, an RN may report the student to the professional nursing educational program in which the student is enrolled. The Board has determined that the law will be fulfilled if the institution or the RN suspecting the student is impaired reports that student to the professional nursing education program in which that student is enrolled. The amendment will support nursing programs to deal internally with students who have chemical dependency problems. It will clarify that the individual nursing program will determine when a student is a "professional nursing student". The adopted new section will bring the agency into compliance with Senate Bill 519. There were no comments received regarding adoption of the amendment. The amendment is adopted under the Nursing Practice Act, (Texas Civil Statutes), Article 4514, sec.1, which provides the Board of Nurse Examiners with the authority and power to make and enforce all rules and regulations necessary for the performance of its duties and conducting of proceedings before it. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on November 28, 1995. TRD-9515358 Katherine A. Thomas, MN, RN Executive Director Board of Nurse Examiners Effective date: December 20, 1995 Proposal publication date: October 20, 1995 For further information, please call: (512) 305-6811 Chapter 217. Licensure and Practice 22 TAC sec.217.7 The Board of Nurse Examiners adopts an amendment to sec.217.7, concerning Failure to Renew License, without changes to the proposed text as published in the October 20, 1995, issue of the Texas Register (20 TexReg 8556). During the 72nd Legislative Session, changes were made in the Nursing Practice Act by House Bill 2180 which amended Article 4526 by adding language to require a licensee who has allowed his or her license to expire and has not been practicing professional nursing for a specified period of time to retest. In addition, the language states that the board by rule may establish additional requirements that apply to the renewal of a license that has been expired for more than one year but less than the time limit set by the board beyond which a license may not be renewed. Currently, there are more than 47,000 delinquent licenses on the Board's files. However, some of those licensees may be currently licensed in another jurisdiction. The Board's Nursing Practice Advisory Committee has met and recommended a draft rule amendment. The Board concurred and authorized adoption. The amendment will require reexamination of a licensee who has been delinquent four or more years; however reexam will not apply to the nurse who holds a current license in another state and has been practicing in that jurisdiction. This amendment will bring the agency into compliance with House Bill 2180. There were no comments received regarding adoption of the amendment. The amendment is adopted under the Nursing Practice Act (Texas Civil Statutes, Article 4514), sec.1, which provides the Board of Nurse Examiners with the authority and power to make and enforce all rules and regulations necessary for the performance of its duties and conducting of proceedings before it. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on November 28, 1995. TRD-9515359 Katherine A. Thomas, MN, RN Executive Director Board of Nurse Examiners Effective date: December 20, 1995 Proposal publication date: October 20, 1995 For further information, please call: (512) 305-6811 Chapter 222. Advanced Nurse Practitioners Carrying out Prescription Drug Orders 22 TAC sec.sec.222.1-222.4 The Board of Nurse Examiners adopts the repeal of sec. sec.222.1-222.4, concerning Advanced Practice Nurses Carrying Out Prescription Drug Orders, without changes to the proposed text as published in the September 26, 1995, issue of the Texas Register (20 TexReg 7783). During the 74th Legislative Session, Senate Bill 673 was passed which expanded limited prescriptive authority for Advanced Practice Nurses. Amendments to the Nursing Practice Act require the board to adopt rules. Extensive rewrite of the rules was necessary; therefore, the board felt that repealing the current rules would allow for the adoption of rules to implement the requirements of Senate Bill 673. The repeals will allow the adoption of new sections. No comments were received regarding adoption of the repeals. The repeals are adopted under the Nursing Practice Act, (Texas Civil Statutes), Article 4514, sec.1, which provides the Board of Nurse Examiners with the authority and power to make and enforce all rules and regulations necessary for the performance of its duties and conducting of proceedings before it. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on November 28, 1995. TRD-9515360 Katherine A. Thomas, MN, RN Executive Director Board of Nurse Examiners Effective date: December 20, 1995 Proposal publication date: September 26, 1995 For further information, please call: (512) 305-6811 Chapter 222. Advanced Practice Nurses with Limited Prescriptive Authority 22 TAC sec.sec.222.1-222.7 The Board of Nurse Examiners adopts new sec.sec.222.1-222.7, concerning Advanced Practice Nurses with Limited Prescriptive Authority. Section 222.2 and sec.222.4 are adopted with changes to the proposed text as published in the September 26, 1995, issue of the Texas Register (20 TexReg 7784). Sections 222.1, 222.3, 222.5-222.7 are adopted without changes and will not be republished. Changes were made in sec.222.2(a) relating to Application for Approval, and 222.4(a)(3) and 222.4(e) relating to Functions. During the 74th Legislative Session, Senate Bill 673 was passed which expanded limited prescriptive authority for Advanced Practice Nurses. Amendments to the Nursing Practice Act require the board to adopt rules. The Board's staff met with key representatives of other nursing and health related agencies to arrive at the draft rules which were reviewed by the Board. Due to extensive rewrite of the rules pertaining to Prescription Drugs, it was necessary to repeal the existing rule and propose a new rule. The adopted new section will bring the agency into compliance with Senate Bill 673. The Texas Nurses Association submitted comments in relation to sec.222.2, Application for Approval and 222.4, Functions. Their concern in relation to sec.222.2 (a) addressed the addition of the words "or sign" prescription drug orders.... The Board did not disagree as this language was inadvertently omitted from the original filing. In relation to 222.4(a)(3), the Association recommended additional language clarifying that the Board of Medical Examiners has established additional requirements for physician supervision of APNs carrying out or signing prescription drug orders. The Board agreed with the comment and added the recommended language. Under 222.4 (e) the Association recommended the addition of new language clarifying the APN's need to be compliant with all requirements to sign prescription drug orders. The Board agreed with the comment and modified 222.4 to reflect that change. The new sections are adopted under the Nursing Practice Act, (Texas Civil Statutes), Article 4514, sec.1, which provides the Board of Nurse Examiners with the authority and power to make and enforce all rules and regulations necessary for the performance of its duties and conducting of proceedings before it. sec.222.2. Application for Approval. (a) To be approved by the board to carry out or sign prescription drug orders and issued a prescription authorization number, a Registered Nurse (RN) shall satisfactorily complete the following requirements: (1) the RN shall be approved by the board as an APN; and (2) the APN shall submit to the board the application for Limited Prescriptive Authority and the appropriate documentation of the necessary education, training, and current skills, to include pharmacotherapeutics, as determined by the board to carry out or sign prescription drug orders. (b) The APN shall renew the privilege to carry out or sign prescription drug orders in conjunction with the RN license renewal application. sec.222.4. Functions. (a) The APN with a valid prescription authorization number may carry out or sign prescription drug orders under the following conditions: (1) The APN carries out or signs prescription drug orders in an eligible site. (2) The prescription drug order is carried out or signed in accordance with protocols, standing delegation orders, standing medical orders, practice guidelines or other physician orders for medical aspects of patient care including prescription drug orders. (3) The APN carries out or signs prescription drug orders under physician supervision which consists of the following and the additional supervision requirements set out in Board of Medical Examiners (BME) Rule sec.193.8 (relating to Delegation of the Carrying Out or Signing of Prescription Drug Orders to Physician Assistants and Advanced Practice Nurses): (A) at a site serving medically underserved populations, the physician visits the site at least once a week; the physician receives daily reports from the APN regarding complications encountered; and the physician is available for consultation by direct telecommunications; (B) at a physician's primary practice site, the physician is limited to delegation to three full time equivalent APNs; the physician may delegate the carrying out or signing of a prescription drug order for patients with whom the physician has established or will establish a physician-patient relationship but no time period to establish this relationship is required; (C) at a facility-based practice, where the delegating physician is the medical director, chief of staff, credentialing committee chair, department chair or physician who consents to a request by the medical director or chief of staff; protocols or other orders must be developed in accordance with policies approved by the medical staff; the APN writing prescriptions for patients of physicians, other than the delegating physician, must have the approval of the patient's physician; delegation in long term care facilities is limited to three full time equivalent APNs; and the physician must have the approval of the BME to delegate at more than one licensed hospital or more than two long term care facilities. (4) The APN maintains appropriate documentation of physician supervision, patient records, and protocols which should comply with rules adopted by the BME. (b) The APN with a valid prescription authorization number may carry out or sign prescription drug orders by providing the following information on the prescription: (1) the patient's name and address; (2) the drug to be dispensed; (3) directions to the patient in regard to the taking and the dosage; (4) the intended use of the drug, if appropriate; (5) the name, address, and telephone number of the physician; (6) the name, address, telephone, and identification number of the APN completing or signing the prescription drug order; (7) the date; and (8) the number of refills permitted. (c) The format and essential elements of the prescription shall comply with the requirements of the rules of the Board of Pharmacy. (d) The medications which can be carried out or signed by the APN through prescription drug orders shall be those drugs classified as dangerous drugs and shall be limited to those categories of drugs identified in protocol or other order. (e) The APN with a valid prescription authorization number may request, receive, possess and distribute prescription drug samples provided: (1) protocols or other physician orders authorize the APN to sign the prescription drug orders; (2) all requirements for the APN to sign prescription drug orders are met; (3) the samples are dangerous drugs only; and (4) a record of the sample is maintained and samples are labeled as specified in the Dangerous Drug Act (Health and Safety Code, Chapter 483). This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on November 28, 1995. TRD-9515361 Katherine A. Thomas, MN, RN Executive Director Board of Nurse Examiners Effective date: December 20, 1995 Proposal publication date: September 26, 1995 For further information, please call: (512) 305-6811 Part XXII. Texas State Board of Public Accountancy Chapter 511. Certification as a CPA Examination Hearings 22 TAC sec.511.106 The Texas State Board of Public Accountancy adopts an amendment to sec.511. 106, without changes to the proposed text as published in the September 8, 1995, issue of the Texas Register (20 TexReg 7019). The amendment allows the elimination of the current confusing provision allowing a candidate to sit for the CPA examination while awaiting a Board determination as to whether the candidate's application to sit for the examination should be approved. The amendment will function by causing an eligibility determination to be made prior to allowing a candidate to sit for the CPA examination. No comments were received concerning adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 41a-1, sec.6, which provide the Texas State Board of Public Accountancy with the authority to make such rules as may be necessary or advisable to carry in effect the purposes of the law; sec.12, which requires the board to ascertain whether applicants are of good moral character or have a criminal history; sec.21A, which authorizes the Board to deny an application to take the examination for any of the grounds therein; and sec.21B, which authorizes the board to investigate an applicant's criminal history. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on November 9, 1995. TRD-9515344 William Treacy Executive Director Texas State Board of Public Accountancy Effective date: December 20, 1995 Proposal publication date: September 8, 1995 For further information, please call: (512) 505-5566 Chapter 527. Quality Review 22 TAC sec.527.4 The Texas State Board of Public Accountancy adopts an amendment to sec.527. 4, without changes to the proposed text as published in the September 8, 1995, issue of the Texas Register (20 TexReg 7019). The amendment allows the recognition of the continuation of three year increment periods for the Quality Review Program and to establish a deadline by which the Board is to be notified of assigned quality review dates. The amendment will function by requiring firms to schedule their Quality Review every three years and requiring the firms to notify the Board of the scheduled review dates within 30 days of learning of the review date. No comments were received concerning adoption of the rule. The amendment is adopted under Texas Civil Statutes, Article 41a-1, sec.6, which provide the Texas State Board of Public Accountancy with the authority to make such rules as may be necessary or advisable to carry in effect the purposes of the law; and sec.15B, which authorizes the Board to adopt rules regarding the Quality Review program. