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 1. ADMINISTRATION Part V. General Services Commission Chapter 125. Travel and Transportation Division Travel Management Services 1 TAC sec.125.27 The General Services Commission adopts an amendment to sec.125.27, concerning travel agency contracting requirements as part of the State Travel Management Program, without changes to the proposed text as published in the March 19, 1996, issue of the Texas Register (21 TexReg 2085). The amendment to sec.125.27 are adopted to correctly refer to "ARC/IATAN" (Airline Reporting Corporation and/or International Airline Travel Agent Network) under sec.125.27(b)(3) and (c)(2). The amendment will correct two incorrect references to the acronym "ARC" under sec.125.27 to "ARC/IATAN". No comments were received regarding adoption of the amendment. The amendment is adopted under the Texas Government Code, Title 10, Subtitle D, sec.2171.002. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas on April 22, 1996. TRD-9605603 David Ross Brown Assistant General Counsel General Services Commission Effective date: May 13, 1996 Proposal publication date: March 19, 1996 For further information, please call: (512) 463-3960 TITLE 4. AGRICULTURE Part VII. Texas Agriculture Resources Protection Authority Chapter 101. General Rules Subchapter A. Routine Procedures 4 TAC sec.101.1, sec.101.2 The Agriculture Resources Protection Authority (the Authority) adopts amendments to sec.101.1 and sec.101.2, concerning definitions and meetings, without changes to the proposed text as published in the October 27, 1995, issue of the Texas Register (20 TexReg 8887). The amendments are adopted to make the rules consistent with legislative changes made to the Texas Agriculture Code, sec.76.009 by the 74th Legislature (1995). The amendments will function by providing greater language clarity and consistency between the statutes and regulations of the Authority. No comments were received regarding adoption of the amendments. The amendments are adopted under the Texas Agriculture Code, sec.76.009, which provides the Texas Agriculture Resources Protection Authority with the authority to adopt rules relating to any duty of the Authority. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on April 23, 1996. TRD-9605644 Dolores Alvarado Hibbs Chief Administrative Law Judge Texas Agriculture Resources Protection Authority Effective date: May 14, 1996 Proposal publication date: October 27, 1995 For further information, please call: (512) 463-7583 TITLE 16. ECONOMIC REGULATION Part I. Railroad Commission of Texas Chapter 3. Oil and Gas Division Conservation Rules and Regulations 16 TAC sec.3.10 The Railroad Commission of Texas adopts an amendment to sec.3.10, concerning production of oil and gas from different strata, with changes to the proposed text as published in the February 6, 1996, issue of the Texas Register (21 TexReg 822). The amendment conforms sec.3.10 to Texas Natural Resources Code, sec.85.046 and sec.86.012, as amended. The amended rule authorizes the commission, after notice and an opportunity for affected parties to request a hearing, to approve commingled production administratively. Approval without a hearing is authorized when neither the applicant nor the parties entitled to notice have requested a hearing, and the commission finds that production in a commingled state will prevent waste, promote conservation or protect correlative rights. The amended rule also delineates persons entitled to notice of both initial and subsequent applications for commingling exceptions and clarifies what constitutes commingled production. Notice of initial applications involving only commission-designated fields must be given to all operators in the fields sought to be commingled. For initial applications involving hydrocarbon reservoirs that have not been designated as fields and for all subsequent applications, the notice provisions incorporate the presumption (also found in sec.3.37(c) of this title, concerning statewide spacing), that operators closer than the minimum lease-line distance prescribed by applicable field rules may be affected by the requested exception and are therefore entitled to notice of the request. The standard for consideration of a requested exception is set out in sec.3. 10(b). The language in sec.3.10(b)(1) tracks the current wording of the underlying statutes and concisely states that only an opportunity for a hearing, and not an actual hearing, is required prior to the grant of an exception. A definition of "different strata" has been inserted as new sec.3.10(a)(1) and the phrase "different strata" is used throughout the proposed text of this section to cure apparent ambiguities in the existing section caused by the use of different phrases to describe the same concept. The specific language of the definition of "different strata" was chosen because it is a concise statement of the concept of "different strata" as that phrase has historically been interpreted by the commission. The notice provisions in sec.3.10(c) were added to formalize the commission's existing procedures regarding notice so that interested persons can easily identify those operators entitled to notice and the manner in which notice must be given. In addition, formalizing the notice procedures assures that notice requirements are applied consistently. The specific categories of operators to be given notice reflect the presumption that all operators of adjacent tracts and of tracts within minimum lease-line distances, as set by applicable field rules, may be affected by a proposed exception for a given well. The notice requirements are broader for initial applications because of the potential precedential effect of a grant of an exception and the concomitant need for the commission to have information and input from all directly and indirectly impacted operators. The notice requirements are broadened to include all operators of adjacent tracts and of tracts nearer than minimum applicable lease-line distances when at least one of the hydrocarbon reservoirs for which commingling is sought has not been designated as a field by the commission. This broadening recognizes the potential for differing interpretations of whether a given accumulation of hydrocarbons should be considered as part of a commission-recognized field and the accompanying uncertainty as to which commission-designated fields might be affected by the proposed commingling. The commission received comments from four entities regarding the proposed amendments to sec.3.10; two comments favored adoption of the amendments without any changes, and two favored adoption with changes to the rule as published. Three of the four comments were filed by groups or associations. The Texas Independent Producers and Royalty Owners Association ("TIPRO") favors adoption of the proposed amendments to sec.3.10 without changes. TIPRO indicated that the published text of the rule does "a good job conforming the rule to this change in the law and we support your efforts." Conoco, Inc. ("Conoco") also favors adoption of the rule as proposed and recommends no changes to the published version of the rule. Conoco noted that the proposed rule is longer than the existing rule but concluded that "having all of the required procedural information in the rule provides considerable cost and time savings for the industry and assures consistent handling of commingling requests." Conoco further noted that the additional text in the rule does not set out any new requirements but "merely formalizes many of the unwritten procedural requirements operators have been required to observe." The North Texas Oil and Gas Association ("NTOGA") filed comments generally favoring adoption but also suggesting three changes to the proposed language in sec.3.10. NTOGA recommends changing the definition of "different strata" so that commingling that does not include a commission-designated field but only involves two different hydrocarbon reservoirs that are not commission-designated fields ("wildcat reservoirs") is authorized. Ancillary to this recommendation, NTOGA proposed a change to provide for notice of the application when an operator applies to commingle two wildcat reservoirs. The commission disagrees with this recommendation. Commingled production must include at least one commission-designated field, because production is reported and allowables are assigned based on fields. If exclusively wildcat reservoirs are commingled, there is no field to which production can be reported or on which to base an allowable assignment. To the extent NTOGA is suggesting that operators be allowed to designate a new field that consists of two or more wildcat reservoirs, procedures already exist whereby an operator can seek to have multiple wildcat reservoirs designated as a single new field and regulated as one field by the commission. NTOGA also recommends deletion of the last sentence of sec.3.10(c)(3)(B), which relieves an applicant of the requirement of giving notice of its application to an operator that has been determined to be unaffected. NTOGA expresses concern about the commission determining whether an operator is potentially affected based solely on data submitted by the applicant and notes that offsetting operators may have additional information pertinent to the commingling application. The provision for a determination of unaffected status is similar to the existing provision in sec.3.37(a)(3)(A) of this title, concerning statewide spacing. As written, the rule requires notice to all presumptively affected operators unless the applicant provides geological or engineering data conclusively establishing that the proposed commingling will not physically interfere with the production of hydrocarbons by the operator for which the unaffected designation is sought. This is a high standard and it would be an exceedingly unusual situation in which an applicant could obtain a determination that an immediately offsetting operator would be unaffected by a proposed commingling of production. The commission believes, however, that applicants should have the ability to seek and obtain determinations of unaffected status in appropriate situations, particularly with regard to non-adjacent operators in large fields. Although the commission shares some of NTOGA's concerns regarding determinations of unaffected status, the rule as written adequately addresses these concerns and the commission declines to adopt the proposed change. NTOGA's final recommendation is that the commission add a provision to the proposed rule addressing the voiding of a commingling permit when changed circumstances result in an operator being adversely affected by continued commingling. The commission disagrees with this recommendation. The commission's general rules of practice and procedure (sec.sec.1.1-1.152 of this title, concerning practice and procedure) provide for complaint proceedings seeking cancellation of commission-issued permits. Complaints may be filed when circumstances have changed such that the continued operation of the permit will cause waste or improperly interfere with the correlative rights of the complaining party. Because a procedure already exists allowing an aggrieved operator to seek cancellation of an existing commingling permit, a redundant provision addressing that same subject matter should not be added to sec.3.10. Texas Mid-Continent Oil and Gas Association ("TMOGA") filed comments generally agreeing with the proposed changes but also suggesting a number of changes to the proposed language of sec.3.10. TMOGA recommends changing "string of casing" to "string of tubulars" throughout the rule. The phrase "string of casing" is in the text of the rule as it currently exists and it was used in the proposed language because no change in the situations to which sec.3.10 applies is intended. The commission agrees with TMOGA, however, that "string of tubulars" is a more accurate description and the text of the rule, as adopted, has been changed to substitute "tubulars" in place of "casing" throughout the rule. This change is strictly one of nomenclature and does not alter in any way the commission's interpretation of what constitutes down-hole commingling to which sec.3.10 applies. TMOGA recommends deletion from sec.3.10(a) of the parenthetical "(including multiple stratigraphic or lenticular accumulations of hydrocarbons regulated as a single field by the commission)." The commission agrees that the parenthetical is not essential because the concept it expresses is subsumed by the general reference to "commission-designated fields" and that parenthetical language has been deleted from the rule as adopted. TMOGA also correctly points out that the word "promotion" rather than the correct word, "promote," was published in sec.3.10(b). That typographical error has been corrected in the text of the adopted rule. TMOGA next recommends adding a provision that applications will be considered on a well, designated area, lease, or field-wide basis. The commission disagrees with this recommendation because its substance is already incorporated into the proposed text; sec.3.10(b) indicates that an application may be to "permit a well or wells" to commingle production. Clearly, the rule envisions that an application may be for multiple wells. The commission believes that applications should specify the well or wells covered rather than using some less precise reference such as "designated areas," so that all affected operators will have notice of the specific well or wells that will be affected by the relief sought by the applicant. Further, an application on a field-wide or designated area basis would effectively be a field consolidation, a procedure already authorized by other commission rules. TMOGA recommends numerous changes to the published language of sec.3.10 so as to limit the right to notice and opportunity for hearing to initial applications to commingle production from different strata. TMOGA's recommendations would eliminate any requirement of notice for all subsequent applications once a single application involving the same fields has been approved. The commission disagrees with this recommendation. The statutes which authorize sec.3.10 empower the commission to authorize commingled production "after notice and opportunity for hearing . . . if the commission finds that the commingling will prevent waste, promote conservation, or protect correlative rights." The statutes make no distinction between initial and subsequent applications, and, accordingly, notice and opportunity for hearing are called for in both situations. Consistent with past commission practice concerning commingling, the adopted rule does have less extensive notice requirements for subsequent applications than for initial applications. TMOGA recommends deleting sec.3.10(c)(1)(B) which sets out the procedure for giving notice of application, because, it asserts, these