PROPOSED RULES Before an agency may permanently adopt a new or amended section or repeal an existing section, a proposal detailing the action must be published in the Texas Register at least 30 days before action is taken. The 30-day time period gives interested persons an opportunity to review and make oral or written comments on the section. Also, in the case of substantive action, a public hearing must be granted if requested by at least 25 persons, a governmental subdivision or agency, or an association having at least 25 members. Symbology in proposed amendments. New language added to an existing section is indicated by the use of bold text. [Brackets] indicate deletion of existing material within a section. TITLE 16. ECONOMIC REGULATION Part II. Public Utility Commission of Texas Chapter 23. Substantive Rules Rates 16 TAC sec.23.23 The Public Utility Commission of Texas proposes an amendment to sec.23.23, relating to certification of long-term fuel contracts and the interest calculated on the cumulative under- or over-recovery fuel balance. The changes to sec.23.23(a)(7) Effect of Certification, relating to certification of long-term fuel contracts are an attempt to make the provision more understandable. There is no substantive difference in the meaning. The proposed changes to sec.23.23(b)(3)(C)(i) regarding fuel refunds and surcharges are meant to elaborate on the commission requirements relating to the factoring of interest calculations on the under- or over-recovery balance. These requirements are already in effect. The change in the rule is to clarify how the interest should be calculated. Katherine L. Smith, assistant general counsel, believes that for the first five-year period that the revised section is in effect there will be no fiscal implications for state or local governments as a result of enforcing or administering the section. Ms. Smith also believes that for each year of the first five years the section is in effect, the public benefit anticipated as a result of enforcing the section will be more efficient calculation of refunds to ratepayers of any fuel refunds. Ms. Smith further believes that during the first five years the revised section is in effect there will be no effect on the employment opportunities in the geographical areas of Texas affected by implementing this section. Additionally, Ms. Smith believes that the proposed section will have no effect on small businesses. Comments on the proposed rule (15 copies) may be submitted within 30 days to the Secretary of the Commission, 7800 Shoal Creek Boulevard, Austin, Texas 78757. Comments should refer to Project Number 14358. The amendment is proposed under the Public Regulatory Act of 1995, sec.1.101. 74th Legislature, Regular Session 1995, which provides the Public Utility Commission of Texas with the authority to make and enforce rules reasonably required in the exercise of its powers and jurisdiction. The following statute is affected by this amendment: the Public Utility Regulatory Act of 1995, sec.1.101 and sec.2.212. sec.23.23. Rate Design. (a) Guidelines for certifying long-term fuel contracts. The commission will certify long-term fuel contracts in accordance with the guidelines in this subsection for determining the reasonableness of the terms and conditions of such contracts. This subsection does not require long-term fuel contracts to be submitted for certification, and no adverse inference will result from a utility's decision not to seek certification. (1)-(6) (No change.) (7) Effect of certification. Certification of a long-term fuel contract establishes that the original prices, terms, and conditions of the contract were reasonable at the time the contract was entered into
    and that it was reasonable to enter into
      the contract. But certification
        [and] does not preclude the
          commission from reviewing
            [review] whether
              [of the reasonableness of] the utility's actions with respect to the contract are reasonable
                . Denial of certification establishes that the contract is not eligible for certification, and precludes relitigation of the contract's
                  reasonableness [of the contract] as a whole and precludes relitigation of the
                    [To the extent other] ultimate issues of fact that were
                      [are actually] litigated and upon which
                        [are essential to] the commission
                          [commission's] relied when it decided
                            [decision] not to certify the contract. [relitigation of such issues is also precluded.] (b) Recovery of fuel and purchased-power Costs. (1)-(2) (No change.) (3) Reconciliation of fuel expenses. Utilities shall file petitions for reconciliation on a periodic basis so that any petition for reconciliation shall contain a maximum of three years and a minimum of one year of reconcilable data and will be filed no later than six months after the end of the period to be reconciled. However, notwithstanding the previous sentence, a reconciliation shall be requested in any general rate proceeding under the Act sec.43 and may be performed in any general rate proceeding under the Act sec.42. Upon motion and showing of good cause, a fuel reconciliation proceeding may be severed from or consolidated with other proceedings. (A)-(B) (No change.) (C) Refunds. All fuel
                              refunds and surcharges shall be made using the following methods: (i)- Interest shall
                                [will] be calculated on the cumulative monthly ending under- or over-recovery balance [in the manner and] at the rate the commission establishes annually
                                  [established by the commission] for overbilling and underbilling in sec.23.45(g) of this title. Interest shall be calculated according to the following principles: (I) the interest period shall begin the first month of the reconciliation period; (II) interest shall be compounded annually; (III) one-twelfth of the annual interest amount shall accrue monthly on the current month's under- or over-recovery balance; (IV) the cumulative interest accrued during a 12-month period shall be added to the principal under- or over-recovery balance at the end of that 12- month period; (V) any interest accrued at the end of any one reconciliation period for a time period of less than 12 months shall accrue and shall be refunded or surcharged based on the under- or over-recovery amount, but that interest shall not be subject to compounding; (VI) assume that each month's under-or over-recovery occurs on the first day of each month; (VII) assume that refunds of fuel over-recoveries and surcharges of under- recoveries occur on the first day of the month of refund or surcharge; (VIII) interest shall be calculated through the month preceding the month of refund or surcharge. (ii)-(v) (No change.) (D) (No change.) (4)-(8) (No change.) (c)-(e) (No change.) This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on January 5, 1996. TRD-9600123 Paula Mueller Secretary of the Commission Public Utility Commission of Texas Earliest possible date of adoption: February 12, 1996 For further information, please call: (512) 458-0100 TITLE 19. EDUCATION Part II. Texas Education Agency Chapter 109. Budgeting, Accounting, and Auditing The Texas Education Agency (TEA) proposes the repeal of ssec.109.1, 109. 21- 109.24, 109.41-109.44, and 109.61, concerning budgeting, accounting, and auditing. The rules establish definitions, requirements, and procedures related to: the uniform system of public school budgeting, accounting, and financial reporting; internal audits; auditing public school districts, county education districts, and regional education service centers; reviewing the reports and audit working papers of independent auditors; and the Advisory Committee for Budgeting, Accounting, and Auditing. The rules also adopt by reference TEA Bulletin 679, "Financial Accounting Manual." The repeals are necessary to comply with the sunset review process mandated by Senate Bill 1, 74th Texas Legislature, 1995. A new Chapter 109 is proposed in a separate submission. Ruben Olivarez, associate commissioner for accountability, has determined that for the first five-year period the repeals are in effect there will be no fiscal implications for state or local government or small businesses as a result of enforcing or administering the repeals. Mr. Olivarez and Criss Cloudt, associate commissioner for policy planning and research, have determined that for each year of the first five years the repeals are in effect the public benefit anticipated as a result of enforcing the repeals will be that the State Board of Education may adopt rules regarding budgeting, accounting, and auditing that comply with Senate Bill 1. There is no anticipated economic cost to persons who are required to comply with the repeals as proposed. Comments on the proposal may be submitted to Criss Cloudt, Policy Planning and Research, 1701 North Congress Avenue, Austin, Texas 78701, (512) 463-9701. All requests for a public hearing on the proposed repeals submitted under the Administrative Procedure Act and the Texas Register Act must be received by the commissioner of education not more than 15 calendar days after notice of a proposed change in the rules has been published in the Texas Register. Subchapter A. Budgeting, Accounting, Financial Reporting, and Auditing for School Districts 19 TAC sec.109.1 (Editor's note: The text of the following section proposed for repeal will not be published. The section may be examined in the offices of the Texas Education Agency or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) The repeal is proposed under the Texas Education Code, s7.102, which authorizes the State Board of Education to review specified TEA rules. The repeal implements the Texas Education Code, sec.7.102. sec.109.1. Financial Accounting. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on January 8, 1996. TRD-9600169 Criss Cloudt Associate Commissioner, Policy Planning and Research Texas Education Agency Earliest possible date of adoption: February 12, 1996 For further information, please call: (512) 463-9701 Subchapter B. Central Education Agency Audit Functions 19 TAC sec.sec.109.21-109.24 (Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Texas Education Agency or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) The repeals are proposed under the Texas Education Code, s7.102, which authorizes the State Board of Education to review specified Texas Education Agency rules. The repeals implement the Texas Education Code, sec.7.102. 109.21. Types of Audit Functions. 109.22. Annual Audit Plans. 109.23. Internal Audits and Reviews. 109.24. School District Independent Audits. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on January 8, 1996. TRD-9600170 Criss Cloudt Associate Commissioner, Policy Planning and Research Texas Education Agency Earliest possible date of adoption: February 12, 1996 For further information, please call: (512) 463-9701 Subchapter C. Advisory Committee for Budgeting, Accounting, and Auditing 19 TAC sec.sec.109.41-109.44 (Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Texas Education Agency or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) The repeals are proposed under the Texas Education Code, s7.102, which authorizes the State Board of Education to review specified Texas Education Agency rules. The repeals implement the Texas Education Code, sec.7.102. sec.109.41. Purpose and Responsibilities. sec.109.42. Membership and Appointment. sec.109.43. Term of Office. sec.109.44. Meetings. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on January 8, 1996. TRD-9600171 Criss Cloudt Associate Commissioner, Policy Planning and Research Texas Education Agency Earliest possible date of adoption: February 12, 1996 For further information, please call: (512) 463-9701 Subchapter D. Adoptions by Reference 19 TAC sec.109.61 (Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Texas Education Agency or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) The repeal is proposed under the Texas Education Code, s7.102, which authorizes the State Board of Education to review specified Texas Education Agency rules. The repeal implements the Texas Education Code, sec.7.102. sec.109.61. Financial Accounting Manual. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on January 8, 1996. TRD-9600172 Criss Cloudt Associate Commissioner, Policy Planning and Research Texas Education Agency Earliest possible date of adoption: February 12, 1996 For further information, please call: (512) 463-9701 The Texas Education Agency (TEA) proposes new sec.sec.109.1, 109.21-109. 23, and 109.41, concerning budgeting, accounting, and auditing. The rules establish definitions, requirements, and procedures related to: the uniform system of public school budgeting, accounting, and financial reporting; internal audits; auditing public school districts, county education districts, and regional education service centers; and reviewing the reports and audit working papers of independent auditors. The rules also adopt by reference TEA Bulletin 679, "Financial Accountability System Resource Guide." The new rules are proposed as part of the sunset review process mandated by Senate Bill 1, 74th Texas Legislature, 1995. Current Chapter 109 is proposed for repeal in a separate submission. The proposed new rules contain two substantive changes to current Chapter 109. First, Senate Bill 1 did not reauthorize the State Board of Education to appoint an advisory committee for budgeting, accounting, and auditing. Therefore, current ssec.109.41-109.44 (relating to such a committee) are not proposed for readoption. Instead, language is added to sec.109.1(b) to ensure adequate stakeholder involvement in the design and modification of requirements concerning public school budgeting, accounting, financial reporting, and auditing. Second, the requirements contained in current sec.109.21 (relating to Types of Audit Functions) were incorporated in Senate Bill 1; therefore, the section is not proposed for readoption. Ruben Olivarez, associate commissioner for accountability, has determined that for the first five-year period the rules are in effect there will be no fiscal implications for state or local government or small businesses as a result of enforcing or administering the rules. Mr. Olivarez and Criss Cloudt, associate commissioner for policy planning and research, have determined that for each year of the first five years the rules are in effect the public benefit anticipated as a result of enforcing the rules will be an increased assurance that, statewide, students will receive appropriate funding allocations toward their educations. There is no anticipated economic cost to persons who are required to comply with the rules as proposed. Comments on the proposal may be submitted to Criss Cloudt, Policy Planning and Research, 1701 North Congress Avenue, Austin, Texas 78701, (512) 463-9701. All requests for a public hearing on the proposed rules submitted under the Administrative Procedure Act and the Texas Register Act must be received by the commissioner of education not more than 15 calendar days after notice of a proposed change in the rules has been published in the Texas Register. Subchapter A. Budgeting, Accounting, Financial Reporting, and Auditing for School Districts 19 TAC sec.109.1 The new section is proposed under the Texas Education Code, sec.sec.7.102(b) (33), 44.001, 44.002, 44.007, and 44.008, which authorizes the State Board of Education to adopt rules relating to school district budgets and audits of school district fiscal accounts. The new section implements the Texas Education Code, sec. s7.102(b)(33), 44. 001, 44.002, 44.007, and 44.008. sec.109.1. Financial Accounting. (a) A uniform system of public school budgeting, accounting, and financial reporting shall be provided and employed throughout the state as required by law. The uniform system for budgeting, accounting, and financial reporting is to reflect the full implementation of modified and full accrual accounting, as appropriate, in accordance with generally accepted accounting principles. (b) The commissioner of education shall develop and administer the requirements relating to budgeting, accounting, financial reporting, and auditing for Texas public schools. The commissioner of education shall ensure adequate stakeholder involvement in the design and modification of these requirements. The State Board of Education shall approve the budgeting, accounting, and reporting systems and the auditing procedures as determined by the commissioner of education. The school districts shall install the budgeting, accounting, and financial reporting system as required by law and meet the audit requirements as developed by the commissioner of education and subject to review and comment by the state auditor when required by law. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on January 8, 1996. TRD-9600173 Criss Cloudt Associate Commissioner, Policy Planning and Research Texas Education Agency Earliest possible date of adoption: February 12, 1996 For further information, please call: (512) 463-9701 Subchapter B. Texas Education Agency Audit Functions 19 TAC sec.sec.109.21-109.23 New sec.109.21 is proposed under the Texas Education Code, sec.44.001, which directs the commissioner of education to report annually to the State Board of Education the status of school district fiscal management; and the Government Code, Title 10, sec.2102.008, which requires that the annual audit plan developed by the internal auditor be approved by the state agency's governing board or its designee and that the audit reports be reviewed by the state agency's governing board and the administrator of the agency. New sec.109.22 is proposed under the Government Code, Title 10, sec.2102.007, which directs the internal auditor to report directly to the state agency's governing board and requires that the program of internal auditing provide for the auditor to have access to the administrator of the agency and be free of all operational and management responsibilities that would impair the auditor's ability to review independently all aspects of the agency's operation; and the Government Code, Title 10, s2102.008, as described in the previous paragraph. New sec.109.23 is proposed under the Texas Education Code, sec.sec.7.102(b)(33), 44.008, and 44.010, which authorizes the State Board of Education to adopt rules relating to school district budgets and audits of school district fiscal accounts. New sec.109.21 implements the Texas Education Code, sec.44.001, and the Government Code, Title 10, sec.2102.008. New sec.109.22 implements the Government Code, Title 10, sec.2102.007 and sec.2102.008. New sec.109.23 implements the Texas Education Code, sec.sec.7.102(b)(33), 44.008, and 44.010. sec.109.21. Annual Audit Plans. The commissioner of education shall submit separate annual audit plans for internal audits