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on November 9, 1995. TRD-9515345 William Treacy Executive Director Texas State Board of Public Accountancy Effective date: December 20, 1995 Proposal publication date: September 8, 1995 For further information, please call: (512) 505-5566 TITLE 31. NATURAL RESOURCES AND CONSERVATION Part I. General Land Office Chapter 9. Exploration and Leasing of Oil and Gas 31 TAC sec.9.3, sec.9.4 The General Land Office (GLO), with the approval of the School Land Board (SLB), adopts amendments to sec.9.3 and sec.9.4, concerning consistency with the Coastal Management Program (CMP) goals and policies, without changes to the proposed text as published in the May 23, 1995, issue of the Texas Register (20 TexReg 3817). Section 501.10 of this title (relating to Compliance with Goals and Policies) requires state agencies to comply with the CMP goals and policies, as set out in sec.sec.501.12-501.15 of this title (relating to Goals; Administrative Policies; Policies for Specific Activities and Coastal Natural Resource Areas; and Policy for Major Actions, respectively), when taking or authorizing an action listed in sec.505.11 of this title (relating to Actions and Rules Subject to the Coastal Management Program) that may adversely affect a coastal natural resource area. Contemporaneously with the adoption of sec.9. 3(g), the GLO is adopting new Chapter 16 of this title (relating to Coastal Protection), which is comprised of rules to ensure GLO and SLB consistency with the CMP goals and policies regarding coastal natural resource areas. Because Chapter 9 (relating to Exploration and Leasing of Oil and Gas) already addresses certain actions that could also affect coastal natural resource areas, sec.9.3(g) is necessary to ensure that GLO and SLB rules are consistent with CMP goals and policies. Section 9.3(g) specifies that the rules in Chapter 9 will be read in harmony with the GLO's goals and policies set out in the new Chapter 16 of this title (relating to Coastal Protection). Section 9. 3(g) clarifies the relationship between the operation of Chapter 9 and the CMP goals and policies as reflected in Chapter 16 of this title (relating to Coastal Protection). The term "coastal wetlands" was defined in sec.9.4(b)(3), and used only in sec.9.4(e)(2)(C). However, the definition of "coastal wetlands" in sec.9.4(b)(3) did not conform to the CMP definition of this term in sec.501.3(b)(5) of this title (relating to Definitions and Abbreviations). Further, the GLO believes that the concept represented by the term as previously defined could be expressed more clearly. The GLO is replacing the term "coastal wetlands" in sec.9.4(e)(2)(C) with the phrase "areas of tidal sand or mud flats, submerged aquatic vegetation, or coastal wetlands", as those terms are defined in sec.501. 3(b) of this title (relating to Definitions and Abbreviations)." The terms "tidal sand or mud flats", "submerged aquatic vegetation", and "coastal wetlands" are defined in the CMP. The GLO believes that the identification in sec.9.4(e)(2)(C) of specific areas using terms defined in the CMP makes the rule clearer and, therefore, more effective to protect the sensitive areas the rule is intended to protect. As a result of the revision to sec.9.4(e)(2)(C), the definition of "coastal wetlands" in sec.9.4(b)(3) is unnecessary, and so has been deleted. The deletion requires the renumbering of subsequent definitions. The definition of "oyster reef" in sec.9.4(b)(10) did not conform to the definition of that term in the CMP in sec.501.3(b)(10) of this title (relating to Definitions and Abbreviations). The GLO believes that for purposes of clarity and administrative efficiency it is better for the same defined term to be used in both Chapter 9 and the CMP. Therefore, the definition of "oyster reef" in sec.9.4(b)(10) is revised to conform to the CMP definition of that term. The term "public beach" was defined in sec.9.4(b)(13) in a way that did not conform to current usage of that term in both law and literature. However, the GLO believes that the concept defined by that term is still a useful concept for purposes of the rules in Chapter 9. Therefore, the GLO now uses the term "recreational beach" rather than "public beach." This revision maintains an important concept in the rules while avoiding confusion with the term "public beach," which has acquired another meaning since the time sec.9.4 was adopted. The term "public beach," as it appears in sec.9.4(e)(1)(G), is changed to "recreational beach". No comments were received regarding adoption of the amendments. The amendments are adopted under the Texas Natural Resources Code, sec.33. 064, which authorizes the SLB to adopt and enforce necessary rules, consistent with CMP goals and policies, and sec.31.051, which provides that the commissioner of the GLO shall make and enforce suitable rules consistent with the law. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's authority. Issued in Austin, Texas, on November 27, 1995. TRD-9515264 Garry Mauro Commissioner General Land Office Effective date: December 18, 1995 Proposal publication date: May 23, 1995 For further information, please call: (512) 305-9129 Chapter 10. Exploration and Development of State Minerals Other Than Oil and Gas 31 TAC sec.10.10 The General Land Office (GLO), with the approval of the School Land Board (SLB), adopts new sec.10.10, concerning consistency with the Coastal Management Program (CMP) goals and policies, without changes to the proposed text as published in the May 23, 1995, issue of the Texas Register (20 TexReg 3818). Section 501.10 of this title (relating to Compliance with Goals and Policies) requires state agencies to comply with the CMP goals and policies, as set out in sec.sec.501.12-501.15 of this title (relating to Goals; Administrative Policies; Policies for Specific Activities and Coastal Natural Resource Areas; and Policy for Major Actions, respectively), when taking or authorizing an action listed in sec.505.11 of this title (relating to Actions and Rules Subject to the Coastal Management Program) that may adversely affect a coastal natural resource area. Contemporaneously with the adoption of sec.10. 10, the GLO is adopting new Chapter 16 of this title (relating to Coastal Protection), which is comprised of rules to ensure GLO and SLB consistency with the CMP goals and policies regarding coastal natural resource areas. Because Chapter 10 (relating to Exploration and Development of State Minerals Other Than Oil and Gas) already addresses certain actions that could also affect coastal natural resource areas, sec.10.10 is necessary to ensure that GLO and SLB rules are consistent with CMP goals and policies. Section 10.10 specifies that the rules in Chapter 10 will be read in harmony with the GLO's goals and policies set out in the new Chapter 16 of this title (relating to Coastal Protection). Section 10.10 clarifies the relationship between the operation of Chapter 10 and the CMP goals and policies as reflected in Chapter 16 of this title (relating to Coastal Protection). No comments were received regarding adoption of the new rule. The new rule is adopted under the Texas Natural Resources Code, sec.31.051 and sec.33.064, which authorizes the GLO and the SLB to adopt and enforce necessary rules, consistent with CMP goals and policies. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's authority. Issued in Austin, Texas, on November 27, 1995. TRD-9515261 Garry Mauro Commissioner General Land Office Effective date: December 18, 1995 Proposal publication date: May 23, 1995 For further information, please call: (512) 305-9129 Chapter 13. Land Resources Administration and Management of Public Free School Lands and Coastal Public Lands 31 TAC sec.13.54 The General Land Office (GLO), with the approval of the School Land Board (SLB), adopts new sec.13.54, concerning consistency with the Coastal Management Program (CMP) goals and policies, without changes to the proposed text as published in the May 23, 1995, issue of the Texas Register (20 TexReg 3819). Section 501.10 of this title (relating to Compliance with Goals and Policies) requires state agencies to comply with the CMP goals and policies, as set out in sec.sec.501.12-501.15 of this title (relating to Goals; Administrative Policies; Policies for Specific Activities and Coastal Natural Resource Areas; and Policy for Major Actions, respectively), when taking or authorizing an action listed in sec.505.11 of this title (relating to Actions and Rules Subject to the Coastal Management Program) that may adversely affect a coastal natural resource area. Contemporaneously with the adoption of sec.13. 54, the GLO is adopting new Chapter 16 of this title (relating to Coastal Protection), which is comprised of rules to ensure GLO and SLB consistency with the CMP goals and policies regarding coastal natural resource areas. Because Chapter 13 (relating to Land Resources) already addresses certain actions that could also affect coastal natural resource areas, sec.13.54 is necessary to ensure that GLO and SLB rules are consistent with CMP goals and policies. Section 13.54 specifies that the rules in Chapter 13 will be read in harmony with the GLO's goals and policies set out in the new Chapter 16 of this title (relating to Coastal Protection). Section 13.54 clarifies the relationship between the operation of Chapter 13 and the CMP goals and policies as reflected in Chapter 16 of this title (relating to Coastal Protection). No comments were received regarding adoption of the new rule. The rule is adopted under the Texas Natural Resources Code, sec.31.051 and sec.33.064, which authorizes the GLO and the SLB to adopt and enforce necessary rules, consistent with CMP goals and policies. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's authority. Issued in Austin, Texas, on November 27, 1995. TRD-9515263 Garry Mauro Commissioner General Land Office Effective date: December 18, 1995 Proposal publication date: May 23, 1995 For further information, please call: (512) 305-9129 Chapter 16. Coastal Protection 31 TAC sec.sec.16.1-16.4 The General Land Office (GLO), with the approval of the School Land Board (SLB), adopts new Chapter 16, sec.sec.16.1-16.4, concerning goals and policies relating to coastal natural resource areas (CNRAs), with changes to the proposed text as published in the May 30, 1995, issue of the Texas Register (20 TexReg 3954). The adopted rules ensure that the relevant actions listed in sec.505.11 of this title (relating to Actions and Rules Subject to the Coastal Management Program) taken by the GLO and the SLB comply with the goals and policies in sec.sec.501.12-501.15 of this title (relating to Goals; Administrative Policies; Policies for Specific Activities and Coastal Natural Resource Areas; and Policy for Major Actions, respectively), contained in Part XVI of this title (relating to Coastal Coordination Council). Pursuant to sec.33.204(a) of the Coastal Coordination Act (Texas Natural Resources Code, Chapter 33, Subchapter F, sec. sec.33.201-33.208), the Coastal Coordination Council (council) promulgated rules adopting Coastal Management Program (CMP) goals and policies, Part XVI of this title (relating to Coastal Coordination Council). Chapter 16 is adopted as required by the rules of the council as set out in Part XVI of this title (relating to Coastal Coordination Council), which consists of Chapters 501, 503, 505 and 506 (relating to Coastal Management Program; Coastal Management Program Boundary; Council Procedures for State Consistency with Coastal Management Program Goals and Policies; and Council Procedures for Federal Consistency with Coastal Management Program Goals and Policies, respectively). Chapters 501, 505 and 506 were originally published in the September 27, 1994, issue of the Texas Register (19 TexReg 7606); Chapter 503 was originally published in the November 9, 1993, issue of the Texas Register (18 TexReg 8221), and amended in the December 13, 1994, issue of the Texas Register (18 TexReg 9887). After Chapter 16 was proposed and published for comment in the May 30, 1995, issue of the Texas Register (20 TexReg 3954), House Bill 3226, enacted during the 74th Legislature, 1995, amended the Coastal Coordination Act. (House Bill 3226 will be codified at Texas Natural Resources Code, Chapter 33.) The council proposed amended CMP rules to Chapters 501, 503, 505 and 506 in the July 18, 1995, issue of the Texas Register (20 TexReg 5171) to reflect the statutory changes made by the 74th Legislature and to make other changes desired by the council. Those amended rules were adopted and published in the October 20, 1995, issue of the Texas Register (20 TexReg 8643). Therefore, this preamble addresses changes adopted by the GLO and the SLB as the result of the council's amendments as adopted. The new rules are consistent with the council's CMP goals and policies as those goals and policies relate to CNRAs, and establish thresholds (typically based on quantitative measurements) for certain actions taken by the GLO or the SLB. The House Bill 3226 amendment of the Coastal Coordination Act, and the council's amended CMP rules, do not substantially affect the adopted Chapter 16 rules as they were proposed on May 30, 1995. The changes to the Chapter 16 rules as proposed are identified in this preamble. There are no new persons or subjects affected by the Chapter 16 rules as adopted with changes. Chapter 16 shall be implemented and become enforceable at such time as the council implements and makes enforceable its CMP rules, a date to be established by the council in the future. The council will publish notice of the implementation date(s) of the CMP provisions in the Texas Register at least 30 days prior to such implementation date(s). Part XVI of this title (relating to Coastal Coordination Council) describes the council's coordinated approach to managing coastal natural resources by establishing the CMP goals and policies based on council findings about coastal natural resources and their competing uses. That part is designed to ensure that agencies and subdivisions exercise their current authority within the framework of the CMP goals and policies to encourage better government management practices affecting coastal natural resources. The CMP goals and policies established in sec.sec.501.12-501.15 of this title (relating to Goals; Administrative Policies; Policies for Specific Activities and Coastal Natural Resource Areas; and Policy for Major Actions, respectively) only apply to the agencies, municipalities, counties, activities, and actions identified in the part and are the basis for council consistency review under Chapter 505 of this title (relating to Council Procedures for State Consistency with Coastal Management Program Goals and Policies). Because the CMP is a networked, not a centralized, program, front line agencies must determine how the CMP goals and policies apply to their own actions. For that reason, sec.501.10(a) of this title (relating to Compliance with Goals and Policies) requires the GLO and the SLB, among other agencies, to comply with the