procedures are well established through commission rules "and accepted standards of practice." In the alternative, TMOGA recommends requiring notice to an operator's most recent P-5 address and deletion of the option of serving notice by facsimile. The commission disagrees with the recommendation to delete sec.3.10(c)(1)(B). It is necessary that notice procedures be delineated to ease the administrative burden by avoiding inconsistencies and by insuring that parties entitled to notice are given notice. TMOGA's alternative recommendations illustrate that proper notice procedures are not uniformly agreed on, as TMOGA asserts. The published text of sec.3.10(c)(1)(B) is taken nearly verbatim from sec.1.48(c) of this title, concerning service in protested contested cases. This rule appears to be the most nearly applicable existing rule, yet TMOGA asserts that service to last known addresses and the option of serving by facsimile transmissions, as provided in that rule, are inappropriate. Similarly, applicants' timing in giving notice has not been consistent. Currently, applicants often send notice of application to others significantly before filing the application with the commission. At times, this has resulted in a protest being filed prior to the application itself, which can lead to problems in properly matching a protest to a subsequently filed application, particularly if the subsequently filed application is not identical to the earlier version that was sent to affected parties. The commission believes it is essential that notice procedures be clear and consistent and the adopted rule retains a delineation of notice procedures. The commission agrees with TMOGA's suggestion, however, that notices be directed to an operator's most current P-5 address rather than its last known address. Requiring notice to P-5 addresses is appropriate for this rule since all of the potentially affected parties are operators who are required to maintain current addresses on file with the commission through the annual filing of P-5s and interim address updates, when necessary. Because Form P-5 filings are not required to include facsimile numbers, and because of potential problems in proving receipt of notice, the commission also agrees that the option of serving notice by facsimile transmission should be deleted. The adopted rule reflects both of these changes to the notice procedures. Finally, TMOGA suggests deletion of language relating to lease line distance. The commission disagrees with this suggestion. In the rare instance in which an operator is within minimum lease line distance but not adjacent to a tract on which commingling is proposed, this provision provides important protection. When an operator is within the zone that is presumptively affected by commingling, his right to notice should not depend on the fortuitous location of lease lines. The commission adopts the amendments pursuant to Texas Natural Resources Code, sec.sec.81.052, 85.201, and 86.042, which authorize the commission to prevent waste of oil and gas and to protect correlative rights. For more information call Colin K. Lineberry at (512) 463-7051. sec.3.10. Restriction of Production of Oil and Gas from Different Strata. (a) General prohibition. Oil or gas shall not be produced from different strata through the same string of tubulars except as provided in this section. As used in this section, "different strata" means two or more different commission-designated fields, or one or more commission-designated fields and any other hydrocarbon reservoir. (b) Exception. After notice and an opportunity for a hearing, the commission or its delegate may grant an exception to subsection (a) of this section to permit production from a well or wells commingling oil or gas or oil and gas from different strata, if commingled production will prevent waste or promote conservation or protect correlative rights. (c) Notice of Application for Exception (1) Timing of Notice (A) The applicant shall give notice of each request for an exception by serving a copy of the application to commingle production on all affected operators at the same time the application is filed with the commission. (B) Service shall be accomplished by delivering a copy of the application to the operator to be served, or to the operator's duly authorized representative, in person, by agent, by courier receipted delivery, by first class mail to the operator's mailing address as shown on the operator's most recently filed Form P-5 (Organization Report) or the most recently filed letter notification of change of address, or by such other manner as the commission may direct. (2) Operators Presumptively Affected By Application (A) An initial exception to commingle production exclusively from different commission-designated fields is presumed to affect all operators in each of the commission-designated fields proposed to be produced through the same string of tubulars. (B) An initial exception to commingle production from a commission-designated field with production from one or more hydrocarbon reservoirs that have not been designated by the commission as a field is presumed to affect all operators in each of the different commission-designated fields proposed to be produced through the same string of tubulars and all operators of adjacent tracts, and of tracts nearer to the well for which a commingling exception is sought than the longest applicable minimum lease-line distance. (C) An exception to commingle production exclusively from the same commission- designated fields for which an initial commingling application has previously been granted is presumed to affect all operators of adjacent tracts, and of tracts nearer to the well for which a subsequent commingling exception is sought than the longest applicable minimum lease-line distance, who have a well completed in one or more of the commission-designated fields for which commingling is sought. (D) An exception to commingle production from a commission-designated field and one or more hydrocarbon reservoirs in specified correlative intervals that have not been designated by the commission as fields, for which an initial commingling exception involving the same fields and hydrocarbon reservoirs has previously been granted, is presumed to affect all operators of adjacent tracts, and of tracts nearer to the well for which a commingling exception is sought than the longest applicable minimum lease-line distance. (3) Notice Required Only to Affected Operators (A) Except as provided in subparagraph (B) of this paragraph, all operators described in subsections (c)(2)(A)-(D) of this section are affected by a requested exception to allow commingling and the applicant shall give each of them notice of the application as provided in subsection (c)(1)(A) of this section. (B) The commission or its delegate may determine that an operator described in subsections (c)(2)(A)-(D) will be unaffected by a requested exception to allow commingling. This determination shall be made only upon the applicant's written request and provision to the commission of competent geological or engineering data establishing conclusively that commingling production as requested by the applicant will not physically interfere with the production of hydrocarbons by the operator for which an unaffected determination is requested. An applicant for an exception to allow commingling is not required to give notice of the application to an operator who has been determined to be unaffected as provided in this subparagraph. (d) Commingled production. Commingled production of gas from different strata pursuant to Subsection (b) of this section shall be considered production from a common source of supply for purposes of proration and allocation. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on April 23, 1996. TRD-9605641 Mary Ross McDonald Assistant Director, Gas Services, Office of General Counsel Railroad Commission of Texas Effective date: May 14, 1996 Proposal publication date: February 6, 1996 For further information, please call: (512) 463-7008 Chapter 20. Administration Subchapter B. Access To and Charges For Records 16 TAC sec.sec.20.101, 20.103, 20.104, 20.105, 20.110, 20.111, 20.114, 20.115, 20.120 The Railroad Commission of Texas adopts amendments to sec. sec.20.101, 20.105, 20.110, 20.115, and 20.120, and new sec. sec.20.103, 20.104, 20.111, and 20.114, relating to access to and copies of public records, without changes to the proposed text as published in the October 27, 1995, issue of the Texas Register (20 TexReg 8890). The text of the adopted rules will not be republished. The amendments define new terms and revise some charges and procedures for providing copies of public records and access to public information for inspection. House Bill 1718, Acts 1995, 74th Legislature, Chapter 1035, sec.15, amended the Open Records Act, Government Code, Chapter 552, Subchapter F, to require state agencies to follow rules adopted by the General Services Commission (GSC) for determining charges for public information, unless expressly exempted by GSC. On August 25, 1995, the commission requested an exemption from GSC for charges different from GSC's as well as approval for charges for items not currently listed by GSC. The commission submitted calculations determining actual cost for each of its proposed charges. GSC, on September 15, 1995, gave its determination on the commission's requested exemption. Calculations relating to the commission's charges and the correspondence between GSC and the commission are a part of the record of this rulemaking and are available for inspection from the commission's internal auditor, Gary Brinkley, at Railroad Commission of Texas, 1701 North Congress Avenue, Room 12-127B, Austin, Texas, (512) 463-7276. The amendments to sec.20.105 relating to charges for providing copies of public information and sec.20.120, relating to charge schedule, reflect changes in commission charges in accordance with the determination of GSC and clarification on when additional charges may be assessed consistent with House Bill 1718. Changes in charges include reductions in the cost of paper copies of microfilm, microfiche or unit jackets (reduced from $.25 to $.10 per copy); oversized copies (reduced from $.35 to $.10 per foot); and personnel (reduced from $17.40 to $15 per hour). The commission is also adding charges for faxing requested information as approved by GSC. The amendment to sec.20.110, relating to inspection of paper records, implements House Bill 1718's requirement of no charge for inspection of paper records with the exception of deleting confidential information. The amendment to sec.20.115, relating to estimates and waivers of public information charges, clarifies when a bond or deposit may be required and when information has to be made available to a requestor-both changes as a result of House Bill 1718. New sec.sec.20.103, 20.104, and 20.111, relating to information in an electronic or magnetic medium; requests for information that require programming or manipulation of data; and inspection of electronic record if copy not requested, implement House Bill 1718's new requirements for processing requests for computer information. New sec.20.114, relating to information excepted from disclosure, clarifies that the commission, by Chapter 20 of this title (relating to Access to and Charges for Open Records), does not waive any right or duty to withhold information it considers excepted from disclosure in accordance with Government Code, Chapter 552, Subchapter C. Chapter 20 applies only to information that is not excepted from disclosure under the Open Records Act, Government Code, Chapter 552. The commission received no comments on the proposed rules. The commission adopts the amendments and the new rules under Government Code, Chapter 552, Subchapter F; House Bill 1009, Acts 1993, 73rd Legislature, Chapter 428, sec.5; and House Bill 1718, Acts 1995, 74th Legislature, Chapter 1035, sec.15, which require state agencies to promulgate rules setting out charges for copies of public records. 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 April 23, 1996. TRD-9605642 Mary Ross McDonald Assistant Director, Gas Services, Office of General Counsel Railroad Commission of Texas Effective date: May 14, 1996 Proposal publication date: October 27, 1995 For further information, please call: (512) 463-7008 TITLE 22. EXAMINING BOARDS Part XVI. Texas Board of Physical Therapy Examiners Chapter 321. Definitions 22 TAC sec.321.1 The Texas Board of Physical Therapy Examiners adopts amended sec.321.1, concerning Definitions, with changes to the proposed text as published in the November 21, 1995 issue of the Texas Register (20 TexReg 9664). This section is being amended to clarify the procedure by which a physical therapist or physical therapist assistant supervises physical therapy aides. Comments were received on the proposed amended 321.1 Definitions from: Anne Ellis, Colleen Basler, Lynn Laird, Karen Hartzler, Seton Hospital; W. Edward Berger, Baylor Medical Center at Garland; Janda L. Edwards, Baylor Institute For Rehabilitation; Judith C. Waterston, BaylorWorx; Luci Short, Texas Hospital Association; Mathew T. Wall, Harris Methodist Erath County; Charles Campbell, Patricia Alford, Kelly Finney, Southeast Baptist Hospital; Harry Smith, McKenna Memorial Hospital; Terry Hay, Judy McClanahan, Drew Hofstad, Ann Glasscock Laura Goodwin; and Gary Gray, Texas Physical Therapy Association. Comments expressing support for changes proposed to 321.1(F)(i) were received from Lynn Laird. Comments expressing opposition to proposed changes to 321.1(F)(i) were received from Seton Hospital, Texas Hospital Association, Harris Methodist Erath County, and Texas Physical Therapy Association. Comments expressing support to changes proposed to 321.1(F)(v) were received from Lynn Laird. Comments expressing opposition to proposed changes to 332.1(F)(v) were received from Texas Hospital Association, Harris Methodist Erath County, and Texas Physical Therapy Association. Comments expressing support for changes proposed to 321.1(F)(iv)(i) were received from Colleen Basler. Comments expressing opposition to proposed changes to 321.