and for field and independent audits for review of the designated committee of the State Board of Education. The plans may be amended as needed by the commissioner of education. The designated committee of the State Board of Education shall be informed at least annually by the commissioner of education on the progress of and amendments to the plans. sec.109.22. Internal Audits and Reviews. (a) Internal audits and reviews shall be performed freely and objectively by the internal auditors in accordance with the annual audit plan. Internal auditors shall be free of operating responsibilities that will tend to impair audit objectivity. (b) The chief internal auditor shall report directly to the commissioner of education and to the appropriate committee of the State Board of Education. Internal audit reports and reviews shall be addressed to the commissioner of education. sec.109.23. School District Independent Audits. (a) The performance and review of required school district, county education district, and regional education service center independent audits, including review of auditors' working papers, shall be accomplished in accordance with the Financial Accountability System Resource Guide, Bulletin 679, as adopted by reference in sec.109.41 of this title (relating to Financial Accountability System Resource Guide). (b) Auditors from the Texas Education Agency shall review independent audit reports. Audit findings shall be resolved by the commissioner's designee. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on January 8, 1996. TRD-9600174 Criss Cloudt Associate Commissioner, Policy Planning and Research Texas Education Agency Earliest possible date of adoption: February 12, 1996 For further information, please call: (512) 463-9701 Subchapter C. Adoptions by Reference 19 TAC sec.109.41 The new section is proposed under the Texas Education Code, sec.sec.7.102(b) (33), 44.001, 44.002, 44.007, and 44.008, which authorizes the State Board of Education to adopt rules relating to school district budgets and audits of school district fiscal accounts. The new section implements the Texas Education Code, sec. s7.102(b)(33), 44. 001, 44.002, 44.007, and 44.008. sec.109.41. Financial Accountability System Resource Guide. (a) The rules for financial accounting are described in the official Texas Education Agency bulletin, Financial Accountability System Resource Guide, Bulletin 679, as amended January 1996, which is adopted by this reference as the agency's official rule. A copy is available for examination during regular office hours, 8:00 a.m. to 5:00 p.m., except holidays, Saturdays, and Sundays, at the Texas Education Agency, 1701 North Congress Avenue, Austin, Texas 78701. (b) The commissioner of education shall amend the Financial Accountability System Resource Guide, Bulletin 679, and this section adopting it by reference, as needed. The commissioner shall inform the State Board of Education of the intent to amend the bulletin and of the effect of proposed amendments before submitting them to the Office of the Secretary of State as proposed rule changes. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on January 8, 1996. TRD-9600175 Criss Cloudt Associate Commissioner, Policy Planning and Research Texas Education Agency Earliest possible date of adoption: February 12, 1996 For further information, please call: (512) 463-9701 TITLE 25. HEALTH SERVICES Part II. Texas Department of Mental Health and Mental Retardation Chapter 405. Client (Patient) Care Subchapter C. Life-Sustaining Treatment 25 TAC sec.sec.405.51-405.62 (Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Texas Department of Mental Health and Mental Retardation or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) The Texas Department of Mental Health and Mental Retardation (TDMHMR) proposes the repeal of sec.sec.405.51-405.62 of Chapter 405, Subchapter C, concerning life-sustaining treatment. New sections concerning the same are contemporaneously proposed in this issue of the Texas Register. The proposed repeal allows for the adoption of new sections. Don Green, chief financial officer, has determined that for each year of the first five-year period the repeals as proposed represent no significant fiscal implications to state or local government or small businesses. There is no anticipated local economic impact. Jaylon Fincannon, director, State Operations, has determined that the public benefit anticipated is the adherence to the statutory requirements of the Natural Death Act. There is no significant anticipated economic cost to persons who are required to comply with the repeals as proposed. Comments on the proposal may be submitted to Linda Logan, Director, Policy Development, Texas Department Mental Health and Mental Retardation, P.O. Box 12668, Austin, Texas 78711-2668, within 30 days of publication. The repeals are proposed under the Texas Health and Safety Code, Title 7, sec.532.015, which provides the Texas Board of Mental Health and Mental Retardation with rulemaking powers. The proposal would affect the Texas Health and Safety Code, Chapters 533, 552, and 593. The proposal affects the Texas Health and Safety Code, Chapter 672. sec.405.51. Purpose. sec.405.52. Application. sec.405.53. Definitions. sec.405.54. Resuscitative Status Policy. sec.405.55. Determination and Implementation of Resuscitative Status Order. sec.405.56. General Provisions Relating to Withholding or Withdrawal of Life- Sustaining Treatment Under the Natural Death Act. sec.405.57. Legal Expression Through Directive Under the Natural Death Act. sec.405.58. Decisionmaking Under the Natural Death Act for Persons Served Who Have Issued Directives. sec.405.59. Decisionmaking Under the Natural Death Act for Persons Served Who Have Not Issued Directives. sec.405.60. Ethics Committee. sec.405.61. References. sec.405.62. Distribution. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on January 4, 1996. TRD-9600085 Ann Utley Chairman, Texas MHMR Board Texas Department of Mental Health and Mental Retardation Earliest possible date of adoption: February 12, 1996 For further information, please call: (512) 206-4516 25 TAC sec.sec.405.51-405.63 The Texas Department of Mental Health and Mental Retardation (TDMHMR) proposes new sec.sec.405.51-405.63 of Chapter 405, Subchapter C, concerning life- sustaining treatment. The new sections are proposed contemporaneously with the proposed repeal of ssec.405.51-405.62, concerning the same. The proposed new sections would expand the purpose of the subchapter to include delineating the treatment and resuscitative status of individuals and implementing a durable power of attorney for health care, as outlined in the Civil Practice and Remedies Code, Chapter 135. Don Green, chief financial officer, has determined that for each year of the first five-year period the sections as proposed represent no significant fiscal implications to state or local government or small businesses. There is no anticipated local economic impact. Jaylon Fincannon, director, State Operations, has determined that the public benefit anticipated is the adherence to the statutory requirements of the Natural Death Act. There is no significant anticipated economic cost to persons who are required to comply with the sections as proposed. Written comments on the proposed new sections may be submitted to Linda Logan, Director, Policy Development, Texas Department Mental Health and Mental Retardation, P.O. Box 12668, Austin, Texas 78711-2668, within 30 days of publication. The new sections are proposed under the Texas Health and Safety Code, Title 7, sec.532.015, which provides the Texas Board of Mental Health and Mental Retardation with rulemaking powers. The proposal would affect the Texas Health and Safety Code, Chapters 533, 552, and 593. The new sections affect the Texas Health and Safety Code, Chapter 672. sec.405.51. Purpose. The purpose of this subchapter is to provide procedures for: (1) delineating the treatment and resuscitative status of individuals; (2) implementing the Natural Death Act, Texas Health and Safety Code, Chapter 672, which provides statutory authority for decisionmaking with regard to withholding or withdrawal of life-sustaining treatment; and (3) implementing a durable power of attorney for health care, as outlined in the Civil Practice and Remedies Code, Chapter 135, which provides for the designation of an agent with the authority to make health care decisions. sec.405.52. Application. This subchapter applies to all residential facilities of the Texas Department of Mental Health and Mental Retardation. sec.405.53. Definitions. The following words and terms, when used in this subchapter, have the following meanings, unless the context clearly indicates otherwise: Competent-Possessing the ability, based on reasonable medical judgment, to understand and appreciate the nature and consequences of a treatment decision, including the significant benefits and harms of and reasonable alternatives to any proposed treatment decision. Consulting-The descriptor for persons not employed by the Texas Department of Mental Health and Mental Retardation who serve on an ethics committee on a voluntary basis, i.e., without monetary or other tangible compensation. Directive-Written or oral expression by a competent adult of his or her desires regarding life-sustaining treatment in the event of an occurrence of a terminal condition as certified by two physicians, one of whom is the attending physician, which meets the legal requirements of the Natural Death