goals and policies of sec.sec.501.12-501.15 of this title (relating to Goals; Administrative Policies; Policies for Specific Activities and Coastal Natural Resource Areas; and Policy for Major Actions, respectively) when proposing an action listed in sec.505.11 of this title (relating to Actions and Rules Subject to the Coastal Management Program) that may adversely affect a CNRA. New sec.sec.16.1-16.4 ensure that the relevant actions listed in sec.505.11 of this title (relating to Actions and Rules Subject to the Coastal Management Program) proposed by the GLO and the SLB comply with the CMP goals and policies in sec.sec.501.12-501.15 of this title (relating to Goals; Administrative Policies; Policies for Specific Activities and Coastal Natural Resource Areas; and Policy for Major Actions, respectively). Changes were made to chapter and section titles referenced in sec.sec.16.1(a)(2) , 16.1(c), 16.3(e)(7), 16.3(e)(7)(C), and 16.4(a) to reflect changes in the council's rules. Throughout Chapter 16, the phrase "coastal area" was changed to "coastal zone", and the phrase "shore area" was changed to "coastal shore area", to reflect changes in the council's rules. Also, references in this chapter to sec.16.2 are clarified to indicate which such references relate to sec.16.2(c) (relating to Policy for Major Actions). Section 16.1(a) defines certain terms used in the new chapter. The following definitions are adopted with changes to reflect changes in the council's rules: sec.16.1(a)(3), "CNRA"; sec.16.1(a)(3)(H), "hard substrate reef"; sec.16.1(a)(3)(J), "coastal shore areas"; sec.16.1(a)(3)(O), "coastal historic areas"; sec.16.1(a)(5), "Coastal wetlands"; sec.16.1(a)(7), "Critical areas"; and sec.16.1(a)(14), "Water-dependent use or facility". Other definitions in sec.16.1(a) are adopted with changes which reflect the meaning intended and agreed upon by the task force established by the council, discussed more fully in this preamble with regard to sec.16.4 (relating to Thresholds for Referral). For example, sec.16.1(a)(9) defining "Lower coast" and sec.16.1(a)(13) defining "Upper coast". Section 16.1(c) clarifies the scope of new Chapter 16. The second sentence of sec.16.1(c) provides that the chapter applies only to actions listed in subsection (b) of this section for which an application was filed after the effective date of either this chapter or Chapters 501 and 505 of this title (relating to Coastal Management Program and Council Procedures for State Consistency with Coastal Management Program Goals and Policies), whichever is later. This subsection is adopted without changes. New sec.16.2 establishes general goals and policies regarding the actions listed in sec.16.1(b). Section 16.2(a)(8) is adopted with a change, clarifying one of the GLO/SLB goals. The change incorporates the GLO and SLB geographic information system of maps of the coastal zone and CNRAs as a method of accomplishing the GLO/SLB goal to provide effective decision-making through valuable information and data. Section 16.2 also establishes the GLO and SLB goals regarding major actions, which are those authorizing an activity involving a federal action for which a federal environmental impact statement is required. Section 16.2(c) (regarding Policy for Major Actions) was re-worded and substantially shortened in accordance with the council's CMP. Section 16.2(c)(1)(A)-(F) and sec.16.2(c) (2) were deleted and/or modified. Despite the modifications to the language of this subsection, these changes will not affect any person or subject not affected by the subsection as proposed. Finally, sec.16.2(d)-(g) describe certain determinations, explanations, statements, and records that the GLO and the SLB must include or maintain in connection with documents proposing an action listed in sec.16.1(b). For consistency between Chapter 16 and the council's CMP, sec.16.2(d)-(g) are adopted with the following changes in terminology: (1) with regard to GLO/SLB actions, the words "approving", "authorizing", or "actions taken" are replaced with the words "proposing" or "proposed", and (2) the phrase "no adverse effect" was replaced with the phrase "no direct and significant adverse effect". New sec.16.3 establishes specific policies for certain activities that may adversely affect CNRAs. For consistency between the language of this section and the language of the council's CMP, this section is adopted with the following changes: In sec.16.3(a), the words "oil, gas, and other" are added prior to phrase "mineral lease plans of operation". Also, with regard to Texas Water Code, Chapter 61, the phrase "governing oil and gas exploration and production on state submerged lands" is replaced with the phrase "for dredging and dredged material disposal and placement." In sec.16.3(c)(3), the GLO or SLB shall consider "cumulative and secondary adverse affects" of a proposed project, rather than "the practicability of alternatives." Section 16.3(c)(1)(B)(ii) and (ii) were revised to clarify certain factors in the analysis to be made when a person proposes a non-water dependent development in a critical area. In sec.16.3(e)(4)(A)(i), the phrase "environmental gains and losses that will result" is replaced with more detailed, explanatory language as follows: "environmental benefits, recreational benefits, flood or storm protection benefits, erosion prevention benefits, and economic development benefits". These changes merely clarify or more specifically illustrate the intent of the section as proposed. Minor editorial changes or corrections were made to sec.sec.16.3(d)(2)(F)(iii), 16.3(d)(2)(I), 16.3(d)(2)(J), 16.3(e)(1), 16.3(e)(1)(B) , 16.3(e)(1)(C)(iii), 16.3(e)(2)(H)(ii), 16.3(e)(3), and 16.3(e)(6). Section 16.3(d)(2)(Q), regarding mitigation of erosion of Gulf beaches, was added pursuant to the council's revision of sec.501.14(i)(1) of this title (relating to Construction of Waterfront Facilities and Other Structures on Submerged Lands). Finally, sec.16.3(e)(4) was modified in accordance with council changes to sec.501.14(j)(4) (relating to Dredging and Dredged Material Disposal and Placement), which explain and clarify the cost/benefit analysis used to determine when dredged material may be used beneficially. New sec.16.4 establishes thresholds for referral of certain GLO or SLB actions for the council's consistency review. One of the stated CMP goals is that, when an agency proposes a listed action that may adversely affect a CNRA, the action comply with the CMP goals and policies. The CMP describes a process by which the agency can, in the first instance, determine whether its own action is consistent with the CMP. Pursuant to sec.505.10(a)(2) of this title (relating to Purpose and Policy), the council has made a policy decision to solicit and ensure adequate review at the agency level. Only those actions that present unique or significant consistency issues are expected to be reviewed by the council. As a result, the council anticipates reviewing fewer agency actions than if it were not requiring agencies to monitor their own actions for consistency with CMP goals and policies. Similarly, under certain circumstances, the council has decided to forego review of agency actions of smaller scope and/or less impact to allow it to expend its limited resources on actions likely to have major impacts on CNRAs. To implement that policy, an agency may develop thresholds relating to agency actions that otherwise could be referred to the council for review. Agency actions falling below a threshold may only be referred for consistency review under certain limited circumstances described in sec.505.32(b)(1)(B) of this title (relating to Requirements for Referral of a Proposed Agency Action). New sec.16.4 identifies thresholds for certain GLO and SLB actions that may adversely affect CNRAs, including hard mineral lease plans of operations, geophysical and geochemical permits, miscellaneous easements, surface leases, coastal easements, cabin permits, leases to navigation districts, and coastal leases. The GLO and the SLB authorize many different activities under these instruments. Hard mineral lease plans of operations describe and authorize coordinated hard mineral exploration and production activities under a lease of state-owned lands. Geophysical and geochemical permits authorize surveys and other investigations in connection with exploration for oil, gas, or other minerals on state-owned lands. Miscellaneous easements authorize activities such as construction or placement of pipelines, transmission lines, roads, and other linear facilities on state-owned lands. Surface leases permit construction of commercial facilities, artificial reefs, and other structures on state-owned uplands. Coastal easements authorize activities such as dredging of basins and channels, filling, or construction of structures on state-owned submerged land by an owner of adjacent littoral property. Cabin permits allow construction of certain private recreational structures on state submerged land. Leases to navigation districts authorize activities such as channel dredging and construction of facilities on submerged land for port purposes. Coastal leases authorize creation of coastal preserves and construction by local governments of public recreational facilities on submerged land. Although the GLO and the SLB authorize a variety of activities under the described instruments, for purposes of establishing thresholds, those activities are divided into two general categories: energy-related activities and real estate-related activities. Energy activities include activities related to the exploration or production of oil, gas, or other minerals on state-owned lands. Real estate activities include activities related to commercial, residential, recreational, or other use of the surface of state-owned lands. Because the nature and scope of typical energy and real estate activities differ substantially from each other, different thresholds are adopted for the two categories. Further, because of topography, bathymetry, and vegetation differences, which both reflect and cause different vulnerabilities among CNRAs, the GLO and the SLB establish different thresholds for energy activities affecting the Texas upper coast versus the Texas lower coast. At its June 29, 1995, meeting, the council directed that a task force be established to resolve disparities between the various thresholds for review that had been proposed by various state agencies with overlapping authority or jurisdiction. Based upon task force discussions and a coordinated effort to provide uniformity between various agency thresholds, the GLO and the SLB modified the definition of "upper coast" and "lower coast" in sec.16.1(a) (relating to Definitions and Scope). Chapter 16 identifies the coastal areas to the northeast of Cavallo Pass in Matagorda Bay as the "upper coast", and the coastal areas to the southwest of Pass Cavallo in Matagorda Bay as the "lower coast." Thus, the boundary between the upper and lower coasts is Pass Cavallo in Matagorda Bay, Calhoun County, Texas. The GLO and the SLB distinguish between the upper and lower coasts because of the differing topography, bathymetry, and vegetation of the two areas, and the differing impact of authorized energy activities on CNRAs in the two areas. For example, seagrasses are not prevalent in the upper coast. While an average energy project in the upper coast may affect less seagrass than a comparably- sized project in the lower coast, the amount of seagrass affected will constitute a larger percentage of all seagrasses in a given area of the upper coast. Therefore, in order to take into account the relative scarcity of seagrass in the upper coast, the seagrass threshold for the upper coast is among the smaller adopted thresholds. On the other hand, seagrasses are prevalent in the Laguna Madre and elsewhere on the lower coast. While an average energy project in the lower coast may affect a large area of seagrass, the amount of seagrass affected will constitute a relatively low percentage of all seagrasses in a given area of the lower coast. (Further, a typical energy activity in either the upper or the lower coast will largely affect a relatively narrow linear swath of seagrass, as opposed to a single block of seagrass, lessening the affect of the activity on any one area.) Because of the prevalence of seagrass in the lower coast, the seagrass threshold for the lower coast is higher than the threshold for the upper coast. The GLO and the SLB intend that an action's impact on CNRAs, rather than geographic location alone, determine whether the action is subject to council review. If a single set of thresholds were established for the entire Texas coast, a disproportionate number of energy activities on the lower coast would exceed the thresholds, regardless of the impact on CNRAs. The thresholds also derive from certain assumptions developed by the GLO on the basis of experience. Oil and gas exploration and production activities may include dredging of channels and slips for the purpose of drilling a well, construction of a pad for placement of a drilling barge, construction of pipelines, the placement of production platforms, and the location of access to and from that land by equipment and product. Threshold limits for seismic activities governed by a geophysical permit are based on the assumption that the following represent typical seismic activities: In submerged area geophysical operations, where airguns are the primary source of energy, shot lines and receiver lines generally run parallel to each other. Line densities of 56 lines per square mile with a width of 15 feet are average and were used to establish threshold limits. In upland and shallow submerged area geophysical operations, where dynamite or Vibroseis are the primary sources of energy, shot and receiver lines generally run perpendicular to each other. Line densities of 20 lines per square mile with a width of 15 feet are average and were used to establish threshold limits. The threshold for non-seismic geophysical and geochemical surveys is based on the assumption that such surveys typically have a data point grid with 165 feet or greater between points on the grid. This typical grid spacing was used to establish threshold limits. Both the GLO and the Texas Railroad Commission (RRC) proposed thresholds for actions relating to oil and gas exploration, production, and development. In accordance with the council directive that agencies with overlapping authority coordinate thresholds, the task force worked for eight weeks to develop criteria that could be used to produce uniform thresholds. Based upon agency agreement resulting from this effort, the GLO and SLB adopt the following uniform thresholds for development in critical areas in connection with oil and gas exploration, production, and development: Actions authorizing permanent disturbance of five acres or more of a critical area or removal of more than 