(F)(iv)(B) were received from Seton Hospital, Baylor Medical Center at Garland, Baylor Institute for Rehabilitation, BaylorWorx, Harris Methodist Erath County, McKenna Memorial Hospital, Southeast Baptist Memorial Hospital, Karen Hartzler, and Ann Ellis. The board held a public hearing on the proposed changes to Chapter 321 on January 22, 1996. The following persons either testified and/or submitted written statements regarding the proposal: Susan Jones, Texas Hospital Association; Pauleen Kocak, Columbia Medical Center of McKinney; Luci Short & Janta Edwards, Baylor Health Care System; Steve Cole, Warm Springs Rehabilitation System; Cherie Simpson, Rehability Corp; and Donald F. Haydon, Texas Physical Therapy Association. Summaries of the comments and the board responses are as follows: COMMENT: 321.1(F)(i). Four commenters said that physical therapy assistants are capable of obtaining information regarding patient condition and discussing the information with a physical therapist. RESPONSE: The board is withdrawing the proposed changes and will reconsider changes to 321.1(F)(i) later. COMMENT: 321.1(F)(v) Six commenters stated that physical therapist assistants are qualified to help the physical therapist determine if the patients are meeting or have met predetermined goals and are ready for discharge. RESPONSE: The board is withdrawing the proposed changes and will reconsider 321.1(F)(v) later. COMMENT: 321.1(F)(v)(B) Three commenters stated that proposed changes would add unnecessary cost to the delivery of medical services. RESPONSE: The new rule leaves flexibility; the physical therapist or the physical therapist assistant may interact with the patient. The rule does not stipulate how much time the physical therapist or the physical therapist assistant must spend with a patient nor does the rule prohibit an aide from rendering physical therapy services. COMMENT: 321.1(F)(v)(B) One person stated that a physical therapist should be allowed to decide when they need to interact with a patient. RESPONSE: The new rule leaves flexibility; the physical therapist or the physical therapist assistant may interact with the patient. The rule does not stipulate how much time the physical therapist or the physical therapist assistant must spend with a patient, nor does the rule prohibit an aide from rendering physical therapy services. COMMENT: 321.1(F)(v)(B) Three commenters stated that some patients receive physical therapy two or three times in one day. RESPONSE: The new rule leaves flexibility; the physical therapist or the physical therapist assistant may interact with the patient. The rule does not stipulate how much time the physical therapist or the physical therapist assistant must spend with a patient nor does the rule prohibit an aide from rendering physical therapy services. The amendment is adopted under the Physical Therapy Practice Act, Texas Civil Statutes, Article 4512e, which provides the Texas Board of Physical Therapy Examiners with the authority to adopt rules consistent with this Act to carry out its duties in administering this Act. sec.321.1. Definitions. The following words, terms, and phrases, when used in the rules of the Texas Board of Physical Therapy Examiners, shall have the following meanings, unless the context clearly indicates otherwise. Accredited curriculum in physical therapy education -A body of courses in a physical therapy program at a school, college, or university which has satisfied the accreditation standards of the Commission on Accreditation for Physical Therapy Education that are substantially equivalent to or that surpass such accreditation standards as determined by board-approved credentialing agencies. Accredited physical therapist assistant program-A body of courses at a school, college, or university which has satisfied the accreditation standards of the Commission on Accreditation for Physical Therapy Education. Evidence satisfactory to the board-Should all official school records be destroyed, sworn affidavits satisfactory to the board must be received from three persons having personal knowledge of the applicant's physical therapy education. These affidavits will not be used when official school records are available. Hearing-An adjudicative proceeding concerning the issuance, denial, suspension, reprimand, revocation of license, after which the legal rights of an applicant or licensee are to be determined by the board. On-site supervision -The physical therapist or physical therapist assistant is on the premises and readily available to respond. Physical therapist assistant-The supervision of the physical therapist assistant shall include the following: (A) The supervising physical therapist is responsible for and will participate in the patient's care. (B) The supervising physical therapist must be on call and readily available. (C) A current written plan of care will be formulated for each patient by the physical therapist. The plan of care shall be revised following periodic reevaluations by the physical therapist, not to exceed 30 days. (D) Each progress note in a patient's chart made by a physical therapist assistant must include the name of the supervising physical therapist. (E) The physical therapist may assign responsibilities to the physical therapist assistant to: (i) provide physical therapy services as specified in the written plan of care developed by the physical therapist prior to treatment by a physical therapist assistant which includes: (I) preparing patients, treatment areas, and equipment; (II) implementing treatment programs that include therapeutic exercises; gait training and techniques; ADL training techniques; administration of therapeutic heat and cold; administration of ultrasound; administration of therapeutic electric current; administration of ultraviolet; application of traction; performance of intermittent venous compression; application of external bandages, dressings, and support; performance of goniometric measurement; (III) modifying treatment techniques as indicated in the plan of care; (ii) respond to acute changes in physiological state; (iii) teach other health care providers, patients, and families to perform selected treatment procedures and functional activities; (iv) identify architectural barriers; (v) interact with patients and families in a manner which provides the desired psycho-social support by: (I) recognizing his own reaction to illness and disability; (II) recognizing patients' and families' reactions to illness and disability; (III) respecting individual cultural, religious, and socioeconomic differences in people; (IV) utilizing appropriate communicative processes; (vi) demonstrate appropriate and effective written, oral, and nonverbal communication with patients and their families, colleagues, and the public; (vii) recognize his own strengths and limitations and interpret for others his scope and function; (viii) demonstrate safe, ethical, and legal practice; (ix) understand basic concepts related to the health care system, including multidisciplinary team approach, quality care, governmental agencies, private sector, role of other health care providers, health care facilities, issues, and problems; (x) understand basic principles of levels of authority and responsibility, planning, time management, supervisory process, performance evaluations, policies and procedures, and fiscal consideration (provider and consumer). (F) The physical therapist assistant may not: (i) specify and /or perform definitive (decisive, conclusive, final) evaluative and assessment procedures; (ii) alter a plan of care or goals; (iii) recommend wheelchairs, orthoses, prostheses, other assistive devices, or alterations to architectural barriers to persons; (iv) sign progress notes which include assessments used to design or modify patient care; Physical therapy -The evaluation, examination, and utilization of exercises, rehabilitative procedures, massage, manipulations, and physical agents including, but not limited to, mechanical devices, heat, cold, air, light, water, electricity, and sound in the aid of diagnosis or treatment. Physical therapists may perform evaluations without referrals. Physical therapy practice includes the use of modalities, procedures, and tests to make evaluations. Physical therapy practice includes, but is not limited to the use of: Electromyographic (EMG) Tests, Nerve Conduction Velocity (NCV) Tests, Thermography, Transcutaneous Electrical Nerve Stimulation (TENS), bed traction, application of topical medication to open wounds, sharp debridement, provision of soft goods, inhibitive casting and splinting, Phonophoresis, Iontophoresis, and biofeedback services. Physical therapy aide-All rules governing the direction of the physical therapist assistant are further modified for the physical therapy aide. (A) The physical therapist or physical therapist assistant is responsible for the supervision of the physical therapy aide. (B) The physical therapy aide may support physical therapy activities within the scope of on-the-job training and with on-site supervision by a physical therapist or physical therapist assistant within reasonable proximity of the physical therapy aide. The physical therapist or physical therapist assistant must interact with the patient regarding the patient's condition, progress and/or achievement of goals during each treatment session. (C) The physical therapy aide may not: (i) evaluate, assess, and/or initiate physical therapy treatment including exercise instruction; or (ii) write or sign physical therapy documents in the permanent record. Supervision-The delegation and continuing direction by a person or persons responsible for the practice of physical therapist, physical therapist assistant, or physical therapy aide as specified in the Physical Therapy Practice Act. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's authority. Issued in Austin, Texas, on April 17, 1996. TRD-9605379 John P. Maline Executive Director Texas Board of Physical Therapy Examiners Effective date: May 8, 1996 Proposal publication date: November 21, 1995 For further information, please call: (512) 305-6900 Chapter 341. License Renewal 22 TAC sec.341.1 The Texas Board of Physical Therapy Examiners adopts amended sec.341.1, concerning Requirements for License Renewal, with changes to the proposed text as published in the November 21, 1995, issue of the Texas Register (20 TexReg 9666). This section, is being amended to clarify what is necessary for renewal of a license as a physical therapist or physical therapist assistant. This section informs licensees what is required to renew a license. No comments were received regarding amendment of this section. The amendment is adopted under the Physical Therapy Practice Act, Texas Civil Statutes, Article 4512e, which provides the Texas Board of Physical Therapy Examiners with the authority to adopt rules consistent with this Act to carry out its duties in administering this Act. sec.341.1. Requirements for Renewal. (a) Biennial renewal. Licensees are required to renew their licenses biennially by the end of the month in which they were originally licensed. Continuing Education Units (CEUs) are required to be submitted with renewal applications. (b) The licensed physical therapist must complete, in each biennium, three CEUs. (c) The licensed physical therapist assistant must complete, in each biennium, two CEUs. (d) CEU requirements must be completed in the biennium preceding the licensee's biennial renewal month. (e) The original program completion document must be retained by the licensee. This document must be signed and certified by the authorized person as per the course application. It shall include the: (1) licensee's name as printed on the renewal certificate; (2) license number of the licensee; (3) program date(s); and (4) CEU credits awarded. (f) Copies of the original program completion document must be submitted to prove compliance with the required CEUs for the previous biennium. These documents must be submitted with the biennial license renewal. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's authority. Issued in Austin, Texas, on April 17, 1996. TRD-9605381 John P. Maline Executive Director Texas Board of Physical Therapy Examiners Effective date: May 8, 1996 Proposal publication date: November 21, 1995 For further information, please call: (512) 305-6900 22 TAC sec.341.3 The Texas Board of Physical Therapy Examiners adopts amended sec.341.3, concerning Qualifying Continuing Education Units, with changes to the proposed text as published in the November 21, 1995, issue of the Texas Register (20 TexReg 9667). This section is being amended to establish procedures for approving programs for continuing education. This section informs licensees what is required to receive credit for continuing education offerings. The changes were to improve syntax only. No comments were received regarding amendment of this section. The amendment is adopted under the Physical Therapy Practice Act, Texas Civil Statutes, Article 4512e, which provides the Texas Board of Physical Therapy Examiners with the authority to adopt rules consistent with this Act to carry out its duties in administering this Act. sec.341.3. Qualifying Continuing Education Units. (a) One CEU is defined as ten contact hours of an accredited course or program. (b) Program content and CEUs accreditation must be approved by the board or a board-approved organization. Programs must meet the following criteria. (1) Program content must be easily recognizable as pertinent to the physical therapy profession and in the areas of clinical application, clinical management, behavioral science, or science. The content must be identified by instructional level, i.e. basic, intermediate, advanced. (2) Program objectives must be clearly written to identify the knowledge and skills the participants should acquire during the course. (3) Programs must be presented by a licensed health care provider, or by a person with appropriate credentials and/or specialized training in the field. (4) The instructional methods related to the objectives must be identified. (5) The procedures used to assess a licensee's participation and attainment of the program objectives must be submitted to the board. (6) The participants must evaluate the program. A summary of these evaluations must be available to the board upon request. (7) Records of each participant who attains the program objectives must be maintained for three years. (c) College or university courses in the area of clinical application, clinical management, behavioral science, science, or scientific research will be accepted. Courses will be credited at one CEU for each satisfactorily (grade of C or higher) completed credit hour. An official transcript must be submitted to the board office. (d) Self-directed study. (1) A publication or publications may be submitted to the board for consideration of up to one-half of the biennium CEU requirement. This request along with the publication, must be presented to the board office at least 60 days prior to the licensure renewal anniversary date. Submissions after this date will not be considered. (2) Teaching or consultation in programs such as institutes, seminars, workshops, and conferences which are designed to increase professional knowledge in the field of physical therapy or other related fields and/or development and presentation of such a program may be submitted to the board for consideration of up to one-fourth of the biennium CEU requirement. The licensee must submit the request, along with the outline, program objectives, and the date and location of the presentation to the board office at least 60 days prior to the licensure