Act. Types of advance directives include the "Directive to Physicians/Living Will" and the "Durable Power of Attorney for Health Care Decisions." Ethics committee -An advisory committee of facility staff, consulting professionals, and advocates, whose purpose is to provide advice and consultation to physicians, parents, guardians, and family members regarding treatment decisions concerning individuals who may have a qualifying condition. Facility-Any state hospital, state school for persons with mental retardation, state center, or other institution of the Texas Department of Mental Health and Mental Retardation, and any organizational entity that hereafter may be made a part of the department. Family-The spouse, reasonably available adult children, parent(s), siblings, or nearest relative of the individual, in that priority. Incompetent-Lacking the ability, based on reasonable medical judgment, to understand and appreciate the nature and consequences of a treatment decision, including the significant benefit and harms of and reasonable alternatives to any proposed treatment decision. Individual-A person receiving residential services from a residential facility of the Texas Department of Mental Health and Mental Retardation. Legal guardian -The person who, under court order, is the guardian of the person of the individual. Life-sustaining treatment -A medical procedure or intervention which utilizes mechanical or other artificial means to sustain, restore, or supplant a vital function. Qualifying condition -A terminal condition that has been certified by the attending physician and one other physician who has personally examined the individual. Residential facility -All state hospitals, state schools, and state centers providing 24-hour residential services to persons with mental retardation or mental illness. Resuscitation-Act of reviving from apparent death or unconsciousness. Resuscitative status categories-Categories of intervention for individuals, as follows: (A) Category I: Maximum therapeutic effort-Intervention in which everything reasonably necessary will be done to reduce mortality and morbidity (illness), including transfer to a medical facility for additional services; (B) Category II: Therapeutic effort with no heroics -Intervention in which conservative therapeutic and supportive measures will be performed to reduce mortality and morbidity, excluding initiation of endotracheal intubation and external cardiac massage. Defibrillation, surgical intervention, hyperalimentation, or implementation of other measures deemed extraordinary may be restricted or excluded. This category of intervention is only designated for individuals with a qualifying condition; and (C) Category III: Palliative measures only-Intervention in which measures directed toward reducing pain and enhancing the comfort and dignity of the individual will be maintained. However, no resuscitative measures will be performed. This category of intervention is only designated for individuals with a qualifying condition. Terminal condition -An incurable or irreversible condition caused by injury, disease, or illness that would produce death without the application of life- sustaining procedures, according to reasonable medical judgement, and in which the application of life-sustaining procedures would serve only to postpone the moment of the individual's death. sec.405.54. Resuscitative Status Policy. (a) The resuscitative status of an individual is an integral part of the overall evaluation of the medical care of the individual. An order for Category II or III is given only for individuals with a qualifying condition and should be based on a judgment that resuscitation is an ethically extraordinary and non- obligatory procedure for prolonging life. (b) Resuscitative status should be discussed with the individual (or legal guardian) and his or her family in advance of a medical emergency. When a determination of that status is being made by the individual (or legal guardian), family, and physician, the following considerations are recommended: (1) The competent individual must be allowed the right to determine resuscitative status. If the individual is incompetent (as defined in this subchapter), comatose, or incapable of communication, the decision should be made with the consultation and consent of his or her legal guardian, if any, or family. Because the wishes of the individual, if known, are to be honored, an expression of those wishes made when he or she was competent and capable of communication, e.g., in a directive issued in accordance with the Natural Death Act or the Durable Power of Attorney for Health Care, should be respected and followed. (2) Individuals who are comatose are living human beings whose lives are to be valued; however, this does not mean that all technologies for prolonging life are appropriate or obligatory. (3) Age, handicaps, economic status, or incompetency should not be determinants of resuscitative status. (4) Category II status normally reflects a decision to pursue a conservative therapeutic effort in the face of a chronic disabling illness. There may be individuals with such severe recurring complications that resuscitation would be contraindicated even though they are not in the final stages of a single, defined terminal condition. The physician, with the consultation and consent of the individual, or, if the individual is unable to participate in decisionmaking, his or her legal guardian, if any, or family, may order the further restriction of other measures. In such cases, although treating the intervening illness remains the primary goal, full resuscitation could be considered non-obligatory and a Category II order would be appropriate. (5) A Category III order does not indicate withdrawal of palliative procedures. An individual for whom such an order has been written will receive all the usual care given to enhance comfort, dignity, safety, and a sense of well-being. (6) In any problematic case involving a Category II or III designation or when an individual with a Category II or III designation has no legal guardian and/or family, consultation with the facility ethics committee should be sought. (c) In the event an individual has executed a directive as outlined in sec.405.57 of this title (relating to Legal Expression Through Directive Under the Natural Death Act), the provisions regarding life-sustaining treatment outlined in the directive supersedes any resuscitative status category. sec.405.55. Determination and Implementation of Resuscitative Status Order. (a) All individuals will be initially evaluated on an individual basis as to resuscitative status by the attending physician. Normally this evaluation will be made on admission to services but in all cases within one year of admission. (1) If the attending physician does not categorize an individual, then the individual will automatically be considered Category I. (2) If an individual with a qualifying condition is competent and wishes to be classified Category II or III, then the request will be honored. (3) If an individual with a qualifying condition is incompetent, comatose, or incapable of communication, then the wishes of the legal guardian and family will be honored, provided the attending physician concurs. If there is disagreement between the legal guardian and family, within the family, or between the legal guardian or family and physician, then the individual will be designated according to the wishes of the legal guardian, if available, or family member in the following priority: the patient's spouse; a majority of the patient's reasonably available adult children; the patient's parents; or the patient's nearest living relative. Consultation with the facility ethics committee may be sought. (4) If an individual with a qualifying condition is incompetent, comatose, or incapable of communication and does not have a legal guardian, then one of the following persons, in order of priority, as available, along with the attending physician, can determine resuscitative status: the spouse, a majority of the reasonably available adult children, the parents, or the nearest living relative of the individual. (5) If an individual with a qualifying condition is incompetent, comatose, or incapable of communication and has no legal guardian and does not have family or such family is unavailable or unwilling to participate in decisionmaking, then the facility should seek the appointment of a legal guardian to the extent authorized by law or the attending physician(s) should seek consultation with the facility ethics committee before designating a Category II or III resuscitative status for the individual. (b) If the condition of an individual deteriorates subsequent to initial categorization, and this contingency has not been previously addressed, the individual may be reclassified by following the procedure described in subsection (a) of this section. (c) The attending physician will note in the medical record that the individual or his or her legal guardian, if any, or family have been consulted and agree with the designated status (or redesignation) as outlined in subsection (a) of this section, and its corresponding treatment plan. Such consultations should be witnessed and documented. (d) The resuscitative status category of every individual must be reviewed and documented at least annually, preferably at the annual staffing, and should be reevaluated when there is a significant change in the individual's clinical condition. (e) When the physician