10,000 cubic years of material from a critical area exceed the threshold for all critical areas except submerged aquatic vegetation and tidal mud or sand flats in the lower coast. In the lower coast, a GLO and SLB action will exceed the adopted thresholds if the action authorizes permanent disturbance of ten acres or more of submerged aquatic vegetation or tidal sand or mud flats. The higher, ten-acre threshold for the lower coast is based on the widespread occurrence of submerged aquatic vegetation and tidal sand or mud flats in this coastal area. It is difficult to estimate precisely how many energy activities will exceed the thresholds for several reasons. First, the energy activities listed in sec.16.4 occur intermittently. Second, there is a trend in the energy exploration industry towards deeper drilling, which requires larger, heavier equipment. Larger, heavier equipment will, of course, affect larger areas than the smaller equipment used for shallower drilling. Finally, it is difficult to anticipate whether future energy activities will occur more or less frequently in the upper or lower coast. All of these factors were considered in developing the energy thresholds. The thresholds chosen for the CNRAs identified in sec.16.4 were based on the best scientific data currently available to the GLO and the SLB. Analyzing both existing activities and anticipated future activities, the proposed energy thresholds are designed to give the GLO and the SLB responsibility to review most of their own actions, in accordance with the council's policy contained in sec.505.10(a)(2) of this title (relating to Purpose and Policy). These thresholds will result in only those GLO or SLB actions that present unique or significant consistency issues exceeding the thresholds and being eligible for consistency review by the council. The GLO and the Texas Natural Resources Conservation Commission (TNRCC) are currently working together to coordinate thresholds where the agencies have overlapping authority (specifically regarding real estate activities). Since no modification of GLO/SLB thresholds is anticipated, the thresholds are adopted for real estate activities without change and without regard to the location of the real estate on the upper or lower coast. While energy activities generally occur in the open bays where there are topographic, bathymetric, and vegetative differences up and down the coast, real estate activities are authorized on the shore, where CNRAs are distributed fairly evenly all along the coast. Real estate activities authorized by the actions listed in sec.505.11 of this title (relating to Actions and Rules Subject to the Coastal Management Program) occur more often than energy activities. Therefore, the real estate thresholds are lower than the energy thresholds in order to account for their cumulative impacts. Of the 225 existing instruments authorizing real estate activities covered by sec.16.4, 11 exceed the thresholds. It is anticipated that a similar proportion of the real estate instruments issued each year will exceed the thresholds. The adopted rule will not affect any subject or person not affected by the rule as proposed. Instead, the modifications to the proposed rule merely explain, define, or clarify the proposed rules and/or conform GLO and SLB rules to the Texas CMP. No comments were received regarding adoption of the new rules. The rules are adopted under the Texas Natural Resources Code, sec.31.051 and sec.33.064, which provide, respectively, that the commissioner of the GLO shall make and enforce suitable rules consistent with the law and that the SLB may adopt procedural and substantive rules which it considers necessary to administer, implement, and enforce Texas Natural Resources Code, Chapter 33. sec.16.1. Definitions and Scope. (a) The following words, terms, abbreviations, and phrases, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise. (1) CCC or council-the Coastal Coordination Council. (2) CMP-the rules of the Texas Coastal Management Program in Chapters 501, 503, 505 and 506 of this title (relating to Coastal Management Program; Coastal Management Program Boundary; Council Procedures for State Consistency with Coastal Management Program Goals and Policies; and Council Procedures for Federal Consistency with Coastal Management Program Goals and Policies, respectively). (3) CNRA-coastal natural resource area-an area as defined in Texas Natural Resources Code, sec.33.203(1) that is located within the coastal zone, defined as follows: (A) waters in the open Gulf of Mexico-waters in the state as defined in Texas Water Code, sec.26.001(5), that are part of the open waters of the Gulf of Mexico inside the territorial limits of the state; (B) waters under tidal influence-water in the state as defined in Texas Water Code, sec.26.001(5), that is subject to tidal influence according to the Texas Natural Resource Conservation Commission's Stream Segment Maps, including coastal wetlands; (C) state submerged lands-land underlying waters under tidal influence or waters of the open Gulf of Mexico that is owned by the state; (D) coastal wetlands; (E) submerged aquatic vegetation-rooted aquatic vegetation growing in permanently inundated areas in estuarine and marine systems; (F) tidal sand or mud flat-silt, clay, or sand substrates, unvegetated or vegetated by algal mats, that occur in the intertidal zone and that are regularly or intermittently exposed and flooded by wind and water induced tides; (G) oyster reefs-natural or artificial formations in intertidal or subtidal areas that are composed of oyster shell, live oysters, and other organisms that are discrete, contiguous, and clearly distinguishable from scattered oysters; (H) hard substrate reefs-naturally occurring hard substrate formations, such as rock outcrops or serpulid worm reefs (living or dead), in intertidal or subtidal area; (I) coastal barriers-undeveloped areas on barrier islands and peninsulas or otherwise protected areas, as mapped by the United States Department of the Interior, Fish and Wildlife Service (Coastal Barrier Resource System Units); (J) coastal shore areas-all areas within 100 feet landward of the high water mark on state submerged land; (K) Gulf beaches-beaches bordering on the Gulf of Mexico that extend inland from the line of mean low tide to the natural line of vegetation bordering on the seaward shore of the Gulf of Mexico, or such larger contiguous area to which the public has acquired a right of use or easement to or over by prescription, dedication, or estoppel, or has retained a right by virtue of continuous right in the public since time immemorial; (L) critical dune areas-protected sand dune complexes on the Gulf shoreline within 1,000 feet of mean high tide as designated by the commissioner of the GLO under the Texas Natural Resources Code, Chapter 63, Subchapter E, sec.63.121; (M) special hazard areas-areas designated by the administrator of the Federal Insurance Administration under the National Flood Insurance Act, 42 United States Code Annotated, sec.sec.4001 et seq, as having special flood, mudslide (i.e., mudflow) and/or flood-related erosion hazards, and shown on a Flood Hazard Boundary Map or Flood Insurance Rate Map as Zone A, AO, A1-30, AE, A99, AH, VO, V1-30, VE, V, M, or E; (N) critical erosion areas-areas designated by the commissioner of the GLO under the Texas Natural Resources Code, sec.33.601(b); (O) coastal historic areas-a site that is specially identified in rules adopted by the Texas Historical Commission as being coastal in character and that is on the National Register of Historic Places, designated pursuant to 16 United States Code Annotated, sec.470a, and Code of Federal Regulations, Title 36, Chapter 1, Part 63, or is a state archaeological landmarks, as defined in the Texas Natural Resources Code, Chapter 191, Subchapter D; and (P) coastal parks, wildlife management areas, and preserves -any land owned by the state that is subject to the Texas Parks and Wildlife Code, Chapter 26, by virtue of its designation and use as a park, recreation area, scientific area, wildlife refuge, or historic site and that is designated by the Texas Parks and Wildlife Commission as being coastal in character. (4) Coastal zone-the area within the CMP boundary established in sec.503.1 of this title (relating to Coastal Management Program Boundary). (5) Coastal wetlands-Wetlands as defined in Texas Water Code, Chapter 11, Subchapter J, that: (A) lie seaward of the Coastal Facility Designation Line established by rules adopted under Texas Natural Resources Code, Chapter 40; or (B) lie within rivers and streams to the extent of tidal influence, as follows: (i) Arroyo Colorado from FM Road 1847 to 110 yards downstream of Cemetery Road south of the Port of Harlingen; (ii) Nueces River from U.S. Highway 77 to the Calallen Dam, 1.1 miles upstream of U.S. Highway 77 in Nueces/San Patricio County; (iii) Guadalupe River from State Highway 35 to the Guadalupe-Blanco River Authority Salt Water Barrier at 0.4 miles downstream of the confluence with the San Antonio River in Calhoun/Refugio County; (iv) Lavaca River and Navidad River from FM to 5.3 miles downstream of U.S. Highway 59 and to Palmetto Bend Dam, respectively, in Jackson County; (v) Tres Palacios Creek from FM Road 521 to of the confluence with Wilson Creek in Matagorda County; (vi) Colorado River from FM Road 521 to a of the Missouri-Pacific Railroad in Matagorda County; (vii) San Bernard River from FM Road 521 to of State Highway 35 in Brazoria County; (viii) Chocolate Bayou from FM Road 2004 to a of State Highway 35 in Brazoria County; (ix) Clear Creek from Interstate Highway 45 to of FM Road 528 in Galveston/Harris County; (x) Buffalo Bayou (Houston Ship Channel) from Interstate 440 yards upstream of Shepherd Drive in Harris County; (xi) San Jacinto River from Interstate Highway 10 upstream to the Lake Houston dam in Harris County; (xii) Trinity River from Interstate Highway 10 to of U.S. Highway 90 in Liberty County; (xiii) Cedar Bayou from Interstate Highway 10 to of Interstate Highway 10 in Chambers/Harris County; (xiv) Neches River from Interstate Highway 10 to of Interstate Highway 10 in Orange County; (xv) Sabine River from Interstate Highway 10 upstream to Morgan Bluff in Orange County; or (C) within one mile from the mean high tide line of those rivers and streams, except for the Trinity and Neches rivers. On the Trinity River, the geographic scope includes wetlands between the mean high tide line on the western shoreline to FM Road 565 and FM Road 1409 and between the mean high tide line on the eastern shoreline to FM Road 563. On the Neches River, the geographic scope includes wetlands within one mile from the mean high tide line on the western shoreline and between the mean high tide line on the eastern shoreline and FM Road 105. (6) Commissioner-the commissioner of the General Land Office. (7) Critical areas-a coastal wetland, area of submerged aquatic vegetation, tidal sand or mud flat, oyster reef, or hard substrate reef. (8) GLO-the General Land Office. (9) Lower coast-the coastal zone southwest of Cavallo Pass at the eastern end of Matagorda Island, Calhoun County, Texas, so as to exclude the Matagorda Bay system. (10) Major action-an individual agency or subdivision action authorizing an activity involving a federal action for which a federal environmental impact statement under the National Environmental Policy Act, 42 United States Code Annotated, sec.sec.4321, et seq, is required. (11) SLB-the School Land Board. (12) State submerged land-land underlying waters under tidal influence or waters of the open Gulf of Mexico that is owned by the state. (13) Upper coast-the coastal zone northeast of Cavallo Pass at the eastern end of Matagorda Island, Calhoun County, Texas, so as to include the Matagorda Bay system. (14) Water-dependent use or facility-an activity or facility that must be located in coastal waters or on state submerged lands or that must have direct access to coastal waters in order to serve its basic purpose and function. Facilities that are water-dependent include, but are not limited to, public beach use and access facilities, boat slips, docks, breakwaters, marinas, wharves and other vessel loading or off-loading facilities, utility easements, boat ramps, navigation channels and basins, bridges and bridge approaches, revetments, shoreline protection structures, culverts, groins, saltwater barriers, navigational aids, mooring pilings, simple access channels, fish processing plants, boat construction and repair facilities, offshore pipelines and constructed wetlands below mean high water. Activities that are water- dependent include, but are not limited to, marine recreation (fishing, swimming, boating, wildlife viewing), industrial uses dependent on marine transportation or requiring large volumes of water that cannot be obtained at inland sites, mariculture, exploration for and production of oil and gas under coastal waters or submerged lands, and certain meteorological and oceanographic activities. (b) For purposes of this chapter, the following is an exclusive list of actions taken or authorized by the GLO or SLB that may adversely affect a CNRA, and that therefore must be consistent with the goals and policies stated in this chapter: (1) a mineral lease plan of operations; (2) a geophysical or geochemical permit; (3) a miscellaneous easement; (4) a surface lease; (5) a structure registration; (6) a coastal easement; (7) a coastal lease; (8) a cabin permit; and (9) a navigation district lease. (c) An action to renew, amend, or modify an existing permit, certificate, lease, easement, approval or other form of authorization shall not be considered an action otherwise subject to the rules in this chapter if the action only extends the time period of the existing authorization without authorizing new or additional work or activities or is not otherwise directly relevant to the policies in sec.16.3 of this title (relating to Policies for Specific Activities and Coastal Natural Resource Areas). This chapter applies only to actions listed in subsection (b) of this section for which an application was filed after the effective date of either this chapter or Chapters 501 and 505 of this title (relating to Coastal Management Program and Council Procedures for State Consistency with Coastal Management Program Goals and Policies, respectively), whichever is later. sec.16.2. Goals and Administrative Policies. (a) Goals. Subject to sec.16.1(c) of this title (relating to Definitions and Scope), when taking or authorizing an action identified in sec.16.1(b) of this title (relating to Definitions and Scope) that may adversely affect a CNRA, the goals of the GLO and SLB are: (1) to protect, preserve, restore, and enhance the diversity, quality, quantity, functions, and values of CNRAs; (2) to ensure sound management of all coastal resources by allowing for compatible economic development and