renewal anniversary date. Submissions after this date will not be considered. (e) Approval of CEU programs. (1) To receive CEU credit for a program the program must be approved by the board either before or after it is attended. An application for continuing education units form must be completed and submitted to the board for approval of a program for CEUs with a fee set by the board. Only one fee is required for each program. Once the fee has been paid for a program, any number of persons may submit attendance at this program for CEU credit without paying additional fees. A program may be provided more than one time and at different locations within one year from the date that the course is first offered without payment of additional fees. (2) An applicant may write to the board inquiring if a particular program is approved. Periodically, a log of approved programs may be provided to an applicant upon written request to the board and payment of appropriate fee, if any. (3) Privileged sponsors. (A) A privileged sponsor of CEU programs is an entity which has been approved by the Education Committee to have the authority to set specific CEU credits for its programs without further board review provided that privileged sponsor status is continually maintained. (B) Application process for privileged sponsor status. An applicant for privileged sponsor status must: (i) obtain approval from the board for two programs of at least .7 CEUs each within any 18 month period; (ii) submit an application for permanent sponsorship to the board; and (iii) comply with the board's standards and methods for approving a course for CEUs. (C) Maintenance of privileged sponsorship. Omission, falsification or noncompliance with any of the following requirements will result in immediate withdrawal of the privileged sponsorship by the board. To maintain privileged sponsorship status an entity must: (i) offer a minimum of one CEU program each calendar year; (ii) submit to the board notification of each course to be offered. The board must receive this information prior to the course offering. Information must include; name, address, and telephone number of sponsor; title, dates of presentation, and location of program; CEUs to be awarded; and name and signature of the person who will be signing the course completion certificates; (iii) comply with a random review of the program documents by board representatives; (iv) use the following statement in publicity: "This is a continuing education offering for Physical Therapists and/or Physical Therapist Assistants approved by the Texas Board of Physical Therapy Examiners which meets the requirement of Continuing Education Units"; and (v) submit fee per course. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's authority. Issued in Austin, Texas, on April 17, 1996. TRD-9605375 John P. Maline Executive Director Texas Board of Physical Therapy Examiners Effective date: May 8, 1996 Proposal publication date: November 21, 1995 For further information, please call: (512) 305-6900 TITLE 28. INSURANCE Part I. Texas Department of Insurance Chapter 7. Corporate and Financial Regulation Subchapter B. Insurance Holding Company System Regulatory Act 28 TAC sec.sec.7.201-7.205, 7.209 The Commissioner of Insurance adopts amendments to sec. sec.7.201-7.205, and 7.209, concerning administrative regulation under the Insurance Code, Article 21.49-1, also known as the Insurance Holding Company System Regulatory Act (the Act). Sections 7.201-7.205, and 7.209 are adopted without changes to the proposed text as published in the November 3, 1995, issue of the Texas Register (20 TexReg 9133). A public hearing was held on April 18, 1996. The amendments are necessary to implement amendments to Insurance Code, Article 21.49-1, enacted by the passage of House Bills 1243, 2710, and 2793, 74th Legislature, 1995. The adopted amendments will provide for effective and efficient administrative regulation under the Insurance Holding Company System Regulatory Act of insurers that are members of an insurance holding company system, including the regulation of commercially domiciled insurers that are subject to the Act. The adopted sections also include adoption by reference of revised Form HCDividend to be utilized pursuant to sec.7.203(n). The department has filed a copy of the revised form with the Secretary of State's Office, Texas Register Section, as part of this adoption. Persons desiring copies of these forms can obtain them from the Texas Department of Insurance, Financial Monitoring Unit, P.O. Box 149099, Mail Code 303-1D, Austin, Texas 78714-9099 or at the Financial Monitoring Unit office at 333 Guadalupe, Austin, Texas. One commenter stated the sections as proposed would be overly costly and cause unreasonable delay in the regulatory process. The commenter also stated the amendment to sec.7.205(a) is contrary to the exemption of insurance holding company systems owned by five or fewer natural persons as provided for in the Act, sec.2(r). The amendment to sec.7.205(a) provides that a person seeking acquisition of control of an insurer that is a member of an insurance holding company system exempted by the Act, sec.2(r), must file an acquisition statement with the department. The agency disagrees with the comments. The agency has determined that the costs and administrative burdens of the rules are minimized to the extent consistent with statute by existing exemptions for de minimus or minor changes in ownership. The agency carefully reviewed the arguments relating to legal authority, and believes sec.7.205(a) to be consistent with both the statute on its face and with legislative intent. The 1995 amendment to sec.2(r) of the Act merely changed a discretionary exemption to an automatic exemption for those holding company systems owned by five or fewer natural persons. The exemption, by the clear language of the statute, applies only to an insurance holding company system, and not to natural persons or potential shareholders seeking to acquire control. The Act, sec.1(b) and sec.5(c), clearly requires that the commissioner scrutinize any person seeking to acquire control of an insurer in order to protect policyholders from those who would operate the insurer in a manner adverse to policyholder's interests. Further, the requirements for acquisition of control set out in sec.5 clearly state "[n]o person shall acquire in any manner any voting security of any domestic insurers" without meeting the requirements of the Act; thus the change of control or acquisition requirements apply to persons and not to holding company systems. The Texas Department of Insurance received comments against the sections from the Insurance Alliance of America. The amendments are adopted under the authority of Insurance Code, Articles 21.49-1 and 1.03A. Article 21.49-1, sec.11 authorizes the commissioner to issue such rules, regulations, and orders as shall be consistent with and shall carry out the provisions of the Insurance Holding Company System Regulatory Act and to govern the conduct of its business and proceedings under the Act. Article 1.03A provides the commissioner with the authorization to adopt rules and regulations for the conduct and execution of the duties and functions by the department. The following articles of the Insurance Code are affected by these rules: 1. 10, 1.10A, 1.32, 21.28, 21.28-A, 21.31, 21.32, 21.49-1, and 21.49-2C. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on April 24, 1996. TRD-9605659 Alicia M. Fechtel General Counsel and Chief Clerk Texas Department of Insurance Effective date: May 15, 1996 Proposal publication date: November 3, 1996 For further information, please call: (512) 463-6327 TITLE 30. ENVIRONMENTAL QUALITY Part I. Texas Natural Resource Conservation Commission Chapter 281. Applications Processing Subchapter B. Consistency With Texas Coastal Management Program 30 TAC sec.sec.281.40-281.48 The Texas Natural Resource Conservation Commission (TNRCC or commission) adopts new sec.sec.281.40-281.48, Subchapter B, relating to Consistency With Texas Coastal Management Program. Sections 281.41, 281.42, 281.43, and 281. 45- 281.48, are adopted with changes to the proposed text as published in the December 12, 1995, issue of the Texas Register (20 TexReg 10502). Section 281.40 and sec.281.44 are adopted without changes and will not be republished. Appendix is being adopted with changes and Appendices B, C, D, and E are adopted without changes, however the section which contains these Appendices ( sec.281.48) is being republished in its entirety. The purpose of the new subchapter is to identify those commission actions which are subject to consistency with the goals and policies of the Texas Coastal Management Program (CMP) pursuant to the Coastal Coordination Act (the Act), Subchapters C and F, Chapter 33, Texas Natural Resources Code, and rules of the Coastal Coordination Council (CCC or council) contained in 31 Texas Administrative Code (TAC), Chapters 501 and 505. Additionally the rules identify those actions which are subject to review by the council for consistency with CMP goals and policies. The rules also provide application notice and review procedures for actions which are subject to review for consistency with CMP goals and policies. The Act was enacted to facilitate the development and implementation of a comprehensive coastal management program. The program's goal is to achieve better coordination among the various regulatory entities so that the most effective and efficient use of public funds may be made and to provide for more effective and efficient management of coastal natural resource areas (CNRA). Accordingly, Texas Natural Resources Code sec.33.205 provides that an agency that takes an action expressly identified under the Act that may adversely affect a CNRA must be consistent with the goals and policies of the CMP developed by the council. The agency does this by affirming that it has taken into account such goals and policies and by issuing a written determination that a proposed action is consistent with program goals and policies. Such goals and policies are based generally upon the various state and federal laws applicable to the particular action. Commission rulemaking actions specifically identified in the Act as subject to consistency with CMP goals and policies include the adoption of a rule relating to air pollutant emissions, on-site sewage disposal systems, and underground storage tanks. Applicable commission permitting actions include wastewater discharge permits within the coastal boundary as delineated by the Act; the permitting of confined animal feeding operations within the coastal boundary; a permit for solid or hazardous waste treatment, storage, or disposal within the coastal boundary; creation of a special purpose district which would cover a part of the coastal barrier resources system or approval of bonds for the purpose of construction of infrastructure on coastal barriers; levee improvement or flood control projects within the coastal boundary; water quality certification under sec.401 of the federal Clean Water Act of a federal permit for certain activities within the coastal boundary; a declaration of an emergency and request for emergency release of water from a state-owned reservoir under Texas Water Code sec.16.195; and a permit for a new or additional appropriation of water meeting certain quantity and location criteria. Because there were previous, extensive meetings with the affected public on these thresholds during the period the CMP was developed, a public hearing on the proposed rules was not held. However, the commission did receive two sets of written comments submitted by the Texas Chemical Council (TCC) and the Railroad Commission of Texas (RCT). Both sets of comments addressed specific sections of the proposed rules and requested clarification or additional explanation. Neither entity spoke in opposition to the rules. The RCT contended that the preamble for the proposed rules did not set forth the specific individual basis for determination of the TNRCC's threshold levels to ensure that only those actions that present "unique and significant consistency issues" were subject to council review as provided by sec.505.10(a) (2) of the council rules. Such actions include those which, alone, may potentially adversely affect the functions and values of a CNRA. Thresholds for wastewater permits were established based on criteria developed by the Environmental Protection Agency (EPA) and by rules adopted by the TNRCC. EPA has established a discharge of one million gallons per day (MGD) as a trigger for major and minor domestic wastewater facilities. TNRCC has also established 1 MGD as the trigger for requiring biomonitoring by the discharger. TNRCC utilizes a segment ranking system based on physical, chemical, and biological parameters to rate designated stream segments relative to their overall ecological value and to identify pristine water bodies. Those segments receiving scores of 1,000 points or less were considered for designation as priority segments under the CMP. The final list of segments was reviewed for the purpose of identifying other intrinsic values (i.e., recreation and fisheries productivity) not considered in the traditional water quality ranking format. The 5 MGD threshold established for domestic wastewater facilities discharging into tidal segments was based on the EPA's trigger level for determining pretreatment requirements. Municipalities with discharges greater than 5 MGD have the potential for including businesses and industries that discharge contaminants not found in normal municipal discharges, and, thus, could pose a threat to the coastal natural resources. Pretreatment screening allows EPA to identify these potential problems and establish effluent limits for these businesses. Thresholds proposed for industrial wastewater permits were based on categorical limits established by EPA, whether they occur in a priority segment and, in the case of an amendment, if they increase the pollutant loading in a priority segment. EPA established guidelines for different industrial categories since the best control technology for in industry is not necessarily the best for another. These guidelines were developed based on the degree of pollutant reduction attainable by an industrial category through the application of control technologies. The commission believes the standards established by EPA in conjunction with the TNRCC's segment classification will best identify those "unique and significant" actions and, thus, afford protection for coastal waters. The TNRCC has established a threshold for new permits for concentrated animal feeding operations based on sec.33.2052, Texas Natural Resources Code, Coastal Coordination Act and sec.505.11 of the CCC rules which identify those areas within one mile of a critical area or coastal waters. Since the statute does not address amendments or renewals, those