has documented the need and written an order for a Category II or III designation, a form designated by the department will be placed in the chart of the individual. This form will have appropriate spaces for documentation of the annual review. sec.405.56. General Provisions Relating to Withholding or Withdrawal of Life- Sustaining Treatment under the Natural Death Act. (a) The attending physician is charged with the responsibility of determining that all of the requirements of the Natural Death Act, where applicable, have been fulfilled before life-sustaining treatment is withheld or withdrawn. The Natural Death Act is referenced in sec.405.61 of this title (relating to Exhibits) as Exhibit A. (b) If the attending physician refuses to comply with a directive or treatment decision by an individual with a qualifying condition, the physician shall make a reasonable effort to transfer the individual to another physician who will comply with the directive or treatment decision. (c) Life-sustaining treatment may not be withheld from an individual known to be pregnant. sec.405.57. Legal Expression Through Directive Under the Natural Death Act. (a) When an adult individual is competent to make a decision regarding life- sustaining treatment and it is clinically appropriate to do so, the individual should be informed of the provisions of the Natural Death Act and provided with a copy of the Directive to Physicians form, referenced in sec.405. 61 of this title (relating to Exhibits) as Exhibit B. The desires expressed by the competent individual should be observed. (1) The directive may be made in writing at any time that the individual is competent to make such a decision. (2) The directive may also be made by a nonwritten means of communication and documented by appropriate witnesses. (3) The directive may be revoked by the individual at any time, without regard to the individual's mental state or competency. (4) The present desire of the competent individual shall at all times supersede a directive. (5) A competent adult individual can designate a person to make treatment decisions in the event that the individual becomes comatose, incompetent, or otherwise mentally or physically incapable of communication. (b) A directive may be made on behalf of an individual with a qualifying condition who is under 18 years of age by his or her spouse, if the spouse is an adult, the parent(s), or legal guardian of the individual. However, such a directive can be overridden by the contrary desire of a competent individual, even if he or she is under 18 years of age. (c) Although only a competent individual may execute an advance directive, all individuals shall receive information about the right to execute advance directives upon admission. sec.405.58. Legal Expression Through Directive Under a Durable Power of Attorney for Health Care. (a) A competent adult individual may designate a person (agent) to make treatment decisions in the event the individual later lacks the capacity to make health care decisions. Such a designation may be made in a directive under the provision of the Durable Power of Attorney for Health Care, referenced in sec.405.61 of this title (relating to Exhibits) as Exhibit C. (1) The designated agent's authority to make treatment decisions, including the decision to withhold or withdraw life-sustaining treatment, begins when the attending physician certifies that the individual lacks capacity or the ability to understand and appreciate the nature and consequences of a health care decision, including significant benefits and harms of and reasonable alternatives to any proposed health care. (2) The directive appointing an agent for treatment decisions may be revoked by the individual at any time, without regard to the individual's mental state or competency. (3) The present desires of the individual with capacity to make health care decisions shall at all times supersede a directive. (b) An individual may not execute a durable power of attorney for health care until the individual signs a statement affirming receipt of a disclosure statement (Part I of the Durable Power of Attorney for Health Care), referenced in sec.405.61 of this title (relating to Exhibits) as Exhibit C, and has read and understood its contents. sec.405.59. Decisionmaking under the Natural Death Act and Durable Power of Attorney for Health Care for Individuals Who Have Issued Directives. (a) If an individual has executed an advance directive, then the directive is attached to the individual's chart and/or medical record. Directives are evidence of the individual's wishes if/when he or she develops a qualifying condition. Directives are not necessarily related to resuscitative status. Should an individual develop a qualifying condition, the directive shall be honored and the resuscitative status shall reflect the directive. (b) If an individual is unable to communicate and has previously issued a directive without designating a person to make treatment decisions, then the attending physician shall comply with the directive unless the physician believes that the directive does not reflect the present desire of the individual. (c) To the extent that a durable power of attorney for health care conflicts with a directive under the Natural Death Act, the instrument executed later in time controls. sec.405.60. Ethics Committee. (a) An ethics committee must be established by each facility. The committee may be established multi-institutionally in cooperation with other health care providers, e.g., local hospitals, serving the same geographical area. (b) The ethics committee must minimally consist of one facility physician; one consulting physician; one facility registered nurse from the individual's unit who has knowledge of the individual and his or her condition; a member of the clergy; an attorney not affiliated with the facility or TDMHMR; a facility social worker (CSW-ACP certified); and a representative of a parents' group or a representative of an advocacy group. The committee may also include the following additional members as available: additional consulting physician; medical support staff, such as a physical therapist, clinical pharmacist, clinical psychologist, or occupational therapist; a consulting social worker (CSW-ACP certified); a rights representative; and additional representation by parents' and or advocacy organizations. (c) Consultation with the ethics committee may be sought for any treatment decision, but should be sought as follows: (1) when an individual is unable to give direction regarding the withholding or withdrawal of life-sustaining treatment, has no legal guardian, and has no person legally designated to make such a decision according to provisions of the Natural Death Act; and (2) when a decision regarding the withholding or withdrawal of life-sustaining treatment is to be made and there is a conflict between or among the decisionmakers. (d) Decisionmaking concerning recommendations to be made by the ethics committee shall be by consensus. Each consultation with the ethics committee shall be documented in the individual's record. sec.405.61. Exhibits. The following exhibits are referenced in this subchapter, copies of which may be obtained by contacting TDMHMR, Office of Policy Development, P.O. Box 12668, Austin, Texas 78711-2668: (1) Exhibit A-Natural Death Act; (2) Exhibit B-Directive to Physicians forms; and (3) Exhibit C-Durable Power of Attorney for Health Care. sec.405.62. References. Reference is made in this subchapter to: (1) the Natural Death Act, Texas Health and Safety Code, Chapter 672; and (2) the Civil Practice and Remedies Code, Chapter 135. sec.405.63. Distribution. (a) This subchapter shall be distributed to the commissioner, and executive, management, and program staff of Central Office; and to superintendents/directors of all TDMHMR facilities. (b) The superintendent/director will ensure distribution of this subchapter to all appropriate staff. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on January 4, 1996. TRD-9600084 Ann Utley Chairman, Texas MHMR Board Texas Department of Mental Health and Mental Retardation Earliest possible date of adoption: February 12, 1996 For further information, please call: (512) 206-4516 TITLE 30. ENVIRONMENTAL QUALITY Part I. Texas Natural Resource Conservation Commission Chapter 116. Control of Air Pollution by Permits for New Construction or Modification The Texas Natural Resource Conservation Commission (TNRCC or commission) proposes amendments to sec.116.12 and sec.116.211, concerning nonattainment review definitions and the Standard Exemption (SE) List. The proposed changes will make the requirements for determining whether a proposed change will trigger nonattainment review consistent with recent changes to sec.116.150. Standard exempted changes at existing major sources will be required to provide netting when the project increases are 40 tons per year or greater. If the contemporaneous net is greater than the major modification level listed in sec.116.12, the source will be required to register the exemption and hold offsets in abeyance. New exempted sources of nitrogen oxides which exceed the major source threshold in Table 1 of sec.116.12 will also be required to register. Section 116.211(a) is being revised to clarify the existing rules and not to change the existing requirements. The revised language makes clear that a facility must only comply with the conditions of a specific exemption and the conditions in sec.116.211(a) to qualify for an