multiple human uses of the coastal zone; (3) to minimize loss of human life and property due to the impairment and loss of protective features of CNRAs; (4) to ensure and enhance planned public access to and enjoyment of the coastal zone in a manner that is compatible with private property rights and other uses of the coastal zone; (5) to balance the benefits from economic development and multiple human uses of the coastal zone, the benefits from protecting, preserving, restoring, and enhancing CNRAs, the benefits from minimizing loss of human life and property, and the benefits from public access to and enjoyment of the coastal zone; (6) to coordinate GLO and SLB decision-making affecting CNRAs by establishing clear, objective policies for the management of CNRAs; (7) to make GLO and SLB decision-making affecting CNRAs efficient by identifying and addressing duplication and conflicts between GLO and SLB regulatory and other programs for the management of CNRAs; (8) to make GLO and SLB decision-making affecting CNRAs more effective by employing the most comprehensive, accurate, and reliable information and scientific data available and by developing, distributing for public comment, and maintaining a coordinated, publicly accessible geographic information system of maps of the coastal zone and CNRAs at the earlies possible date; (9) to make coastal management processes visible, coherent, accessible, and accountable to the people of Texas by providing for public participation in the ongoing development and implementation of the rules in this chapter; and (10) to educate the public about the principal coastal problems of state concern and technology available for the protection and improved management of CNRAs. (b) Administrative Policies. Subject to sec.16.1(c) of this title (relating to Definitions and Scope), when taking or authorizing an action identified in sec.16.1(b) of this title (relating to Definitions and Scope) that may adversely affect a CNRA, the GLO and the SLB: (1) shall require applicants to provide information necessary for the GLO or the SLB to make an informed decision regarding the proposed action; (2) shall identify the monitoring established to ensure that activities authorized by such actions comply with all applicable GLO or SLB requirements; (3) may waive a requirement if such waiver is in the best interests of the Permanent School Fund and is consistent with the statutory policies for management of coastal public lands in the Coastal Public Lands Management Act, Texas Natural Resources Code, Chapter 33; and (4) shall take into account the national interest. (c) Policy for Major Actions. (1) Prior to taking a major action, as defined in sec.16.1 of this chapter (relating to Definitions and Scope), the GLO and the SLB shall meet with other agencies or subdivisions with jurisdiction over the activity and coordinate their major actions relating to the activity. The GLO and the SLB shall, to the greatest extent practicable, consider the cumulative and secondary adverse effects, as described in the federal environmental impact assessment process, of each major action relating to the activity. (2) The GLO and the SLB shall not take a major action that is inconsistent with the goals and policies of this chapter. In addition, the GLO and the SLB shall avoid and otherwise minimize the cumulative adverse effects to CNRAs of each of its major actions relating to the activity. (d) The GLO or the SLB, as appropriate, shall include in a permit or other document proposing an action listed in sec.16.1(b) of this title (relating to Definitions and Scope) to which this chapter applies, either a consistency determination or a determination of no adverse effect as follows: (1) Consistency Determination. The (GLO or SLB) has reviewed this proposed action for consistency with the Texas Coastal Management Program goals and policies, in accordance with the regulations of the Coastal Coordination Council, and has determined that the proposed action is consistent with the Texas CMP goals and policies applicable to the proposed action. (2) Determination of No Direct and Significant Adverse Effect. The (GLO or SLB) has reviewed this proposed action for consistency with the Texas CMP goals and policies, in accordance with the regulations of the Coastal Coordination Council, and has found that the proposed action will not have a direct and significant adverse effect on the coastal natural resource areas identified in the applicable policies. (e) For actions that exceed the thresholds for referral as set out in sec.16.4 of this title (relating to Thresholds for Referral), the GLO or the SLB, as appropriate, shall provide a written explanation supporting the determination made under subsection (d) of this section. The explanation shall describe the basis for the agency's determination, include a description of the action and its probable impacts on CNRAs, identify the CMP goals and policies applied to the action, and explain how the action is consistent with the applicable goals and policies or why the action does not adversely affect any CNRAs. (f) When publishing notice of receipt of an application or request for agency action, the GLO or the SLB, as appropriate, shall include a statement that the application or requested action is subject to the CMP and must be consistent with the CMP goals and policies. The agency shall include the council secretary on any public notice list maintained by the agency for actions subject to the CMP. Upon proposal of an action listed in sec.16.1(b) of this title (relating to Definitions and Scope) to which this chapter applies, the agency shall provide to the council secretary a one-page notice that an action subject to the CMP has been proposed. (g) The GLO and the SLB shall maintain a record of all proposed actions that are subject to the CMP and provide such record to the council on a quarterly basis. sec.16.3. Policies for Specific Activities and Coastal Natural Resource Areas. (a) The GLO and the SLB shall comply with the policies in this section when approving oil, gas, and other mineral lease plans of operation, granting surface leases, easements, and permits, and adopting rules under the Texas Natural Resources Code, Chapters 32, 33 and 51-53, and Texas Water Code, Chapter 61, for dredging and dredged material disposal and placement. To the extent applicable to the public beach, as public beach is defined in Texas Natural Resources Code, sec.61.013(c), the policies in this section are supplemental to any further restrictions or requirements relating to the beach access and use rights of the public, including Texas Natural Resources Code, Chapter 61 (relating to Use and Maintenance of Public Beaches) and Chapter 15 of this title (relating to Coastal Area Planning). (b) Construction, Operation, and Maintenance of Oil and Gas Exploration and Production Facilities. (1) Oil and gas exploration and production on state submerged lands shall comply with the policies in this subsection. (2) Policies. (A) In or near critical areas, facilities shall be located and operated and geophysical and other operations shall be located and conducted in such a manner as to avoid and otherwise minimize adverse effects, including those from the disposal of solid waste and disturbance resulting from the operation of vessels and wheeled or tracked vehicles, whether on areas under lease, easement, or permit or on or across access routes thereto. Where practicable, buffer zones for critical areas shall be established and directional drilling or other methods to avoid disturbance, such as pooling or unitization, shall be employed. (B) Lessees, easement holders, and permittees shall construct facilities in a manner that avoids impoundment or draining of coastal wetlands, if practicable, and shall mitigate any adverse effects on coastal wetlands impounded or drained in accordance with the sequencing requirements in this subsection. (C) Upon completion or cessation of operations, lessees, easement holders, and permittees shall remove facilities and restore any significantly degraded areas to pre-project conditions as closely as practicable, unless facilities can be used for maintenance or enhancement of CNRAs or unless restoration activities would further degrade CNRAs. (c) Development in Critical Areas. (1) Dredging and construction of structures in, or the discharge of dredged or fill material into, critical areas shall comply with the policies in this subsection. In implementing this subsection, cumulative and secondary adverse effects of these activities will be considered. (A) The policies in this subsection shall be applied in a manner consistent with the goal of achieving no net loss of critical area functions and values. (B) Persons proposing development in critical areas shall demonstrate that no practicable alternative with fewer adverse effects is available. (i) The person proposing the activity shall demonstrate that the activity is water-dependent. If the activity is not water-dependent, practicable alternatives with less adverse effects are presumed to exist, unless the person clearly demonstrates otherwise. (ii) The analysis of alternatives shall be conducted in light of the activity's overall purpose. For an integrated project (i.e., one which combines more than one use within a single operation or project), the activity's "overall purpose" refers to the overall purpose of the entire integrated project. (iii) "Alternatives" may include different operation or maintenance techniques or practices or a different location, design, configuration, or size. Among the factors that may be considered in the analysis is the ability of the person proposing the activity to obtain an alternative site, including, if the overall purpose of the activity is marine, that person's ability to obtain an alternative site within the coastal zone. (C) In evaluating practicable alternatives, the following sequence shall be applied: (i) Adverse effects on critical areas shall be avoided to the greatest extent practicable. (ii) Unavoidable adverse effects shall be minimized to the greatest extent practicable by limiting the degree or magnitude of the activity and its implementation. (iii) Appropriate and practicable compensatory mitigation shall be required to the greatest extent practicable for all adverse effects that cannot be avoided or minimized. (D) "Compensatory mitigation" includes restoring adversely affected critical areas or replacing adversely affected critical areas by creating new critical areas. Compensatory mitigation should be undertaken, when practicable, in areas adjacent or contiguous to the affected critical areas (on-site). If on-site compensatory mitigation is not practicable, compensatory mitigation should be undertaken in close physical proximity to the affected critical areas if practicable and in the same watershed if possible (off-site). Compensatory mitigation should also attempt to replace affected critical areas with critical areas with characteristics identical to or closely approximating those of the affected critical areas (in-kind). The preferred order of compensatory mitigation is: (i) on-site, in-kind; (ii) off-site, in-kind; (iii) on-site, out-of-kind; and (iv) off-site, out-of-kind. (E) Mitigation banking is acceptable compensatory mitigation if use of the mitigation bank has been approved by the agency authorizing the development and mitigation credits are available for withdrawal. Preservation through acquisition for public ownership of unique critical areas or other ecologically important areas may be acceptable compensatory mitigation in exceptional circumstances. Examples of this include areas of high priority for preservation or restoration, areas whose functions and values are difficult to replicate, or areas not adequately protected by regulatory programs. Acquisition will normally be allowed only in conjunction with preferred forms of compensatory mitigation. (F) In determining compensatory mitigation requirements, the impaired functions and values of the affected critical area shall be replaced on a one- to-one ratio. Replacement of functions and values on a one-to-one ratio may require restoration or replacement of the physical area affected on a ratio higher than one-to-one. While no net loss of critical area functions and values is the goal, it is not required in individual cases where mitigation is not practicable or would result in only inconsequential environmental benefits. It is also important to recognize that there are circumstances where the adverse effects of the activity are so significant that, even if alternatives are not available, the activity may not be permitted regardless of the compensatory mitigation proposed. (G) Development in critical areas shall not be authorized if significant degradation of critical areas will occur. Significant degradation occurs if: (i) the activity will jeopardize the continued existence of species listed as endangered or threatened, or will result in likelihood of the destruction or adverse modification of a habitat determined to be a critical habitat under the Endangered Species Act, 16 United States Code Annotated, sec.sec.1531-1544; (ii) the activity will cause or contribute, after consideration of dilution and dispersion, to violation of any applicable surface water quality standards established under sec.501.14(f) of this title (relating to Policies for Specific Activities and Coastal Natural Resource Areas); (iii) the activity violates any applicable toxic effluent standard or prohibition established under sec.501.14(f) of this title (relating to Policies for Specific Activities and Coastal Natural Resource Areas); (iv) the activity violates any requirement imposed to protect a marine sanctuary designated under the Marine Protection, Research, and Sanctuaries Act of 1972, 33 United States Code Annotated, Chapter 27; or (v) taking into account the nature and degree of all identifiable adverse effects, including their persistence, permanence, areal extent, and the degree to which these effects will have been mitigated pursuant to subparagraphs (C) and (D) of this subsection, the activity will, individually or collectively, cause or contribute to significant adverse effects on: (I) human health and welfare, including effects on water supplies, plankton, benthos, fish, shellfish, wildlife, and consumption of fish and wildlife; (II) the life stages of aquatic life and other wildlife dependent on aquatic ecosystems, including the transfer, concentration, or spread of pollutants or their byproducts beyond the site, or their introduction into an ecosystem, through biological, physical, or chemical processes; (III) ecosystem diversity, productivity, and stability, including loss of fish and wildlife habitat or loss of the capacity of a coastal wetland to assimilate nutrients, purify water, or reduce wave energy; or (IV) generally accepted recreational, aesthetic or economic values of the critical area which are of exceptional character and importance. (2) The GLO and the SLB will coordinate with one another, with other agencies required to comply with sec.501.14(h) of this title (relating to Development in Critical Areas), and with federal agencies when evaluating alternatives, determining appropriate and practicable mitigation, and assessing significant degradation. In connection with authorizations for development in critical areas, the GLO and the SLB shall require a demonstration that the requirements of paragraph (1)(A)-(G) of this subsection have been satisfied. (3) For any dredging or construction of structures in, or discharge of dredged or fill material into, critical areas that is subject to the requirements of sec.16.2(c) of this title (relating to Policy for Major Actions) , data and information on the cumulative and secondary adverse affects of the project need not be produced or evaluated to comply with this subsection if such data and information is produced and evaluated in compliance with sec.16. 