actions are exempt from council review. The creation of a district or the approval of a bond issue to support infrastructure projects which would completely or partially encompass a Coastal Barrier Resources System Unit as defined by the U.S. Fish and Wildlife Service under the federal Coastal Barrier Resources Act have been identified as having a potential for significant effects to coastal natural resource areas. Therefore, any application for such an action within a unit is established as the threshold. For new permits and amendments to existing permits to store, take or divert water, the TNRCC has established a threshold for a new or increased appropriation of 5,000 acre-feet per annum inside the coastal boundary and 10, 000 acre-feet outside the boundary, but within 200 river miles of the coast. This threshold is based on Texas Water Code sec.11.152, which requires the TNRCC to consider the effects of an application for a water rights permit in excess of 5,000 acre-feet on fish and wildlife habitat. The TNRCC has established this threshold for this permitting activity because it reflects legislative recognition of projects which pose significant adverse impacts to a CNRA (fish and wildlife habitat). The threshold of 10,000 acre-feet for projects outside of the program boundary but within 200 river miles of the coast, was chosen based upon an evaluation of existing projects which have been assessed for their impacts on freshwater inflows to the bays and estuaries and where permit conditions have been provided to maintain such inflows. The TNRCC's threshold for 401 Certification of 404 Corps of Engineer permit activities was limited to critical areas located within the coastal boundary, and was based on the high environmental functions and values, the sensitive nature of these areas, and the risk to future losses. Thresholds for solid waste were based on the potential risk to human health and the environment of the activity and the sensitivity and environmental functions and values of the site selected within the CMP boundary. Any new permit or amendment which proposes an expansion has the potential for significant effects if they occur in coastal wetlands or in special flood hazard areas (100 year floodplain). Wetlands and floodplains are recognized as some of the most productive ecosystems in Texas and for this reason, state statutes and agency rules addressing the siting of solid waste facilities have been promulgated to evaluate the effect of activities associated with these facilities, if they occur in these areas. Since these effects are readily observable and measurable, the TNRCC established a threshold for activities associated with solid waste based on occurrence within wetlands or special flood hazard areas located within the CMP boundary. It would be inappropriate to refer an action to the council which, by itself, did not impair the functions and values of a CNRA. Any council action on one such action without considering other actions which, cumulatively, pose a potential adverse impact to a CNRA would be unfair to the affected permittee and ineffective in providing comprehensive and adequate protection to CNRA's. Rather, cumulative impacts of actions which, individually, would not impair CNRA functions and values are addressed by the establishment of regulatory performance standards such as maximum total pollutant loading for a stream and corresponding effluent criteria to maintain the water quality standard for affected water in the state. Such standards are provided in other commission rules that have been submitted to the council for certification that they are consistent with the CMP. Both commenters recommended modifications to sec.281.42. Definitions, and in particular the definition for "program boundary". Since the present definition refers only to the inland boundary, the RCT recommended the definition be revised to reference the description of the program boundary set forth in the CMP. The commission agrees with this comment and has amended the rules to reflect the CMP boundary description as specifically provided in sec.501.3 of the council rules. The TCC pointed out discrepancies in the proposed rules definition for "coastal barrier" and that contained in sec.501.3 of the council rules. It was recommended that a "free standing" definition or a straight reference to 31 TAC 501.3 be provided. The commission agrees with this comment and has amended the definition by specifically providing the language contained in the definition of this term as it is found in sec.501.3 of the council rules. The TCC commented that a better cite for defining "Coastal Coordination Council" would be Texas Natural Resources Code sec.33.203(20). The commission agrees with this comment and has amended the definition as recommended. The RCT commented that the definition of "Texas Coastal Management Program" was stated in terms of the "plans and goals" developed by the council without directly referencing the specific citation to CMP rules in which they are contained. The commission agrees with this comment and has modified the definition based on the RCT's comments. The RCT identified a wording discrepancy in sec.281.43(a)(1) and suggested that wording in sec.505.30(b)(1) of the council rules should be incorporated into sec.281.43(a)(1) to clarify the language used by agencies when making consistency determinations. The commission agrees with this recommendation and has amended the section to reflect their comment. The RCT commented that in sec.281.45 and sec.281.46 actions are primarily described as "applications" for permits, certificates, etc., rather than to the action itself as presented in sec.505.11(a)(6) of the CMP. The TNRCC agrees with this comment and has amended the rule accordingly. The TCC recommended sec.281.45(a)(1)(A) and (B), sec. sec.281.45(a)(2)(A), 281. 46(1)(A) and (B), and 281.46(2)(M) and (N) be structured in a parallel fashion and the term "new" be added to sec.281.45 (a)(1)(A), and the words "application for" be added to sec.281.46(2)(M) and (N). Section 281.45 and sec.281.46 address the universe of actions within the jurisdiction of the TNRCC subject to the CMP and those specific actions potentially subject to CCC review based on the proposed thresholds, respectively. This distinction between a broader universe of actions which must be consistent with the CMP and a subset of that universe containing actions which are subject to CCC consistency review is in accordance with council rules, thus, no changes are warranted. However, the commission does agree with the addition of the recommended terms as suggested by the RCT and has made the changes accordingly. The RCT commented that sec.505.32 of the CMP rules provides for limited situations where the council may review actions below applicable thresholds and recommended sec.281.46 be amended to reflect this circumstance. The commission agrees with this comment and has amended the section accordingly. The TCC suggested the term "municipal" be substituted for the word "domestic" in sec.281.46(2)(A) and (B). Since the term municipal is generally associated with discharges only from towns and cities, the commission believes the term domestic is more appropriate since it captures wastewater discharge other than that generated by municipalities. This would include such facilities as small "package" plants servicing small residential communities in rural settings. The RCT commented that sec.281.46 did not include thresholds for the actions described under sec.281.45(C), (E), and (F). Actions taken under sec.281.45(C), declaration of an emergency and request for an emergency release of water under Texas Water Code, sec.16.195, is proposed for exemption from council review because of the issue of time for action by the council and the emergency nature of this action. Additionally, it is anticipated that requests made under this statute would be made in order to protect/preserve environmental conditions in the coastal area and would, therefore, create a benefit to CNRA's. Therefore, the TNRCC staff believes no threshold is necessary for this action. Section 281.45(F) addresses levee improvement or other flood control projects pursuant to Texas Water Code, sec.16.236 and Chapter 301 of this title. Section 16.236 provides that such projects must receive commission review and approval prior to their construction unless the project is within the jurisdiction of a local government participating in the National Flood Insurance Program and the local government enforces rules equal to or more stringent than those provided by commission rules. No threshold was established for these actions since all counties within the coastal boundary participate in the National Flood Insurance Program and enforce necessary requirements. Subject actions for this activity will be assessed through the federal consistency review process. The creation of districts and/or approval of bond issues associated with sec.281.45(E) have a threshold established which delineates those actions which would encompass or partially encompass a Coastal Barrier Resources System Unit and those which would fall outside the units. Any actions which pertain to this section would be deemed to exceed this threshold and could, therefore, be referred to the council for review. The RCT commented on the term "categorical limits" for industrial discharges in priority segments and recommended additional clarification to explain its meaning. The federal Clean Water Act requires all industries discharging wastes into navigable waters to achieve the Best Practicable Control Technology Currently Available (BPT) by July 1, 1977. This control technology represents the average of the best existing wastewater treatment performance with each industry category or subcategory. The U. S. Environmental Protection Agency (EPA) has established effluent guidelines and standards for more than 50 different industrial categories (e.g., Steam Electric Power Plants, Iron and Steel Manufacturing Facilities). Guidelines are established for different industrial categories since the best control technology for one industry is not necessarily the best for another. These guidelines were developed based on the degree of pollutant reduction attainable by an industrial category through the application of control technologies, irrespective of the facility location. The use of the EPA's guidelines and standards for industrial discharges will provide consistency for both the federal and state permitting activities within the program boundary. The RCT asked for clarification regarding sec.281.46(2)(D)(ii) and the change in point of diversion for an industrial wastewater discharge into a priority water body segment. It is the intent of this threshold to distinguish a change in discharge from a non-priority water body into a priority segment, and not a change in discharge from one point to another within the same segment. Therefore, the section is amended accordingly. The RCT commented on the threshold established for amendments to confined animal feeding operations (CAFO) provided in sec.281.46(2)(F) and indicated the CMP rules only apply to new permits. The commission agrees with this comment and has amended the appropriate section accordingly. The RCT requested clarification of sec.281.46(2)(O) concerning the threshold established for the sec.401 water quality certification of federal permits for the discharge of dredge or fill material. The threshold established by TNRCC for the placement of dredge or fill material addresses the disposal into a critical area and not adjacent to such a designated area. An appropriate change has been made to sec.281.46(2)(O) clarify this point. A volume of less than 1000 cubic yards placed on one or more acres of area classified as critical would not constitute a significant long-term adverse impact when considering depth of deposition and areal extent. The RCT commented on sec.281.47, indicating this section was not consistent with sec.505.11(d) of the CMP rules. The section has been amended to reflect the intent of sec.505.11(d). The RCT also recommended the term "that" be added to sec.281.47(8) to clarify the meaning. The TNRCC staff agrees and has made the appropriate change. The RCT suggested Appendix C should be clarified to indicate that all listed segments fall within the CMP boundary. The commission agrees and has made the appropriate change to Appendix C. A takings impact assessment has been performed for these rules in accordance with Tex. Government Code Ann. sec.2007.043 and a finding of no takings has been made. These rules do not add substantive requirements to existing regulations and do not affect real property value. These rules are based upon rules adopted by the Coastal Coordination Council establishing the Texas Coastal Management Program, but which have not yet been made effective by the council. Accordingly, the commission rules shall not be implemented and enforced until the effective date of the council rules as provided by the adoption of amendments to 31 TAC, Chapter 505, and published in the October 20, 1995, issue of the Texas Register (20 TexReg 8643, 8664). The new sections are adopted under Texas Water Code, sec.5.103 and sec.5.105, which provide the TNRCC with the authority to adopt any rules necessary to carry out its powers and duties under the Texas Water Code and other laws of the State and to establish and approve all general policies of the commission. sec.281.41. Condition of Approval. It is a condition of commission approval of a proposed action that such action, if applicable, must be consistent with the goals and policies of the Texas Coastal Management Program (CMP) as provided in rules of the Coastal Coordination Council contained in Chapters 501, 503, 505, and 506, Title 31, Texas Administrative Code. The executive director shall review such applications for consistency with the CMP and provide a summary of such analysis and other statements in the draft permit and technical summary or referral to commission as provided by sec.281.21 and sec.281.22 of this title (relating to Draft Permit, Technical Summary, Fact Sheet, and Compliance Summary and Referral to Commission). sec.281.42. Definitions. The following words, terms, and phrases, where used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise. Application-Any request for a permit, order, or other authorization from the commission or executive director. Coastal barrier -An undeveloped area on a barrier island, peninsula, or other protected area, as designated by United States Fish and Wildlife Service Maps. Coastal Barrier Resources System-Consists of those undeveloped coastal barriers and other areas located on the coasts of the United States that are identified and generally depicted on the maps on file with the Secretary of the Interior entitled "Coastal Barrier Resources System" as defined under Section 4 of the Coastal Barrier Improvement Act of 1990. Coastal Coordination