exemption. This change also makes clear that the remaining conditions in sec.116.211 are not prequalification requirements. Section 116.211(d) is being revised to clarify the existing rule and not to change the existing requirements. The revised language makes clear that this requirement is a post-construction operational requirement as intended from the original adoption of this requirement. In addition, the proposed amendments change the date of the SE List to identify the date of revisions to the list. The proposed changes to the SE List, which is contained in subsection (f), clarify and update several exemptions on the list. The proposed revisions to the SE List include changes to the following standard exemptions: SE 13, SE 71, SE 73, SE 74, SE 75, SE 89, SE 90, SE 93, SE 113, SE 115, SE 116, and SE 117. The proposal also adds new SE 72, SE 125, and SE 126. The proposed changes and additions are summarized as follows: SE 13, concerning printing operations-updates the exemption to include many insignificant printing operations such as copy centers, T-shirt printers, and party balloon makers. The exemption requires registration for new printing operations that produce more than ten tons per year (tpy) of Volatile Organic Compound emissions; SE 71, concerning concrete batch plants-nonsubstantive, housekeeping amendments to update a cross-reference and provide a generic registration provision; SE 72, concerning animal racing facilities, domestic animal shelters, and zoos-exempts all such facilities from being subject to an air permit technical review; SE 73, concerning rock crushers-clarifies that the exemption is applicable to all rock crushers with a maximum rated capacity of 200 tons per hour or less to provide consistency with current agency interpretation of the exemption; SE 74, concerning grain handling, storage, and drying facilities-shortens the allowable distance of an exempt facility from 1/2 mile to 1/4 mile from any recreational area, residence, or other structure owned by someone other than the grain facility and reduces the allowable storage capacity of an exempt facility from 1,500,000 bushels to one million bushels; SE 75, concerning coatings-clarifies the difference between outdoor or nonenclosed blasting operations, defines a coating source as a booth or enclosed operation, allows for trace amounts of metal compounds in coatings, and reduces the overall complexity and technical details of the existing exemption; SE 89, concerning ethylene oxide sterilizing chambers (used by hospitals)-removes the stack sampling requirement for facilities that use between 100-1,000 pounds of ethylene oxide per year and eliminates requirements for facilities using less than four pounds a year; SE 90, concerning pathological waste and carcass incinerators and crematories-adds definitions to clarify eligible facilities, removes the on-site generated waste restriction for non-commercial operations, and adds alternative design requirements for incinerators at animal feeding operations; SE 93, concerning temporarily located concrete batch plants-nonsubstantive, housekeeping amendments to update a cross-reference and provide a generic registration provision; SE 113, concerning thermoset resins-increases acetone usage, allows for small amounts of resins to be used outdoors, and improves clarity and readability; SE 115, concerning semiconductor manufacturing operations-allows for a larger number of compounds to choose from when substituting or introducing new air contaminants by referencing the Effects Screening Levels (ESL) list or use of an ESL approved by Toxicology And Risk Assessment; SE 116, concerning automobile restoration facilities-clarifies that this exemption only applies to the restoration of classic or antique vehicles. The enclosed building must be at least 50 feet from the property line. Waste fluids must be disposed of properly and usage records must be kept for two years; SE 117, concerning specialty concrete facilities-nonsubstantive, housekeeping amendments to update a cross- reference and provide a generic registration provision; SE 125, concerning paint and ink manufacturing-adds a new SE to authorize the construction and operation of small paint and ink manufacturing operations which will emit insignificant levels of air contaminants (25 tpy solvent emissions, one tpy particulates, opacity maximum 5.0%); SE 126, concerning small solvent recovery equipment- authorizes the construction and operations of small solvent recovery equipment or distillation units which will emit insignificant levels of air contaminants. The staff has prepared a Discussion of Proposed Revisions to the SE List which explains the proposed changes to each exemption in more detail. Copies of this document are available upon request from the TNRCC Office of Policy and Regulatory Development, Air Policy and Regulations Division. The physical location and telephone contact for requesting information is stated at the end of this preamble. Stephen Minick, Strategic Planning and Appropriations Division, has determined that for the first five-year period the sections are in effect there should be no significant cost to state or local government as a result of enforcing or implementing the sections. Mr. Minick also has determined that for each year of the first five years the sections are in effect the public benefit anticipated as a result of enforcing the sections will be a more efficient use of TNRCC resources and a clearer understanding of the terms and conditions of the standard exemptions. The fiscal implications for facilities and small businesses affected by the sections should be a reduction in fees by qualifying for a standard exemption rather than a permit. There is no anticipated economic cost to persons who are required to comply with the sections as proposed. A public hearing on the proposal will be held February 15, 1996, at 10:00 a. m. in Room 254S of TNRCC Building E, located at 12100 North IH-35, Park 35 Technology Center, Austin. The hearing is structured for the receipt of oral or written comments by interested persons. Individuals may present oral statements when called upon in order of registration. Open discussion within the audience will not occur during the hearing; however, a TNRCC staff member will be available to discuss the proposal 30 minutes prior to the hearing and will answer questions before and after the hearing. Written comments not presented at the hearing may be submitted to the TNRCC Office of Policy and Regulatory Development in Austin through February 20, 1996. Material received by the TNRCC Office of Policy and Regulatory Development by 4:00 p.m. on that date will be considered by the commission prior to any final action on the proposal. Please mail comments to Lisa Martin, Office of Policy and Regulatory Development, MC 205, P.O. Box 13087, Austin, Texas 78711-3087. Please fax comments to (512) 239-4808. Copies of the revision are available from the Air Policy and Regulations Division, 12100 North IH-35, Park 35 Technology Center, Building F, Austin, and at all TNRCC regional offices. For further information, contact Phil Harwell at (512) 239-1517 or Jim Dodds at (512) 239- 1119. Persons with disabilities who have special communication or other accommodation needs who are planning to attend the hearing should contact the agency at (512) 239-4900. Requests should be made as far in advance as possible. Subchapter A. Definitions 30 TAC sec.116.12 The amendment is proposed under the Texas Health and Safety Code, the Texas Clean Air Act (TCAA), sec.382.017, which provides the TNRCC with the authority to adopt rules consistent with the policy and purposes of the TCAA. The amendment implements the Texas Health and Safety Code, sec.382.017. sec.116.12. Nonattainment Review Definitions. Unless specifically defined in the Texas Clean Air Act (TCAA) or in the rules of the Texas Natural Resource Conservation Commission (TNRCC or commission)
                                    [board], the terms used by the commission
                                      [board] have the meanings commonly ascribed to them in the field of air pollution control. The terms in this section are applicable to permit review for major source construction and major source modification in nonattainment areas. In addition to the terms which are defined by the TCAA, and in sec.101.1 of this title (relating to General Rules), the following words and
                                        terms, when used in the undesignated head regarding Nonattainment Review, shall have the following meanings, unless the context clearly indicates otherwise. Major modification -Any physical change in, or change in the method of operation of a facility/stationary source that causes a significant net emissions increase for any air contaminant for which an NAAQS has been issued. At a facility/stationary source that is not major prior to the increase, the increase by itself must equal or exceed that specified in the MAJOR SOURCE column of Table I of this section. At an existing major facility/stationary source, the increase must equal or exceed that specified in the MAJOR MODIFICATION column of Table I. [Any net emissions increase that is considered significant for volatile organic compounds or nitrogen oxides (NO [sub]x
                                          ) shall be considered significant for ozone.] A physical change or change in the method of operation shall not include: (A)-(F) (No change.) (G) any change in ownership at a stationary source.