2(c)(1)(F) of this title (relating to Policy for Major Actions). (d) Construction of Waterfront Facilities and Other Structures on State Submerged Lands. (1) Development on state submerged lands shall comply with the policies in this subsection. (2) Policies. (A) Marinas shall be designed and, to the greatest extent practicable, sited so that tides and currents will aid in flushing of the site or renew its water regularly. (B) Marinas designed for anchorage of private vessels shall provide facilities for the collection of waste, refuse, trash, and debris. (C) Marinas with the capacity for long-term anchorage of more than ten vessels shall provide pump-out facilities for marine toilets, or other such measures or facilities that provide an equal or better level of water quality protection. (D) Marinas, docks, piers, wharves and other structures shall be designed and, to the greatest extent practicable, sited to avoid and otherwise minimize adverse effects on critical areas from boat traffic to and from those structures. (E) For purposes of providing access to coastal waters, construction of docks, piers, wharves, and other structures shall be preferred over dredging of channels or basins or filling of submerged lands, if such construction is practicable, environmentally preferable, and will not interfere with commercial navigation. (F) Piers, docks, wharves, bulkheads, jetties, groins, fishing cabins, and artificial reefs (including artificial reefs for compensatory mitigation) shall be limited to the minimum size necessary to serve the project purpose and shall be constructed in a manner that: (i) does not significantly interfere with public navigation; (ii) does not significantly interfere with the natural coastal processes which supply sediments to coastal shore areas or otherwise exacerbate erosion of coastal shore areas; and (iii) avoids and otherwise minimizes shading of critical areas and other adverse effects. (G) Facilities shall be located at sites or designed and constructed to the greatest extent practicable to avoid and otherwise minimize the potential for adverse effects from: (i) construction and maintenance of other development associated with the facility; (ii) direct release to coastal waters and critical areas of pollutants from oil or hazardous substance spills or stormwater runoff; and (iii) deposition of airborne pollutants in coastal waters and critical areas. (H) Where practicable, pipelines, transmission lines, cables, roads, causeways, and bridges shall be located in existing rights-of-way or previously disturbed areas if necessary to avoid or minimize adverse effects and if it does not result in unreasonable risks to human health, safety, and welfare. (I) To the greatest extent practicable, construction of facilities shall occur at sites and times selected to have the least adverse effects on recreational uses of CNRAs and on spawning or nesting seasons or seasonal migrations of terrestrial and aquatic wildlife. (J) Facilities shall be located at sites which avoid the impoundment and draining of coastal wetlands. If impoundment or draining cannot be avoided, adverse effects to the impounded or drained wetlands shall be mitigated in accordance with the sequencing requirements of subsection (c) of this section. To the greatest extent practicable, facilities shall be located at sites at which expansion will not result in development in critical areas. (K) Where practicable, piers, docks, wharves, bulkheads, jetties, groins, fishing cabins, and artificial reefs shall be constructed with materials that will not cause any adverse effects on coastal waters or critical areas. (L) Developed sites shall be returned as closely as practicable to pre-project conditions upon completion or cessation of operations by the removal of facilities and restoration of any significantly degraded areas, unless: (i) the facilities can be used for public purposes or contribute to the maintenance or enhancement of coastal water quality, critical areas, beaches, state submerged lands, or coastal shore areas; or (ii) restoration activities would further degrade CNRAs. (M) Water-dependent uses and facilities shall receive preference over those uses and facilities that are not water-dependent. (N) Nonstructural erosion response methods such as beach nourishment, sediment bypassing, nearshore sediment berms, and planting of vegetation shall be preferred instead of structural erosion response methods. (O) Major residential and recreational waterfront facilities shall to the greatest extent practicable accommodate public access to coastal waters and preserve the public's ability to enjoy the natural aesthetic values of coastal submerged lands. (P) Activities on state submerged land shall avoid and otherwise minimize any significant interference with the public's use of and access to such lands. (Q) Erosion of Gulf beaches and coastal shore areas caused by construction or modification of jetties, breakwaters, groins, or shore stabilization projects shall be mitigated to the extent the costs of mitigation are reasonably proportionate to the benefits of mitigation. Factors that shall be considered in determining whether the costs of mitigation are reasonably proportionate to the cost of the construction or modification and benefits include, but are not limited to, environmental benefits, recreational benefits, flood or storm protection benefits, erosion prevention benefits, and economic development benefits. (e) Dredging and Dredged Material Disposal and Placement. (1) Dredging and the disposal and placement of dredged material shall avoid and otherwise minimize adverse effects to coastal waters, state submerged lands, critical areas, coastal shore areas, and Gulf beaches (as those terms are defined in sec.16.1 of this title relating Definitions and Scope) to the greatest extent practicable. In implementing this subsection, cumulative and secondary adverse effects of dredging and the disposal and placement of dredged material and the unique characteristics of affected sites shall be considered. (A) Dredging and dredged material disposal and placement shall not cause or contribute to, after consideration of dilution and dispersion, violation of any applicable surface water quality standards established under sec.501.14(f) of this title (relating to Discharge of Municipal and Industrial Wastewater to Coastal Waters). (B) Except as otherwise provided in subparagraph (D) of this paragraph, adverse effects on critical areas from dredging and dredged material disposal or placement shall be avoided and otherwise minimized, and appropriate and practicable compensatory mitigation shall be required, in accordance with subsection (c) of this section. (C) Except as provided in subparagraph (D) of this paragraph, dredging and the disposal and placement of dredged material shall not be authorized if: (i) there is a practicable alternative that would have fewer adverse effects on coastal waters, state submerged lands, critical areas, coastal shore areas, and Gulf beaches, so long as that alternative does not have other significant adverse effects; (ii) all appropriate and practicable steps have not been taken to minimize adverse effects on coastal waters, state submerged lands, critical areas, coastal shore areas, and Gulf beaches; or (iii) significant degradation of critical areas under subsection (c) (1)(G)(v) of this section would result. (D) A dredging or dredged material disposal or placement project that would be prohibited solely by application of subparagraph (C) of this paragraph may be allowed if it is determined to be of overriding importance to the public and national interest in light of economic impacts on navigation and maintenance of commercially navigable waterways. (2) Adverse effects from dredging and dredged material disposal and placement shall be minimized as required in paragraph (1) of this subsection. Adverse effects can be minimized by employing the techniques in this paragraph where appropriate and practicable. (A) Adverse effects from dredging and dredged material disposal and placement can be minimized by controlling the location and dimensions of the activity. Some of the ways to accomplish this include: (i) locating and confining discharges to minimize smothering of organisms; (ii) locating and designing projects to avoid adverse disruption of water inundation patterns, water circulation, erosion and accretion processes, and other hydrodynamic processes; (iii) using existing or natural channels and basins instead of dredging new channels or basins, and discharging materials in areas that have been previously disturbed or used for disposal or placement of dredged material; (iv) limiting the dimensions of channels, basins, and disposal and placement sites to the minimum reasonably required to serve the project purpose, including allowing for reasonable overdredging of channels and basins, and taking into account the need for capacity to accommodate future expansion without causing additional adverse effects; (v) discharging materials at sites where the substrate is composed of material similar to that being discharged; (vi) locating and designing discharges to minimize the extent of any plume and otherwise control dispersion of material; and (vii) avoiding the impoundment or drainage of critical areas. (B) Dredging and disposal and placement of dredged material shall comply with applicable standards for sediment toxicity. Adverse effects from constituents contained in materials discharged can be minimized by treatment of or limitations on the material itself. Some ways to accomplish this include: (i) disposal or placement of dredged material in a manner that maintains physiochemical conditions at discharge sites and limits or reduces the potency and availability of pollutants; (ii) limiting the solid, liquid, and gaseous components of material discharged; (iii) adding treatment substances to the discharged material; and (iv) adding chemical flocculants to enhance the deposition of suspended particulates in confined disposal areas. (C) Adverse effects from dredging and dredged material disposal or placement can be minimized through control of the materials discharged. Some ways to accomplish this include: (i) use of containment levees and sediment basins designed, constructed, and maintained to resist breaches, erosion, slumping, or leaching; (ii) use of lined containment areas to reduce leaching where leaching of chemical constituents from the material is expected to be a problem; (iii) capping in-place contaminated material, or selectively discharging the most contaminated material first and then capping it with the remaining material; (iv) properly containing discharged material and maintaining discharge sites to prevent and (v) timing the discharge to minimize adverse effects from unusually high water flows, wind, wave, and tidal actions. (D) Adverse effects from dredging and dredged material disposal or placement can be minimized by controlling the manner in which material is dispersed. Some ways of accomplishing this include: (i) where environmentally desirable, distributing the material in a thin layer; (ii) orienting material to minimize undesirable obstruction of the water current or circulation patterns; (iii) using silt screens or other appropriate methods to confine suspended particulates or turbidity to a small area where settling or removal can occur; (iv) using currents and circulation patterns to mix, disperse, dilute, or otherwise control the discharge; (v) minimizing turbidity by using a diffuser system or releasing material near the bottom; (vi) selecting sites or managing discharges to confine and minimize the release of suspended particulates and turbidity and maintain light penetration for organisms; and (vii) setting limits on the amount of material to be discharged per unit of time or volume of receiving waters. (E) Adverse effects from dredging and dredged material disposal or placement operations can be minimized by adapting technology to the needs of each site. Some ways of accomplishing this include: (i) using appropriate equipment, machinery, and operating techniques for access to sites and transport of material, including those designed to reduce damage to critical areas; (ii) having personnel on site adequately trained in avoidance and minimization techniques and requirements; and (iii) designing temporary and permanent access roads and channel spanning structures using culverts, open channels, and diversions that will pass both low and high water flows, accommodate fluctuating water levels, and maintain circulation and faunal movement. (F) Adverse effects on plant and animal populations from dredging and dredged material disposal or placement can be minimized by: (i) avoiding changes in water current and circulation patterns that would interfere with the movement of animals; (ii) selecting sites or managing discharges to prevent or avoid creating habitat conducive to the development of undesirable predators or species that have a competitive edge ecologically over indigenous plants or animals; (iii) avoiding sites having unique habitat or other value, including habitat of endangered species; (iv) using planning and construction practices to institute habitat development and restoration to produce a new or modified environmental state of higher ecological value by displacement of some or all of the existing environmental characteristics; (v) using techniques that have been demonstrated to be effective in circumstances similar to those under consideration whenever possible and, when proposed development and restoration techniques have not yet advanced to the pilot demonstration stage, initiating their use on a small scale to allow corrective action if unanticipated adverse effects occur; (vi) timing dredging and dredged material disposal or placement activities to avoid spawning or migration seasons and other biologically critical time periods; and (vii) avoiding the destruction of remnant natural sites within areas already affected by development. (G) Adverse effects on human use potential from dredging and dredged material disposal or placement can be minimized by: (i) selecting sites and following procedures to prevent or minimize any potential damage to the aesthetically pleasing features of the site, particularly with respect to water quality; (ii) selecting sites which are not valuable as natural aquatic areas; (iii) timing dredging and dredged material disposal or placement activities to avoid the seasons or periods when human recreational activity associated with the site is most important; and (iv) selecting sites that will not increase incompatible human activity or require frequent dredge or fill maintenance activity in remote fish and wildlife areas. (H) Adverse effects from new channels and basins can be minimized by locating them at sites: (i) that ensure adequate flushing and avoid stagnant pockets; or (ii) that will create the fewest practicable adverse effects on CNRAs from additional infrastructure such as roads, bridges, causeways, piers, docks, wharves, transmission line crossings, and ancillary channels reasonably likely to be constructed as a result of the project; or (iii) with the least practicable risk that increased vessel traffic could result in navigation hazards, spills, or other forms of contamination which could adversely affect CNRAs; (iv) provided that, for any dredging of new channels or basins subject to the requirements of sec.16.2(c) of this title (relating to Policy for Major Actions), data and information on minimization of secondary adverse effects need not be produced or evaluated to comply with this subparagraph if such data and information is produced and evaluated in compliance with sec.16. 