Council (CCC or council) -A policy making and review body established by Senate Bill 1053, Coastal Coordination Act, Chapter 295, sec. sec.37 et seq Texas Laws (72nd Legislature 1991), codified in Texas Natural Resources Code, sec.33.203(20). Coastal Natural Resource Areas-Areas as defined by Texas Natural Resource Code, sec.33.203(1) are as follows: (A) coastal barriers; (B) coastal historic areas; (C) coastal preserves; (D) coastal shore areas; (E) coastal wetlands; (F) critical dune areas; (G) critical erosion areas; (H) gulf beaches; (I) hard substrate reefs; (J) oyster reefs; (K) submerged land; (L) special hazard areas; (M) submerged aquatic vegetation; (N) tidal sand or mud flats; (O) water of the open Gulf of Mexico; and (P) water under tidal influence. Coastal waters -Waters in the open Gulf of Mexico and water subject to tidal influence. Commission-The Texas Natural Resource Conservation Commission. Critical area-A coastal wetland, an oyster reef, a hard substrate reef, submerged aquatic vegetation, or a tidal sand or mud flat (as defined in 31 TAC sec.501.3). Priority segment -Those designated stream or bay segments delineated in Chapter 307 of this title (relating to Surface Water Quality Standards) and identified as priority segments because they are within the coastal boundary and exhibit characteristics of high water quality and require protection to maintain designated uses. Segment quality determinations were made using water quality traditional scoring for segment ranking and other factors to determine the quality of water relative to designated uses. These segments are listed in Appendix B of sec.281.48 of this title (relating to Appendices). Program boundary -The boundary established in Texas Natural Resources Code, sec.33.2053(k), as defined in Title 31, Texas Administrative Code, sec.503.1 (relating to Coastal Management Program Boundary) . Texas Coastal Management Program-The plan and related goals and policies as developed by the CCC in accordance with Texas Natural Resources Code sec.33.204, and codified in 31 TAC Chapters 501, 503, and 505-506. Tidal segment-Those designated stream or bay segments listed in sec.281.48 of this title Appendix C. These segments were designated as tidal segments because they have measurable elevation changes due to normal tides. In the absence of tidal elevation information, tidal segments are generally considered to be waters which typically have salinities of two parts per thousand or greater in a significant portion of the water column. sec.281.43. Consistency Determination. (a) A permit or other document approving or authorizing an action listed in sec.281.45 of this title (relating to Actions Subject to Consistency With the Goals and Policies of the Texas Coastal Management Program) shall include a statement providing either a consistency determination or a determination of no adverse effect as follows: (1) Consistency Determination. "The Texas Natural Resource Conservation Commission (TNRCC or commission) has reviewed this action for consistency with the goals and policies of the Texas Coastal Management Program (CMP) in accordance with the regulations of the Coastal Coordination Council (CCC) and has determined that the action is consistent with the applicable CMP goals and policies"; or (2) Determination of No Adverse Effect. "The TNRCC has reviewed this action and has found that the action will not adversely affect any applicable coastal natural resource areas (CNRA) identified in the Texas CMP." (b) The executive director shall review applicable requests and applications for consistency with CMP goals and policies and provide a brief summary of such analysis and other statements and recommendations in the draft permit and technical summary or referral to commission as provided by sec.281.21 and sec.281.22 of this title (relating to Draft Permit, Technical Summary, Fact Sheet, and Compliance Summary and Referral to Commission), respectively. (c) For actions that exceed the thresholds for possible referral to the council as provided by sec.281.46 of this title (relating to Actions Which May Be Referred to the Coastal Coordination Council for Review), a written explanation supporting the determination made under subsection (a) of this section shall be provided in the order, permit, or other written authorization. Such explanation shall describe the basis for the agency's determination, include a description of the action and its possible impacts on CNRAs, identify the applicable CMP goals and policies, and explain how the action is consistent with such goals and policies or why the action does not adversely affect any CNRAs. sec.281.45. Actions Subject to Consistency with the Goals and Policies of the Texas Coastal Management Program (CMP). (a) For purposes of this subchapter, the following is an exclusive list of actions taken or authorized by the Texas Natural Resource Conservation Commission (commission) or executive director that may adversely affect a coastal natural resource area and that must be consistent with the CMP goals and policies: (1) For actions outside the program boundary when issuing or approving: (A) an application for a new water right located within 200 stream miles of the coast and proposing an appropriation of 10,000 acre-feet of water per year or more; (B) an application to amend a water right located within 200 stream miles of the coast and requesting: (i) an increase in the annual appropriation of 10,000 acre-feet or more of water; or (ii) a change in purpose of use to a more consumptive use of 10, 000 acre-feet or more of water per year; (C) an action under subparagraphs (A) or (B) of this paragraph shall not be considered an action subject to the CMP if it is an action taken to implement the Trans-Texas Water Program as approved in whole or in part, and found to be consistent with CMP goals and policies by the Trans-Texas Water Program Policy Management Committee, provided that the committee includes as voting members at least three members of the Coastal Coordination Council (CCC or council) or their designated representatives and a majority of those council members vote to approve and find that it is consistent with the CMP goals and policies. (2) For actions inside the program boundary when issuing or approving: (A) an application for: (i) a new water right proposing an appropriation of 5,000 acre-feet of water or more per year; (ii) an amendment to an existing water right requesting an increase in appropriation of 5,000 acre-feet of water per year or more, or a change in purpose of use to a more consumptive use of 5,000 acre-feet of water or more per year; (B) an action under subparagraph (A) of this paragraph shall not be considered an action subject to the CMP if it is an action taken to implement the Trans- Texas Water Program as approved in whole or in part, and found to be consistent with CMP goals and policies by the Trans-Texas Water Program Policy Management Committee, provided that the committee includes as voting members at least three members of the CCC or their designated representatives and a majority of those council members vote to approve and find that it is consistent with the CMP goals and policies; (C) the declaration of an emergency and request for an emergency release of water under Texas Water Code sec.16.195; (D) an application for the treatment, storage, or disposal of municipal, industrial, non-hazardous or hazardous waste; (E) a petition for the creation of a special purpose district or approval of bonds for infrastructure on coastal barriers; (F) a refusal for approval of a levee improvement or other flood control project pursuant to Texas Water Code sec.16.236 and Chapter 301 of this title (relating to Levee Improvement Districts, District Plans of Reclamation and Levees, and other Improvements); (G) an application for state water quality certification of a federal permit pursuant to sec.401 of the federal Clean Water Act; (H) a wastewater discharge permit; and (I) a permit for a new concentrated animal feeding operation located one mile or less from a critical area or coastal waters; and (3) the promulgation of rules governing or authorizing actions listed in paragraph (1) and (2) of this subsection, including rules as listed in Appendix E of sec.281.48 of this title (relating to Appendices); (b) The review and action on an application or request for agency approval provided in subsection (a) (1), (2), and (3) of this section shall not be considered an action subject to the CMP goals and policies if the action is taken pursuant to rules that the council has certified as consistent with the CMP and: (1) for wastewater discharge permits, if the action is not a major permit modification that would increase pollutant loads to coastal waters or would result in the relocation of an outfall to a critical area; (2) for municipal, industrial, hazardous, or non-hazardous waste permits, if the action is not a Class III modification as defined in commission rules; or (3) for any other action under this subsection 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 31 Texas Administrative Code sec.501.14. Such specific actions include, but are not limited, to those listed in sec.281. 47 of this title (relating to Actions Not Subject to Referral for Council Review). sec.281.46. Actions Which May Be Referred to the Coastal Coordination Council. Except as otherwise provided under 31 TAC sec.505.32 (relating to Requirements for Referral for an Individual Agency Action), only the following actions may be referred to the CCC for review for consistency with the CMP goals and policies pursuant to 31 TAC sec.505.26 (relating to Council Review and Approval of Thresholds for Referral): (1) For actions outside the program boundary when issuing or approving: (A) an application for a new water right located within 200 stream miles of the coast and requesting an appropriation of 10,000 acre-feet of water per year or more; and (B) an application to amend an existing water right located within 200 stream miles of the coast and seeking: (i) to increase an annual appropriation by 10,000 acre-feet or more per year; or (ii) to change the purpose of use of 10,000 acre-feet or more to a more consumptive use. (2) For actions inside the program boundary when issuing or approving: (A) an application for a new domestic wastewater discharge permit: (i) to discharge five million gallons per day (MGD) or more into a tidally influenced segment (see Appendix C of this title (relating to Appendices)); or (ii) to discharge one MGD or more into a priority segment (see Appendix B of sec.281.48 of this title); (B) an application for an amendment to a domestic wastewater discharge permit: (i) to increase the total discharge authorized by the permit into tidally influenced segments (Appendix C) to an amount greater than or equal to five MGD; or (ii) to increase the discharge to one MGD or more into a priority segment (Appendix B); (C) an application for a new industrial wastewater discharge permit to discharge effluent subject to the United States Environmental Protection Agency's categorical limits into a priority segment (Appendix B); (D) an application for an amendment to an industrial wastewater discharge permit: (i) to discharge effluent subject to categorical limits that increase mass loading of pollutants into priority segments (Appendix B); or (ii) to change the outside into a priority segment (Appendix B); (E) an application for a new confined animal feeding operation (CAFO) permit for a CAFO located within one mile of a critical area or coastal waters; (F) an application for a permit for a new municipal landfill to be located within a coastal wetland or a special flood hazard area, as defined in Title 44, Code of Federal Regulations (CFR) sec.59.1; (G) an application for an amendment which proposes an expansion of a municipal landfill into a coastal wetland or a special flood hazard area, as defined in 44 CFR sec.59.1; (H) an application for a new permit for a commercial or industrial waste landfill to be located within a coastal wetland or special flood hazard area, as defined 44 CFR sec.59.1; (I) an application for an amendment that proposes an expansion of a commercial or industrial waste landfill into a coastal wetland or a special flood hazard area, as defined in 44 CFR sec.59.1; (J) an application for a new hazardous waste landfill to be located within a coastal wetland or a special flood hazard area, as defined in 44 CFR sec.59.1; (K) an application for an amendment to expand a hazardous waste landfill into a coastal wetland or a special flood hazard area, as defined in 44 CFR sec.59.1; (L) an application for a new water right proposing an appropriation of 5,000 acre-feet of water or more per year; (M) an application to amend an existing water right requesting: (i) an increase in appropriation of 5,000 acre-feet of water per year or more; (ii) a change in purpose of use to a more consumptive use of 5,000 acre-feet of water per year or more; (N) a certification of a federal permit for the discharge of dredge or fill material, which affects one or more acres in a critical area (as defined in sec.281.42 of this title (relating to Definitions)) and authorizes the discharge of not less than 1,000 cubic yards of dredged or fill material. (3) For actions on coastal barriers only: (A) any application for creation of a special purpose district whose service area would encompass, or partially encompass, a Coastal Barrier Resources System Unit as defined by the United States Fish and Wildlife Service under the Federal Coastal Barrier Resources Act, 16 United States Code (USC) sec.3502(7); or (B) an application for approval of a bond issue to support infrastructure projects encompassing, or partially encompassing a Coastal Barrier Resources System Unit as defined by the United States Fish and Wildlife Service under the Federal Coastal Barrier Resource Act, 16 USC sec.3502(7). sec.281.47. Actions Not Subject to Referral For Council Review. The following individual agency actions are not subject to 31 Texas Administrative Code (TAC) Subchapter C, sec.sec.505.30-505.42, Consistency and Council Review of Individual State Agency Actions providing these actions are taken pursuant to rules that the council has certified as consistent under 31 TAC Chapter 505, Subchapter B of the CMP rules (relating to Council Certification of State Agency Rules and Approval of Thresholds for Referral): (1) applications for renewal of domestic wastewater discharge permits; (2) applications for renewal of industrial wastewater discharge permits; (3) applications for renewal of confined animal feeding operation permits; (4) applications for renewal of commercial or industrial landfill permits; (5) applications for renewal of hazardous waste landfills permits; (6) emergency suspension of permit conditions relating to beneficial inflows to affected bays and estuaries in accordance with Texas Water Code sec.11.148; (7) declaration