                                            Figure 1: 30 TAC sec.116.12 Major Modification (G) This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on December 20, 1995. TRD-9600045 Kevin McCalla Director, Legal Services Division Texas Natural Resource Conservation Commission Proposed date of adoption: April 20, 1996 For further information, please call: (512) 239-1966 Subchapter C. Permit Exemptions 30 TAC sec.116.211 The amendment is proposed under the Texas Health and Safety Code, the Texas Clean Air Act (TCAA), sec.382.017, which provides the TNRCC with the authority to adopt rules consistent with the policy and purposes of the TCAA. The amendment implements the Texas Health and Safety Code, sec.382.017. sec.116.211. Standard Exemption List. (a) Pursuant to the Texas Clean Air Act (TCAA), sec.382.057, the facilities or types of facilities listed in the Standard Exemption List, dated March 20, 1996
                                              [September 6, 1995], are exempt from the permit requirements of the TCAA, sec.382.0518, because such facilities will not make a significant contribution of air contaminants to the atmosphere, provided that a
                                                [. A] facility shall also
                                                  meet the provisions of paragraphs (1)-(8) of this subsection
                                                    [the following conditions] to be exempt from permit requirements. (1) Total actual emissions authorized under standard exemption from the proposed facility or group of facilities constituting a single project
                                                      shall not exceed 250 tons per year (tpy) of carbon monoxide (CO) or nitrogen oxides (NO [sub]x
                                                        ), or 25 tpy of volatile organic compounds (VOC) or sulfur oxides (SO [sub]2
                                                          ) or inhalable particulate matter (PM point=4.52p [sub]10
                                                            ), or 25 tpy of any other air contaminant except carbon dioxide, water, nitrogen, methane, ethane, hydrogen, and oxygen. (2) Except as noted in paragraph (3) of this subsection, the emissions from new sources located in a nonattainment county shall not exceed the applicable major source threshold listed in Table 1 of s116.12 of this title (relating to Nonattainment Review Definitions). Except as noted in paragraph (3) of this subsection, total emissions authorized under standard exemption from an existing major source located in a nonattainment county shall not exceed the applicable major modification level (after netting) as defined in Table 1 of s116.12 of this title. [(2) Total actual emissions authorized under standard exemption from the proposed facility which is located in a nonattainment area shall not exceed the following limits for each nonattainment pollutant: [(A) the applicable major modification threshold for CO in the definition of "major modification" in sec.116.12 of this title (relating to Nonattainment Review Definitions); [(B) 25 tpy of SO [sub]2
                                                              ; [(C) 15 tpy of PM [sub]10
                                                                ; [(D) in an ozone nonattainment area, the applicable major modification threshold of NO [sub]x
                                                                  in Table 1 of the definition of "major modification" in sec.116.12 of this title.] (3) For sources of NO [sub]x
                                                                    located in the Houston/Galveston ozone nonattainment area (Brazoria, Chambers, Fort Bend, Galveston, Harris, Liberty, Montgomery, and Waller Counties) or the Beaumont/Port Arthur ozone nonattainment area (Hardin, Jefferson, and Orange Counties) the major source/major modification level listed in Table 1 of sec.116.12 of this title can be exceeded with the following conditions. (A) New sources of NO [sub]x
                                                                      exceeding the major source threshold or major modifications exceeding the major modification level for NO [sub]x
                                                                        listed in Table 1 shall register by submitting a PI-8. (B) The registration shall be submitted prior to commencement of construction, but not later than December 31, 1997. (C) No other applicable limits contained in this section shall be exceeded. (4) Total emissions authorized under standard exemption from sources located in a county which is classified as attainment or is unclassified shall not exceed the major modification level (after netting) for existing major sources or the major source level for new sources that is listed in 40 Code of Federal Regulation (CFR) 52.21(b) and incorporated by reference in sec.116.160 of this title (relating to Prevention of Significant Deterioration Requirements). (5)
                                                                          [(3)] Total actual emissions authorized under standard exemption from the property where the proposed facility is to be located shall not exceed 250 tpy of CO, or NO [sub]x
                                                                            , or 25 tpy of VOC, or SO point=4.52p [sub]2
                                                                              , or PM [sub]10
                                                                                , or 25 tpy of any other air contaminant except carbon dioxide, water, nitrogen, methane, ethane, hydrogen, and oxygen, unless at least one facility at such property has been subject to public notification and comment as required in Subchapter B or Subchapter D of this chapter (relating to Public Notification and Comment Procedures) or the pertinent Chapter 116 procedures that were in effect at the time. (6)
                                                                                  [(4)] Construction or modification of the facility shall be commenced prior to the effective date of a revision of the Standard Exemption List under which the construction or modification would no longer be exempt. (7)
                                                                                    [(5)] The proposed facility shall comply with the applicable provisions- of the Federal Clean Air Act (FCAA), sec.111 (regarding Federal New Source Performance Standards) and sec.112 (regarding Hazardous Air Pollutants) [, and the new source review requirements of the FCAA, Part C and Part D, and regulations promulgated thereunder]. (8)
                                                                                      [(6)] There are no permits under the same Texas Natural Resource Conservation Commission (TNRCC)
                                                                                        [Texas Air Control Board (TACB)] account number that contain a condition or conditions precluding use of the standard exemption or standard exemptions. (b) Notwithstanding the provisions of this section, any facility which constitutes a new major source, or any modification which constitutes a major modification under [nonattainment review or] the new source review requirements of the FCAA, Part C
                                                                                          (Prevention of Significant Deterioration) or Part D (Nonattainment)
                                                                                            [review] as amended by the FCAA Amendments of 1990, and regulations promulgated thereunder shall be subject to the requirements of sec.116.110 of this title (relating to Applicability) rather than this section. (c) (No change.) (d) After construction of the facility, the
                                                                                              [The] emissions from the facility shall comply with all rules and regulations of the TNRCC
                                                                                                [TACB] and with the intent of the TCAA, including protection of health and property of the public and all emissions control equipment shall be maintained in good condition and operated properly during operation of the facility. (e) (No change.) (f) Installations exempted by the TNRCC may be required by local air pollution control agencies to receive a permit or permits from that agency, or register with that agency. Any such requirements must be in accordance with the TCAA, sec.382.113 and any other applicable law.
                                                                                                  Figure 1: 30 TAC sec.116.211(f) This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on December 20, 1995. TRD-9600046 Kevin McCalla Director, Legal Services Division Texas Natural Resource Conservation Commission Proposed date of adoption: April 20, 1996 For further information, please call: (512) 239-1966 TITLE 34. PUBLIC FINANCE Part I. Comptroller of Public Accounts Chapter 3. Tax Administration Subchapter HH. Mixed Beverage Tax 34 TAC sec.3.1001 The Comptroller of Public Accounts proposes new sec.3.1001, concerning the mixed beverage gross receipts tax. Administration of this tax, including the tax reports, audits, and responsibility for obtaining security instruments for the tax transfers from the Texas Alcoholic Beverage Commission to the comptroller's Office effective January 1, 1994. This transfer resulted from the enactment of House Bill 1445, 73rd Legislature, 1993, which repealed the Alcoholic Beverage Code, Chapter 202, and created new Tax Chapter 183, Mixed Beverage Tax under Tax Code, Title 2. This new section includes mixed beverage permit definitions and an allowance for bad debts as enacted in House Bill 1419 and Senate Bill 643, 74th Legislature, 1995. This new section is intended to define the tax, provide definitions for terms in both the Alcoholic Beverage Code and Chapter 183, define what is included in and what is excluded from the tax base and to reference sales and use tax taxability issues for some of the receipts common to holders of mixed beverage tax permitholders. Mike Reissig, chief revenue estimator, has determined that for the first five- year period the rule will be in effect there will be no significant revenue impact on the state or local government. Mr. Reissig also has determined that for each year of the first five years the rule is in effect the public benefit anticipated as a result of enforcing the rule will be in clarifying and simplifying the administration of the Mixed Beverage Tax. This rule is adopted under the Tax Code, Title 2, and does not require a statement of fiscal implications for small businesses. There is no significant anticipated economic cost to persons who are required to comply with the proposed rule. Comments on the new section may be submitted to Karey W. Barton, Manager, Tax Administration Division, P.O. Box 13528, Austin, Texas 78711. The new section is proposed under the Tax Code, sec.111.002, which provides the comptroller with the authority to prescribe, adopt, and enforce rules relating to the administration and enforcement of the provisions of