2(c)(1)(A) of this title (relating to Policy for Major Actions). (3) Disposal or placement of dredged material in existing contained dredge disposal sites identified and actively used as described in an environmental assessment or environmental impact statement issued prior to the effective date of this chapter shall be presumed to comply with the requirements of paragraph (1) of this subsection unless modified in design, size, use, or function. (4) Dredged material from commercially navigable waterways is a potentially reusable resource and must be used beneficially in accordance with this policy. If the costs of the beneficial use of dredged material are reasonably comparable to the costs of disposal in a non-beneficial manner, the material shall be used beneficially. If the costs of the beneficial use of dredged material are significantly greater than the costs of disposal in a non-beneficial manner, the material shall be used beneficially unless it is demonstrated that the costs of using the material beneficially are not reasonably proportionate to the costs of the project and benefits that will result. (A) Factors that shall be considered in determining whether a beneficial use project is appropriate include: (i) environmental benefits, recreational benefits, flood or storm protection benefits, erosion prevention benefits, and economic development benefits; (ii) the proximity of the beneficial use site to the dredge site; and (iii) the quality of the dredged material and its suitability for beneficial use. (B) Examples of the beneficial use of dredged material include, but are not limited to: (i) projects designed to reduce or minimize erosion or provide shoreline protection; (ii) projects designed to create or enhance public beaches or recreational areas; (iii) projects designed to benefit the sediment budget or littoral system; (iv) projects designed to improve or maintain terrestrial or aquatic wildlife habitat; (v) projects designed to create new terrestrial or aquatic wildlife habitat, including the construction of marshlands, coastal wetlands, or other critical areas; (vi) projects designed and demonstrated to benefit benthic communities or aquatic vegetation; (vii) projects designed to create wildlife management areas, parks, airports, or other public facilities; (viii) projects designed to cap landfills or other waste disposal areas; (ix) projects designed to fill private property or upgrade agricultural land, if cost-effective public beneficial uses are not available; and (x) projects designed to remediate past adverse impacts on the coastal zone. (5) If dredged material cannot be used beneficially as provided in paragraph (4) of this subsection, to avoid and otherwise minimize adverse effects as required in paragraph (1) of this subsection, preference will be given to the greatest extent practicable to disposal in: (A) contained upland sites; (B) other contained sites; and (C) open water areas of relatively low productivity or low biological value. (6) For new sites, dredged materials shall not be disposed of or placed directly on the boundaries of state submerged lands or at such location so as to slump or migrate across the boundaries of state submerged lands in the absence of an agreement between the affected public owner and the adjoining private owner or owners that defines the location of the boundary or boundaries affected by the deposition of the dredged material. (7) Emergency dredging shall be allowed without a prior consistency determination as required in the applicable consistency rule set out in Chapter 505 of this title (relating to Council Procedures for State Consistency with Coastal Management Program Goals and Policies) when: (A) there is an unacceptable hazard to life or navigation; (B) there is an immediate threat of significant loss of property; or (C) an immediate and unforeseen significant economic hardship is likely if corrective action is not taken within a time period less than the normal time needed under standard procedures. The GLO or the SLB, as appropriate, shall notify the council secretary at least 24 hours prior to commencement of any emergency dredging operation. The notice shall include a statement demonstrating the need for emergency action. Prior to initiation of the dredging operations representatives of the project sponsor, the GLO, or the SLB shall, if possible, make all reasonable efforts to meet with council's designated representatives to ensure consideration of and consistency with applicable policies in this section. Compliance with all applicable policies in this section shall be required at the earliest possible date. The GLO or the SLB, as appropriate, and the applicant shall submit a consistency determination to the council, as described in Chapter 505 of this title (relating to Council Procedures for State Consistency with Coastal Management Program Goals and Policies) within 60 days after the emergency operation is complete. sec.16.4. Thresholds for Referral. (a) Pursuant to sec.505.32 of this title (relating to Requirements for Referral of a Proposed Agency Action), the thresholds for potential referral of GLO or SLB actions to the council for consistency review are as follows: (b) Real Estate Activities. (1) Except for energy-related activities (i.e., activities related to oil, gas, or other mineral exploration and production), the GLO's or SLB's issuance of the following instruments exceeds the threshold if the authorized activities would adversely affect CNRA acreage greater than that in paragraph (2) of this subsection: (A) a coastal easement pursuant to the Texas Natural Resources Code, sec.33.111, for dredging of basins and channels or construction of piers, docks, marinas, bulkheads, seawalls, and other waterfront structures on state-owned submerged land; (B) a miscellaneous easement pursuant to the Texas Natural Resources Code, sec.51.291, for construction of pipelines, transmission lines, roads, and other linear facilities on state-owned land; (C) a cabin permit pursuant to the Texas Natural Resources Code, sec.33. 103, for the construction or use of fishing cabins on state-owned submerged land; or (D) a surface lease pursuant to the Texas Natural Resources Code, sec.51. 121, for construction of commercial facilities, artificial reefs, and other non- waterfront structures on state-owned land. (2) The acreage thresholds for real estate activities are as follows: (A) one-half acre of oyster reef; (B) one acre of submerged aquatic vegetation; (C) one acre of coastal wetland; (D) one acre of algal flat; (E) five acres of tidal mud flat; (F) ten acres of tidal sand flat; (G) ten acres of state submerged land; or (H) ten acres of upland area fitting the definition of coastal barrier, coastal shore area, Gulf beach, critical dune area, special hazard area, critical erosion area, coastal historic area, or coastal park, wildlife management area, or preserve, as defined in sec.16.1 of this title (relating to Definitions and Scope). (c) Energy-Related Activities (activities related to oil, gas, or other mineral exploration and production). (1) The GLO's or SLB's approval of a mineral lease plan of operations for hard mineral exploration and production exceeds the threshold if the authorized activities would adversely affect CNRA acreage greater than the following: (A) In the upper coast: (i) one-half acre of oyster reef; (ii) five acres of submerged aquatic vegetation; (iii) five acres of coastal wetland; (iv) five acres of algal flat; (v) five acres of tidal mud flat; (vi) ten acres of tidal sand flat; (vii) 40 acres of waters in the open Gulf of Mexico; (viii) 40 acres of open bay waters under tidal influence; or (ix) 40 acres of upland area fitting the definition of coastal barrier, coastal shore area, Gulf beach, critical dune area, special hazard area, critical erosion area, coastal historic area, or coastal park, wildlife management area, or preserve, as defined in sec.16.1 of this title (relating to Definitions and Scope). (B) In the lower coast: (i) one-half acre of oyster reef; (ii) 40 acres of submerged aquatic vegetation; (iii) five acres of coastal wetland; (iv) 20 acres of algal flat; (v) 20 acres of tidal mud flat; (vi) 40 acres of tidal sand flat; (vii) 40 acres of waters in the open Gulf of Mexico; (viii) 40 acres of open bay waters under tidal influence; or (ix) 40 acres of upland area fitting the definition of coastal barrier, coastal shore area, Gulf beach, critical dune area, special hazard area, critical erosion area, coastal historic area, or coastal park, wildlife management area, or preserve, as defined in sec.16.1 of this title (relating to Definitions and Scope). (2) The GLO's or SLB's issuance of a geophysical or geochemical permit for exploration for oil, gas, or other minerals on state-owned lands exceeds the threshold if the authorized activities would adversely affect CNRA acreage greater than the following: (A) In the upper coast: (i) one-half acre of oyster reef; (ii) 20 acres per square mile of submerged aquatic vegetation; (iii) 40 acres per square mile of coastal wetland; (iv) 20 acres per square mile of algal flat; (v) 20 acres per square mile of tidal mud flat; (vi) 20 acres per square mile of tidal sand flat; (vii) 40 acres per square mile of waters in the open Gulf of Mexico; (viii) 40 acres per square mile of open bay waters under tidal influence; or (ix) 40 acres per square mile of upland area fitting the definition of coastal barrier, coastal shore area, Gulf beach, critical dune area, special hazard area, critical erosion area, coastal historic area, or coastal park, wildlife management area, or preserve, as defined in sec.16.1 of this title (relating to Definitions and Scope). (B) In the lower coast: (i) one-half acre of oyster reef; (ii) 40 acres per square mile of submerged aquatic vegetation; (iii) 40 acres per square mile of coastal wetland; (iv) 40 acres per square mile of algal flat; (v) 40 acres per square mile of tidal mud flat; (vi) 40 acres per square mile of tidal sand flat; (vii) 40 acres per square mile of waters in the open Gulf of Mexico; (viii) 40 acres per square mile of open bay waters under tidal influence; or (ix) 40 acres per square mile of upland area fitting the definition of coastal barrier, coastal shore area, Gulf beach, critical dune area, special hazard area, critical erosion area, coastal historic area, or coastal park, wildlife management area, or preserve, as defined in sec.16.1 of this title (relating to Definitions and Scope). (3) With respect to energy-related activities not covered within the scope of a hard mineral plan of operations, the GLO's or SLB's issuance of a miscellaneous easement (pursuant to the Texas Natural Resources Code, sec.51. 291), a surface lease (pursuant to the Texas Natural Resources Code, sec.51.121) , or a coastal easement (pursuant to the Texas Natural Resources Code, sec.33. 111), exceeds the threshold only if the instrument authorizes: (A) permanent disturbance of five acres or more of a critical area or removal of more than 10,000 cubic yards of material from a critical area, except with respect to submerged aquatic vegetation and tidal mud or sand flats in the lower coast; or (B) permanent disturbance of ten acres or more of submerged aquatic vegetation or tidal mud or sand flats in the lower coast. (d) Any GLO or SLB action described in sec.16.1 of this title (relating to Definitions and Scope) that may adversely affect a CNRA that has not been specifically addressed in this section, exceeds the threshold if the action would adversely affect greater than 40 acres of any such CNRA. (e) Any GLO or SLB action described in sec.16.1 of this title (relating to Definitions and Scope) that may adversely affect a CNRA must be consistent with the goals and policies in sec.16.2 and sec.16.3 of this chapter (relating to Policy for Major Actions, and Policies for Specific Activities and Coastal Natural Resource Areas), whether above or below the applicable threshold. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's authority. Issued in Austin, Texas, on November 27, 1995. TRD-9515262 Garry Mauro Commissioner General Land Office Effective date: December 18, 1995 Proposal publication date: May 30, 1995 For further information, please call: (512) 305-9129 Part IV. School Land Board Chapter 153. Exploration and Development Oil, Gas, and Mineral Lease Sales 31 TAC sec.153.4 The School Land Board (SLB), adopts new sec.153.4, concerning consistency with the Coastal Management Program (CMP) goals and policies, without changes to the proposed text as published in the May 23, 1995, issue of the Texas Register (20 TexReg 3819). Section 501.10 of this title (relating to Compliance with Goals and Policies) requires state agencies to comply with the CMP goals and policies, as set out in sec.sec.501.12-501.15 of this title (relating to Goals; Administrative Policies; Policies for Specific Activities and Coastal Natural Resource Areas; and Policy for Major Actions, respectively), when taking or authorizing an action listed in sec.505.11 of this title (relating to Actions and Rules Subject to the Coastal Management Program) that may adversely affect a coastal natural resource area. Contemporaneously with the adoption of sec.153. 