of an emergency and request for an emergency release of water under Texas Water Code sec.16.195; and (8) any other actions not specifically listed under this subchapter or that do not otherwise meet the requirements of 31 TAC sec.505.32 (relating to Requirements for Referral of An Individual State Agency Action). sec.281.48. Appendices. (a) Appendix A. Texas Natural Resource Conservation Commission (TNRCC) Authorizations Reviewable by the Coastal Coordination Council. Figure 1: 30 TAC sec.281.48(a) (b) Appendix B. Tidal Segments Designated as TNRCC Priority Waterbodies. Figure 2: 30 TAC sec.281.48(b) (c) Appendix C. TNRCC Designated Tidal Segments Located Within the CMP Boundary. Figure 3: 30 TAC sec.281.48(c) (d) Appendix D. Districts in the Coastal Barrier Resources System. Figure 4: 30 TAC sec.281.48(d) (e) Appendix E. TNRCC Rules Relating to Actions Subject to the Coastal Management Program. All or part of the rules contained in these chapters may require certification by the council as consistent with the CMP before thresholds provided in sec.281.46 of this title (relating to Action Which May Be Referred to the Coastal Coordination Council) become effective. The listing of these chapters in their entirety is not intended to indicate that all these chapters or all rules in these chapters must be certified for the thresholds to become effective. Figure 5: 30 TAC sec.281.48(e) This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's authority. Issued in Austin, Texas, on April 24, 1996. TRD-9605656 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: May 15, 1996 Proposal publication date: December 12, 1995 For further information, please call: (512) 239-4640 TITLE 31. NATURAL RESOURCES AND CONSERVATION Part II. Texas Parks and Wildlife Department Chapter 57. Fisheries Shell Dredging on the Texas Coast 31 TAC sec.57.45 The Texas Parks and Wildlife Commission in a regularly scheduled public hearing, January 25, 1996, adopts amendment to sec.57.45, concerning permit applications for shell dredging on the Texas coast, without changes to the proposed text as published in the December 22, 1995, issue of the Texas Register (20 TexReg 10974). The Coastal Management Program (CMP) was developed by the General Land Office (GLO) in conjunction with other agencies and the public. The regulations for that program direct the department to develop rules which ensure consistency with the CMP for four classes of activities. The proposed new and amended rules contain a general requirement of consistency and propose a threshold for referral for each of the activities. The threshold for referral determines which actions can be taken to the Coastal Coordination Council for review if a consistency issue is raised during the permit process. The GLO interprets the threshold requirement to apply only to permit and lease issuance, not denial. The adopted amendment to sec.57.61 was reviewed in the context of the Private Real Property Rights Preservation Act, Government Code, Chapter 2007 (Act) by legal counsel for the Resource Protection Division. The subject of the action is to make the issuance of marl, sand, and gravel permits from public waters subject to final approval by the Coastal Management Council after action by the Parks and Wildlife Commission. Because the subject of the proposed action is in all cases public property and no restrictions are imposed by the regulations on the use of private property, there is no takings impact within the purview of Chapter 2007. Furthermore, there are no governmental actions allowed by the proposed regulations which fall under the purview of the definition of a "taking" in sec.20 07.002(5) of the Act. The department received no public comment concerning the proposed amendment. The amendment is adopted under authority of Parks an Wildlife Code, Chapter 86, which gives the commission authority to manage, control and protect marl and sand of commercial value and all gravel, shell, and mudshell located within tidewater limits of the state. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's authority. Issued in Austin, Texas, on April 19, 1996. TRD-9605567 Bill Harvey Regulatory Coordinator Texas Parks and Wildlife Department Effective date: May 13, 1996 Proposal publication date: December 22, 1995 For further information, please call: (512) 389-4642 Issuance of Marl, Sand and Gravel Permits 31 TAC sec.57.61 The Texas Parks and Wildlife Commission in a regularly scheduled public hearing, January 25, 1996, adopts amended sec.57.61, concerning issuance of marl, sand and gravel permits, without changes to the proposed text as published in the December 22, 1995, issue of the Texas Register (20 TexReg 10974). The Coastal Management Program (CMP) was developed by the General Land Office (GLO) in conjunction with other agencies and the public. The regulations for that program direct the department to develop rules which ensure consistency with the CMP for four classes of activities. The proposed new and amended rules contain a general requirement of consistency and propose a threshold for referral for each of the activities. The threshold for referral determines which actions can be taken to the Coastal Coordination Council for review if a consistency issue is raised during the permit process. The GLO interprets the threshold requirement to apply only to permit and lease issuance, not denial. The adopted amendment to sec.57.61 was reviewed in the context of the Private Real Property Rights Preservation Act, Government Code, Chapter 2007 (Act) by legal counsel for the Resource Protection Division. The subject of the action is to make the issuance of marl, sand, and gravel permits from public waters subject to final approval by the Coastal Management Council after action by the Parks and Wildlife Commission. Because the subject of the proposed action is in all cases public property and no restrictions are imposed by the regulations on the use of private property, there is no takings impact within the purview of Chapter 2007. Furthermore, there are no governmental actions allowed by the proposed regulations which fall under the purview of the definition of a "taking" in sec.2007.002(5) of the Act. The department received no public comment concerning the proposed amendment. The amendment is adopted under authority of Parks an Wildlife Code, Chapter 86, which gives the commission authority to manage, control and protect marl and sand of commercial value and all gravel, shell, and mudshell located within tidewater limits of the state. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's authority. Issued in Austin, Texas, on April 19, 1996. TRD-9605570 Bill Harvey Regulatory Coordinator Texas Parks and Wildlife Department Effective date: May 13, 1996 Proposal publication date: December 22, 1995 For further information, please call: (512) 389-4642 Issuance of Oyster Leases 31 TAC sec.57.241 The Texas Parks and Wildlife Commission in a regularly scheduled public hearing, January 25, 1996, adopts amendment to sec.57.241, concerning issuance of oyster leases, without changes to the proposed text as published in the December 22, 1995 issue of the Texas Register (20 TexReg 10975). The Coastal Management Program (CMP) was developed by the General Land Office (GLO) in conjunction with other agencies and the public. The regulations for that program direct the department to develop rules which ensure consistency with the CMP for four classes of activities. The proposed new and amended rules contain a general requirement of consistency and propose a threshold for referral for each of the activities. The threshold for referral determines which actions can be taken to the Coastal Coordination Council for review if a consistency issue is raised during the permit process. The GLO interprets the threshold requirement to apply only to permit and lease issuance, not denial. The adopted amendment to sec.57.241 was reviewed in the context of the Private Real Property Rights Preservation Act, Government Code, Chapter 2007 (Act) by legal counsel for the Resource Protection Division. The subject of the action is to make the issuance of oyster leases in public waters subject to final approval by the Coastal Management Council after action by the Parks and Wildlife Commission. Because the subject of the proposed action is in all cases public property and no restrictions are imposed by the regulations on the use of private property, there is no takings impact within the purview of Chapter 2007. Furthermore, there are no governmental actions allowed by the proposed regulations which fall under the purview of the definition of a "taking" in sec.2007.002(5) of the Act. The department received no public comment concerning the proposed amendment. The amendment is adopted under the authority of Parks and Wildlife Code, Chapter 75, which gives the commission authority to regulate the planting and taking of oysters in public waters. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's authority. Issued in Austin, Texas, on April 19, 1996. TRD-9605568 Bill Harvey Regulatory Coordinator Texas Parks and Wildlife Department Effective date: May 13, 1996 Proposal publication date: December 22, 1995 For further information, please call: (512) 389-4642 Chapter 59. Parks Administration of the Texas State Park System 31 TAC sec.59.75 The Texas Parks and Wildlife Commission in a regularly scheduled public hearing, January 25, 1996, adopts new sec.59.75, concerning coastal management program, without changes to proposed text as published in the December 22, 1995 issue of the Texas Register (20 TexReg 10977). The Coastal Management Program (CMP) was developed by the General Land Office (GLO) in conjunction with other agencies and the public. The regulations for that program direct the department to develop rules which ensure consistency with the CMP for four classes of activities. The proposed new and amended rules contain a general requirement of consistency and propose a threshold for referral for each of the activities. The threshold for referral determines which actions can be taken to the Coastal Coordination Council for review if a consistency issue is raised during the permit process. The GLO interprets the threshold requirement to apply only to permit and lease issuance, not denial. The adopted sec.59.75 was reviewed in the context of the Private Real Property Rights Preservation Act, Government Code, Chapter 2007 (Act) by legal counsel for the Resource Protection Division. The subject of the action is to make the operation of the coastal management plan subject to final approval by the Coastal Management Council after action by the Parks and Wildlife Commission. Because the subject of the proposed action is in all cases public property and no restrictions are imposed by the regulations on the use of private property, there is no takings impact within the purview of Chapter 2007. Furthermore, there are no governmental actions allowed by the proposed regulations which fall under the purview of the definition of a "taking" in sec.2007.002(5) of the Act. The department received no public comment concerning the proposed new section. The new section is adopted under the authority of Parks and Wildlife Code, Chapter 26, which gives the commission authority to protect public parks. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's authority. Issued in Austin, Texas, on April 19, 1996. TRD-9605573 Bill Harvey Regulatory Coordinator Texas Parks and Wildlife Department Effective date: May 13, 1996 Proposal publication date: December 22, 1995 For further information, please call: (512) 389-4642 Chapter 65. Wildlife Subchapter G. Regulations for Taking, Possessing, and Transporting Threatened Nongame Species 31 TAC sec.65.174 , sec.65.182 The Texas Parks and Wildlife Commission in a regularly scheduled public hearing, January 25, 1996, adopts amended sec.65.174 and sec.65.182, concerning regulations for taking, possessing and transporting threatened species, with changes to proposed text as published in the December 22, 1995, issue of the Texas Register (20 TexReg 10978). Proposed sec.65.174(b) and sec.65.182(b) include a reference to permits issued under provisions of those sections. This reference, in both subsections, was amended by the Commission to reflect specific section provisions in sec.sec.57.271-57.283 concerning scientific, educational and zoological permits. The Coastal Management Program (CMP) was developed by the General Land Office (GLO) in conjunction with other agencies and the public. The regulations for that program direct the department to develop rules which ensure consistency with the CMP for four classes of activities. The proposed new and amended rules contain a general requirement of consistency and propose a threshold for referral for each of the activities. The threshold for referral determines which actions can be taken to the Coastal Coordination Council for review if a consistency issue is raised during the permit process. The GLO interprets the threshold requirement to apply only to permit and lease issuance, not denial. The adopted amendments sec.65.174 and sec.65.182 were reviewed in the context of the Private Real Property Rights Preservation Act, Government Code, Chapter 2007 (Act) by legal counsel for the Resource Protection Division. The subject of the action is to make the issuance of scientific, educational and zoological permits subject to final approval by the Coastal Management Council after action by the Parks and Wildlife Commission. Because the subject of the proposed action is in all cases public property and no restrictions are imposed by the regulations on the use of private property, there is no takings impact within the purview of Chapter 2007. Furthermore, there are no governmental actions allowed by the proposed regulations which fall under the purview of the definition of a "taking" in sec.2007.002(5) of the Act. The department received no public comment concerning the proposed amendments. The amendments are adopted under authority of Parks and Wildlife Code, Chapter 43, which provides the commission authority to regulate the taking, transporting, and possession of protected wildlife for scientific, zoological, rehabilitation, and propagation purposes. sec.65.174. Permit Required. (a) No person may take, possess, or transport fish or wildlife from the wild, classified as threatened by sec.65.173 of this title (relating to Threatened Species), for scientific or zoological purposes unless a valid scientific or zoological permit has been obtained from the department as required by the Texas Parks and Wildlife Code, sec.sec.43.021-43.030. (b) If the department determines that a permit issued under sec.sec.57. 