the Tax Code, Title 2. The new section implements the Tax Code, sec.183.001 and sec.183.021. sec.3.1001. Mixed Beverage Gross Receipts, Receipts Excluded From Tax. (a) Definitions. The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise. (1) Alcoholic beverage-Alcohol, or any beverage containing more than one-half of one percent of alcohol by volume, which is capable of use for beverage purposes, either alone or diluted. (2) Complimentary alcoholic beverage-An alcoholic beverage served without any charge for the alcoholic beverage to the person served. (3) Gratuities-An amount given voluntarily by a customer or member for the sale or service of alcoholic beverages in addition to the charge for the alcoholic beverages or an amount that is mandatory based on a percentage or other amount established by the permittee in excess of the charge for the sale or service of the alcoholic beverages. (4) Minibar-A closed container, cabinet, or other device in a hotel guestroom that contains alcoholic beverages for use by guests registered in the hotel. (5) Mixed beverage-A serving of a beverage composed in whole or in part of an alcoholic beverage in a sealed or unsealed container of any legal size for consumption on the premises where served or sold by the holder of a mixed beverage permit, a private club registration permit, a private club exemption certificate permit, and any of the auxiliary permits held by the permitholders. (6) Permittee-A holder of a mixed beverage permit, a mixed beverage late hours permit, a mixed beverage permittee holding a food and beverage certificate, a daily temporary mixed beverage permit, a private club registration permit, a private club exemption certificate permit, a private club late hours permit, a daily temporary private club permit, a private club registration permittee holding a food and beverage certificate, or a caterer's permit issued by the Texas Alcoholic Beverage Commission. (7) Temporary membership card-A card printed and sold to a private club by the Texas Alcoholic Beverage Commission. The card is then sold by the private club to an individual and entitles that individual to all the privileges of membership in the private club for a period not to exceed three days. The card also entitles the holder to bring not more than three persons into the club as the holder's guests. (8) Walked checks or tabs-An industry term that refers to the instance of a customer that on a particular business day consumes alcoholic beverages and leaves the permittee's premises without paying or providing the appropriate consideration for the alcoholic beverages. (b) Mixed Beverage Gross Receipts Tax. A tax at the rate of 14% imposed on the gross receipts of a permittee received from the sale, preparation, or service of alcoholic beverages or from the sale, preparation, or service of ice or nonalcoholic beverages that are sold, prepared, or served for the purpose of being mixed with an alcoholic beverage and consumed on the premises of the permittee. (1) The Mixed Beverage Gross Receipts Tax is a tax on gross receipts and is not to be added to the charge for the sale or service of the alcoholic beverage and cannot be considered included in the gross receipts amount. (2) Each permittee must file a monthly return due on the 20th day of the following month. If no sales or services of alcoholic beverages are made during a month, a report indicating that fact must be filed. (c) Taxable mixed beverage receipts. The Mixed Beverage Gross Receipts Tax applies to, but is not limited to, receipts for the following items: (1) receipts from the sale or service of alcoholic beverages; (2) receipts from the sale or service of nonalcoholic beverages that are mixed and consumed with alcoholic beverages on the permittee's premises; (3) receipts from cover charges, door charges, entry fees or admission fees that are related to reduced prices for alcoholic beverages as described in 16 TAC sec.45.103 (relating to Regulations of "Happy Hour"). If cover charges are determined to be related to reduced prices for alcoholic beverages, the tax base will be the entire receipts from the cover charge plus the reduced sales or service prices received for the alcoholic beverages; (4) as an alternative to paragraph (3) of this subsection, a permittee may elect to report the services or sales of alcoholic beverages at the normal service or selling price and exclude the cover charges, door charges, entry fees or admission fees from the tax base. The normal sales or service price is the price charged for the alcoholic beverage when no cover charge, door charge, entry fee, or admission fee is collected. When the permittee elects to use this option, the cover charges, door charges, entry fees, or admission fees will be subject to sales tax under s3.298 of this title (relating to Amusement Services); (5) the normal selling price of alcoholic beverages served with meals with no separate charge. If the specific alcoholic beverage is being sold or served at a promotional price at the same time as the meal, the tax base for the alcoholic beverage will be the promotional price. This subsection refers to promotions usually promoted as "free drink(s) with a meal"; (6) mandatory gratuities of 20% or less that are not entirely distributed to qualifying employees. "Qualifying employees" are employees such as, but not limited to, waitpersons, buspersons, bartenders, wine stewards, and maitre who customarily and regularly provide the services upon which the charge is based. Nonqualifying employees or recipients include, but are not limited to, owners, club managers with no direct involvement in the particular event, janitorial help, chefs, cashiers, and dishwashers. (A) If compensation is made to nonqualifying employees or recipients, the entire portion of the gratuity attributable to the sale or service of alcoholic beverages is subject to the mixed beverage gross receipts tax. (B) If the total direct compensation due all qualifying employees during each reporting period (month) equals or exceeds the total amount collected as mandatory gratuities and no compensation is paid nonqualifying employees, the mandatory gratuity is exempt from the mixed beverage gross receipts tax; (7) all mandatory gratuities that exceed 20% of the charge for alcoholic beverages are subject to the mixed beverage gross receipts tax; (8) miscellaneous charges in conjunction with the sale or service of alcoholic beverages such as bar set-up fees, bartender fees, corkage fees, maitred hotel charges, etc., are subject to the mixed beverage gross receipts tax; (9) all sales or services of alcoholic beverages by caterers; (10) all sales or services of alcoholic beverages sold or served by the holder of a temporary permit listed in subsection (a)(6) of this section or by the holder of a beer and wine only temporary permit issued to a mixed beverage permit holder; (11) all sales of coupons, tokens, tickets, etc., that are redeemed or used in any manner to purchase or pay for the service of an alcoholic beverage; and (12) thefts of money or legal tender received from the sale or service of alcoholic beverages are not deductible from the mixed beverage tax base. (d) Private clubs, special events, and functions. Mixed beverage gross receipts tax on alcoholic beverages served at special events or functions such as golf or tennis tournaments at private clubs, when a lump-sum charge entitles the member or guest to various items such as green fees, food, alcoholic beverages, golf cart rentals, etc., shall be computed by one of the following methods. (1) The club shall maintain documentation that shows the normal cost to a member or guest for each of the items provided for the lump-sum charge. The permittee will then compute the percentage of the total of all the charges attributable to the sale or service of the alcoholic beverages. This percentage then will be applied to the actual lump-sum amount paid by the member or guest to derive the tax base for the mixed beverage gross receipts tax. For example, if the total of all the items would normally cost $300 and the permittee estimates that the portion attributable to the sale or service of alcoholic beverages is $30, then 10% of the actual lump-sum amount would be reported as subject to the mixed beverage gross receipts tax. If the amount paid by the member or guest is $200, then $20 would be the tax base. The documentation used by the permittee is subject to review by the comptroller's personnel and any amounts determined to be inaccurate or unreasonable may be adjusted. (2) The permittee may choose to use the normal sales or service prices of the alcoholic beverages as the tax base for the mixed beverage gross receipts tax. (e) Items excluded from the mixed beverage gross receipts tax base. (1) Complimentary alcoholic beverages served without any charge to the recipient. Use tax as provided by the Tax Code, Chapter 151, is due on the taxable ingredients of the complimentary alcoholic beverages. (2) Complimentary alcoholic beverages served during promotional periods such as happy hours at hotels or motels. If, however, there is an increase in guest room rates attributable to the promotional periods, the comptroller will have the option to tax either the increase in the room rate under the Tax Code, Chapter 156, or assess use tax on the taxable ingredients of the complimentary drinks. The comptroller will have the authority to use information such as the room rates at comparable hotels and motels in the area to determine if an increased rate is attributable to the promotional period alcoholic beverages. (3) Complimentary alcoholic beverages served to holders of free drink cards or free drink tokens, for which no consideration was paid by the holder. (4) All voluntary gratuities. (5) All mandatory gratuities, not to exceed 20% of the charge for the alcoholic beverages, that are distributed to qualifying personnel as outlined in subsection (c)(6) and (B) of this section. (6) Walked checks or tabs. These differ from bad debts in that no agreement exists to extend credit to the customer or guest. (7) Receipts from cover charges, door charges, entry fees, or admission fees that are not related to reduced prices for alcoholic beverages and assumed for entertainment, food specials, and other purposes. Sales tax as provided by sec.3.298 of this title (relating to Amusement Services) is due on these receipts. (8) Cover charges collected when the permittee elects to use the reporting method described in subsection (c)(4) of this section. (9) Bad debts. The unpaid portion of the gross receipts on sales or services made on or after August 28, 1995, that have been charged off the books as a bad debt and that are deducted for federal tax purposes during the same or subsequent reporting period. (f) Alcohol loss, sales tax not due. Although use tax per the Tax Code, Chapter 151, is due on the taxable ingredients of complimentary drinks, no use tax is due on alcoholic beverages that are destroyed due to spillage or breakage or used in cooking. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on December 20, 1995. TRD-9600022 Martin Cherry Chief, General Law Comptroller of Public Accounts Earliest possible date of adoption: February 12, 1996 For further information, please call: (512) 463-4028