4, the General Land Office (GLO), with the approval of the SLB, is adopting new Chapter 16 of this title (relating to Coastal Protection), which is comprised of rules to ensure GLO and SLB consistency with the CMP goals and policies regarding coastal natural resource areas. Because Chapter 153 (relating to Exploration and Development) already addresses certain actions that could also affect coastal natural resource areas, sec.153.4 is necessary to ensure that SLB rules are consistent with CMP goals and policies. Section 153.4 specifies that the rules in Chapter 153 will be read in harmony with the GLO's goals and policies set out in the new Chapter 16 of this title (relating to Coastal Protection). Section 153.4 clarifies the relationship between the operation of Chapter 153 and the CMP goals and policies as reflected in Chapter 16 of this title (relating to Coastal Protection). No comments were received regarding adoption of the new rule. The new rule is adopted under the Texas Natural Resources Code, sec.33.064, which authorizes the SLB to adopt and enforce necessary rules, consistent with CMP goals and policies. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's authority. Issued in Austin, Texas, on November 27, 1995. TRD-9515265 Garry Mauro Chairman School Land Board Effective date: December 18, 1995 Proposal publication date: May 23, 1995 For further information, please call: (512) 305-9129 Chapter 155. Land Resources Coastal Public Lands 31 TAC sec.155.1 The School Land Board (SLB), adopts an amendment to sec.155.1, concerning consistency with the Coastal Management Program (CMP) goals and policies, without changes to the proposed text as published in the May 23, 1995, issue of the Texas Register (20 TexReg 3820). Section 501.10 of this title (relating to Compliance with Goals and Policies) requires state agencies to comply with the CMP goals and policies, as set out in sec.sec.501.12-501.15 of this title (relating to Goals; Administrative Policies; Policies for Specific Activities and Coastal Natural Resource Areas; and Policy for Major Actions, respectively), when taking or authorizing an action listed in sec.505.11 of this title (relating to Actions and Rules Subject to the Coastal Management Program) that may adversely affect a coastal natural resource area. Contemporaneously with the adoption of amended sec.155.1, the General Land Office (GLO), with the approval of the SLB, is adopting new Chapter 16 of this title (relating to Coastal Protection), which is comprised of rules to ensure GLO and SLB consistency with the CMP goals and policies regarding coastal natural resource areas. Because Chapter 155 (relating to Land Resources) already addresses certain actions that could also affect coastal natural resource areas, sec.155.1(d) is necessary to ensure that SLB rules are consistent with CMP goals and policies. Section 155.1(d) specifies that the rules in Chapter 155 will be read in harmony with the GLO's goals and policies set out in the new Chapter 16 of this title (relating to Coastal Protection). Section 155.1 clarifies the relationship between the operation of Chapter 155 and the CMP goals and policies as reflected in Chapter 16 of this title (relating to Coastal Protection). No comments were received regarding adoption of the amendment. The amendment is adopted under the Texas Natural Resources Code, sec.33.064, which authorizes the SLB to adopt and enforce necessary rules, consistent with CMP goals and policies. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's authority. Issued in Austin, Texas, on November 27, 1995. TRD-9515266 Garry Mauro Chairman School Land Board Effective date: December 18, 1995 Proposal publication date: May 23, 1995 For further information, please call: (512) 305-9129 31 TAC sec.155.8 The School Land Board (SLB), adopts an amendment to sec.155.8, concerning certain permits required from the Texas Parks and Wildlife Commission (commission), without changes to the proposed text as published in the May 23, 1995, issue of the Texas Register (20 TexReg 3823). Section 155.8 is adopted to clarify existing law regarding disturbance or taking of marl, sand, gravel, shell, or mudshell from land managed by the commission. Texas Parks and Wildlife Code, sec.86.002, is the codification of previous Texas Civil Statutes, Article 4051. Section 86.002(a) provides that no person may disturb or take marl, sand, gravel, shell, or mudshell from land managed by the commission without first obtaining a permit from the commission, other than as necessary or incidental to navigation or dredging under state or federal authority. Pursuant to sec.86.001, the lands managed by the commission are those located within the tidewater limits of the state, and on islands within those limits, and within the freshwater areas of the state not embraced by a survey of private land, and on islands within those areas. (Section 155.8(c) erroneously refers to the Texas Parks and Wildlife Department, rather than the commission.) As amended, sec.155.8 correctly identifies the commission, refers to sec.86.002 of the Texas Parks and Wildlife Code rather than to Article 4051, and specifies the lands managed by the commission. On July 25, 1990, after the original promulgation of sec.155.8(c), the Attorney General issued Open Texas Attorney General Number JM-1190 (1990), which clarified that certain easements issued by the SLB, including those for dredging, are actions taken "under state or federal authority" as that phrase is used in Texas Parks and Wildlife Code, sec.86.002. Actions taken under state or federal authority that result in a disturbance or taking of the listed materials are not subject to the permitting authority of the commission. Amended sec.155.8 incorporates the opinion in JM-1190, and states that a permit is required from the commission for the disturbance or taking of marl, sand, gravel, shell, or mudshell unless the disturbance or taking is necessary or incidental to navigation or dredging under a lease, easement, permit, or other authority issued by the SLB. No comments were received regarding adoption of the amendment. The amendment is adopted under the Texas Natural Resources Code, sec.32.061, which provides that the SLB shall perform any duties that may be required by law, and sec.32.062, which provides that the SLB shall adopt rules of procedure and rules for the sale and lease of land. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's authority. Issued in Austin, Texas, on November 27, 1995. TRD-9515267 Garry Mauro Chairman School Land Board Effective date: December 18, 1995 Proposal publication date: May 23, 1995 For further information, please call: (512) 305-9129 TITLE 37. PUBLIC SAFETY AND CORRECTIONS Part III. Texas Youth Commission Chapter 87. Treatment Program Planning 37 TAC sec.87.25 Texas Youth Commission (TYC) adopts an amendment to sec.87.25, concerning Title IV-E foster care youth, without changes to the proposed text as published in the October 24, 1995, issue of the Texas Register (20 TexReg 8785). justification for amending the section will be a more efficient process for individual case plan reviews. amendment will require the primary service worker to review and reauthorize a youth's level of care when the individual case plan is updated. comments were received regarding adoption of the amendment. amendment is adopted under the Human Resources Code, sec.61.034, which provides the Texas Youth Commission with the authority to make rules appropriate to the proper accomplishment of its functions. proposed rule implements the Human Resource Code, sec.61.034. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's authority. Issued in Austin, Texas, on November 27 ,1995. TRD-9515250 Steve Robinson Executive Director Texas Youth Commission Effective date: January 1, 1996 Proposal publication date: October 24, 1995 For further information, please call: (512) 483-5244 Chapter 91. Discipline and Control Disciplinary Practices 37 TAC sec.91.10 The Texas Youth Commission (TYC) adopts an amendment to sec.91.10, concerning protective custody for treatment, without changes to the proposed text as published in the October 24, 1995, issue of the Texas Register (20 TexReg 8785). The justification for amending the section is to ensure that when it is necessary, youth receive specialized treatment and protection. The amendment will clarify the reasons why a youth may be placed in a residential treatment center or psychiatric hospital. No comments were received regarding adoption of the amendment. The amendment is adopted under the Human Resources Code, sec.61.075, which provides the Texas Youth Commission with the authority to order the child's confinement under conditions it believes best designed for the child's welfare and the interests of the public. The proposed rule implements the Human Resource Code, sec.61.034. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on November 27, 1995. TRD-9515256 Steve Robinson Executive Director Texas Youth Commission Effective date: January 1, 1996 Proposal publication date: October 24, 1995 For further information, please call: (512) 483-5244 Texas Department of Insurance Exempt Filing Notification Pursuant to the Insurance Code, Chapter 5, Subchapter L (Editor's Note: As required by the Insurance Code, Article 5.96 and 5. 97, the Texas Register publishes notices of actions taken by the Department of Insurance pursuant to Chapter 5, Subchapter L, of the Code. Board action taken under these articles is not subject to the Administrative Procedure Act. These actions become effective 15 days after the date of publication or on a later specified date. The text of the material being adopted will not be published, but may be examined in the offices of the Department of Insurance, 333 Guadalupe, Austin.) The Commissioner of Insurance, at a public hearing under Docket Number 2180 held at 1:30 p.m., November 9, 1995 in Room 100 of the Texas Department of Insurance Building, 333 Guadalupe Street in Austin, Texas, adopted amendments proposed by staff to the Texas Automobile Rules and Rating Manual (the Manual), to implement changes required by Sentate Bill 3, adopted by the 74th Legislature. Amendments are made to Manual Rule 33, Rule 55, Rule 58, Rule 85, Rule 87, Endorsement TE 23 30B, and Endorsement TE 24 03A, to be redesignated TE 23 30C and TE 24 03B, respectively. Staff's petition (Reference Number A-0995- 33-I) was published in the September 29, 1995, issue of the Texas Regisater (20 TexReg 7968). The changes bring the Manual into compliance with Senate Bill 3, which relates to the regulation of motor carriers and transfers the responsibility from the Railroad Commission to the Department of Transportation. Where appropriate, Manual references to the Railroad Commission are replaced by references to the Department of Transportation, whose staff has concurred in these proposals. Statutory references in the previous stated endorsements have been updated. The amendments as adopted by the Commissioner of Insurance are shown in exhibits on file with the Chief Clerk under Reference Number A-0995-33-I, which are incorporated by reference into Commissioner's Order Number 95-1243. The Commissioner of Insurance has jurisdiction over this matter pursuant to the Insurance Code, Articles 5.03-3, 5.10, 5.96, 5.98, and 5.101. This notification is made pursuant to the Insurance Code, Article 5.96, which exempts it from the requirements of the Government Code, Chapter 2001 (Administrative Procedure Act). Consistent with the Insurance Code, Article 5.96(h), the Department will notify all insurers writing automobile insurance of this adoption by letter summarizing the Commissioner's action. IT IS THEREFORE THE ORDER of the Commissioner of Insurance that the Manual is amended as described herein, and the amendments are adopted effective on the 60th day after notification of this action is published in the Texas Register. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on November 29, 1995. TRD-9515352 Alicia M. Fechtel General Counsel and Chief Clerk Texas Department of Insurance Effective date: February 3, 1996 For further information, please call: (512) 463-6327 The Commissioner of Insurance, at a public hearing under Docket Number 2181 held at 1:30 p.m., November 9, 1995 in Room 100 of the Texas Department of Insurance Building, 333 Guadalupe Street in Austin, Texas, adopted amendments proposed by staff to the Texas Automobile Rules and Rating Manual (the Manual). The amendments consist of new and/or adjusted 1991 through 1995 model Private Passenger Automobile Physical Damage Rating Symbols and revised identification information. Staff's petition (Reference Number A-0995-34-I) was published in the September 29, 1995, issue of the Texas Register (20 TexReg 7968). The new and/or adjusted symbols for the Manual's Symbols and Identification Section reflect data compiled on damageability, repairability, and other relevant loss factors for the various model years of the listed vehicles. The deletions shown in the exhibit attached to staff's petition are symbols used by Insurance Services Office (ISO) for multi-purpose and utility type vehicles for 1994 and prior year models, which will continue to be rated according to the traditional method set forth in the Manual, page 2 of the Symbol and Identification Section. For 1995 and later year models, excluding customized vehicles, the symbol for each multi-purpose and utility type vehicle must be used in the same manner as the symbol for a private passenger auto, as required by Commissioner's Order Number 95-0607, effective September 1, 1995. The operative provisions of that order have been printed in the Manual. The amendments as adopted by the Commissioner of Insurance are shown in exhibits on file with the Chief Clerk under Reference Number A-0995-34-I, which are incorporated by reference into Commissioner's Order Number 95-1242. The Commissioner of Insurance has jurisdiction over this matter pursuant to the Insurance Code, Articles 5.10, 5.96, 5.98, and 5.101. This notification is made pursuant to the Insurance Code, Article 5.96, which exempts it from the requirements of the Government Code, Chapter 2001 (Administrative Procedure Act). Consistent with the Insurance Code, Article 5.96(h), the Department will notify all insurers writing automobile insurance of this adoption by letter summarizing the Commissioner's action. IT IS THEREFORE THE ORDER of the Commissioner of Insurance that the Manual is amended as described herein, and the amendments are adopted effective on the 60th day after notification of this action is published in the Texas Register. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on November 29, 1995. TRD-9515355 Alicia M. Fechtel General Counsel and Chief Clerk Texas Department of Insurance Effective date: February 3, 1996 For further information, please call: (512) 463-6327