271- 57.283 of this title (relating to Scientific, Educational and Zoological Permits) authorizes the take, transport, or possession of threatened species from within the Coastal Management Program Boundary as defined in sec.503.1 of this title (relating to Coastal Management Program Boundary), the department shall comply with the requirements of sec.69.91 and sec.69.93 of this title (relating to Consistency; Thresholds for Referral) and sec.505.30 of this title (relating to Agency Consistency Determination) prior to the issuance of the permit. Grant or denial of an application for a lease under this section is not a final agency action appealable for purposes of judicial review under the Texas Administrative Procedure Act, Texas Government Code, Title 10, Subtitle A, sec.2001.171, until the jurisdiction of the Coastal Coordination Council to review that action has lapsed. sec.65.182. Permits to Take Certain Fish or Wildlife. (a) No person may take, possess, or transport fish or wildlife classified as endangered species and named in sec.65.183 of this title (relating to Closed Seasons) for zoological gardens or scientific purposes, or take or transport fish or wildlife classified as endangered species from the wild or from their natural habitat, for propagation for commercial purposes, unless he has obtained a valid permit from the department as required by the Texas Parks and Wildlife Code, sec.sec.43.021-43.030. (b) If the department determines that a permit issued under sections sec.sec.57.271-57.283 of this title (relating to Scientific, Educational and Zoological Permits) authorizes the take, transport, or possession of endangered species from within the Coastal Management Program Boundary as defined in sec.503.1 of this title (relating to Coastal Management Program Boundary), the department shall comply with the requirements of sec.69.91 and sec.69.93 of this title (relating to Consistency; Thresholds for Referral) and sec.505.30 of this title (relating to Agency Consistency Determination) prior to the issuance of the permit. Grant or denial of an application under this section is not a final agency action appealable for purposes of judicial review under the Texas Administrative Procedure Act, Texas Government Code, Title 10, Subtitle A, sec.2001.171, until the jurisdiction of the Coastal Coordination Council to review that action has lapsed. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's authority. Issued in Austin, Texas, on April 19, 1996. TRD-9605569 Bill Harvey Regulatory Coordinator Texas Parks and Wildlife Department Effective date: May 13, 1996 Proposal publication date: December 22, 1995 For further information, please call: (512) 389-4642 Chapter 69. Resource Protection Endangered, Threatened and Protected Native Plants 31 TAC sec.69.6, sec.69.9 The Texas Parks and Wildlife Commission in a regularly scheduled public hearing, January 25, 1996, adopts amended sec.69.6 and sec.69.9, concerning endangered, threatened and protected plants, with changes to proposed text as published in the December 22, 1995, issue of the Texas Register (20 TexReg 10979). Adopted sec.69.6(b) and sec.69.9(d) include a reference to permits issued under provisions of those sections. This reference, in both subsections, was amended by the Commission to reflect specific section provisions in sec.sec.69. 1-69.14 concerning endangered, threatened and protected plants. The Coastal Management Program (CMP) was developed by the General Land Office (GLO) in conjunction with other agencies and the public. The regulations for that program direct the department to develop rules which ensure consistency with the CMP for four classes of activities. The proposed new and amended rules contain a general requirement of consistency and propose a threshold for referral for each of the activities. The threshold for referral determines which actions can be taken to the Coastal Coordination Council for review if a consistency issue is raised during the permit process. The GLO interprets the threshold requirement to apply only to permit and lease issuance, not denial. The adopted amendments to sec.69.6 and sec.69.9 were reviewed in the context of the Private Real Property Rights Preservation Act, Government Code, Chapter 2007 (Act) by legal counsel for the Resource Protection Division. The subject of the action is to make the issuance of permits to take, possess, and transport threatened or endangered plants from public property subject to final approval by the Coastal Management Council after action by the Parks and Wildlife Commission. Because the subject of the proposed action is in all cases public property and no restrictions are imposed by the regulations on the use of private property, there is no takings impact within the purview of Chapter 2007. Furthermore, there are no governmental actions allowed by the proposed regulations which fall under the purview of the definition of a "taking" in sec.2007.002(5) of the Act. The department received no public comment concerning the proposed amendments. The amendments are adopted under authority of Parks and Wildlife Code, Chapter 86, which gives the commission authority to regulate the taking of endangered, threatened, or protected native plants for the purpose of propagation, education, or scientific studies. sec.69.6. Scientific Plant Permit-Criteria for Issuance. (a) The department will consider the following criteria in determining whether to issue or deny an application for a scientific plant permit: (1) the performance of the applicant with respect to the observance of the terms of past permits; (2) whether the information obtained will benefit the department in the management of the species requested by the applicant; (3) whether the applicant has supplied adequate justification to substantiate the need to conduct the research; (4) whether the research would substantially or unnecessarily duplicate existing research being conducted by other permittees who hold permits from the department; (5) whether the applicant has adequate facilities to properly care for the plants requested; (6) whether the applicant has adequate experience and professional qualifications in the field of study relating to the research requested to properly conduct the research with reasonable expectations of success; and (7) whether the applicant has submitted a research proposal adequate to allow the department to properly evaluate the proposed research. (b) If the department determines that a permit issued under sections sec.sec.69.1-69.14 of this title (relating to Endangered, Threatened and Protected Native Plants) authorizes the take, transport, or possession of endangered or threatened species from within the Coastal Management Program Boundary as defined in sec.503.1 of this title (relating to Coastal Management Program Boundary), the department shall comply with the requirements of sec.69. 91 and sec.69.93 of this title (relating to Consistency; Thresholds for Referral) and sec.505.30 of this title (relating to Agency Consistency Determination) prior to the issuance of the permit. Grant or denial of an application under this section is not a final agency action appealable for purposes of judicial review under the Texas Administrative Procedure Act, Texas Government Code, Title 10, Subtitle A, sec.2001.171, until the jurisdiction of the Coastal Coordination Council to review that action has lapsed. sec.69.9. Commercial Plant Permit. (a) Each person who desires to take, possess, or transport for commercial sale or who sells an endangered, threatened, or protected plant or part thereof, and each person who hires or pays another person to take, possess, or transport an endangered, threatened, or protected plant or part thereof, from private land is required to purchase a commercial plant permit from the department. (b) Each person applying for a commercial plant permit will submit an application on a form provided by the department. (c) Each request for a permit will be accompanied by a copy of the landowner's consent to take the endangered, threatened, or protected plants requested and by the required fee for a commercial plant permit specified by this subchapter. (d) If the department determines that a permit issued under sections sec.sec.69.1-69.14 of this title (relating to Endangered, Threatened and Protected Native Plants) authorizes the take, transport, or possession of endangered or threatened native species from within the Coastal Management Program Boundary as defined in sec.503.1 of this title (relating to Coastal Management Program Boundary), the department shall comply with the requirements of sec.69.91 and sec.69.93 of this title (relating to Consistency; Thresholds for Referral) and sec.505.30 of this title (relating to Agency Consistency Determination) prior to the issuance of the permit. Grant or denial of an application under this section is not a final agency action appealable for purposes of judicial review under the Texas Administrative Procedure Act, Texas Government Code, Title 10, Subtitle A, sec.2001.171, until the jurisdiction of the Coastal Coordination Council to review that action has lapsed. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's authority. Issued in Austin, Texas, on April 19, 1996. TRD-9605571 Bill Harvey Regulatory Coordinator Texas Parks and Wildlife Department Effective date: May 13, 1996 Proposal publication date: December 22, 1995 For further information, please call: (512) 389-4642 Compliance With Coastal Management Plan 31 TAC sec.69.91, sec.69.93 The Texas Parks and Wildlife Commission in a regularly scheduled public hearing, January 25, 1996, adopts new sec.69.91 and sec.69.93, concerning compliance with coastal management plan. Proposed new sec.69.93 was adopted with changes to proposed text as published in the December 22, 1995 issue of the Texas Register (20 TexReg 10980). Proposed new sec.69.91 was adopted without changes and will not be republished. Section 69.93(2) was amended by removal of reference to the taking of wild species for zoological or commercial propagation. The department believes that this specific reference was misleading, and that the threshold for all permits relating to activities associated with endangered or threatened species should be an administratively complete application. The Coastal Management Program (CMP) was developed by the General Land Office (GLO) in conjunction with other agencies and the public. The regulations for that program direct the department to develop rules which ensure consistency with the CMP for four classes of activities. The proposed new and amended rules contain a general requirement of consistency and propose a threshold for referral for each of the activities. The threshold for referral determines which actions can be taken to the Coastal Coordination Council for review if a consistency issue is raised during the permit process. The GLO interprets the threshold requirement to apply only to permit and lease issuance, not denial. The adopted amendments to sec.69.91 and sec.69.93 were reviewed in the context of the Private Real Property Rights Preservation Act, Government Code, Chapter 2007 (Act) by legal counsel for the Resource Protection Division. The subject of the action is to make the operation of the coastal management plan and the issuance of permits to take wild species for zoological or commercial purposes subject to final approval by the Coastal Management Council after action by the Parks and Wildlife Commission. Because the subject of the proposed action is in all cases public property and no restrictions are imposed by the regulations on the use of private property, there is no takings impact within the purview of Chapter 2007. Furthermore, there are no governmental actions allowed by the proposed regulations which fall under the purview of the definition of a "taking" in sec.2007.002(5) of the Act. The department received no public comment concerning the proposed new sections. The new rules are adopted under authority of Parks and Wildlife Code, Chapter 43, which gives the commission authority to regulate the taking, transporting, and possession of protected wildlife for scientific, zoological, rehabilitation, and propagation purposes; Chapter 76, which gives the commission authority to regulate the planting and taking of oysters in public waters; Chapter 86 which gives the commission authority to manage, control and protect marl and sand of commercial value and all gravel, shell and mudshell located within the tidewater limits of the state; and Chapter 86 which gives the commission authority to regulate the taking of endangered, threatened, or protected native plants for the purpose of propagation, education, or scientific studies. sec.69.93. Thresholds for Referral. The thresholds for referral of actions of the Texas Parks and Wildlife Department listed in sec.505.11(a)(2) (G)(i)-(iv) of this title (relating to Actions and Rules Subject to Coastal Management Program) shall be as follows: (1) For oyster leases issued pursuant to sec.57.241 of this title (relating to Application for Oyster Lease), the threshold for referral shall be an administratively complete application for a lease. (2) For permits issued pursuant to sec.sec.57.271-57.283 of this title (relating to Scientific, Educational and Zoological Permits) as they concern the taking, transporting, or possession of threatened or endangered species; sec.sec.65.171-65.177 and sec.sec.65.181-65.184 of this title (relating to Regulations for Taking, Possessing, and Transporting Threatened Nongame Species); or permits issued pursuant to sec.sec.69.1-69.14 and 69.41, 69.43, 69. 45, 69.47, 69.49, 69.51, 69.53, 69.55, 69.57, and 69.71 of this title (relating to Endangered, Threatened, and Protected Native Plants; Wildlife Rehabilitation Permits), the threshold shall be an administratively complete application. (3) For permits authorizing the disturbance or removal of sand, shell, gravel, and marl issued pursuant to sec. sec.57.11, 57.41-57.51, and 57.61-57.76 of this title (relating to Authorized Methods for Removing Sand and Gravel from Public Waters; Shell Dredging on the Texas Gulf Coast; and Issuance of Marl, Sand, and Gravel Permits), the threshold shall be an administratively complete application for a permit. (4) For approval of development which requires the use or taking of any public land in state parks, wildlife management areas, and preserves by a person or entity other than the Texas Parks and Wildlife Department and which would be subject to Parks and Wildlife Code, Chapter 26 and sec.sec.59.31-59.34, 59.41- 59.47, and 59.62-59.64 of this title (relating to Park Planning and Development Projects, Acquisition and Development of Historic Sites and Structures, and Administration of the Texas State Park System), the threshold for referral shall be initial approval by the Texas Parks and Wildlife Commission of the project concept. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's authority. Issued in Austin, Texas, on April 19, 1996. TRD-9605572 Bill Harvey Regulatory Coordinator Texas Parks and Wildlife Department Effective date: May 13, 1996 Proposal publication date: December 22, 1995 For further information, please call: (512) 389-4642